Tuesday, 11 October 2011
|Witness Statement of Dr David Sydney Halpin FRCS|
|Friday, 09 September 2011|
(2) D S Halpin
(4) 8 September 2011
(5) Exhibit DSH1
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
IN THE MATTER OF AN APPLICATION FOR PERMISSION FOR JUDICIAL REVIEW
(on the application of)
DR DAVID SYDNEY HALPIN FRCS
THE ATTORNEY GENERAL
WITNESS STATEMENT OF
DR DAVID SYDNEY HALPIN FRCS
I, Dr David Sydney Halpin FRCS, of Kiln Shotts, Haytor, Newton Abbot, TQ13 9XR will say as follows:
1.I make this statement seeking permission to bring judicial review proceedings in respect of the Attorney General's decision of 9 June 2011 not to apply to the High Court to seek an order to quash the inquest convened by the Coroner Nicholas Gardiner in 2003/2004 and to order a new inquest into the death of Dr David Kelly.
2. I am a retired medical doctor and am one of the group of doctors who have made submissions to the Attorney General in this matter before (such other doctors being Dr Stephen Frost, Dr Christopher Burns-Cox, Dr Martin Birnstingl and Dr Andrew Rouse). Although the doctors have acted as a group previously, with Dr Frost as our lead memorialist, I am now the sole Claimant in these proceedings.
3. I have read the Statement of Facts and Grounds relied upon and I am able to confirm that the facts set out in the document are accurate and in accordance with my knowledge.
4. I make this witness statement from my own knowledge, save where otherwise stated, and, where so stated, I believe those matters to be true. There is now produced and shown to me a paginated bundle of true copy documents marked DSH1, to which I shall refer in this statement.
5. I qualified MB BS in 1964 at St Mary’s Hospital and obtained the FRCS in 1969. I started my training as an orthopaedic and trauma surgeon in 1970 and was appointed to Torbay Hospital and the Princess Elizabeth Orthopaedic Hospital Exeter in 1975. I covered all facets of my area except for dealing with severe spinal deformity. My duties were very 'hands on' at Torbay. I dealt with all the severe trauma when I was on duty. Sometimes I had to repair the tendons and nerves in the wrists of young people who had slit their wrists in the mistaken belief that they would then die.
6. My 'academic' abilities were recognised by my being asked to serve on the Journal of Bone and Joint Surgery for 4 years. I was closely and enjoyably involved in teaching and in encouraging young surgeons.
The death of Dr David Kelly and my interest
7. Although I did not follow the Hutton Inquiry closely at the time, shortly afterwards in the Autumn of 2003 I noted some facts which had significance for me as a doctor and surgeon. I consequently sent a short letter to the Morning Star which, although I no longer have a copy, I recall was published 15 December 2003. The letter stated:
‘I write to enquire as to the status of the Coroner's inquest into the death of Dr David Kelly. I hope that it has not been subsumed within the Hutton enquiry. […] We have been told that he died from a cut wrist and that he had non-lethal levels of an analgesic in his blood.
As a past trauma and orthopaedic surgeon I cannot easily accept that even the deepest cut into one wrist would cause such exsanguination that death resulted. The two arteries are of matchstick size and would have quickly shut down and clotted. Furthermore we have a man who was expert in lethal substances and who apparently chose a most uncertain method of suicide.
The picture fits more with 'a cry for help'.
I have hesitated in writing this because I would not wish to hurt any family feelings.
David Halpin FRCS’
8.I learned little by little that:
8.1 The ulnar artery alone had been transected (ie cut straight across) thus allowing it to shut down more readily. Much later I defined in a document titled ‘Opinion as to the likelihood that the death of David Kelly CMG DSc was the direct result of haemorrhage due to transection of his left ulnar artery’ all the factors that limit arterial bleeding (see DSH1/1-15). My conclusion was that the bleeding from Dr Kelly's ulnar artery was highly unlikely to have been so voluminous and rapid that it was the primary cause of death. This was agreed by the group of doctors referred to in paragraph 2.
8.2 The inquest had indeed been subsumed in the Hutton Inquiry.
8.3 The core/rectal temperature had not been taken by Dr Nicholas Hunt until 7 hours after he had arrived at the scene.
9. In due course I was drawn into a group of 11 doctors, two of whom had expertise that was as appropriate as mine. One was Martin Birnstingl FRCS, a surgeon with a vascular interest who had served at St Bartholomew’s Hospital and who had been President of the Vascular Society. He, along with the other doctors, shared my view that one does not bleed to death from a transected ulnar artery at the wrist.The grounds for review
10. As medical professionals we were all keenly aware of the common law duty to report any information likely to lead to an inquest. Dame Janet Smith confirmed at paragraph 19.128 of the third report of the Shipman Inquiry that 'all citizens are under a common law duty to report to the police or coroner any information likely to lead to an inquest'. She also said in that same report 'in my view, there should be a statutory duty on any qualified or responsible person to report to the Coroner Service any concern relating to the cause or circumstances of death of which he becomes aware in the course of his duties. In the class of 'qualified' persons, I include doctors, nurses, midwives and paramedics' (DSH1/16). We were all keenly aware of this and considered it our legal and ethical duty to pursue the questions and concerns we had about the findings at the Hutton Inquiry.
11. We gathered as many of the facts together as we could and in 2004 we wrote to Mr Nicholas Gardiner, Oxfordshire Coroner, requesting him to re-open the inquest. Copies of our letters appear at DSH1/63-70. The Thames Valley Police had concluded that Dr Kelly’s death did not warrant a full murder investigation. Consequently we took the view that further reporting to the Police and the Coroner would be fruitless and so have made our representations to the Attorney General directly. These were summarised in the Memorial of Dr Stephen Frost and its Addendum (DSH1/17-309).
12. Our group continued to press for an inquest and in the years since we have spent thousands of hours in study, analysis and in pleading. Our hard work was acknowledged by the Attorney General in his letter of 16 March 2010, when he stated ‘I am aware of the work of the doctors’ group on challenging Lord Hutton’s findings. It seems to me that they have been able to make an impressive and cogent case.’ (DHS1/310).
13. I persisted in this and I am making this application for judicial review now for the following reasons.
14. First, my medical knowledge did not allow me to accept that the first cause of death was haemorrhage from transection of the ulnar artery. Furthermore, I believe that there is good evidence that puts into question the second cause of death – overdosage with coproxamol tablets.
