INQUIRY BY LORD HUTTON INTO THE CIRCUMSTANCES

SURROUNDING THE DEATH OF DR KELLY

ANNEX JS3

This is Annex JS3, as referred to in the witness statement of John Scarlett

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Date : 6 June 2003

JOHN SCARLETT

cc: Sir David Omand

IRAQ WMD : LEAKS TO THE MEDIA

Issue

Your note of 4 June asked for early advice on how best to manage the leaks to the
media regarding Iraq and weapons of mass destruction, in particular the Today
Programme report on 29 May about the "45 minute" report on CW in Iraq and the
references in The Sunday Times of 1 June to your note to Alastair Campbell about the
September 2002 dossier. This note sets out what might be done initially short of
establishing a full inquiry.

Outcome

The steps described can be taken immediately but their effect will be limited to
establishing some ofthe facts preliminary to an inquiry and are unlikely in themselves
to uncover the culprit(s) .

I also list some factors which may lead you to revisit the question of whether a full
inquiry (which I interpret as being the appointment ofan investigator and instigation
of a series of interviews with those who had knowledge of the leaked information)
would on balance be helpful. This includes extant PQs from Lord Lester of Heme Hill
and Gregory Barker MP for answer on Monday.

Commentary

1 . From initial analysis it so far appears that one document has been leaked (the
Scarlett/Campbell memo of 20 Sept 2002). In addition, a growing number of oral
briefings are occurring, mainly to the BBC, based upon alleged knowledge of the
exchanges between the JIC and No10 about the dossier. The briefings are said to
be from a number of government sources.

2 . Short of employing an investigator, I think what can realistically be done is

confined to clarifying some of the detail of the leaked memo's history. It might
also be possible to identify those who were in a position of knowledge to provide
oral briefings to the press about the negotiations on the dossier, though anecdotal

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evidence seems to indicate that the process was quite widely discussed in a
general way in the Agencies at the time. A more detailed look at the reporting to
see whether there are any indicators that the leaker had a close knowledge of the
development of the draft might narrow the field . Beyond that, it is difficult to see
how any investigation can be taken very much further without recourse to
interviews which would mean it becoming formal and publicly acknowledged .

Handling

3. Immediate consideration should be given to who should lead an inquiry, whether

full or preliminary, taking into account the need for expertise and also the need for
independence . Although the assumption is being made in some quarters that the
source of the leaks is from within the Agencies, that should not be the starting
point for an investigation. Potentially, the leaks might be from the Cabinet Office,
No10 or the range ofdepartments represented at JIC.

4. Presentationally, it may not be appropriate for my Division to be in the lead, being

as it is directly under the management control of one of the organisations to be
investigated . I suggest it would be better to place any investigation (which
nevertheles should properly be co-ordinated by the Cabinet Office), under Peter
Wardle's wing . We would of course be ready to contribute .

Establishing the Facts

5 . The first steps should be to establish the facts ofwhat has happened . The memo of
20 September 2002 was sent to Alastair Campbell and copied to Jonathan Powell,
Sir David Manning, Sir David Omand and JIC members. It appears to have been
sent in hard copy although it now sits on a COIN terminal. We shall need to
identify subsequent recipients in the relevant offices and departments' (this will
include private office staff, officials copied the note, and potentially anyone with
access to files containing the document ). Generally, we would seek the assistance
of the DSOs in the relevant departments to carry out such an exercise .

Damage Assessment - has an offence been committed?

6. In parallel we should conduct a damage assessment and reach a view on whether

the circumstances ofthe leak(s) represent a breach of :

o the civil service management code;

o agency contract terms;
0 or, an offence under the Official Secrets Act (OSA) .

7. The outcome of this assessment will dictate, to some extent, what steps should be
taken next and who should be involved. If it seems that an OSA offence has been
committed then the views of the Attorney General will need to be sought, and the
Metropolitan Police Special Branch involved. Any initial examination will need to

'Cabinet Office, NolU, MAT, FCO, SIS, SS, GCHQ, DTI, MOD and the H Off
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ensure that as evidence emerges it is preserved in the event ofthe need for a police
inquiry.

8. As part of the damage assessment we should also consider the potential for further
disclosure of other material that may have also been leaked to the press. Whilst we
can identify your note to Alastair Campbell the source(s) has provided other
background information and details and there may be further specific revelations
to come.

