The Justice Game

by Geoffrey Robertson

  One DTI witness pretended that nothing would have been licensed for export to Nassr had they known it might have a military use – time and again the documents confounded him:

  Q: Now, rifles and shotguns are lethal equipment, are they not?

  A: Yes.

  Q: Just look will you please at page ten. Here you approve a licence to export some £88,000 worth of rifles and shotguns to the Nassr State enterprise.

  A: Yes.

  Q: And we find the entry ‘sporting use’?

  A: Yes.

  Q: What sport was being played at Nassr that required these shotguns?

  A: I don’t know.

  Q: Nassr was not a game park. They were going to kill humans, not animals?

  A: I don’t know.

  Q: Do you really want to confirm your earlier answer that ‘if there was any military element to it a licence would be refused . . .’?

  A: Well, as you say they are lethal weapons and . . .

  Q: They were, and they were going to Nassr?

  A: Yes.

  Q: Are you really telling us that throughout your time as DTI representative on the Inter-Departmental Licensing Committee you had no idea what Nassr was?

  A: Yes, I am saying that.

  Q: Here you were approving a licence for shotguns to go to a place and you had no idea what it was?

  A: Well I do not recall that particular case, I’m afraid.

  The government knew that Matrix Churchill machine tools were going to make munitions at Nassr, and secretly approved their export for this purpose. All that was required to stop this trial was to find a witness who was prepared to say so without equivocation. Frankness was not forthcoming from the DTI. Its most senior official was Eric Beston, nicknamed ‘Sir Humphrey’ at the Bar table on account of his slip-sliding answers. He would not accept that he knew the machine tools would make munitions. Yes, he knew that they were going to Nassr, and yes he knew that the factory made munitions, but he did not ‘necessarily’ know that the machine tools would be used there to make munitions. (He had written to superiors some time before the trial: ‘Cross-examination could prove tricky. Departments were aware that machines were destined for munitions manufacture.’) Beston cut a sorry figure at the Scott Inquiry when confronted with his misleading answers. ‘I got myself into quite a tangle . . . I simply misled myself . . . I got myself into a state of confusion.’ At the time, I felt he was trying to get me into a state of confusion. Scott’s conclusion was that ‘Mr Beston’s evidence given at trial . . . was not frank evidence but was overly conditioned by a desire to avoid answers that might prove embarrassing to senior officials and ministers of his department’.

  The intelligence documents Kenneth Clarke alleged would put lives at risk were eventually delivered to my chambers by commercial motor-bike. Much of the information on them was blacked out, or ‘redacted’ – an awful Americanism our civil servants have borrowed from the CIA because it sounds better than ‘censored’. The censorship was not consistent: sometimes the well known and widely published postal addresses of MI5 (‘Box 500’) and MI6 (‘Box 850’) would be blacked out – truly a redaction ad absurdum. The judge, unaware how frequently they had been published over the last twenty years, seemed to think that they were a top-secret code, and could not understand why they were mentioned in court. He had, like the prosecutors, been ‘positively vetted’, and his attitude to anything alleged to involve national security made cross-examination akin to talking on eggshells.

  The Crown had no option but to call the two secret servicemen who had been Gutteridge and Henderson’s controllers, to try to block Paul’s defence that ‘HMG knew’. They came to court with all the aura of the secret State to enhance their testimony: the jury would want to believe them, because they had the imprimatur of organisations we all trusted with the fight against the IRA and the KGB. Moreover, their credibility would be enhanced by the security precautions the judge was determined to take: a specially built witness box, curtained off from the press and the public gallery, with entrance through a special passageway. Their real names would not be known, their background and expertise would be taken for granted. All these precautions would cry out to the jury, ‘Believe these men. They are testifying to you at the risk of their lives.’ The normal arrangements which conduce to truth-telling by witnesses – the simple fact that they are seen for what they are, and can be prosecuted for perjury if they lie – would be missing. That fate can hardly befall a pseudonym.

  Balsom, the man from MI6, was tricked up in an ill-fitting wig and spectacles of clear glass. Did he, I wondered, feel any real friendship for Paul Henderson, or was he regarded merely as an agent to be milked of information and then professionally disconnected when he became an embarrassment? The latter, I suspected, and it coloured my initial approach to this witness whose statement had been so niggardly with the truth. No serving MI6 officer had ever given evidence in court before, and Paul certainly had the sense – it was deeply and hurtfully felt – that the agency had abandoned him. We feared Balsom would be well rehearsed for his public debut, trained to play the cross-examiner’s nightmare – a skilled witness adept at turning your every question to your client’s disadvantage. So I had prepared a different style of examination, one which would try to disconcert him before taking him to task over the gaps in his witness statement.

  I started my prepared line of questioning, hoping that it would disrupt his prepared line of answering. Then, somewhat to my surprise, in explaining his concern that Saddam was developing nuclear weapons, he added ‘And thank God he didn’t’. For the first time in this trial – which had now lasted four weeks – you could sense a jolt of passion. All the previous witnesses had spoken of Saddam Hussein as if he were as morally neutral as their milkman. This witness had just given away, by invoking the deity, the fact that he really cared about the potential victims. So I changed mental gear, closed my notebook and opened instead the book he had given to Paul – Republic of Fear.

