Katharine Gun

HL Deb 26 February 2004 vol 658 cc338-51

11.30 a.m.

The Attorney-General (Lord Goldsmith)

My Lords, with the leave of the House, I wish to make a Statement about the prosecution of Katharine Gun. I am afraid that opposition Peers have only just received a copy of the Statement; I am afraid that it had only just been completed.

Yesterday at the Central Criminal Court, the Crown offered no evidence in the case of Katharine Gun. Ms Gun had been charged under Section 1 of the Official Secrets Act. The effect of offering no evidence was that the case against Ms Gun was discontinued.

I hope that it will help the House if I first explain what the process is in respect of prosecutions under the Official Secrets Act. Prosecutions under it are governed by the normal rules applied by the Crown Prosecution Service when considering any prosecution—the code for Crown prosecutors—and there is the additional requirement of the Attorney-General's consent before a prosecution can go ahead.

I should say at the outset that, when making decisions under the code for Crown prosecutors, the Crown Prosecution Service acts in the public interest and decisions for which it is responsible are taken by it independently. I also remind the House that, when making decisions about whether to consent to a prosecution, the Attorney-General makes his decision in the public interest, and not in the interests of the Government.

When the Crown Prosecution Service is considering a prosecution under the Official Secrets Act, the normal code rules require that it first considers the sufficiency of the evidence—evidence to make out the case and evidence to rebut any defence which might be available and might be raised. It will not take any further action if it thinks that there is insufficient evidence. If its view is that there is a realistic prospect of conviction—that is, that the evidence is sufficient to make it more likely than not that a jury would convict—it then considers the public interest test.

In the Gun case, the evidential test was, in the view of counsel instructed by the Crown Prosecution Service and in the view of the Director of Public Prosecutions, met. The evidential test having been met, the CPS next moves on to the public interest test. That test is, quite simply, whether the prosecution would be in the public interest. In the case of this prosecution, as it was under the Official Secrets Act, the prosecution required the consent of the Attorney-General.

When considering whether to consent to a prosecution under the Official Secrets Act, I as the Attorney-General will carry out a Shawcross exercise—that is, I will seek the views of any ministerial colleague who may have an interest in the case. That is so that I can be informed of their views of the public interest considerations of the case that are within their particular ministerial responsibilities. When they express their views, I, as previous Attorneys-General, will take them into consideration when deciding whether to give my consent.

In the Gun case, the view of the independent prosecutor, Senior Treasury Counsel Mr Mark Ellison, and his junior, Mr Ed Brown, on the review of the evidence available at the time was that it afforded a realistic prospect of conviction. The Crown Prosecution Service applied for my consent, and I undertook a Shawcross exercise. I did that by way of a Shawcross letter to the Secretary of State for Foreign and Commonwealth Affairs, in view of his departmental interest, which was copied to other interested ministerial colleagues. Views were expressed but, as always with the Shawcross exercise, the decision was mine. I gave my consent to the prosecution on 13 November 2003.

Under the code, it is the obligation of the prosecutor to keep under review the prospects of a conviction resulting as a case progresses. If on that review the prosecutor forms the view that the evidence is such that there is no longer a realistic prospect of conviction, it is his duty to withdraw the prosecution. Counsel reviewed the case. The decision not to proceed with the prosecution was a decision made by the Crown Prosecution Service after consultation with me. It was based on the advice of Senior Treasury Counsel in the case. The evidential deficiency related to the prosecution's inability within the current statutory framework to disprove the defence raised on the particular facts of the case.

The view of Senior Treasury Counsel and of the Director of Public Prosecutions was that there was no longer a realistic prospect of conviction. At the Central Criminal Court on 25 February 2004, Senior Treasury Counsel therefore informed the court that the prosecution was offering no evidence as there was no longer sufficient evidence for a realistic prospect of conviction.