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Security Service Assistance

9. You may also wish to consider the option of assistance from the Security Service.
I have had informal discussions with the head of T3 who may be able to offer an
investigator to take an initial view of what has occurred without the need to
formally announce an inquiry. This has been done before, including with No10
and offers an attractive way into the problem. If you wish to go down this path it
would probably be wise to seek the endorsement of JIC members given that some
analysis of sister Agencies would be involved . The findings of a swift Security
Service investigation are likely to clarify the case for pursuing a formal
investigation or not.

Revisiting the issue of a full inquiry

10. This affair is attracting considerable media and parliamentary interest which is
now focusing in on the response to the leaks themselves : copies of the three PQs
from Lord Lester and Gregory Barker MP are attached at Annex A which require
responses by noon on Monday. I suggest that this pressure makes a leak inquiry
harder to resist and you will wish to revisit whether it would be helpful to
establish a formal leak inquiry. In the absence of a leak inquiry there is also the
potential for it to be assumed that the ISC investigation will address the leaks
question as well (indeed this may already be in the minds of the committee?) .

11 . You will also want to bear in mind the potential for further leaks from the
source(s) if any investigation is not pursued, and the impact of this upon
relationships and the atmosphere of trust you refer to. Presentationally further
leaks would redouble criticism that action was not taken.

12. There may also be implications in not canying out an investigation and pursuing a
potential breach of the Official Secrets Act in terms of its impact on future OSA
cases . Irrespective of the damage tests, if a member of the agencies (or someone
notified under Section One of the Act) has made an unauthorised disclosure an
offence has been committed . In a recent case a successful public interest argument
was made to uphold this approach . Not acting in this instance could undermine
this argument .

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Press Lines and answers to PQs

13. Draft press lines that can be adapted to answer the PQs are attached at Annex A
making clear that for the time being steps are being taken to establish the facts of
what has occurred .

14. Please let me know how you wish to proceed, whether you are content with the
replies to the PQs and whether you require anything further.

Head of Security Policy Division

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Annex A

PQs

The Lord Lester of Heme Hill-To ask Her Majesty's Government what is the
evidential basis for the allegation made by the Leader of the House of Commons that
there are "rogue elements" in the intelligence services; and what are these "rogue
elements" alleged to have done beyond the scope of their official functions .

The Lord Lester of Heme Hill-To ask Her Majesty's Government whether they will
conduct an enquiry into whether there are "rogue elements" in the intelligence
services and into what they have done beyond the scope oftheir official functions .

Gregory Barker : To ask the Prime Minister, pursuant to his oral Answer of 4th June,
Official Report, column 150, what steps have been taken by the Secret Intelligence
Service (SIS) to establish the identity of the individuals within the SIS who have been
speaking anonymously to the media; what form the investigations have taken, what
the terms of reference are; who is leading the investigation; when is it expected to
report; to whom it will report; and whether the conclusions of the investigation will be
made public .

Press Lines

Role of the JIC

The Joint Intelligence Committee (JIC) has primacy in intelligence matters and its
reports and assessments reflect the agreed views of the heads of all the intelligence
and security agencies and senior Whitehall policy makers. The leaks and briefings
that have emerged are evidently from a source(s) removed from the JIC process itself
and the Chairman has made it clear that the views the reported source(s) are
expressing are clearly contrary to that ofthe Committee itself.

Will there be a leak inquiry?

We are currently taking steps to establish exactly what has happened and to examine
whether there has been an unauthorised disclosure of official information. It would
not be appropriate to comment further at this stage.

Why not establish an inquiry immediately?

All breaches of security are taken very seriously indeed and we examining closely
what has happened and the reports that have appeared in the press before we decide
whether to launch a formal inquiry. Speculation on the part ofjournalists and quotes
from supposed authoritative sources may not constitute a leak of official information
and we will not act precipitously.

What steps will be taken if a member of the security and intelligence agencies are
found to have made unauthorised disclosures to the press?

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We will not prejudge the outcome of our examination ofwhat has happened. However
clearly if unauthorised disclosures have been made by a member of the security and
intelligence agencies this is a very serious matter and the appropriate steps will be
- taken [if pressed: this could include dismissal if contractual terms have been broken
or potentially prosecution under the Official Secrets Act].

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