The Coroner presiding over the inquests of those who died on 7 July 2005 has ruled she will hear evidence on whether MI5 and the police could have prevented the attacks. The Government is now deciding whether to go along with this, challenge it in court or even stall the inquests and hold a public inquiry instead.
Five years on and it is with frustration that the families of the people killed and injured in the 7 July 2005 London bombings wait for the full inquests to open. They are due to start in October. The Coroner, senior high court judge Lady Justice Hallett has made it clear at pre-inquest hearings she is concerned that any delay would prolong the anguish of relatives and increase the costs of the case.
Nevertheless she has ruled that as well as investigating the actual cause of death of the fifty-two members of the public who were murdered, she will also be hearing evidence on the emergency response, and alleged intelligence failings in advance of the attacks. Widening the scope of the inquests to include intelligence is unusual and has caused much consternation in Whitehall. But when she recently published her ruling on the issue, Lady Justice Hallett explained she was doing it on behalf of those caught up in the atrocities:
'The families and survivors want to know if there was anything the intelligence services could REASONABLY have done to prevent the bombings'.
Published transcripts of pre-inquest hearings show that 'the Preventability issue' (as it was referred to in court) has raised considerable legal argument. Later this month the Government will reveal whether it intends to challenge Lady Justice Hallett's ruling.
Meanwhile she and her team have already begun their investigations in this area, pulling together everything that was known to date about the bombers, and in particular Mohammad Sidique Khan and Shehzad Tanweer. She has detailed the frequent occasions when they were apparently followed and listened to covertly by intelligence officers who were investigating a different terrorist plot. At the time MI5 decided they were not key players in that other conspiracy, and put them on a low priority list for further examination later. However neither MI5 nor the police returned to them before they launched their bomb attacks on the London transport infrastructure in 2005.
Now, on behalf of the families, the Coroner plans to examine the reasons why the men were not identified as a potential risk and put under direct surveillance at the time, and if they had been, whether the bombings might have been prevented. Referring to the 7/7 bombers she said in her ruling:
'We now know two of those to whom police have attributed responsibility for the bombings were not only on MI5's radar but were seen with a terrorist and a known bomb expert. ...I am satisfied that to embark on a consideration of MSK, Tanweer, Lindsay and Hussain's background to this extent (if that proves possible) would be in accordance with my duty to ensure that the details of the catastrophic events of 7th July 2005 are ...'fully, fairly and fearlessly investigated"'.
Lawyers for the families allege there were 'grave errors' by police and MI5 in failing to track the lead bombers and assess them as dangerous.
Disclosing sensitive material
The Government and Security Service dispute this assertion. The decision to include the intelligence role prior to 7/7 has clearly raised concern at Thames House, the headquarters of the Security Service. They are worried about disclosing files which could allow operational secrets to slip out. In an effort to alleviate this obstacle Lady Justice Hallett has said there will be no jury at the inquests - a move which makes it easier for her to study classified intelligence material which could not be shown to a lay member of a jury because of the national security implications.
The 'no jury' ruling means Lady Justice Hallett and her team now already have some access to secret documents. They have been allowed to see redacted sections withheld from the public in previous reports by the Parliamentary-based Intelligence and Security Committee.
Inquest v Public Inquiry
But there is still disquiet in some parts of Government and lawyers are looking to see if there are other ways that sensitive material could be dealt with. One more radical idea would be to halt the inquests for the time being and instead hold a public inquiry. This could have a wider remit than the inquests, covering issues and policies that are not directly related to the deaths. It could also make recommendations.
More importantly perhaps in this case, a public inquiry could also allow ministers to intervene and restrict the disclosure of documents. It is likely that it's in part because of this that the Government is actively considering a public inquiry, along with the other two options - of judicial review challenging the wider scope of the inquest, or simply agreeing to the terms set out by the Coroner which include looking at the role of MI5.
Jonathan Hall, a barrister representing the Home Office and MI5, explained the Government position to the Coroner as follows:
'There are two separate matters that are being considered. Firstly, whether to challenge by judicial review your ruling on scope, and I should add that my clients are considering that which is within all reasonable alternatives in preference to a legal challenge, which they see very much as a last resort. So that's the first decision. The second decision is whether, given the difficulties of dealing with the extremely sensitive material...the Lord Chancellor should exercise his powers and transform the inquest into a public inquiry. At present, the inquest remains the government's preferred form, but very detailed consideration is being given to the second option."'
The Government and MI5 must decide one way or the other by the end of July. Until then preparations for the full inquests continue. And even at this early stage the process has produced new evidence, according to one of the lawyers representing the families:
'Some of the families for years believed that their loved one died immediately. It was only through the scene reports prepared by the Metropolitan Police that they learnt for the very first time that may not be the case'.
Document exchanged between the lawyers involved reveal around seventeen of those killed by the blasts may not have died instantly. The inquests will therefore need to examine whether their deaths could have been avoided if treatment had come earlier or been different.
Should medical equipment have been readily available in the underground stations? Tourniquets to stem blood loss may have saved lives for example - but only if used properly. There are questions about alleged delays in the arrival of help and over the time it took to remove some of the worst injured to hospital.
If all goes to plan and the Government opts to stay with the inquests rather than a public inquiry, MI5 in particular is likely to come under intense and at times critical scrutiny. The Coroner has made it clear she intends to be uncompromising in her search for the truth. She has also made it clear she will not allow assertions of gross negligence, or malpractice to be made without basis.
But the Security Service could well find it must take time out from the job of protecting the UK's national security, to defend itself and give its view of the intelligence it had before 7/7. For an organisation that works covertly and is by nature silent - that will not be easy.