ATTORNEY GENERAL'S CHAMBERS
15 February 1996
THE ATTORNEY GENERAL AND MATRIX CHURCHILL
Commenting on his role in the Matrix Churchill trial, Sir Nicholas
Lyell said:
"The Scott Inquiry has today made clear in its Report that
accusations that Ministers signed PII certificates in order to
"suppress" information and were prepared to see innocent men sent to
prison are completely false and without foundation.
My advice to Ministers on PII was fully in accordance with the law as
it then stood. It was supported by a range of court judgments and
followed the authoritative Opinion of Mr Michael Kalisher QC
(Chairman of the Criminal Bar Association 1991-1993), Mr John (now Mr
Justice) Laws and Mr Nicholas Ainley.
HM Customs and Excise is not a prosecuting authority which I
superintend and the Report makes no suggestion that I should have
become involved in the Matrix Churchill prosecution before I did. I
took the initiative to call a meeting to take stock of the case on 10
September 1992. Prosecuting counsel believed that the prosecution
was fair and assured me of this.
Much attention has been paid to the advice I gave the then President
of the Board of Trade. Mr Heseltine's PII certificate was specially
redrafted to emphasise that the final decision on whether documents
should be disclosed was for the court. Although prosecuting
counsel's instructions did not include my correspondence with Mr
Heseltine the system operated exactly as it was intended to do.
Every document was shown to the Judge. The Judge read the papers and
himself decided which documents should be disclosed. As Mr Heseltine
pointed out to the Inquiry at the oral hearings the result was what
he had been led to expect.
The Report recognises that the documents did not themselves show the
Matrix Churchill defendants to be innocent. The trial started on 12
October 1992, after the documents had been disclosed to the Defence.
It continued for nearly four weeks until Mr Alan Clark gave evidence
contrary to his previous statements. The prosecution then asked for
the defendants to be acquitted."
THE ATTORNEY GENERAL AND MATRIX CHURCHILL
Chronology
April 1992 Sir Nicholas Lyell succeeds Sir Patrick Mayhew as
Attorney General. Sir Derek Spencer becomes
Solicitor General.
2 Sept 1992 Sir Derek Spencer approves draft PII certificates for
Mr Heseltine, Mr Rifkind and Mr Garel-Jones.
4 Sept 1992 Attorney General's Legal Secretary told Mr Heseltine
unwilling to sign PII certificate. Certificate
redrafted by counsel.
5 Sept 1992 Sir Nicholas Lyell approves revised certificate for Mr
Heseltine but calls for meeting to take stock of
prosecution.
7 Sept 1992 Sir Nicholas Lyell writes to Mr Heseltine advising him
that it is his duty to claim PII but attaching the
specially worded certificate.
10 Sept 1992 Leading prosecuting counsel assures Sir Nicholas Lyell
that the prosecution is fair.
18 Sept 1992 Mr Alan Clark reinterviewed and confirms his original
witness statement.
5-7 Oct 1992 Judge Smedley rules that PII has been properly
claimed, balances the competing public interests and
decides which documents should be disclosed.
12 Oct 1992 Trial begins.
4-5 Nov 1992 Mr Alan Clark gives evidence inconsistent with his
previous statements.
9 Nov 1992 Judge directs acquittal at request of prosecuting
counsel.
10 Nov 1992 Sir Nicholas Lyell announces the Scott Inquiry.
Background
The Attorney General is the Government's Chief Legal Adviser. He
also has a statutory responsibility to superintend the Director of
Public Prosecutions and the Director of the Serious Fraud Office. He
does not have this responsibility in relation to Customs & Excise and
consequently does not receive regular briefing about their
prosecutions. He would only intervene, unusually, if some specific
concern was brought to his attention.
Sir Nicholas Lyell's first knowledge of Matrix Churchill
Sir Hal Miller MP wrote to Sir Nicholas Lyell, then the Solicitor
General, in December 1990. The correspondence was immediately
passed to Customs and Excise as the relevant prosecuting authority.
PII 1991 - September 1992
Between October 1990 and January 1992 the Attorney General's
department was obtaining an Opinion on the application of PII to
criminal cases from Mr Michael Kalisher QC, Mr John Laws (Treasury
Counsel) and Mr Nicholas Ainley. This advice was adopted and
followed by the Attorney General.
The department's first contact with the PII aspects of the
prosecution was in July 1991, when it was included in a list of
departments asked by the Secret Intelligence Service (SIS) to comment
on a draft PII certificate intended for the committal proceedings.
It was not sent the underlying documents. Neither the Attorney
General, Sir Patrick Mayhew, nor Sir Nicholas Lyell were consulted
but an official responded with drafting comments.