Perhaps I should, at this stage, tell the House of a statement made this morning by the Director of Public Prosecutions, Mr Ken Macdonald QC. I apologise as I do not have a copy of it, but I shall make it available to opposition Members when I can. However, I shall read it now. It is a Crown Prosecution Service press release, and it states: Senior Treasury Counsel prosecuting this case gave advice, with which the Director of Public Prosecutions fully concurred, that there was no longer a realistic prospect of convicting Katharine Gun. As has been commented upon there was, in this case, a clear prima facie breach of section 1 of the Official Secrets Act 1989. The evidential deficiency related to the prosecution's inability, within the current statutory framework, to disprove the defence of necessity to be raised on the particular facts of this case". The press release concludes by stating: This determination … had nothing to do with any advice given by the Attorney General to Government in connection with the legality of the Iraq war. It was also a determination made in advance of the defence request for disclosure which came on 24 February 2004. The Attorney General was consulted and concurred. But the decision to offer no further evidence was one made by the Crown Prosecution Service as an independent prosecuting authority. It was a decision taken solely on legal grounds and in accordance with the Code for Crown Prosecutors, free from any political interference". I recognise that many in the House will want to know more about the detailed basis on which counsel concluded that there was no longer a realistic prospect of conviction. However, as the matter concerns issues of intelligence it is not appropriate for me to do so, even to this House. As to the impact of the decision on the conduct of future prosecutions, it is the case that the substantive law is always kept under review and the effect of particular prosecutions on the substantive law considered.

My Lords, that concludes the Statement.

11.37 a.m.

Lord Howell of Guildford

My Lords, I am very grateful to the noble and learned Lord the Attorney-General for making the Statement. As he said, it has come rather suddenly, and therefore there has been very limited opportunity to see either the text of his Statement or the press release to which he referred. Indeed, the latter has not yet been made available at all, as he said.

Nevertheless, it is an important Statement and I am grateful for it, because there are some very puzzling and curious aspects of the case that it is right for noble Lords to address. The obvious one is about why the decision to drop the case was made so late in the day. Why on earth was it not made earlier? Why did it become apparent so late that the evidential basis for carrying forward the case had changed? Although the noble and learned Lord gave reasons to do with intelligence on why he could not expand on that sudden inability late in the day to pursue the case, it leaves a mystery hanging in the air. I therefore press him to give a little more explanation on the matter, bearing in mind all the constraints on him, which are perfectly proper.

Can the noble and learned Lord confirm that, entirely properly and within the bounds of established conventions, he discussed the case with the Director of Public Prosecutions? He was perfectly entitled to do that. Can I confirm—his Statement indicated it—that he discussed it with Cabinet colleagues? That again is within the bounds of the conventions. Where does the aspect of the Foreign and Commonwealth Office legal adviser's own advice to the Government on these matters come into the picture? Is it correct that that legal advice, which is tendered by a lady who, I think, has since resigned from the Foreign Office—the Foreign Office legal adviser—was available to the defence in this case? Would it have had to have been published if the case was continued? I think that is a matter that your Lordships would like to consider as possibly relevant to the whole handling of this matter.

In the short time available, although there are wider implications, I think there are no further points but those key ones that I would like to express. I repeat the mystery in our minds about why the evidential basis so suddenly and so lately changed and what was the nature of that change; and I just seek agreement and assurance from the noble and learned Lord that he would always support the principle that the political process in our country be kept strictly separate from the administration of justice. I know he believes in that and I know that the noble and learned Lord the Lord Chancellor keeps telling us he believes in that as well. Indeed, he claims that his plans to go forward with his current ideas are based on that belief and, therefore, we all want the strongest possible assurance that no breach of that principle has in any way occurred in this case. Therefore, it is important that we understand a little more about why the evidential basis changed; and until we understand that, I am afraid that a mystery will remain hanging in the air.

11.41 a.m.

Lord Goodhart

My Lords, I think the key passage in the Statement is the one where the noble and learned Lord the Attorney-General, says: The evidential deficiency related to the prosecution's inability within the current statutory framework to disprove the defence raised on the particular facts of the case". I note that I think those exact words were also repeated in the press release from the Director of Public Prosecutions.

The Attorney-General says that he cannot tell us why counsel advised that there was no longer a realistic prospect of conviction. But he can tell us what the defence was—why the defence of necessity was raised. What were the contents of the defence statement that raised the defence of necessity? What were the particulars of that defence? What further documents did the defendant request disclosure of? Will the defence statement, as it stands, be disclosed now, because that cannot be subject to the Official Secrets Act?