  Q: You remember giving him this book?

  A: Yes.

  Q: And inviting him to read it to understand just how dangerous the characters and personalities he was dealing with were?

  A: Yes. And also because I think that it is a superb description of the appalling regime in Iraq.

  Q: Its message is that there has been a ruthless and relentless build-up in Iraq of terror; and that Iraq was a dictatorship based on terror?

  A: Yes, I agree.

  Q: And it describes Saddam Hussein himself as the only genuinely free man in Iraq, as a megalomaniac whose secret police and court system have been devised to torture and execute those who were disloyal to the State?

  A: Yes.

  Q: And it particularly stresses that disloyalty was regarded as acts of spying, or hostility to the State?

  A: Yes.

  This was MI6 speaking. If the regime was so terrifying, what did they think of the man whom they were encouraging to spy on it? Balsom did not even draw breath – he blurted out the character reference before I had finished the question:

  Balsom: Mr Henderson was a very brave man. Together with all the pressures on his business, to take this extra risk he was extremely brave. There are very few people who would take such risks and take them so much in their stride, with all the pressures on him.

  Q: You accept that in Iraq he was running personal risks?

  A: Absolutely. Our relationship was voluntary, but as I say he was a very, very brave man.

  This was the most electric, transforming moment of the trial. For four weeks the jury had heard about Paul Henderson the deceiver of ministers and the merchant of death. They had been bored stiff by my questions to engineers about ‘special design’, a possible technical defence, and they had fidgeted while I fenced with fork-tongued civil-servants. Suddenly, the full horror of Iraq had broken through the verbiage, and the man in the dock had been turned into someone more deserving of a medal than a prison sentence. I was simply thrilled – I could feel m
y neck hairs tingle under the horse-hair of the wig. Paul Henderson’s courage had been a burden for months, and now, for whatever reason, it had been lifted. Was this MI6’s answer to Customs, its punishment of the prosecution for putting its agent’s life in peril? Or was it what it really seemed: a spontaneous and heartfelt answer? That was how the jury took it, and they began to narrow their eyes in the direction of the prosecutors.

  That afternoon, Alan Moses became so concerned about the propriety of prosecuting a man who had rendered such service to his country that he doubted whether he should continue with the case. His anxiety was relayed to the head of Customs, Sir Brian Unwin, who fired off a highly improper letter of complaint to Sir Colin McColl, the head of MI6. ‘We were extremely surprised – to say the least – at the nature of the testimonial your officer gave to Henderson in response to questions from Henderson’s counsel . . .’ It received a robust response from Sir Colin: ‘Whilst I can quite see why this was less than welcome to prosecuting counsel, I myself see no cause for criticism where a witness speaks sincerely and impartially on such a matter’. Lord Justice Scott, asked later to referee this extraordinary spat, fully agreed with MI6: ‘That Mr Henderson had been at great personal risk should have been blindingly obvious to Customs and to anyone else who considered the matter. Mr Barzoft’s fate demonstrated the fact.’

  I was not privy to the prosecution’s disarray: I was too busy preparing for the big event of the morrow, the confrontation with Alan Clark. His reputation preceded him into the witness box. He was an intelligent and witty historian. (Where did you read history? he was asked. ‘In an armchair,’ he replied.) He had a classy lifestyle and a sweep of mind that made journalists fawn (his sex life had yet to hit the headlines). In the familiar bestiary of the British class nursery, I suppose Alan Clark is Mr Toad: an animal of somewhat reckless vanity who nonetheless inspires great affection from kind and decent colleagues, but provokes the constituted authorities – policemen, judges, permanent secretaries – to humourless rages. His obsessions are as fervent as Toad’s, his home (Saltwood Castle) even more stately and his collection of vintage cars just as impressive. He stood out from the stoats and the weasels of the Thatcher regime, partly because he was more honest and partly because he was completely untouched by the petty corruption and petty cowardice in which many of them were mired. Like Toad, he escapes. The government tried to make him the sole scapegoat for the collapse of the Matrix Churchill trial, but he persuaded Lord Justice Scott that he was not to blame. I do not myself approve of all that he says or does, but I approve of him, for a fairly simple reason: Alan Clark genuinely cared about the possibility of Paul Henderson’s innocence.

  I did not know this, of course. I had never met the man. I had his witness statement which was implacably hostile, and a recent press cutting from which he seemed more friendly. My approach to our day together at the Old Bailey was to try to get inside a head that might turn too easily. There was no point in trying to bully or cajole: he was a politician, experienced in playing with words, and a wit adept at playing on words. He could be hostile if put on his mettle by criticism, or derisive if stung by sarcasm. I really had no idea what would happen, just an inkling that the key to it all might be history. The documents were the raw material of history, and Clark was by training and predilection a historian. So cross-examination would work, if at all, as a history seminar, in which Clark the popular historian would interpret, with some prompting, an episode laid bare in contemporary documents. That was, I think, how and why we got on.

