The Justice Game

by Geoffrey Robertson

  On this score, Paul Henderson was unapologetic – as a law-abiding managing director, he would sell them and send them wherever government policy permitted. And since the government knew full well that his orders came from Iraqi munitions factories, he saw no reason to reproach himself for fulfilling them and securing jobs for his workforce. He had acted as the law requires of every director – lawfully and in the best interests of his company. It was for the government to make the political and moral judgment on whether a British company should be permitted to provision bomb factories in Iraq, and that judgment had been unequivocally in the affirmative. His problem was caused by the fact that the government was just not prepared to make it out loud.

  When I looked up the law I expected to find a clear rule which banned arms-related trade with Iraq. What I discovered instead was a law requiring exports of machine tools to be licensed by the DTI, which had a special department which would grant or withhold licences according to ministerial policy at the time. That policy, as published, was the Howe Guidelines. But since policy is discretionary, it could change secretly, with a change of minister or a minister’s change of mind. The law was what the government did, not what it said. So if there was a secret policy operating to allow weapons-related trade with Iraq, we might have a defence. But how could this be proved, when two ministers and two very senior civil servants would be called by the prosecution to deny it? Such a massive boost to Iraq’s capacity to wage war would never have been permissible under the Howe Guidelines: this they maintained, with what seemed from their witness statements to be a straight face. Against the word of people of such probity, the case looked hopeless.

  I cannot claim much credit for the action which burst a vast dam of mendacity, releasing a torrent which eventually drowned the prosecution and almost capsized the government. The tactic was obvious as we sat at our first meeting around the large table in my chambers in Doughty Street. What I said to Paul Henderson was ‘the truth will set you free’. That is a trite sentiment but rare as professional advice: for someone facing jail it had a consequence that needed to be spelled out. ‘If your story is true, there will be a paper mountain in Whitehall to prove it. Every meeting you had with MI6 would be written up, analysed and circulated. That will establish whether you really did tell them what Matrix Churchill was doing. You say you were encouraged by Alan Clark, who knew the tools were to make bombs – there will be official minutes of that meeting, briefing papers to the minister – that’s the way Whitehall works. The truth will be trimmed and twisted a bit, but it will be there. If it’s not there, then the jury will be sure you are lying and convict. If we don’t ask for the documents, then maybe – just maybe – they will believe your word. Do you really want us to demand disclosure?’

  Henderson answered in a way which demonstrated genuine surprise that I had found it necessary to ask. I had given carefully phrased warnings about how damaging it might be if he was not telling the truth, for in that case we would be excavating evidence against him – the downside for any defendant who demands disclosure. Paul’s reaction was that of a man utterly and honestly convinced that the truth would set him free. So on 15 June 1991 we sent a formal four-page letter to the prosecution, demanding disclosure of all the documents which had to exist if Paul Henderson was innocent.

  We were under no illusions about the difficulty of extracting this material – most of it would be embargoed from release for thirty years under the Public Records Act, while all MI5 and MI6 records of dealings with Henderson were suppressed by that Act for a century. But the law under which Paul was charged pivoted upon government policy, so we must be entitled to the documents which revealed what government policy really was. Further, Paul’s defence was that ‘HMG knew’ because he had told it, as part of the information he was providing to MI6, and so it was essential to see records of what he had told his MI6 controller. Our application came just at the time when the Court of Appeal, overturning the wrongful conviction of Judith Ward for an IRA bombing, had warned prosecutors most emphatically of their duty to disclose all relevant documents to the defence.

  I had no idea at the time of the fury that our discovery application caused in Whitehall departments, or that Alan Moses was climbing up the wall in anger at their reluctance to comply. The heads of these departments decided to bring in their biggest guns – four senior government ministers, no less – to certify that the documents we needed for Paul’s defence could not, in the national interest, be entrusted to us. These documents fell into two separate categories. There were policy documents – comprising some five hundred pages of minutes and memoranda to and from ministers which we hoped would demonstrate that no fewer than three departments – the DTI, the MOD and the Foreign and Commonwealth Office (FO) – knew that the Matrix Churchill machine tools were going to Iraq to make bombs and rockets; and intelligence documents – a swathe of several hundred pages from MI5 and MI6 recording some forty meetings with Henderson and his colleague, Matrix Churchill’s sales director, Mark Gutteridge.