15. Secondly, I could not see the rationale for the hasty institution of an ad hoc inquiry by Lord Falconer on 18 July 2003 whilst Dr Kelly's corpse was still cooling. The proper and lawful response should surely have been an inquest first, with the inquiry as to political/media influences later on.
16. Thirdly, I was brought up in a family where to lie is a cardinal sin. I cannot accept that the many wilful omissions and the few actual lies in the Hutton Inquiry should be left uninvestigated.
17. Fourthly, I am aware that the shock which many fellow citizens felt on news of Dr Kelly’s death has persisted. Many feel that this sad and very morbid death of a highly esteemed public servant requires and merits proper examination.
18.The grounds for review detail my standing to bring this claim and cover, broadly, the following four areas:
18.1 The role of the Lord Chancellor/Secretary of State of Constitutional Affairs.
18.2 The role of the Attorney General.
18.3 The insufficiencies of the Hutton Inquiry.
18.4 New evidence.
I entirely agree with the grounds and wish to make the following further points.
Standing and public interest
19. I understand from my advisors that I can bring a claim for judicial review only if I have ‘sufficient interest’ in this matter. I believe that I have standing to bring this claim for the following reasons.
20. First, I am a highly experienced medical practitioner. Secondly, I have been interested in this matter for many years and, with the assistance of other medical colleagues, have carried out a great deal of research. Thirdly, although I am now the sole Claimant, I still have the support of my medical colleagues and also a great deal of support from the public.
21. I believe that this claim raises issues of great public importance and I believe that it is right that someone should be able to call the Attorney General and other influential politicians to account. I respectfully submit that I am a suitable person to do so, due to my experience and medical knowledge.
22. While I do not wish to cause undue distress to Dr Kelly's family, the timing of his death and the circumstances shortly prior to his death were, understandably, subject to a great deal of press interest, and are still clearly keenly felt today. I believe that these have not been adequately addressed. I was, therefore, gratified to see that the Attorney General, in his letter of 16 March 2010, shared my concern: ‘I am conscious this is a matter where the public have not been reassured that the Hutton Inquiry satisfactorily resolved the matter.’ (DSH1/310).
23. The various questions which have been raised over the Hutton Inquiry, and the outstanding queries and suspicions, are a blight on this country’s proud tradition of the rule of law. I believe that these are serious matters which the public deserve to have dealt with in the open, transparent and procedurally robust forum of a properly convened inquest.
24. Furthermore, the grounds for judicial review raise serious questions about the role of the Lord Chancellor and separation of powers, which I believe have wide ranging constitutional implications beyond the question of Dr Kelly's death. This has been partially recognised in the Government’s subsequent reform of the role and the current Ministry of Justice.
25. For all these reasons I believe that this matter is in the highest public interest and that I have standing to bring these issues before this Honourable Court.
The current medical issues
26. While not wanting unnecessarily to duplicate the contents of the grounds of judicial review, I would like to concentrate on the following medical points, which are within my knowledge and expertise, and which I believe demonstrate the importance of having a new inquiry by way of inquest due to the insufficiencies of the Hutton Inquiry.
27. The Hutton Inquiry did not, in my view, properly fulfil the role of an inquest. The place of death is not stated, as one would expect in an inquest, the time of death is very broad, and the evidence for it is, I believe, unreliable due to Dr Hunt’s delay in taking the rectal temperature.
28. More significantly, I believe that the investigation into the levels of paracetamol and dextropropoxyphene was inadequate. To summarise, the concentrations detected in one blood sample (NCH/47) referred to in Dr Allan’s Report indicate a level above the therapeutic but below the toxic range. However Dr Allan reported no drug content in a second sample (NCH/44) and, while another two blood samples were mentioned, no drug concentrations were described (DSH1/311-317). The site of origin of the five blood samples taken by Dr Hunt are unknown, except for one which came from the heart. These are serious issues yet Dr Allan was not pressed on these issues at the Hutton Inquiry. I believe that an inquest could, and would, have looked into these issues more fully than the Hutton Inquiry. These issues have been considered before and in September 2004 I and four other doctors wrote to the Guardian (see DSH1/150) following its coverage of an editorial in the British Medical Journal which observed that the level of paracetamol and dextropropoxyphene in Dr Kelly’s blood should not have been taken as an accurate indicator of the amount allegedly ingested (DSH1/318).
29. I have further reason to believe that Dr Hunt’s evidence should have been more thoroughly tested. I attach a copy of the transcript of the evidence he gave to the Hutton Inquiry at DSH1/54-62. Dr Hunt gave evidence in relation to the alleged narrowing of Dr Kelly’s coronary arteries and observed that the condition ‘may have played some small part in the rapidity of death but (was) not the major part in the cause of death’. However on 27 August 2010 Dr Hunt was quoted in The Sunday Times, and presumably with the permission of the Oxford Coroner, as saying: ‘If he [Dr Kelly] had dropped dead in the canteen at Porton Down and you had seen his coronary arteries, you would have had a very good reason to believe that was the only reason he died’ (DSH1/91). This is a significant discrepancy and indicative of the fresh evidence that should be properly examined and, I believe, could result in a different outcome if an inquest were to be held now.
30. I also have my own concerns about the cause of death. I have referred above to the conclusion, shared by the group of doctors, that the bleeding from Dr Kelly's ulnar artery was highly unlikely to have been so voluminous and rapid that it was the primary cause of death. I attach at DSH1/1 a copy of a medical report prepared by the group of doctors giving our opinion that, broadly, it was highly improbable that Dr Kelly could have died as a result of the pathological factors given by Dr Hunt as the cause of death. I confirm that, in my professional opinion, the contents of that report remain valid.
31. I believe that this information, together with the fresh evidence outlined in the grounds, should have been considered by the Attorney General in coming to his decision. Unfortunately, while I am aware that he undertook various personal investigations (and I believe that he exceeded his powers in doing so) I am unaware what information he considered. This is because his investigations took place partly behind closed doors in conjunction with others (not all of whose identities are known) whose opinions have never been tested in open court or in any other official context. I believe that I am entitled to have access to all this information, as it may include matters which, if properly examined at an inquest, may well lead to a different outcome.
32. My concerns are also shared by other members of the public. Although I am an individual Claimant, I am fortunate to have the backing, including financial backing, of many members of the public who have responded to a campaign to raise the necessary funds to bring the present proceedings. I am very grateful to all those who have donated, as their support has made the difference between this application going ahead or not. I have retired and am of relatively modest means – I have a wife and family to support and I do not have the financial assets to bring this case without this public assistance.