  The seminar was to last only three hours, but by its end Alan Clark had demolished the prosecution. Our history book was the ‘defence bundle’ of five hundred indexed pages extracted over the Government’s objection from the secret policy and intelligence documents: without it, the cross-examination would simply not have been possible. Clark relaxed, after a time, and gave us his interpretation of the events in which he featured at the centre, almost as a fly on his own ministerial wall. He explained how the ‘tiresome and intrusive’ guidelines had been secretly changed to ‘tilt to Iraq’ in the supply of conventional weapons. He was invited to decode the official minutes of his meeting with Henderson and other machine tool manufacturers on 20 January 1988. It had been called because the DTI had learned – from information supplied by Gutteridge to the Intelligence Services – that Iraq had ordered machine tools to equip its munitions factories. With this knowledge, the government had to decide whether to license their export, and if so, whether to encourage Matrix Churchill to fulfil future orders from the same Iraqi factories.

  Choosing his words carefully and noting that the Iraqis would be using the current orders for general engineering purposes Mr Clark stressed that it was important for the UK companies to agree a specification with the customer in advance which highlighted the peaceful, i.e. non-military, use to which the machine tools would be put.

  On the true meaning of this sentence in the official minutes, the trial was about to turn.

  Q: The writer of this minute is attributing to you a statement: ‘The Iraqis will be using the current order for general engineering purposes’ – which cannot be correct to your knowledge.

  A: Well, it’s our old friend ‘being economical’, isn’t it?

  Q: With the truth?

  A: With the actualité. There was nothing misleading to make a formal or introductory comment that the Iraqis would be using the current orders for ‘general engineering purposes’.

  Q: You go on to say, in the same breath, at least in the minute-taker’s breath, ‘Mr Clark stressed that it was important for the UK companies to agree a specification in advance which highlighted that peaceful, i.e. non-military, use to which the machine tools would be put’. In saying that, of course you knew that the machine tools were currently being put to a munitions use. And that the follow-on orders, so long as the Iran/Iraq war lasted, would also be likely to be put to a munitions use?

  A: Could be put, yes.

  Q: Yes. In this context, knowing that, you invited the companies to agree a specification, i.e. get something in writing ‘to highlight the peaceful use to which the machine tools would be put.’ Even though to your knowledge, it was, at least so long as the war lasted, very unlikely they would be put to a peaceful use.

  A: Yes, I would agree with that.

  Q: And so, you want to receive at the DTI in future some sort of written specification or indication that these future consignments, these ‘follow-on orders’, are going to a peaceful use – a ‘general engineering’ use?

  A: Yes.

  Q: A specification which highlights a peaceful use?

  A: I doubt I used ‘highlighted’; I think I would have said ‘emphasise’.

  Q: Emphasising or stressing, the peaceful use that they would have?

  A: Yes.

  Q: You didn’t want to let anyone know that, at this stage, these machines and their follow-up orders were going to munitions factories to make munitions?

  A: No.

  Q: And the emphasis on ‘peaceful purposes’ and ‘general engineering’ and so on would help keep the matter confidential?

  A: I do not think it was principally a matter for public awareness. I think it was probably a matter for Whitehall cosmetics.

  Q: A matter for Whitehall cosmetics, to keep the records ambiguous?

  A: Yes, yes.

  Q: So the signal you are sending to these people is ‘I am the minister. I will help you get these orders, and the follow-up orders, through the rather loose guidelines and the rather Byzantine ways of Whitehall. Help me by keeping your mouth firmly shut about military use.’

  A: I think that is too imaginative an interpretation. I think it was more at arm’s length than that.

  Q: But in any event it was how they would help you, by not making the Whitehall cosmetics run, but rather by keeping quiet, stating ‘nothing military’?

  A: Yes. I do not think they needed that advice from me but,—

  Q: But they got it
?

  A: Not in so many words, I do not think I said ‘nothing military’.

  Q: They got it by implication?

  A: Yes, by implication is different. By implication they got it.

  This was an admission that the crime for which the defendant’s liberty had been endangered – deceiving the government by not stating a military use on export application forms – had been instigated by the government itself. It was an admission by an historian that itself made history, because after it the trial could not continue. Alan Moses so advised the Attorney General, who had no alternative but to withdraw the prosecution. Confused and panic-stricken briefings issued from Downing Street, seeming to blame Alan Clark for telling the truth.

  All the media did attend at last, on the day the trial collapsed, to photograph the defendants with their victory champagne and to begin to work out how ‘UK Ltd’ had armed Saddam. The withdrawal of the prosecution meant that the policy documents ministers had tried to suppress could be provided to Robin Cook, who used them to great effect in forcing the Prime Minister to establish the Scott inquiry. On becoming Foreign Secretary several years later, Cook’s first announcement was that henceforth human rights would be a central consideration in policy-making. This lesson he may have learned from reading the five hundred pages of documents about the making of British policy towards Iraq, and discovering that human rights were not once mentioned.