The absence of underlying documents was normal. Neither the
Attorney General nor his officials would normally see the documents.
Their main concern when advising on PII is to ensure that Ministers
act consistently and apply the right legal principles.
In October - November 1991 the Attorney General's department received
side- copies of draft PII certificates intended for DTI and Home
Office Ministers (Mr Lilley and Mr Baker), again without underlying
documents. Sir Nicholas Lyell was shown the certificates in November
1991, after some redrafting by leading counsel (Mr Alan Moses QC),
and was told of the proposal that Mr Moses should act for the Crown
on PII as well as prosecuting.
Events in 1992
Following the General Election on 9 April 1992 Sir Nicholas Lyell
succeeded Sir Patrick Mayhew as Attorney General and Sir Derek
Spencer became Solicitor General.
A new PII certificate was prepared for Mr Kenneth Clarke, the Home
Secretary. An SIS letter of June 1992, enclosing the draft and the
witness statement to which it referred, was side-copied to the
Attorney General's department. They did not comment and the papers
were not seen by the Attorney General.
PII and Mr Heseltine
Late on 2 September 1992 the Treasury Solicitor's Department asked
for three draft PII certificates to be cleared by the Law Officers
overnight. Unusually, the certificates were on this occasion
accompanied by some of the underlying documents, although not the
sensitive intelligence material. The certificates were to be signed
by Mr Garel-Jones at the FCO, Mr Rifkind at the Ministry of Defence
and Mr Heseltine at the DTI.
The papers were put to the Solicitor General, Sir Derek Spencer, who
proposed a number of drafting amendments, chiefly for the purposes of
consistency, to the principal FCO certificate. He also pointed out
that the note of the 20 January 1988 meeting between Mr Alan Clark
and the MTTA could not be subject to PII. This had been included in
the papers by mistake. The underlying documents were returned to
the Treasury Solicitor's Department at their request.
On Friday 4 September 1992 the Treasury Solicitor's Department told
the Attorney General's Legal Secretary that Mr Heseltine did not feel
able to sign the PII certificate approved by the Solicitor General.
It appeared from discussions with the Treasury Solicitor's Department
and with Mr Heseltine's Private Office that Mr Heseltine accepted the
existence of the PII classes in question, and also that it was in
principle against the public interest for documents in those classes
to be disclosed. But he believed that it was in the public interest
for the particular documents to be disclosed on this occasion,
notwithstanding that they fell into those classes. He did not want
to be seen as a party to suppression of documents which might be
helpful to the Defendants.
The Legal Secretary discussed the way forward with Mr Moses QC, who
drafted amendments to the certificate to emphasise that it was for
the Judge and not the Minister to weigh the competing public
interests in the confidentiality of the documents and the
administration of justice. The papers were then put to the Attorney
General urgently. They did not include the underlying documents
which had been returned to the Treasury Solicitor's Department. He
saw the departmental file which showed the Law Officers' limited
previous involvement. He was also told of the renewed allegation in
the press that Mr Alan Clark had given a nod and a wink to exporters.
The covering minute said that the prosecution appeared to be very
difficult and might come to a sticky end.
The Attorney General spoke to Mr Heseltine on the telephone over the
weekend, explaining the law and advising that a specially designed
certificate should meet Mr Heseltine's concerns. He approved the
revised draft certificate and a draft letter to Mr Heseltine, subject
to some minor drafting points, and minuted the Legal Secretary on
Saturday 5 September 1992 saying "I wish to take an overview of this
prosecution to assess the pros and cons. I have an overall
responsibility and this prosecution having been drawn to my
attention, I think stock should be taken." A meeting with Mr Moses
and with the Solicitor to Customs and Excise was arranged.
The revised draft certificate was sent to Mr Heseltine on Monday 7
September. The Attorney General advised that, as the law then stood,
if a Minister accepted that documents fell within a class which
should normally be immune from production as a matter of public
interest, it was his duty to make the PII claim whatever his personal
views about the desirability of disclosing the particular documents
in question.
In line with the Kalisher/Laws/Ainley joint opinion, the Attorney
General said that the PII claim was a duty not a right. He quoted
from the Makanjuola case, advising that the so-called Makanjuola
exception (allowing voluntary disclosure if the court was bound to
order disclosure) did not apply. This followed the view of
prosecuting counsel, Mr Moses, that it was not clear that in
balancing the competing interests the court would find in favour of
disclosure.
The Attorney General explained that the amendments to the certificate
were designed to emphasise the point that in claiming PII Mr
Heseltine was not expressing any view as to whether, looking at the
overall balance of the public interest, the documents should be
disclosed and said that this could if necessary be emphasised by
prosecuting counsel orally. He expected other Ministers to wish to
adjust their certificates accordingly. Mr Moses subsequently told
the Treasury Solicitor's Department that he did not consider this
necessary and, Ministers having been advised accordingly, no
amendments were in fact made.