33. To date £35,000 has been raised, from over 600 individual donations. Comments have included:
33.1 ‘We hope you are successful with raising the necessary money - an inquest is long overdue.’ (TK, Exeter)
33.2 ‘I do hope the Inquest Fund reaches its total. I passionately believe in justice being seen to be done.’ (PW, Brighton)
33.3 ‘Both my husband and myself sincerely hope that you receive enough funds to proceed. Dr David Kelly was a man with great integrity and deserves justice.’ (SH, Horsham)
33.4 ‘I am so sorry that I cannot afford a larger donation but I am a disabled pensioner on a very low income. I very much hope that you will reach the necessary fund target for a review procedure. Dr Kelly deserves an honest decent hearing of his case and for the 'smokescreen merchants' to be exposed.’ (KS, London)
33.5 ‘I am a pensioner with very limited funds… As an ex-Soldier thought that I had fought for democracy and pride in British standards. I feel let down… I wish the campaign well, and hope that you can give us back some pride and expose this cover-up.’
My application for a protective costs order
34. Thanks to this response from the public, I now have a ‘fighting fund’ of approximately £35,000. My solicitors and leading counsel have both agreed to discount their normal charging rates and to cap their fees in order that this case can be brought. This will cover my own lawyers’ fees for the first stage of the proceedings.
35. However, there is no provision to cover any adverse costs award, should the Attorney General decide to contest my application and succeed in this. My family is understandably very concerned about the potential effect of an adverse costs order and I doubt I would be able to continue this matter, despite my very strong convictions, if my potential exposure to adverse costs is too great.
36. Consequently I have applied for a protective costs order. I believe that this is justified for the following reasons.
36.1 The issues raised by this claim are of great public importance and interest.
36.2 I have no private interest in the outcome of the case.
36.3 It would also be fair and just to make such an order in the light of my limited financial assets. I am retired and of relatively modest means – I receive an NHS pension appropriate to my grade and share a bungalow with my wife.
36.4 In the light of the risk to my family’s livelihood, although I strongly believe in the importance of this case, it is very unlikely that I would be able to continue with these proceedings if a protective costs order is not made.
I believe that the facts stated in this witness statement are true.
37. I humbly submit that there has been an insufficiency of inquiry into the death of Dr David Kelly and that the Attorney General’s decision not to apply to the High Court to seek a new inquest was highly irrational.
Dr David Halpin FRCS
(1) ClaimantIN THE HIGH COURT OF JUSTICE
(2) D S Halpin
(4) 8 September 2011
(5) Exhibit DSH1
QUEEN'S BENCH DIVISION
IN THE MATTER OF AN APPLICATION FOR PERMISSION FOR JUDICIAL REVIEW
(on the application of)
(1) DR DAVID SYDNEY HALPIN FRCS
(1) THE ATTORNEY GENERAL
WITNESS STATEMENT OF
DR DAVID SYDNEY HALPIN FRCS
16 Old Bailey
Tel: +44 (0)20 7597 6000
Fax: +44 (0)20 7597 6543
|Application For Permission to Bring Judicial Review Proceedings|
|Friday, 09 September 2011|
|IN THE HIGH COURT OF JUSTICE |
QUEEN'S BENCH DIVISION
IN THE MATTER OF AN APPLICATION FOR PERMISSION FOR JUDICIAL REVIEW
(on the application of)
DR DAVID SYDNEY HALPIN FRCS
THE ATTORNEY GENERAL
STATEMENT OF FACTS AND GROUNDS
1. This is an application for permission to bring judicial review proceedings in relation to the Attorney General’s decision of 9 June 2011 not to exercise his powers under Section 13 of the Coroners Act 1988 to apply to the High Court to seek an order to quash the inquest convened by the Mr Nicholas Gardiner, HM Coroner for Oxfordshire in 2003/2004 and to order a new inquest into the death of Dr David Kelly: see tab 4 Core Bundle. As the proceedings are of general public importance and in the public interest, a protective costs order is also sought.The Facts
2. Dr David Kelly was an eminent scientist, specialising in biological weapons, employed by the Ministry of Defence. From 1991 until his death, he was deeply involved in investigating biological warfare programmes initiated by the former Iraqi regime and others. He became a weapons inspector both for the UK Government and the United Nations.Justiciability of the Attorney General’s Decision
3. In July 2003, the deceased's name was leaked to the press as the alleged source of a story broadcast by the BBC about the UK Government’s dossier about the so called weapons of mass destruction. Dr Kelly was summoned and appeared before the Foreign Affairs Select Committee at a televised hearing on 15 July 2003 and he gave evidence in secret at the Intelligence and Security Committee of Parliament on 16 July 2003.
4. On 17 July 2003, at about midnight, Dr Kelly was reported missing by his wife. Dr Kelly’s body was discovered in woodland at Harrowdown Hill in Oxfordshire at about 9:00am on 18 July 2003. There is some dispute as to whether Dr Kelly was found leaning against a tree or a short distance from it and conflicting evidence on this point emerged at the swiftly convened Hutton Inquiry.
5. The Hutton Inquiry was initiated by Lord Falconer on 18 July 2003, who was at the time acting in a dual capacity as Secretary of State for Constitutional Affairs (a political role) and as Lord Chancellor (a judicial role): see tab 1 Core Bundle. Lord Falconer appointed Lord Hutton to Chair the Inquiry on the very same day that Dr Kelly's body was discovered.
6. The Hutton Inquiry was not a statutory inquiry, invoked under the then relevant legislation, but an ad hoc inquiry and only the third one of its type ever to have been convened. Previous ad hoc inquiries had dealt with multiple death events, such as the Shipman Inquiry.
7. On 21 July 2003, the Inquest into the death of Dr Kelly was opened by the Oxfordshire Coroner and duly adjourned. The Hutton Inquiry opened on 1 August 2003 but formally began hearing evidence on 11 August 2003. On 12 August 2003, Lord Falconer invoked Section 17A of the Coroners Act 1988 and Lord Falconer’s Private Office informed the Oxfordshire Coroner that an inquiry had been established to investigate Dr Kelly’s death. Before formally adjourning the Inquest, Lord Falconer suggested that the Oxfordshire Coroner might need to take evidence from the pathologist and analyst as to the cause of death. The Inquest resumed on 14 August 2003 when the Oxfordshire Coroner determined that he had sufficient evidence to register a death certificate and the Inquest was then adjourned. In short, the Coronial proceedings were stopped by Lord Falconer.