  Release of the policy documents was essential if justice was to be done. Their release would cause no damage, in the sense that they gave away no secrets and revealed nothing which, eighteen months after the recapture of Kuwait, could further harm British relations with Iraq. Nevertheless Malcolm Rifkind (a QC) and Tristan Garel-Jones (a barrister) formally certified to the court that it was ‘against the public interest to reveal the process of providing for ministers honest and candid advice on matters of high level policy’. Hence the production of the policy documents ‘would be injurious to the public interest and it is necessary for the proper functioning of the public service that the documents should be withheld’.

  These ministers were solemnly stating that secrecy was essential to the functioning of the public service. Their argument that future civil servants would be inhibited from giving ‘frank and honest’ advice to ministers because of the possibility it might be revealed in a court was insulting and irrational: on the contrary, the prospect of disclosure is a spur to candour and honesty. Indeed, the documents were to show that what civil servants had been giving ministers was not candid and honest advice at all: it was advice on how to be uncandid and dishonest, how to mislead Parliament and keep policy changes from the public. It was astonishing that anyone could think that such behaviour represented a public service functioning ‘properly’. Michael Heseltine (ironically, the only non-barrister to sign a PII certificate) privately recognised the danger of injustice, but the Attorney General (Sir Nicholas Lyell QC) brushed aside his concerns and did not even bother to read the documents before directing that these certificates should be presented to the court, in an attempt to persuade the judge to withhold the documents from the defence. (The inability of all these barrister-ministers to comprehend where the interests of justice lay shows how important it is to remove politicians from having any role in criminal trials.)

  Alan Moses was scrupulous to invite the judge to read the documents and make the final decision. The PII certificates were designed to stack the odds heavily against us, however, because they were government declarations that revelation would damage the national interest. The judge would weigh against that their importance to what he imagined the defence case would be, and here Alan made and repeated the claim that the documents would provide no assistance at all to the defence. This argument was (as Lord Justice Scott later found) ‘quite unreal’: I would have given my ‘eye teeth’ for them because their value for cross-examination was ‘so obvious as to be hardly worth stating’. How could Alan Moses say otherwise? The fact that he was the fairest of prosecutors led one co-defending counsel to urge me to abandon the application.

  The answer is important because it illustrates a limitation of the adversarial system. However competent and fair an advocate may be, he or she is nonetheless a player in the justice game. We become so psychologically committed to our own side that objective judgment becomes impossible. Alan had very little time to digest seven hundred
photocopied pages, and he had no idea of our defence. He thought it would pivot on a technical quibble about whether the machine tools were ‘specially designed’ for arms, and to this the documents were irrelevant. He did not turn a blind eye, because his eyes were only focused on the case he had prepared according to his instructions. This astigmatism affects all counsel, and the fact that in the Matrix Churchill trial it affected the fairest serves forcefully to make the point that no prosecutor can be expected to decide what is truly relevant to the defence.

  Are judges any better as determiners of what information the defence should have? Only marginally, I think, despite Judge Smedley’s celebrated decision that we should have the policy documents. He had been placed under considerable pressure by ministerial claims that ‘unquantifiable damage’ would be caused by disclosure (under examination by Scott, Garel-Jones gave the risible reply that by this he intended to mean ‘unquantifiably small’ as well as ‘unquantifiably large’). Smedley was a careful and cautious judge who agonised over his decision and came up with the Solomonic solution that the interests of the public service might be damaged in defending Mr Henderson, but not the interest of national security – so he denied us the intelligence documents. Faced with the ministerial certificates, I suspect many circuit judges would have buckled and denied the policy documents as well.

