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Special report: David Kelly
So just who is Lord Hutton?
He's the man charged with investigating the David Kelly affair. The future of the government and the BBC may well be in his hands. But what do we know about Britain's sixth most-senior judge? On the eve of the inquiry, James Meek goes in search of the real Lord Hutton
Thursday July 31, 2003
It was a scene from another war, one Britain was reluctant to acknowledge was a war at all, a war we dearly hope, but cannot be sure, is over. It was the early winter of 1992, in Belfast crown court. In the dock was Patrick Nash, a former Republican prisoner who had gone on, after his release, to study politics at Queen's University. In 1990 he was arrested again and now stood accused of 22 charges, including plotting to murder a string of senior figures, among them four judges, and aiding and abetting in the murder of a taxi driver.
Nash's fate was in the sole hands of Northern Ireland's Lord Chief Justice, Sir Brian Hutton, a gaunt, reserved figure acting, under the controversial Diplock system, as both judge and jury. Among those watching were officers of the Royal Ulster Constabulary, who could sometimes be seen laughing as the trial progressed.
Nash's defence was straightforward: that the only evidence against him was his own confession, which was false, and had been extracted from him by torture in more than two dozen interviews over six days. Medical evidence corroborated his tales of beating. He caught meningitis after spinal fluid began dripping from his nose and blood started dripping from his penis.
The gulf between the two men, Nash and Hutton, seemed wide. The judge's life was in constant danger; he had lost colleagues to bombs already, and here was a man accused of plotting to kill judges. Nash was a Catholic. Hutton was an Ulster Presbyterian. Hutton could hardly have been closer to the security services; he had two government bodyguards watching over him and his family 24 hours a day. And he had the power to convict and sentence, without the inconvenience of a jury.
In the course of the trial, Hutton told Nash he had difficulty understanding why such a well-educated man hadn't exercised his legal rights in the Castlereagh holding centre and demanded to see a doctor. Nash replied: "Things didn't work like that in Castlereagh."
Three days before Christmas, the Lord Chief Justice acquitted Nash of all charges. The accused, he said, was an "accomplished liar"; but he could not be sure that the RUC had not beaten him, and he had to let him go.
The story of the trial says something about the character of the man chosen to head the inquiry into the circumstances surrounding the death of David Kelly.
Born in Belfast, he spent 43 years - a full lifetime's work for most graduates - in the legal system of Northern Ireland, as a barrister, as a judge, and as a legal adviser to the Ulster authorities, before moving to England to become a law lord in 1997.
Much of that outlook-forming time in Northern Ireland took place during the Troubles, when judges were IRA targets, and lived with their families in a bulletproof, restricted world with little opportunity to encounter anti-establishment, counter-culture views outside the courtroom. There is little doubt that Hutton is a conservative figure, with a deeply-felt respect towards established institutions. But that respect seems to extend towards the letter of the law, and the judiciary as an independent body. He had no hesitation in calling Nash a liar; he did not call the RUC liars; but, in the end, Nash walked free. The judge had cast doubt on the veracity of both sides. A delicate, scrupulous, yet ultimately ambiguous, examination of the truth, and nobody in jail, and nobody resigning - could this be the outcome the government yearns for from the Hutton inquiry?
One long-time analyst of the Northern Ireland legal system, and a frequent critic of Diplock courts and the treatment of paramilitary suspects, says that the government had reason to believe it had a "safe" judge in Hutton - but might yet be proved wrong.
"He would have been seen as a proponent of the ancien regime here," says the analyst. "He was a legal adviser to the pre-1969 Stormont regime. He was a senior lawyer acting for the British government when they were defending themselves against accusations of ill-treatment of detainees in Strasbourg. But in his milieu, he was probably not seen as the most regressive judge.
"When he was appointed to head this inquiry, if I was the government, I wouldn't be quaking in my boots. But maybe that's me misreading him. Here, perhaps, his attitude was, 'We have to do what we can to defend the state.' That's very different to what his attitude might be to government misbehaviour in England."