8. The Hutton Inquiry lasted 24 days and was divided into two Stages. Stage 1 lasted between 11 August to 4 September 2003 and Stage 2, involving recalled witnesses at Lord Hutton's discretion, began on 15 September and ended on 25 September 2003. None of the witnesses gave evidence under oath.
9. Lord Hutton delivered his Report on 28 January 2004, in which he adopted the conclusions of the pathologist, Dr Nicholas Hunt, that Dr Kelly had committed suicide. Lord Falconer declared himself satisfied with Lord Hutton's Report and his conclusions and required the Oxfordshire Coroner, under Section 17A of the Coroners Act 1988, to find whether an exceptional reason existed not to resume the Inquest. On 16 March 2004, the Oxfordshire Coroner, after a short public hearing, concluded there was not.
10. Sometime later, at a time unknown, Lord Hutton recommended to the Oxfordshire Coroner that certain records, including medical and post mortem records, be removed from disclosure or publication for 70 years from the date of the Hutton Inquiry conclusions.
11. The Attorney General was petitioned under Section 13 of the Coroners Act 1988 to grant his Fiat to ask the High Court to quash the Inquest and order a new inquest. There is an overriding duty upon the Attorney General to be satisfied that any such decision he makes must be in the public interest. On 9 June 2011, the Attorney General decided that he would not exercise his Fiat and that no fresh inquest would be ordered.
12. The Claimant acknowledges the case of Gouriet v Union of Post Office Workers  AC 435, 487 G-488 G which laid down that the Attorney General’s powers were not subject to control and supervision by the courts. In that decision Lord Wilberforce observed that the Attorney General has ‘the right, and the duty, to consider the public interest generally and widely.’ Lord Wilberforce went on to state ‘that it is the exclusive right of the Attorney General to represent the public interest – even where individuals might be interested in a larger view of the matter – it is not technical, not procedural, not fictional, it is constitutional.’Standing to bring Judicial Review
13. Viscount Dilhorne, in the same judgment, stated that ‘only the Attorney General can sue on behalf of the public for the purpose of preventing public wrongs and that a private individual cannot do so on behalf of the public though he may be able to do so if he will sustain injury as a result of a public wrong.’ Viscount Dilhorne went on to develop this rationale by observing ‘when the Attorney General gives his consent to a relator-action, he is enabling an action to be brought which an individual alone could not bring. When he refuses his consent, he is not denying the right of any individual and barring his access to the courts (see page 495) for the courts have no jurisdiction to entertain a claim by an individual whose only interest is as a member of the public in relation to a public right.’
Lord Diplock reiterated the view of the House of Lords that the Attorney General had ‘the exclusive right…to represent the public interest in litigation.’
14. The Claimant seeks to argue that the decision in Gouriet is no longer good law and that the basis upon which it was decided no longer prevails. The present position is that the Attorney General is no longer regarded as the sole guardian of what is in the public interest, which was a central principle of the decision in Gouriet.
15. In Brown v Executors of the Estate of HM Queen Elizabeth, the Queen Mother  1 WLR 2327 EWCA the Court of Appeal held that a private individual was entitled, in the public interest, to have a substantive hearing of his claim to inspect the wills of members of the Royal family. Lord Phillips MR at paragraph 38 of that case observed ‘The conclusion (of the House of Lords in Gouriet v Union of Post Office Workers) that, in the absence of the consent of the Attorney General, Mr Gouriet was barred from pursuing the proceedings was based on an analysis of the statutory provisions in issue. By contrast, there is nothing on the face of Section 124 of the Supreme Court Act 1981 to suggest that the court may only exercise its powers under it on an application by the Attorney General.’
16. The Claimant will seek to argue that private individuals may now properly seek judicial review of decisions of the public prosecutor whether or not to initiate criminal proceedings. This power did not exist at the time of the judgment in Gouriet. The Claimant will refer to R (B) v Director of Public Prosecutions (Equality and Human Rights Commission intervening)  EWHC 106 (Admin):  1WLR 2072 at paragraph 52 which stated ‘The exercise of the court’s power of judicial review is less rare in the decision not to prosecute than a decision to prosecute (because a decision not to prosecute is final, subject to judicial review, whereas a decision to prosecute leaves the defendant free to challenge the prosecution’s case in the usual way through the criminal court) but is still exceptional.’
17. The Claimant will seek to take an analogy with the case of R (Corner House Research and Another) v Director of the Serious Fraud Office (JUSTICE intervening)  1AC 756, HL per Lord Bingham at 831 paragraph 30, which in part reads that ‘It is accepted that the decisions of the Director (of Public Prosecutions) are not immune from review by the courts.’ The House of Lords in Corner House Research made the precise analogy between the Director of Public Prosecutions and the Attorney General.
18. In argument the Claimant will refer to a number of other authorities which indicate that in modern times the courts have consistently held that private individuals may seek judicial review of decisions of the public prosecutor not only in matters of initiation or failure to take court proceedings or to discontinue police investigations, but additionally of decisions whether to takeover or discontinue ongoing private prosecutions. See R v DPP Ex Parte Duckenfield  1 WLR 55 EWCA per Laws LJ at 67-8 and R (Gujra) v Crown Prosecution Service  EWHC 472 (Admin):  2 Cr. App. R 12 at paragraph 41.
19. On this issue the Claimant will also seek to assert that the case of R v Attorney General Ex Parte Ferrante  COD 18 is instructive. This case established on its facts that there were no grounds to impugn a decision refusing to authorise an application to the High Court to reopen a coroner’s inquest. Here Popplewell J conceded ‘It seems to me that if the principle in Gouriet is now to be treated as no longer good law in relation to the Attorney General’s powers it must be for a higher court than me so to say.’ In coming to this conclusion his Lordship held that the court had no jurisdiction to judicially review the Attorney General’s refusal to give authority under Section 13 of the Coroners Act 1988.