  In respect of the intelligence documents – the MI5 and MI6 records of meetings with Henderson and Gutteridge – Home Secretary Kenneth Clarke certified:

  ‘their disclosure is likely to prejudice national security by revealing matters knowledge of which would assist those whose purpose is to injure the security of the UK, and whose actions in the past have shown that they are willing to kill innocent civilians both inside and outside the UK in pursuance of this purpose’.

  You can’t argue against that. ‘Innocent lives at stake’ is the ultimate argument, one that when made by the Home Secretary of the day no court can ignore. The judge upheld it, as any judge was bound to do. Yet all I was asking for was the evidence of what my client had said to his controller, the best evidence to establish his defence that HMG knew about his arms-related contracts because he had told MI6 all about them. This was vital to prove his innocence and could not conceivably have put lives at risk. I did not even need the actual records of his meetings – a retyped transcript, without the MI6 layout, would have served. After the trial collapsed, the government would claim that PII certificates were formalities which judges could easily brush aside, and were in no sense ‘gagging orders’. Ken Clarke’s certificate was exactly that, because it played the one card – ‘lives at stake’ – which in litigation trumps all others.

  Clark’s PII certificate won the day: Judge Smedley upheld it and refused to let me see the intelligence documents. But wait a minute – on reading the policy documents overnight, it became apparent from them that Whitehall knew very well that the Matrix Churchill machine tools were going to make bombs. Where would they have obtained this knowledge, but from the Security and Intelligence Services? And where would SIS have obtained it, other than from its Matrix Churchill agents, Gutteridge and Henderson? So I decided to have another crack. The judge had ruled against me with the usual put-down that the defence was ‘on a fishing expedition’. This has never seemed a good reason for refusing disclosure – probably because I am a keen fisherman and the object of all my fishing expeditions is to catch fish. What I needed for this exercise was a sufficiently strong line to reel in the MI6 catch. Barristers dislike revealing their defence until the last moment, but the logic of Paul’s defence was that the truth would set him free, and the sooner the prosecution came to grips with it the better. It would mean blowing his cover by revealing in open court his spying role and that of his friend Mark Gutteridge. But Clarke’s PII certificate left me no choice: it was ironical that the Home Secretary’s hysterical claim that lives were at stake was itself an action which put these two innocent lives at some risk. It was with mixed feelings that I rose to renew my application for the intelligence documents.

  The case against Henderson is that he deceived the government. We will show that the government was not for one moment deceived. We intend to support that proposition by evidence that the Security and Intelligence Services, the agents of the government in this matter, were supplied by Paul Henderson himself, and to Paul Henderson’s knowledge by Mark Gutteridge, a colleague and fellow employee of Matrix Churchill, with information about all the Matrix Churchill dealings with Iraq . . . There is no doubt that records exist of the meetings between them and their respective SIS controllers . . . we contend that the Home Secretary is under a legal and moral duty to disclose these records. It arises from the fact that Mr Henderson was prevailed upon, despite a risk to his life and to his job, to provide detailed information about the activities of senior Iraqi intelligence officers . . . he cannot now be denied the evidence which arises from his loyal work for the Crown and which is necessary for his defence to a serious criminal charge.

  The argument went on – legal arguments always do – but in its course Alan Moses interrupted, first to agree with its legal basis (that disclosure to MI6 was disclosure to HMG) and then actually to concede. He asked for a short adjournment to consult SIS, and returned to promise the intelligence documents that very afternoon. In a matter of minutes, documents the revelation of which the Home Secretary had sworn would endanger innocent lives were to be handed over – without even bothering to tell him that his PII certificate had just been torn up and binned. I doubt whether the judge would otherwise have decided the point in our favour, since he had decided against us on the previous day. But now, suddenly relieved by the prosecution of any need to weigh justice to the defendants against possible loss of life, he ordered the release. After the trial the media feted him as a liberal hero, although this accolade more accurately belongs to Alan Moses, who took the decision that justice came first, ahead of the Home Secretary’s wild claims about national security. He demonstrated the virtue of a system which entrusts control of prosecutions to barristers independent of the State.

