Gun was ready to expose full extent of concern throughout government departments
February 27, 2004
By Richard Norton-Taylor
The attorney general, Lord Goldsmith, agreed that secrets charges against the former GCHQ employee Katharine Gun should be dropped after the defence made clear that potentially hugely damaging evidence about the legality of invading Iraq would be disclosed in court, the Guardian has learned.
Serious doubts about the legality of the invasion were expressed in the run-up to war by senior lawyers throughout Whitehall, including the Foreign Office and the Ministry of Defence.
The doubts were expressed by the entire FO legal establishment, and not only Elizabeth Wilmshurst, the former deputy head of the FO's legal team who has said publicly that she resigned last year because she was unhappy with Lord Goldsmith's legal advice.
The FO argued, partly on the basis of intelligence, that the threat posed by Saddam Hussein did not warrant a pre-emptive strike. It also questioned Lord Goldsmith's interpretation of international law and the standing of past UN security council resolutions.
Fresh evidence about the FO's doubts were sent by Ms Gun's defence lawyers to the prosecution on the day it decided to abandon the case against Ms Gun.
The Guardian also understands that earlier legal advice from Lord Goldsmith was not nearly as certain as his final view presented to the cabinet just before the Commons was asked to vote in favour of the war on March 17 last year.
Whitehall officials outside Downing Street were aware that the attorney general's earlier legal advice was much less sure. This was likely to be disclosed had Ms Gun's trial gone ahead, providing valuable ammunition for the anti-war movement.
Lord Boyce, chief of the defence staff at the time, also made it clear that there were doubts about the legality of the war among senior military commanders but they had come round only on the basis of Lord Goldsmith's final legal opinion, a point echoed last night by Clare Short, the former international development secretary.
Lord Goldsmith and the Crown Prosecution Service insisted yesterday that the Gun case had been dropped simply because of a lack of evidence. They also insisted that their decision had nothing to do with "any advice given by the attorney general to government in connection with the legality of the Iraq war".
Independent lawyers said yesterday this was strictly true in a narrow legalistic sense. Ms Gun's defence that she had acted out of "necessity" had to do with her belief that she had leaked the information, published by the Observer, to prevent death and serious injury, not because she was opposed to the war.
It was the first time government lawyers had to face such a defence in what was previously regarded as an impregnable Official Secrets Act, imposing an absolute blanket ban on intelligence officers releasing any information about their work. The chink in the armour was made by Lord Woolf, the lord chief justice, in an appeal court decision allowing for a "defence of necessity" in limited circumstances.
But lawyers familiar with the case say it was inevitable she would want to use the potentially damning evidence that top Whitehall lawyers harboured serious doubts about the war. This, they said, had been made clear to the prosecution months ago.
What the prosecution appeared not to be aware of until the day it decided to drop the case was new evidence presented by the defence about the nature and extent of the doubts across Whitehall over the legality of the war.
The prosecution was also unaware until then that the defence demanded more documents spelling out just how the attorney general had come to reach his pro-war view.
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