Hutton's demand for hard proof a stroke of luck for Blair

So the Prime Minister has managed to dodge the bullets and make it safely back to the bunker unscathed by the Hutton inquiry. He finds himself in a happy, unique position since many of the main players in the Dr Kelly drama find themselves being criticised for something or other.

This is not the first stroke of luck with which the Prime Minister has been blessed during the inquiry. The first was that he was the only major witness not to be cross-examined at all. The lacuna which allowed the Prime Minister to escape the rigours of cross-examination arose from the procedure Lord Hutton decided to adopt for the inquiry. The procedures at public inquiries are left to the person appointed to run the inquiry to decide. Lord Hutton is a former Lord Chief Justice of Northern Ireland and an establishment figure.

He is by nature a quiet, conservative judge who does not rush to a conclusion. His experience in the judge-only courts of his native Northern Ireland means that serious allegations, like that of dishonesty made by the BBC against the Government, will have been tested against the higher criminal burden of proof - beyond reasonable doubt.

The only overriding principle of law is that the proceedings should be "fair". This means that anyone who might be criticised should be given ample opportunity to deal with any possible criticism. This also involves making sure that parties making allegations against others should put their allegations to the person concerned.

Usually at public inquiries the procedures follow a pattern but the way Lord Hutton chose to run this inquiry was unique.

First, counsel to the inquiry was instructed that during part one of the inquiry he was not to cross-examine witnesses but merely present the evidence. The same applied to other counsel. Lord Hutton would then decide who should be required to attend the second part of the inquiry for cross-examination. He would identify such witnesses having regard to the relevant legal principles of fairness and to representations made by the parties. Usually at public inquiries all witnesses can be cross-examined. Most of the witnesses were able to perform passably well during part one of the inquiry. It was only under cross examination in part two that some were in danger of coming apart at the seams, but the Prime Minister never made it through to part two.

Then there was another stroke of luck. Sir Kevin Tebbit was the last witness to give evidence at the inquiry. Everyone knew that the MoD had decided not to reveal Dr Kelly as the source but instead invented a farcical quiz game giving clues to inquiring journalists as to who the source was and giving confirmation if a guess was correct. What Sir Kevin revealed was that the meeting, which approved this memorable procedure, was actually chaired by the Prime Minister.

But the Prime Minister's luck continued. He was not called back to be cross-examined. Lord Hutton took the view that there was no conflict between his evidence and the evidence of Sir Kevin although the Prime Minister had never mentioned the question and answer device or been asked why such a device was necessary.

But an inquest still has to be held. The prospect of the Iraq affair being mulled over by a British jury in a coroner's court might not be particularly appealing to the Government and it may have been hoped that by holding a public inquiry first a coroner could legitimately hold a short inquest without a jury. But in truth an inquest is not a viable alternative to a public inquiry: it suffers from the same limitations and more.

The public inquiry had the status that Lord Hutton brought to it and modern technology gave the public ready access to the proceedings. Much of this was borrowed from other successful inquiries, such as Lord Cullen's investigation into the Paddington rail crash. This could never happen at an inquest. Further, at an inquest, questioning by the parties is only at the discretion of the coroner who asks the questions. It is a search for information rather than cross-examination.

The position is the same with respect to documents. The Government did not give the Hutton inquiry any power to require disclosure of all relevant documents to the inquiry. In consequence no government witness was required to swear on oath that all relevant documents had been disclosed.

The fact that a large quantity of documentation was provided is no guarantee that all relevant documents were made available.

During the inquiry, evidence was given of a long meeting attended by civil servants and ministers. Many eyebrows were raised when it was said that no minutes had been kept. British civil servants are known for their meticulous keeping of minutes of the meetings they attend. Minutes are kept not for posterity, nor just for ministers, but also for the protection of civil servants themselves. Some of the documents disclosed have sections blacked out - a redaction. It is the same for coroners. They have no statutory powers to obtain documents. The inquiry and the coroner have to put up with the selection of redacted documents made available to them.

An inquest is singularly ill equipped to investigate the breadth of issues dealt with at the Hutton inquiry but there would be an opportunity for embarrassment. Some coroners encourage juries to make "recommendations" and in the case of the lead-up to the war with Iraq some of them could be very illuminating, although the chance of any of them being implemented may be rather remote.

Anthony Scrivener QC is a former chairman of the Bar