20. The Court of Appeal, however, held that the Attorney General was entitled to have regard to the prospects of success of an application under Section 13 of the Coroners Act 1988 and had not erred in law applying the test that he did. In coming to this decision the Court of Appeal decided on the merits of the case on the assumption that the Attorney General’s decision was subject in principle to judicial review. Sir Thomas Bingham (as he then was) stated ‘On behalf of the appellant it was argued that the incoming tide of judicial review has overtaken this older authority (Gouriet), that we are here concerned with a statutory power, not a prerogative power, and accordingly the time has come when the court would be bound to hold that a public officer in this position, exercising public powers, is susceptible to control by the courts in his exercise of them. The learned judge went into that issue, which is clearly a very important one, in great detail and concluded that the authorities were in favour of the Attorney General’s argument and that, if they were to be overridden, it would have to be done by a higher court than his.
We in this court have not heard argument on this issue, because it appeared to us to be unnecessary to resolve it for the purposes of resolving this appeal. For purposes of giving judgment on the issues which do arise, I shall assume in favour of the appellant that the Attorney General’s decision to grant or withhold authority under Section 13 is subject to judicial review, but I wish to make it plain that in making that assumption I should not now or hereafter be taken as expressing any view one way or the other on what is clearly an extremely complex question.’
21. The Claimant will also refer to R v Attorney General Ex Parte Rockall  1 WLR 882 where permission for judicial review of the Attorney General’s decision not to withdraw consent to prosecution was refused because there was no arguable ground rather than the justiciability argument.
22. It will further be argued that the fact that historically the Attorney General has been regarded as exercising a quasi-judicial function need not now be regarded as an obstacle to judicial review of his decisions, in exercise of this function. The Claimant refers to R (on the application of Cart) v Upper Tribunal  UKSC 28:  3 WLR 107 which confirmed that decisions of a body statutorily designated as being ‘a superior court of record’ may still be subject to the judicial review supervisory jurisdiction of the ordinary courts.
23. In all the circumstances and reflecting all the case-law it will be the Claimant’s argument that the Attorney General’s decision is justiciable.
24. The Claimant, Dr David Halpin FRCS, is an eminent medical practitioner and reference is made to his statement dated 8 September 2011 and its paginated exhibit DSH1. He has argued for over seven years that there should be a proper and thorough investigation into the death of Dr Kelly. His arguments have culminated in the need for a fresh inquest into this death. The present Attorney General, whilst in Opposition, acknowledged the work of the Claimant in a letter dated 16 March 2010 when he observed ‘I am aware of the work of the doctors’ group on challenging Lord Hutton’s findings. It seems to me that they have been able to make an impressive and cogent case’. (See page 310 DSH1).Substantive Grounds
25. The Claimant refers to Section 31(3) of the Supreme Court Act 1981 which provides that a court may not grant permission to apply for judicial review unless the Claimant has demonstrated ‘sufficient interest’ in the matter to which the claim relates. It will be argued that whether a Claimant has established a sufficient interest is a question of both fact and law and having regard to all the circumstances of the case.
26. Reference will be made to Inland Revenue Commissioners v National Federation of Self Employed & Small Businesses Ltd.  AC 617 at 638, 639-640 and 644. Here Lord Diplock in the House of Lords stated ‘The rules as to standing for the purpose of applying for prerogative orders, like most of English public law, are not to be found in any statute. They were made by judges, by judges they can be changed; and so they have been over the years to meet the need to preserve the integrity of the rule of law.’
27. In R v Somerset County Council Ex Parte Dixon  Env LR 111 QBD Sedley J, in rejecting a challenge to the standing of an applicant to bring a judicial review against a planning authority’s grant of outline planning permission, observed:
‘Public law is not at base about rights, even though abuses of power may and often do invade private rights; it is about wrongs – that is to say misuses of public power; and the courts have always been alive to the fact that a person or organisation with no particular stake in the issue or the outcome may, without in any sense being a mere meddler, wish and be well placed to call the attention of the court to an apparent misuse of public power.’
28. In R (on the application of Bulger) v Secretary of State for the Home Department  EWHC Admin 119;  3 All ER 449 per Rose LJ at paragraphs 20-1, where the Divisional Court accepted that the threshold for standing in judicial review is at a low level, he stated ‘This, as it seems to me, is because of the importance in public law that someone should be able to call decision makers to account.’
29. The Claimant will refer to R (Kides) v South Cambridgeshire District Council  EWCA Civ 1370 in which Jonathan Parker LJ observed that ‘It seems to me that a litigant who has a real and genuine interest in challenging an administrative decision must be entitled to present his challenge on all available grounds.’
30. In R v Legal Aid Board Ex Parte Bateman  1 WLR 711 at 718 B the court held that it was important to recognise in appropriate cases ‘the right of responsible citizens to enter the lists for the benefit of the public, or of a section of the public, of which they themselves are members.’ The Claimant asserts his position and in part again relies upon the observations of the Attorney General, when he was in Opposition, when in his letter of 16 March 2010 he confirms the “impressive and cogent” arguments of the Claimant and his colleagues.
31. The Claimant will seek to refer to In Re S (Hospital Patient: Courts Jurisdiction)  Fam 1 at 18 G where it was stated ‘It can be suggested that where a serious justiciable issue is brought before the court by a party with a genuine and legitimate interest in obtaining a decision against an adverse party the court will not impose nice tests to determine the precise legal standing of that Claimant.’
32. The Claimant acknowledges that he has been previously told that he was not an ‘interested person’ as defined by Rule 20 of the Coroners Rules 1984 for the purpose of the Inquest and that the Attorney General does not consider that he has sufficient interest to apply to the High Court under Section 13 of the Coroners Act 1988 should the Attorney General have granted his fiat. However this is not an inquest and the Claimant will assert that the test for standing for judicial review purposes is much wider than the test to be an ‘interested person’, and that, from the authorities cited above, he certainly meets that test for standing.
33. In all the circumstances the Claimant asserts that he has ample standing to bring this judicial review.
34. The Claimant seeks to argue the following substantive grounds and asserts them in no particular order of priority. Rather they are listed in chronological order.
- The role of the Lord Chancellor/Secretary of State for Constitutional Affairs, Lord Falconer.
- The role of the Attorney General.
- The insufficiencies of the Hutton Inquiry.
- New evidence.