To take the matter a little wider, the e-mail that was leaked was about the bugging by American intelligence of the foreign embassies—the embassies of the countries that were regarded as potential swing voters on the second resolution—which, at that time, this country and the USA were actively seeking. Does the noble and learned Lord agree that the bugging of foreign embassies is contrary to international law? Is Clare Short correct in her belief, as stated on the "Today" programme this morning that her meeting with Kofi Annan was bugged and, if so, is that something which is legal? The fact that the embassies of the swing vote countries were being bugged indicates that the second resolution from the United Nations was thought to be a matter of very great importance. How does that fit in with the view of the noble and learned Lord that Resolution 1441 and the earlier resolutions were enough without a second resolution? Is it correct that the Foreign and Commonwealth Office was arguing that the second resolution was necessary to give legality to the invasion?

It is noted that Elizabeth Wilmshurst, the lady to whom the noble Lord, Lord Howell, referred earlier, confirmed in the Guardian today that she resigned from the Foreign and Commonwealth Office because of her disagreement with the conclusion that the war was justified. That surely confirms the need for the public to see the whole of the Attorney-General's advice if, indeed, anything more than the one paper statement released by the Attorney-General does in fact exist.

11.44 a.m.

Lord Goldsmith

My Lords, I start by thanking the noble Lord, Lord Howell, for welcoming the Statement. Let me deal first of all, if I may, with his questions and then move to those raised by the noble Lord, Lord Goodhart.

I entirely understand—and that is why I said what I did in my Statement—that noble Lords would wish to know more, if they could, about the detailed reasoning of senior Treasury counsel with which the Director of Public Prosecutions concurred. I have indicated that, because of certain constraints which I have identified in the Statement, it is very difficult for me to do that. And I, in a sense, regret that too, because I would welcome nothing more than for your Lordships to see fully that some of the suggestions that have been made that I have seen in newspapers are completely without foundation.

However, I have to say to noble Lords this: the Director of Public Prosecutions has very clearly stated in the Statement that I read, and of which copies I hope will very shortly be available, that the decision was—I repeat—a decision by the Crown Prosecution Service on the basis of advice from senior Treasury counsel, in which the Director of Public Prosecutions concurred, that there was, no longer a realistic prospect of conviction", and that he has said that it was a decision on solely legal grounds, free from any political interference. I have, therefore, to ask noble Lords to accept, recognising the difficulties that I am in—and I wish I were not in them either—that what the DPP has said about the decision and what I have confirmed about the decision is the fact. I ask noble Lords to accept that from him and from me.

The noble Lord then asked me whether I can confirm that I did discuss the case with the Director of Public Prosecutions. He was good enough to say that it would have been perfectly proper to do so and, of course, he is right about that. Of course I discussed that with the Director of Public Prosecutions. I had given my consent originally, it was plainly right for him to consult me in relation to the matter and, of course, I consulted with him and, indeed, wanted to hear directly from senior Treasury counsel what his view was as well.

The noble Lord then asked me whether I had discussed this matter with Cabinet colleagues. I indicated in my Statement that at the outset I conducted what is known as a Shawcross exercise. Noble Lords will recognise that that is a reference to the late Lord Shawcross—Sir Hartley Shawcross when he was Attorney-General—who made a very important Statement in another place in 1951 which explained why it was right for Attorneys-General to seek to be informed by colleagues of matters affecting the public interest. He made clear, as I have made clear, that having been informed, it is a matter then for the Attorney to reach his decision and his decision alone. I can entirely confirm that it was. I indicated that I received views in response to the letter that I had sent.

When it came to the Crown Prosecution Service and counsel raising their concerns about the prosecution continuing—as I have said counsel's view was that there was no longer a realistic prospect of conviction—then, because the Foreign Secretary has statutory responsibility for GCHQ, which is what this is all about, he spoke to me by telephone on 14 February and at a meeting on 24 February about this case. The purpose was to inform the Foreign Secretary about the advice I had received relating to the continuation of the prosecution. The Foreign Secretary took no part in decisions relating to the discontinuation of the prosecution.

I was also asked by the noble Lord why this was so late in the day. May I just correct one matter, because I think that a point is gaining currency that the trial was due to take place yesterday. It was not. Yesterday was the plea and directions hearing, which is essentially the first hearing in the Crown Court. No date for trial had been set. No directions had been given for the trial. This certainly was not at the eleventh hour. On the contrary, this was still at quite an early stage in the case. The reason the decision was taken was, as I have indicated, the review by counsel of the case and the material in order to comply with his obligation under the Code for Crown Prosecutors to keep under review whether there was a realistic prospect of conviction. That was the reason for it.