  Put together with the policy material, in a vast chronology, spanning ninety-two pages and the decade from the beginning of the Iran/Iraq War to the invasion of Kuwait, these documents transformed the trial. The story they told was that the defendants had not deceived HMG: on the contrary, HMG knew and HMG approved.

  It was a story of a government which wanted it both ways. It wanted to strut the world stage wringing clean hands about the horror of the long war between Iran and Iraq which cost one million lives, while at the same time encouraging British business to profit by helping the warring parties to kill each other. To cash in and to condemn while cashing in, that was the object. It was accomplished because the sermons were publicly delivered through one great department of State (the FO) and the arms were delivered by secret permission of another (the DTI), while a third (the MOD) looked on apprehensively. It was a classic exercise in diplomatic hypocrisy, but if the cake was to be both had and eaten, the British people and their irritating representatives in Parliament (who were always asking questions in the hope of getting their names in the newspapers) had to be kept in the dark. Ministers answered their questions by obfuscating, then by equivocating and then quite simply by lying. The only people who knew they were lying were the civil servants who drafted the mendacious answers, sometimes for ministers so naive that they did not realise they were lying. Vast amounts of defence-related exports were licensed for Iraq (or for Jordan, in the knowledge that it was a ‘front’ for Iraq). On 1 August 1990, Saddam spoilt it all by invading Kuwait.

  Until this point both faces of the British State had smiled on Paul Henderson. He had been permitted by the DTI to export to munitions factories, on which he spied for the FO. He had been run by MI6 (which works under FO cover) and had risked his life gathering information about Iraq’s armaments on his visits to its closely guarded weapons factories. The reason he had such unique access was simple: he was exporting a
rms-making equipment to these factories. Indeed, the Coventry company of which he was managing director was actually owned by the Iraqi government and chaired by the head of its arms-procurement effort, the high-ranking intelligence officer Dr Saffa Al-Habobi. Anyone who knew these facts could deduce that Matrix Churchill was in the business of supplying arms-related equipment to Saddam. So were many other bigger and better-known British companies, like Racal and Plessy. As a result, Britain gained money, jobs and friendly diplomatic relations. To enjoy these benefits, it was necessary to overlook the brutal nature of Iraq’s Ba’athist regime, and the fact that on 17 March 1988 its army loosed off hydrogen cyanide at Helebja killing 5,000 Kurds and maiming 7,000 for life. Saddam would use his British machine-tool-made arms to kill Kurds and Iranians (until the truce in August 1988), and thereafter would use them to kill other peoples he hated, most especially Jews and Saudis, although it was the Kuwaitis he turned on first – calculating that countries happy to sell him military technology would not object too strenuously if he used it.

  The cost-benefit analysis of weapons-related trade with Iraq would, one might think (if one were not William Waldegrave), be worth debating in any democracy – in Parliament, on television and in pubs and clubs throughout the land. But it could not be debated or even mentioned, for then our diplomats would be unable to affect a high moral tone at conferences in Geneva and New York. And any debate might upset the highly strung Saddam and cause him to take his trade elsewhere. So the government decided that democratic debate there should not be. The Howe Guidelines were altered without any publicity. The changes, permitting substantial defence exports to Iraq, were made in secret and communicated in secret to exporters, who were told to ship their goods quietly. This truth could be gleaned from the documents, in hand-written comments by departmental heads: ‘We must keep as quiet as possible about this politically sensitive issue. We do not wish to face the FO with presentational difficulties,’ said one mandarin from the DTI. ‘If it becomes public knowledge that the tools are to be used to make munitions, deliveries would have to stop at once. The companies should be urged to produce and ship as fast as they can,’ said a very senior diplomat at the FO, secretly conniving at a massive breach of the Howe Guidelines.