35. Although the Claimant will assert that a fresh inquest could produce a different result, in any event it will be argued that, even if there is a high probability of the same result as that which occurred in the Hutton Inquiry, that is no reason to refuse a fresh inquest. See R v HM Coroner for Swansea and Gower Ex Parte Wilson  QB 26 and Sutovic v HM Coroner for North London  EWHC 1095 (Admin).The Role of the Lord Chancellor
36. The Claimant also argues that these authorities, and particularly Sutovic, establish that a new inquest can be ordered to allay suspicions see R (on the application of Duggan) v HM Coroner for North London  EWHC 1263 (Admin) per Elias LJ at paragraph 27. To substantiate this limb of the Claimant’s argument he refers again to page 310 of DSH1 and the letter from the Attorney General, when in Opposition, dated 16 March 2010 which stated ‘I am conscious this is a matter where the public have not been reassured that the Hutton Inquiry satisfactorily resolved the matter.’
37. Between July 2003 and the end of April 2004, Lord Falconer fulfilled two roles within government. One was as Secretary of State for Constitutional Affairs and the other was as Lord Chancellor. This dual role ended on the 3 April 2006 when the Lord Chancellor and Secretary of State for Justice ceased to be the head of the judiciary and the latter role was assumed by the Lord Chief Justice who has no political role.
38. The Claimant asserts that the decisions made by Lord Falconer lacked independence and objective impartiality. It follows that the Attorney General, in not acceding to a fresh inquest and confirming the decision of Lord Falconer, acted irrationally and Wednesbury unreasonably. The particularity of the Lord Chancellor’s role complained of is that he inappropriately combined political and judicial decision-making in relation to the purported inquest into the death of Dr Kelly. On 18 July 2003, as Secretary of State for Constitutional Affairs, Lord Falconer announced his decision that a public inquiry would be held by Lord Hutton.
39. The Inquiry held by Lord Hutton was not a public inquiry under the then statute, the Tribunals of Inquiry (Evidence) Act 1921 (which has since been repealed and replaced by the Inquiries Act 2005). The 1921 Act was intended to be used for the most serious matters of urgent public importance and provided for a tribunal of inquiry that closely resembled courtroom procedure. For instance it had been used to initiate an inquiry into the disaster at Aberfan in 1966 and the original inquiry into the events of Bloody Sunday in 1972. The practice developed over time of government setting up ad hoc, non-statutory inquiries and according to the Cabinet Office Guidance contained on its website this was often done ‘because there was no appropriate legislation for statutory ones.’ (www.cabinetoffice.gov.uk/national-recovery-guidance-generic-issues-inquiries): see tab 8 Core Bundle.
40. Significantly, non-statutory ad hoc inquiries, such as the one initiated by Lord Falconer, are distinct from the statutory version in that they are not vested with the powers, privileges and rights of the High Court. The Butler Inquiry into Intelligence on Weapons of Mass Destruction was a non-statutory public inquiry compared to the Stephen Lawrence Inquiry which was a statutory public inquiry brought about under Section 7 of the 1996 Police Act.
41. The Claimant will argue that when the decision was made by Lord Falconer on 18 July 2003 as Secretary of State for Constitutional Affairs the range and focus of the ad hoc Inquiry was entirely fixed by him in a political capacity and done with undue haste. The Claimant observes that Lord Falconer appointed Lord Hutton to the ad hoc Inquiry on the same day that the body of Dr Kelly was discovered, 18 July 2003 (see tab 1 Core Bundle). The decision not to hold a statutory public inquiry and the expeditious convening of the ad hoc Inquiry did not enable any interested parties to have a meaningful input into the range and scope of the Inquiry or the processes and procedures that would be used in its conduct. The Claimant will also argue that, in an ad hoc inquiry of this nature, witnesses are not compellable compared to those in a statutory inquiry.
42. Having acted in a political capacity on the 18 July 2003, the Claimant will contend that Lord Falconer then stepped into the arena in his judicial capacity, as Lord Chancellor, when he concerned himself with the proceedings commenced by the Oxfordshire Coroner. On 12 August 2003 powers under Section 17A of the Coroners Act 1988 were invoked by Lord Falconer to adjourn the Inquest into the death of Dr Kelly pending the outcome of his ad hoc Inquiry. Upon the conclusion of the Hutton Inquiry, Lord Falconer, it is contended, again stepped into the arena in his judicial capacity to exercise powers under Section 17A of the Coroners Act 1988 when he declared himself satisfied with Lord Hutton’s conclusion and therefore required the Oxfordshire Coroner to find an ‘exceptional reason’ not to resume the Inquest.
43. The Claimant will seek to argue that the dual exercise of judicial and political roles by Lord Falconer was both unconstitutional and inappropriate and offended basic principles of the separation of powers doctrine.
44. In mounting this argument the Claimant will refer to McGonnell v UK 30 EHRR 289. This case concerned a Guernsey flower grower who had been refused planning consent. His appeal had been heard by the Bailiff of Guernsey, who had also presided over the Island’s legislature where the development plan, under which the planning decision was taken, was adopted. The European Court held that this constituted a violation of Article 6 of the European Convention on Human Rights (‘ECHR’). At paragraph 61 of that judgment the European Commission stated ‘…the Bailiff was not only a senior member of the judiciary of the island, but was also a senior member of the legislature… and, in addition, a senior member of the executive…the Commission considers that this is incompatible with the requisite appearances of independence and impartiality for a judge to have legislative and executive functions as substantial as those in the present case.’
45. Soon after this important case, the UK Government started to separate the powers of the Lord Chancellor and Secretary of State for Constitutional Affairs. By June 2003, Lord Falconer had stated that he would no longer sit on any cases in the House of Lords. He would have been acutely aware of the need to confine himself to his political rather than his judicial role or risk an Article 6 ECHR challenge. Whilst retaining the role of Lord Chancellor, the Constitutional Reform Act 2005, with effect from the 3 April 2006, transferred the judicial functions of the Lord Chancellor to the President of the Courts of England and Wales and an independent Supreme Court was established separately from the House of Lords. (See House of Commons Library Standard Notes SN/PC/2105 and SN/PC/3792 at tabs 2 and 3 of Core Bundle).
46. The Claimant will argue that in R (on the application of the Barclays and Others) v The Secretary of State for Justice and Others  EWCA Civ 1319, the Court of Appeal applied the McGonnell principle to hold that the Seneschal of Sark could not sit as the President of Sark’s legislature, the Chief Pleas, and also be the Island’s Chief Judge. See the observations of Lord Justice Etherton at paragraph 161 of that report ‘A litigant cannot be expected to know whether the Seneschal has been involved in a process within the Chief Pleas which, whether in relation to legislation or an executive matter, might have some direct or indirect bearing on the subject matter of the proceedings. The reasonable assumption would be that the Seneschal probably has been, or at least might well be, so involved, but the litigant cannot reasonably be expected to have researched and discovered any such involvement. Accordingly, in every case, so far as the litigant is concerned, there exists a possibility of lack of independence and impartiality by the Seneschal acting in a judicial capacity…for those reasons, I consider that the Reform Law gives rise to a violation of Article 6.’ The Claimant observes that the Barclays appealed other points to the House of Lords but the Government did not cross appeal on the Article 6 point. Accordingly, the Claimant will argue that the Court of Appeal’s 2008 judgment is authority for reinforcing the McGonnell principle.