Noble Lords again, I hope, will agree that, that very important decision being made by the independent prosecutor, it was right that the case should be brought to an end as soon as possible. And that is what happened by the statement yesterday.

I move on to a question raised about a report which, I understand from noble Lords, appeared in the Guardian this morning, which I have not seen. That concerns the position in relation to the Foreign Office and some particular adviser. I cannot comment on the reasons an official in another department chose to leave the service and I do not intend to do so. That is a matter for her and for the department. But I repeat this: the decision to stop the case was not in any way based on considerations in relation to the legality of the war or in relation to questions of disclosure of anybody's advice. It was on the basis of the view of senior Treasury counsel, concurred in by the Director of Public Prosecutions, that there was no longer a realistic prospect of conviction.

A very important point was made by the noble Lord, Lord Howell, at the end and I want to deal with that. He asked me whether I could give him an assurance that I would always support the strict separation of the political process from the prosecution process. He was good enough to recognise that that is a principle in which I strongly believe and I can unreservedly assure him that when it comes to prosecution decisions I regard it as extremely important that they are made independently of political considerations. I can also assure him and the House that this decision was also made independently of political considerations, as the Director of Public Prosecutions, in his release, has confirmed.

I turn to the questions raised by the noble Lord, Lord Goodhart. He asked me whether I can say more about the contents of the defence statement. I am told that no defence statement has in fact yet been received, but in the initial interviews Ms Gun gave an indication of what, in her mind, her justification for her action was. It was on the basis of that and, as the Code for Crown Prosecutors would require, the prosecutor's own consideration of the case that thought was given to what the defence was likely to be and therefore how to meet that defence.

I am aware of a statement made—noble Lords will forgive me because I have seen no such document, I can confirm. There was a defence request for disclosure, as is apparent from the statement by the DPP, which I have read, which was received on 24 February. The Director of Public Prosecutions makes the point that that was received after the determination not to proceed with the case had been made. I do not have a copy of that. I have seen—as noble Lords have seen—some suggestions in the newspapers as to what it contains, but I cannot confirm what it contains because I have not personally seen it. I am seeking to assure noble Lords that that was received after the determination had been made and it is not because of that request for disclosure that the prosecution did not proceed.

The noble Lord, Lord Howell, then asked me questions on comments which have been reported from Miss Clare Short. Noble Lords will know that the Government do not comment on intelligence matters. As a matter of practice, they do not do that. But the Government do give this assurance: that the British security services always act within domestic and international law.

Noble Lords will have heard that statement from successive administrations of both political parties. It has been a standard and important line that is made. And noble Lords will know that there are other mechanisms by which the regularity of the way that our security services operate are dealt with. Noble Lords will be well aware of provisions under various Acts, of the commissioners, of the opportunity to make complaints, and of reports which are made to Parliament—or made to the Prime Minister and then laid before Parliament—concerning the review by commissioners of the operations of the security services. But there is nothing new about that statement at all.

The noble Lord, Lord Goodhart, took the opportunity to go beyond the position in relation to this particular case, as I see it, to pick up a question which has been debated before in your Lordships' House about the legality of the war. Let me just say this, because I have said it before: at the time we started military action, it was my own considered and honest view that military action was lawful based on the repeated failure of Saddam Hussein and his regime to comply with multiple United Nations Security Council resolutions, in particular United Nations Security Resolution 1441, which made clear that there had been material breaches and that there would be, in the judgment of the whole of the Security Council, further material breach if Iraq did not wholly and unconditionally comply with the terms of the resolution. And the effect in law, in my opinion—and I understand it to be the opinion at least of the Official Opposition Front Bench as well, repeatedly stated—was that the authorisation to use force, which had been given in earlier resolutions by the United Nations, revived.

That is why 1441 said in terms that there would he serious consequences if there were not full and unconditional compliance. I believe that was the position at the time we engaged in action. I believe today it was the correct legal position and I explained that in the Answer I gave in this House to my noble friend Lady Ramsay. It was further explained in a longer document delivered to the Foreign Affairs Committee on the same day by the Foreign Secretary, which set out the United Kingdom Government's view on the basis of legality. That document, for example, pointed out that the same legal analysis of revival of the earlier resolution had been relied upon by successive governments—governments of both main political parties—for taking military action previously in relation to Iraq and had been expressly approved by a former United Nations Secretary-General. Of course I am aware that others took a different view. That was abundantly apparent at the time. Opinions were published and letters came out in the Guardian. But that was the view that after considered reflection I believed was the correct position.