10 September 1992 meeting
The meeting to take stock of the prosecution which the Attorney
General had requested in his note of 5 September 1992 took place with
Mr Moses and the Solicitor to Customs and Excise on 10 September. On
7 September the Solicitor to Customs and Excise had independently
written to the Attorney General's department referring to the need to
reinterview Mr Alan Clark following further press articles. The
Solicitor General, Sir Derek Spencer, and officials were also present
at the meeting.
Mr Moses explained the basis on which the case was being put and
assured the Attorney General that the prosecution was fair. There
was nothing in the documents that would undermine the prosecution.
On the question of PII, Mr Moses thought it likely that the judge
would in fact order disclosure of most of the documents but did not
suggest and did not believe that disclosure was inevitable. It was
agreed that following further press articles, Mr Alan Clark's
position must be clarified by Customs & Excise. Their prosecution
could not continue if Mr Clark confirmed the remarks attributed to
him.
On 11 September 1992, Mr Heseltine wrote to the Attorney General
thanking him for his letter of 7 September which had found a way of
reconciling his duty to claim PII with his view that at least some of
the documents should be disclosed. He had now read the documents in
question and satisfied himself that they fell within the relevant
classes. He confirmed that he had signed the PII certificate in its
revised form.
Mr Moses' instructions
Mr Moses was instructed by the Treasury Solicitor's Department on
behalf of the DTI in relation to PII. The Attorney General virtually
never sees a brief unless he is himself appearing for the Crown in a
particular case, nor could his small team be deputed to take on such
work. The Attorney General believed, in view of Mr Moses' discussion
with the Legal Secretary on 4 September about the drafting of Mr
Heseltine's PII certificate, that Mr Moses was well aware of Mr
Heseltine's concerns. He also expected that his exchange of letters
with Mr Heseltine, which had been immediately copied to the Treasury
Solicitor's Department, would be included in Mr Moses' brief for the
trial. This did not happen and the DTI did not respond to the
Treasury Solicitor's Department's request as to whether counsel
should be instructed to put any particular representations to the
court on Mr Heseltine's behalf.
Mr Moses gave evidence to the Inquiry that he had understood Mr
Heseltine's concern to be that the PII claim would be represented as
a cover-up and had not appreciated that Mr Heseltine thought at least
some of the documents should be disclosed. He told the court that
all Ministers were taking the same stance. But Mr Moses emphasised
that Ministers were leaving the decision about what should be
disclosed to the Judge and were merely asserting what it was their
duty to assert.
Judge Smedley (now Mr Justice Smedley) in his ruling specifically
noted that Mr Heseltine's certificate emphasised that his concern was
only with whether the documents were prima facie immune from
discovery and that the final decision on disclosure was for the
Court. This was what the Attorney General's letter of 7 September
had envisaged. The omission of the correspondence from the
instructions made no difference to Judge Smedley's decision.
The Pre-Trial Hearings: 30 September - 1 October, 5 - 7 October 1992
On 1 October 1992 the defence applied for disclosure of the documents
covered by the PII certificates. Judge Smedley read all the
documents and expressly acknowledged that the PII claims had been
properly made. Having balanced the competing public interests, he
ordered on 5 October that all the category B (formulation of policy)
documents should be disclosed but that the category A ("informant")
documents should not. As to the category C (security and
intelligence) documents he initially declined to order disclosure
but, having heard the nature of Mr Henderson's defence, on 7 October
ordered, with Mr Moses' agreement, that the documents be disclosed in
an edited form which would protect the passages for which PII was
claimed on a contents, as opposed to a class, basis. The documents
were immediately provided to the defence and the trial began the
following Monday 12 October.
The Trial: 12 October - 10 November 1992
Customs & Excise reported on 7 October that Mr Clark had said that he
stood by his earlier witness statement and that on counsel's advice
the prosecution would therefore proceed.
On 4-5 November Mr Alan Clark was called as a witness for the
prosecution but under cross-examination gave evidence which was
inconsistent with his sworn statement, and with his confirmation of
that statement in September 1992. The case was adjourned until 9
November at the request of the prosecution. The Attorney General and
Solicitor General were informed that, following counsel's advice, the
Commissioners of Customs & Excise took the view that the prosecution
could not properly continue in the light of Mr Clark's evidence.
On 9 November 1992, at prosecuting counsel's request, the Judge
directed the jury to acquit the Defendants. The following day the
Attorney General made a Statement in the House announcing that a full
and independent inquiry would be undertaken by Lord Justice Scott.