47. It will be the Claimant’s argument that at the time of the Attorney General’s own investigation into Dr Kelly’s death and his subsequent decision on 9 June 2011, it was well established law that any judicial decisions of Lord Falconer could have been challenged as an unlawful breach of Article 6 of the ECHR. From the documentation which the Claimant has before him, including correspondence from the Treasury Solicitor and the Attorney General to various parties, (see tab 6 Core Bundle), there have been no substantive responses from Lord Falconer as to his role in the matter.
48. The Claimant will argue that the Attorney General acted irrationally by failing to find that Lord Falconer’s role in preventing an inquest was legally and constitutionally flawed and, therefore, that the basis of the Hutton Inquiry was fundamentally undermined.
49. Furthermore the Claimant will argue that the invocation of Section 17A of the Coroners Act 1988 was flawed and that the failure of the Attorney General to remedy this by providing for a fresh inquest was irrational.
50. It will be contended that the purpose of Section 17A was to enable the Lord Chancellor, in exceptional cases of public importance, to intervene and to ensure that, in the public interest, an investigation is carried out into a death which goes beyond the remit of coronial jurisdiction, but which still allows the death in question to be investigated adequately by a judicial inquiry set up to inquire into the wider circumstances in which the death occurred. At the time that Lord Falconer invoked Section 17A it had only previously been used on three other occasions. First, in February 2000 to deal with 31 deaths resulting from the Ladbroke Grove rail crash. In this matter Lord Cullen chaired the inquiry which was established on a statutory basis under the Health and Safety at Work etc. Act 1974. The second time concerned the 311 deaths associated with Dr. Harold Shipman and again the inquiry was constituted on a statutory basis under the Tribunals and Inquiries (Evidence) Act 1921. In November 2003 a further statutory inquiry chaired by Mr Justice Steel was set up under the Merchant Shipping Act 1995 to consider 4 fatalities associated with the shipping vessel Gaul. The Claimant will observe that the use of the ad hoc Inquiry in the context of Dr Kelly’s death was, given the facts of this case, an exceptional and improper use of non-statutory inquiry powers. Previously the three events which caused the invocation of Section 17A involved multiple deaths and were considered by statutory public inquiries.
51. The Claimant will argue that the particularised inefficiencies of the Hutton Inquiry, which are later set out in these grounds, have at their root the provision under which the Inquiry was set up. The Hutton Inquiry opened on 1 August 2003 with the terms of reference ‘urgently, to conduct an investigation into the circumstances surrounding the death of Dr Kelly.’ It will be argued that the Inquiry was deficient when compared to that of an inquest in the following ways.
52. The Claimant will state that the purpose of an investigation into death at an inquest is to find out:
a) who the deceased was;
b) how the deceased came by his death;
c) when the deceased came by his death;
d) where the deceased was when he came by his death; and
e) ascertain in what circumstances the deceased came by his death.
The Claimant will rely upon the provisions of Section 8(1) of the Coroners Act 1988 and developed case-law.
53. In particular the Claimant will rely upon R v Coroner for the Western District of Somerset Ex Parte Middleton  UKHL 10. This case was on appeal to the House of Lords from a decision in the Court of Appeal in 2002. The Court of Appeal found that where there had been a potential breach of Article 2 of the ECHR the State had a procedural duty to investigate, and that the procedural duty promoted three interlocking aims (minimising the risk of future like deaths, giving the beginnings of justice to the bereaved and assuaging the anxieties of the public) and what was required to satisfy the duty would vary with the circumstances. The subsequent House of Lords judgment, it will be argued, recognised the potential violation of Article 2 of the ECHR by procedures within inquests pre-Middleton (recognising that the previous authority of HM Coroner for North Humberside and Scunthorpe Ex Parte Jamieson  QB 1 did not meet ECHR requirements). To remedy the problem the House of Lords interpreted the word ‘how’ in Section 11(5)(b)(ii) of the Coroners Act 1988 and Rule 36(1)(b) of the Coroners Rules 1984 to mean not simply ‘by what means’ but ‘by what means and in what circumstances’.
54. It will be argued that the consequence of Middleton is that the inquest becomes a fact finding inquiry to ascertain by what means and in what circumstances the deceased came by his death. The purpose of a Middleton-type inquest is to ensure, so far as possible, that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrong doing (if justified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learnt from his death may save the lives of others. (See R (Amin) v Secretary of State for the Home Department  1 AC 653 paragraphs 2 and 3 of Lord Bingham’s judgment.)
55. Since Middleton it will be argued that there have been procedural developments further to enhance the ambit of the coronial inquiry. Systemic failure is an important ingredient which can enhance the need for the investigative role of an inquest, R (JL) v Secretary of State for the Home Department  EWHC 2558 (Admin). This case is authority that where the threat to life allegedly comes from a State agent and the individual concerned was in the care or under the direct control of the State, then such investigative duty will arise unless it is clear that, in the particular circumstances of the case, the State could bear no responsibility for what occurred. The Claimant will seek to refer to R (Lin) v Secretary of State for Transport  Inquest Law Reports 161. Examples of systemic failure in Lin ranged from wide issues in relation to the system for safety management and culture to control of contractors.
56. The Claimant will seek to argue that Dr Kelly, as the foremost Government expert employed by the Ministry of Defence in high profile matters and where there were high pressure political issues, was not protected by the State, or his employers from any pressures that might be placed upon him that could harm his health and/or wellbeing. The Claimant will not only seek to highlight the general concerns from which Dr Kelly should have been protected but will also seek to examine whether any leaks to journalists including Mr Andrew Gilligan, which ultimately, it is argued by some, resulted in Dr. Kelly’s death, were caused by high level Government minsters.