I hope that I have answered all the questions.

11.58 a.m.

Lord Wright of Richmond

My Lords, having spent much of my time in my final years in the Foreign and Commonwealth Office dealing with security and intelligence matters—in particular with relations with the intelligence agencies and GCHQ—I have to say that I find the decision to drop this case and the implications of it for the future handling of secret intelligence, in particular for what are called "crises of conscience", extremely disturbing.

I believe I am right in recording that following the Ponting case a counsellor was appointed to help individuals in the intelligence and security agencies—I think I am right in remembering that that included GCHQ but it may not have done—faced with crises of conscience about intelligence matters. Can the noble and learned Lord tell us whether that post still exists; whether the counsellor was used in this case; and whether Mrs Gun consulted him? If not, I suggest that the existence of a counsellor, if he is still in post, is brought to the attention of all employees in the security and intelligence agencies.

Lord Goldsmith

My Lords, I entirely understand the point made by the noble Lord, Lord Wright. I cannot specifically say that a counsellor was appointed in relation to GCHQ but I believe that that was the case. I have no specific knowledge either way, but the speed of events suggest to me that such a person was not consulted by Ms Gun. However, again, I cannot confirm that because I do not have direct knowledge; I am inferring it. I am sure that the noble Lord is right to say that the attention of all employees in the security services should be drawn—if, indeed, it has not been already—not only to that route but to other routes that exist for the purpose of raising difficulties.

The noble Lord may know that, subsequent to the Ponting case, others have gone through the courts, including the Shayler case, where quite detailed discussions have taken place—in the Court of Appeal, in particular—on the circumstances in which an apparent failure of authorisation, notwithstanding that, might be subject to a defence. Those matters were fully in the mind of prosecuting counsel when considering the prospect of achieving a conviction in this case.

Lord Thomas of Gresford

My Lords, will the noble and learned Lord the Attorney-General kindly tell us whether the record of the interviews that took place with Ms Gun formed part of the material before the CPS when it decided to refer the matter to him and whether it was before him when he gave his consent? If no defence statement was served and no further disclosure was required, what happened between the decision to prosecute following the consent of the Attorney-General and the pre-trial hearing yesterday which caused the prosecuting counsel to change his view? What conceivably could have happened if he did not have in his hand a defence statement setting out the particulars of the necessity upon which the defendant relied in order for him to make a decision?

Lord Goldsmith

My Lords, I am absolutely confident that the record of the interview with Ms Gun was before prosecuting counsel at the time the case was reviewed, and I am sure that it was also before me when I gave my consent. However, if I may respectfully say so, of all people, the noble Lord, as a practising lawyer, will know that the obligation of the prosecution is to continue to keep a case under review and to examine not only the original material that may have been before him at the time of making the decision but further material which is gathered in the course of the investigation which follows and to determine, in the light of all of that, whether there is a realistic prospect of conviction.

The noble Lord will also know that, in reaching a view on whether there is a realistic prospect of conviction, under the code it is the obligation of prosecutors to have regard to likely defences as well as to something which has been put formally in a defence statement. No doubt, on many occasions, the noble Lord's clients have benefited because prosecutors have considered that in a certain case such and such a defence is likely to be raised. Of course, in this case it was apparent from what had been said in the interview that the defence along the lines of necessity or duress of circumstances referred to by the Court of Appeal in Shayler was precisely the line that would be taken in the defence.

Baroness Trumpington

My Lords, bearing in mind that GCHQ took the place of Bletchley Park, the noble and learned Lord can imagine that I am particularly interested in what he said. Perhaps I may say how much I agree with what the noble Lord, Lord Wright, said earlier. Regardless of the contents of Ms Gun's public statements, is it not a simple fact that she contravened the Official Secrets Act? What can one say to stop the lady in question or her colleagues giving further information? Why could not this whole matter have been dealt with in camera, which I believe would have happened at Bletchley had such a situation ever arisen? Surely things are left in the worst possible situation, having, I imagine, thoroughly irritated America and equally thoroughly irritated those who are trying to run GCHQ.

