The Today editor was never called as a witness by Lord Hutton and his written submission was never handed to the inquiry because the BBC legal team mistakenly thought the judge would not rule on those parts of the editorial process about which he didn't hear evidence.
According to his witness statement, Marsh claims he had agreed with Gilligan what he was going to say in his scripted report going out just after 7.30am.
That script should have formed the basis of his two-way report at 6.07am.
Marsh is believed to be furious because he has been savagely criticised by Lord Hutton without having had the chance to defend himself and is consulting lawyers about the possibility of challenging some of the judge's verdict.
Marsh was not called as a witness to the Hutton inquiry, much to the surprise of many including the former editor of Today Rod Liddle.
I've blogged previously about Hutton's odd conclusions about things that cast no light. Now we have a case where Hutton delivers a damning conclusion without hearing a witness.
291.(2) The communication by the media of information (including information obtained by investigative reporters) on matters of public interest and importance is a vital part of life in a democratic society. However the right to communicate such information is subject to the qualification (which itself exists for the benefit of a democratic society) that false accusations of fact impugning the integrity of others, including politicians, should not be made by the media. Where a reporter is intending to broadcast or publish information impugning the integrity of others the management of his broadcasting company or newspaper should ensure that a system is in place whereby his editor or editors give careful consideration to the wording of the report and to whether it is right in all the circumstances to broadcast or publish it. The allegations that Mr Gilligan was intending to broadcast in respect of the Government and the preparation of the dossier were very grave allegations in relation to a subject of great importance and I consider that the editorial system which the BBC permitted was defective in that Mr Gilligan was allowed to broadcast his report at 6.07am without editors having seen a script of what he was going to say and having considered whether it should be approved.
(3) The BBC management was at fault in the following respects in failing to investigate properly the Government's complaints that the report in the 6.07am broadcast was false that the Government probably knew that the 45 minutes claim was wrong even before it decided to put it in the dossier. The BBC management failed, before Mr Sambrook wrote his letter of 27 June 2003 to Mr Campbell, to make an examination of Mr Gilligan's notes on his personal organiser of his meeting with Dr Kelly to see if they supported the allegations which he had reported in his broadcast at 6.07am. When the BBC management did look at Mr Gilligan's notes after 27 June it failed to appreciate that the notes did not fully support the most serious of the allegations which he had reported in the 6.07am broadcast, and it therefore failed to draw the attention of the Governors to the lack of support in the notes for the most serious of the allegations.
According to Marsh the notes were checked before the first broadcast. Hutton (as is standard with these inquiries) notified a number of people that they faced criticism and gave them a chance to answer that criticism. It defies logic that Hutton neither heard from marsh not notified him that he faced criticism.
I boldfaced the principle outlined by Hutton which the media should give contested allegations. That principle is higher than Hutton demands of the government in publishing war dossiers. Hutton cites passages from Reynolds v Irish Newspapers to support his view. I'll turn to unpacking that conclusion (itself contested by a number of eminent lawyers) over the next few days.