James Brian Edward Hutton was born in Northern Ireland in 1931. The family lived in North Circular Road, Belfast. His father was a senior rail executive. He attended Brackenber House, described by the Belfast Telegraph as "an exclusive preparatory school", became head boy, and won a scholarship to the fee-paying Shrewsbury School in England, where Michael Heseltine was among his contemporaries. Another scholarship took him to Balliol College, Oxford, where he got a first-class degree. He returned to Belfast, where he became a barrister.
In 1969, he began working for the Northern Ireland authorities, when the province was still administered by the subsequently discredited Stormont government. He continued in crown service when the Stormont regime was abolished, playing a lead role in Britain's failed attempts to defend its ill-treatment of internees at the European court of human rights.
Some believe it was his loyalty to - or just proximity to - the government in the 1970s which clinched his appointment as Northern Ireland's Lord Chief Justice in 1988, after only nine years as an ordinary judge. He leapfrogged three more senior judges to get the post.
His seriousness extends to his leisure time. His only known recreations - he lists none in Who's Who - are reading and walking the dog. One possibly apocryphal story recounts that he likes to relax by leafing through Halsbury's law encyclopedia. He waited until he was 44 for marriage, to Mary Murland, the daughter of an engineer from County Down. The couple had two daughters. Mary died in 2000 and, in 2001, Hutton married again.
In a rare profile in 1988 the Belfast Telegraph quoted a former student of Hutton's: "He is the very epitome of a judge. He doesn't have much contact with ordinary people - how could he have? He dresses conservatively, and always wears a hat. Yet he is the fairest man I know."
The law lords, the final court of appeal in English law, come in an antique dozen, like eggs or old pence or juries. Their name has the kind of Tolkeinesque ring which sets modernisers' teeth on edge. They are all men, they are all white, they all went to Oxbridge, and they are all aged 58 or over. At the same time, three of them are originally from South Africa, none of them went to Eton, they are all immensely experienced in detecting when they are being fibbed to, and the government has little opportunity to boss them about. Which makes the latter's picking of the one of the 12 to hold an inquiry into it and BBC's conduct all the more intriguing.
Only a law lord, perhaps, would have the gravitas, the authority, the experience and the independence to win acceptance for his conclusions from the public and the media. But those same qualities make the inquiry chairman a real threat to the government, particularly when Tony Blair himself might be called to give evidence.
Lord Bingham, the most senior of the law lords, was probably ruled out because of his administrative duties. Lord Hoffman drew the wrath of other law lords when he failed to declare his membership of Amnesty International before participating in the hearing on General Pinochet's extradition. Lord Saville is in the middle of the Bloody Sunday inquiry, and Lord Scott has already conducted one Iraq-related inquiry, into the Arms to Iraq scandal.
Which still leaves eight law lords to choose from. Why Hutton?
Back when Hutton made his maiden speech in parliament, a fellow barrister, Lord Lester, said: "He is in that special category of judges from Northern Ireland who are especially brave and noted for their fearless independence." Certainly he has publicly defended the independence of judges, and has not been afraid to go against the authorities. He dismissed the appeal of British army private Lee Clegg against his jail sentence for shooting a teenage joyrider (Clegg was later cleared of murder by Hutton's successor). In the 1990s, he ruled that the 11-plus system discriminated against girls.
In other cases, he has backed the government line; he was one of the law lords who ruled that David Shayler, the former MI5 agent, could not argue that his revelation of secrets was in the public interest.
"Lord Hutton doesn't say very much. He tends to be on the conservative side," says one barrister who has appeared before him a number of times."He tends to be a follower, rather than a leader."
Another QC says that law lords might be more or less conservative, but that did not necessarily affect their independence. "An inquiry's about doing things thoroughly and properly and coming to sound and sober judgments. I think this was a very good choice from the public's point of view. I don't know if it will turn out to be good from the government's point of view."
Another leading observer of the British legal scene pointed out that which judge was chosen to head an inquiry involving the government, he was bound to come under attack. Ostensibly, what was happening was that an independent figure was putting the powerful under the microscope; in fact, the independent figure was being sucked into a process that was doomed to lessen his independence.
"You're using the credibility of a senior judge as an arbitrating figure to neutralise something, and it's a very delicate balancing act," he said. "You're asking a judge to look into a political event. You're bringing two cultures together, which is an uneasy mix. You're bringing judges out of the shadows in which they do, and should, stay, and bringing them into the political world."