Letter: Fairness to Scott inquiry witnesses

Sir: It appears that there may be some misconceptions about the procedures that have been adopted by the Scott inquiry. In particular, comment has been made about the extent to which lawyers for witnesses should be permitted to cross-examine other witnesses. It has been suggested that fairness requires that that facility should be permitted.

It is, of course, the case that the governing criterion for the purposes of all questions of procedure is that individuals whose conduct may be at risk of criticism should be treated fairly. But another important criterion is that the inquiry should be conducted efficiently.

The inquiry's present procedures, adopted in April 1993 after consultation with the Government and interested individuals, do not rule out the possibility of cross-

examination. If a witness gives evidence damaging in some relevant respect to another person, a copy of the evidence (or, if oral, the transcript) is sent to the other person and his comments are invited. This has been done in a number of instances. The other person may ask to be allowed to cross-examine the witness in question. No application to this effect has yet been made.

If the comments made on the evidence in question disclosed an important dispute of fact that needed to be resolved for the purposes of Lord Justice Scott's report, ad hoc arrangements for cross-examination could be arranged. This has not as yet proved necessary.

But if a difference between two witnesses is no more than a dispute as to the interpretation to be placed on certain documents or as to the inferences or conclusions to be drawn from facts not themselves in dispute, the value and need for cross-examination is not obvious. This is no doubt the main reason why no application to cross-examine any particular witness has been made.

In short, the inquiry's approach to cross-examination is entirely pragmatic. If it became necessary to allow it in order for the inquiry to be able to deal fairly with particular allegations made against particular individuals, appropriate arrangements could and would be made.

The other side of the coin is that, if every witness were allowed, through his lawyer, to cross-examine any other witness whose views or opinions he might disagree with, the efficient conduct of the inquiry would be inhibited. The length of time the inquiry would take would be unacceptable. The cost of the inquiry would be

excessive.

There is no procedure for appeal against the findings of the inquiry, nor can there be. But under the inquiry's procedures a witness will be notified of any proposed criticism of him and given an opportunity to comment in writing before the relevant part of the report becomes final.

In the quest for procedural fairness at this inquiry, there is everything to be said for a pragmatic approach, and nothing to be said for a doctrinaire one.

Yours faithfully,

CHRISTOPHER MUTTUKUMARU

Secretary to the Inquiry into

Exports Of Defence Equipment

and Dual Use Goods to Iraq

London, SW1

19 January