Lord Goldsmith

My Lords, taking into account the noble Baroness's past experience, I absolutely understand why she agrees with the observation that was made. As I indicated in answer to the noble Lord, Lord Wright, I entirely understand the significance of that. Noble Lords may recall that in the Shayler case, the Government argued very strenuously that there should be no possibility whatever of a defence of necessity or duress—precisely because of the reasons that the noble Lord and the noble Baroness have raised. However, that was not the view that the Court of Appeal took in relation to the matter.

I recognise the difficulties, which I hope the House understands I have tried to indicate, concerning the nature of the material. Undoubtedly, questions such as those raised by the noble Baroness—for example, whether these difficulties could be overcome by dealing with matters in camera—were fully discussed between prosecuting counsel and GCHQ before prosecuting counsel took the view that he did and the Crown Prosecution Service took the decision that it did. I am reminded of one of the difficulties relating to the Act: I believe that it was the Lord Chief Justice, the noble and learned Lord, Lord Woolf, in the Shayler case who, in the Court of Appeal, said that sometimes these cases become unprosecutable.

Lord Mayhew of Twysden

My Lords, what is the deficiency in the Official Secrets Act 1989 or any other component of the statutory framework to which the Attorney-General has referred that makes it impossible, as he stated, for the Crown to disprove the defence of necessity? At the very end of his Statement, the noble and learned Lord made reference to keeping the law under review. Can he help us a little by indicating in what respect he would like to remedy the law as it now stands?

Lord Goldsmith

My Lords, I am grateful to the noble and learned Lord. I am afraid that, at this stage, I can say only that the Government are carefully considering whether this decision has any implications for the Official Secrets Act. The Government keep all legislation, including that Act, under review and they will carefully consider whether the decision has any implications for the Act.

Earl Ferrers

My Lords, can I ask the noble and learned Lord the Attorney-General to clarify matters a little further for one who climbs up these hills rather slowly? The noble Lord, Lord Thomas of Gresford, asked a question which I should be grateful if the noble and learned Lord could clarify further. The noble and learned Lord said that there was no longer a realistic chance of a conviction. I understand that. Presumably a few weeks or a few months earlier there was a realistic chance of a prosecution, otherwise it would not have taken place. What happened to change black to white? It must have been a considerable occurrence and not simply a small thing.

Lord Goldsmith

My Lords, I am not sure that I agree with the description "black or white". These matters are often balanced just over a limit or perhaps significantly below it. Be that as it may, counsel's continuing review of the case and of the evidence gathered in the course of the investigation led counsel to the view that I have indicated. Again, while recognising that noble Lords would like to know more and while recognising my own difficulty in saying more, I simply repeat the hope that noble Lords will accept from me and from the Director of Public Prosecutions that this was the decision and the view reached by the independent senior prosecuting counsel, and concurred with by the Director of Public Prosecutions, based on the evidential issues that I have identified, even if, I am afraid, I am not able to detail them.

Lord Morris of Aberavon

My Lords, I endorse and commend the propriety of the actions of the Attorney-General, which have been adumbrated according to the limited knowledge that we are able to have. In particular, I endorse his emphasis that in all cases a prosecution, however mundane—the same applies to a drug-running case or anything of that kind to a matter of the utmost seriousness—must be constantly reviewed.

Long after I retired, I was summoned before the Intelligence and Security Committee under the chairmanship of Tom King—now the noble Lord, Lord King—to explain my actions in declining to prosecute in another case. I presume that the noble and learned Lord the Attorney-General will have no difficulty if he is summoned to explain to the Intelligence and Security Committee what had happened. From what he has told us today, I am sure that he will satisfy the committee on all counts.

Lord Goldsmith

My Lords, I am grateful to the noble and learned Lord for his comments at the outset. With his great experience, including in the office which I am privileged to hold now, I welcome that very much. He is right; all cases have to be kept under review.

I agree that if asked to come before one of the committees which looks particularly at secret information and circumstances, I shall do my best to provide it with information. I am glad for his prediction that I will be able to satisfy such a committee; that will be for the committee to say.

Lord Palmer

My Lords, following on from the response to the noble and learned Lord, Lord Mayhew, surely this makes a complete mockery of the Official Secrets Act, which will, most certainly, have to be completely rewritten and looked at again.

Lord Goldsmith

My Lords, I do not think that the position is nearly as black as that. Certainly, I would not want to be taken as accepting that. There are particular circumstances in every case. However, as I have indicated, the Government will carefully consider whether the decision has any implications for the Official Secrets Act. It would not be right for me to indicate at this stage what the conclusion of that will be. It may be that there is not any problem with it as it stands, but we shall have to wait and see.

Lord Mackay of Clashfern

My Lords, perhaps I may ask the noble and learned Lord the Attorney-General a little more about the circumstances. As I understand it, when the decision was taken to initiate the prosecution and he gave his consent, the initial statements of the lady in question were available, as he recalls, both to the prosecution and to himself. As I understand what he said, at that stage the possibility, at least, of the defence of necessity was manifest. I assume, therefore, that the question of whether or not the prosecution could overcome such a defence was considered at that stage.

I understood that at that stage senior Treasury counsel was adviser to the Crown Prosecution Service and was the same senior prosecuting counsel involved as matters proceeded. As the noble and learned Lord said, these matters are continually under review. If I am right so far, something must have occurred—I do not question exactly what; it may be that the noble and learned Lord is not able to tell us—to alter the view that both senior prosecuting counsel and he had formed at the early stage of the possibility of the prosecution overcoming the defence of necessity. If so, I should like to know at what date that occurred and when it was brought to the notice of the Director of Public Prosecutions.

I should like to make it clear that I fully accept everything that the noble and learned Lord said. I have the highest possible confidence in his integrity and in his decisions, which were taken in the light of very difficult circumstances in this case. As I think I said to him some time ago, the position of the Attorney-General can be a difficult one. This, perhaps, is an illustration of that. I have every possible sympathy with that point of view. However, if people who are less willing than I am to accept that situation are to be reassured, we need to understand as best we can against a background of the intelligence involved the course of events, which will enable them to follow what has occurred.

Lord Goldsmith

My Lords, I thank the noble and learned Lord for what he said. I shall do my best, within the limits of what it is appropriate for me to say, even to your Lordships. Yes, indeed, I have indicated that the records of the interview with Ms Gun were available and considered at the time the initial decision was made.

Without going into detail, which, for the reasons I have given I would find difficult, I have also indicated that it was in the course of review, including a review of further evidence and material gathered in the course of the investigation, that counsel reached the view he did.

As to timing, it was at about the beginning of this month that these issues emerged. It was in about the second week of this month, or perhaps slightly earlier, that I became aware of them. In the intervening period, consideration had been given to those views and to the consequences of those views, and the decision was then taken to indicate at the first hearing, the plea and directions hearing, that the case should not proceed. So, it is all very recent.

Lord Wallace of Saltaire

My Lords, does the noble and learned Lord the Attorney-General accept that the wider context of this case is the network of agreements between the United States and the United Kingdom on mutual defence and intelligence co-operation, the effective integration of some aspects of US and UK intelligence and the extra-territorial rights that US forces and intelligence services have in the United Kingdom?

We recall that most of these agreements have been in existence for 50 years or more and that a great deal still goes on under them. I understand that US intelligence personnel in this country increased substantially after September 11 2001, for example, although my information is informal and nothing was reported to Parliament.

I received a written reply from the Foreign Office yesterday about the renewal of the US-UK Mutual Defence Agreement, which has to be renewed by the end of 2004, with reference to whatever amendment may be necessary. I ask the noble and learned Lord the Attorney-General to put into the Government's reconsideration of this case that it would be appropriate at this stage for the Government to publish this year a consultation paper on this network of agreements, most of which were signed in the early stages of the Cold War, and to lay before this House the justification for whatever amendments to those agreements the Government may consider necessary.

Lord Goldsmith

My Lords, I thank the noble Lord, Lord Wallace of Saltaire, for that question. He is right to draw attention, as he has on other occasions in your Lordships' House, to the importance of the relationship that we have at a number of levels between this country and the United States. It is an important relationship and it is important that it works.

I wondered at one stage if the noble Lord was to make reference to that in the context of this case. I would have had to say that the separation of the political and the prosecutorial issues cuts both ways. I know that the noble Lord will understand what I mean in relation to that.

I have noted what the noble Lord said about the request for consultation on those agreements. I know that he will not expect me to be able to respond to that, but that will be passed on to those who make decisions of that kind.