57. The Claimant will argue that the power provided to a coroner at an inquest under Rule 43 of the Coroners Rules 1984, permitting a coroner to report in writing to ‘the person or authority who may have power’ that they take any relevant action in the event that he ‘believes that action should be taken to prevent the reoccurrence of fatalities similar to that in respect of which the inquest is being held’ was not formally available or prescribed in the Hutton Inquiry. Furthermore the coroner has power under the Coroners Rules to seek responses from the State or organisations as to the coroner’s observations and/or potential criticisms within strict time frames. Again the Claimant will argue this was not available to the Hutton Inquiry.
58. The Claimant will further refer to particular omissions within the Hutton Inquiry compared to what may have occurred during a coronial inquiry. He will assert that the place of Dr Kelly’s death is not stated, the time of Dr Kelly’s death is recorded in very broad terms and in reliance upon evidence which is on the face of it unreliable (see, for example, the delay on the part of Dr Hunt described later).
59. The Claimant will assert that the investigation into the levels of paracetamol and dextropropoxyphene were inadequately dealt with at the Hutton Inquiry. In short the blood concentrations detected in the blood sample NCH/47 in Dr Allan’s report indicate a level above the therapeutic but below the toxic range. He reported no drug content in a second blood sample NCH/44. Another two blood samples were mentioned but no drug concentrations were described. (However, Dr Allan found a residue equivalent to one fifth of a co-proxamol tablet in Dr Kelly’s stomach.) The site of origin of the five blood samples taken by Dr Hunt are unknown except for one which came from the heart. Dr Allan studied four of these samples. These studies are insufficient to reach any firm conclusions as to the drug levels in Dr Kelly’s blood at the time of his death and, therefore, his intention or otherwise to kill himself, a fundamental matter in reaching a verdict of suicide. The Claimant will assert that Dr Allan was not pressed on such matters and nor did Lord Hutton, it is respectfully argued, look into them in any alternative manner leaving a significant gap in the forensic analysis. The Claimant will refer to an article in the British Medical Journal in September 2004 which observed that the level of paracetamol and dextropropoxyphene in Dr Kelly’s blood should not have been taken as an accurate indicator of the amount allegedly ingested (see page 318 of DSH1).
60. The Claimant will seek to refer to the transcript of evidence given to the Hutton Inquiry by Dr Hunt (see page 54 of DSH1). During the inquest Dr Hunt provided evidence in relation to the alleged narrowing of Dr Kelly’s coronary arteries. The Claimant has also referred to statements made by Dr Hunt after the Inquiry, and presumably with the permission of the coroner, in a Sunday Times article on 27 August 2010 (see page 91 of DSH1) when he indicated that had Dr Kelly died as he put it ‘in the canteen at Porton Down’ an examination of his coronary arteries would have been very good reason to cite this disease as a cause of death. Dr Hunt opined that his underlying condition greatly reduced the ability of Dr Kelly’s heart to withstand sudden blood loss and made him more susceptible to stress. These latest statements contradict what Dr Hunt said at the Hutton Inquiry when he observed that the coronary condition ‘may have played some small part in the rapidity of death but (was) not the major part in the cause of death.’ The Claimant also relies on this as fresh evidence which requires examination at a new inquest.
61. In his evidence at the Hutton Inquiry Dr Hunt also stated that he carried out the rectal body temperature measurement at 7:15pm on the 18 July 2003. The Claimant observes that this was some seven hours after Dr Hunt was first given access to the location where Dr Kelly’s body was found (12:10pm) and some five hours after he was given access to conduct a full examination of the scene (14:10pm). The delay in taking the body’s rectal temperature was not challenged by Lord Hutton or any advocates at the Inquiry. The Claimant will state that the significance of this failure to seek an explanation for this delay is important. The body cools after death, if the environmental temperature is lower, and the longer the delay in taking the rectal body temperature, the wider the time window within which death may have occurred. The accurate assessment of a time of death becomes more difficult as time passes.
62. It is apparent from the documents supplied to the Claimant by cover of a letter of 3 September 2010 from the Attorney General that (see tab 6(25)) ‘Dr Hunt was not cross examined because the Counsel representing the interested parties at the inquiry accepted that the medical evidence and all the other medical evidence which was given made it clear that Dr Kelly had committed suicide.’ This is not accepted by the Claimant as a decision which could have been made on the facts presented and/or now on the fresh evidence available. The Claimant is unsure whether counsel was medically qualified or whether there were in the Inquiry other appropriately qualified medical personnel who could question Dr Hunt.
The Role of the Attorney General
63. The Claimant argues that the Attorney General acted unlawfully in coming to his decision to refuse to make a Section 13 Coroners Act 1988 application in that he undertook his own personal investigation of matters relating to Dr Kelly’s death. The Claimant will assert in the circumstances that the Attorney General reached his own view on the matter rather than confining his considerations solely to the issue of whether either a new inquest might result in a different verdict on Dr Kelly’s death, or even if it would not, whether nevertheless one should be ordered. On this limb the Claimant will refer to a number of sources.
64. First, he will refer to the Parliamentary observations by the Attorney General during the course of debate (House of Commons Hansard Debates for 9 June 2011 beginning at column 301.) At column 302 the Attorney General stated that he had ‘to exercise a non-political role as guardian of the public interest and consider whether any proper grounds existed for such an application (fresh inquest) to be made. Recognising the importance of the matter, I have sought the help of independent experts to review the evidence and the new information supplied to me. That has involved help from Dr Richard Shepherd, a leading forensic pathologist, and Professor Robert Flanagan, a distinguished toxicologist. I have also sought and received the considered views of Lord Hutton; Mr Nicholas Gardiner, the Oxfordshire coroner; Dr Nicholas Hunt, the pathologist who carried out the original post-mortem; and others in response to the allegations made against their handling of the matter originally. I have also been greatly assisted by officers of the Thames Valley Police.’ Within this response the Attorney General refers to a sixty page list within a schedule dealing with the particularity of his findings. That is entitled ‘Schedule of responses to issues raised in the course of the consideration as to whether to make an application under S 13 of the Coroners Act 1988.’ (See tab 5 Core Bundle).
65. In the Attorney General’s decision ‘Request for an Inquest into the Death of Dr David Kelly. Statement by the Attorney General 9th June 2011’ (see tab 4 Core Bundle) the Attorney General states on page 1 ‘In the light of the public interest in this case, I have taken the very unusual step of carrying out my own investigation into whether an Inquest is necessary or desirable in the public interest. That investigation and my consideration of its results has now been completed.’
66. The Attorney General goes on to give further details of the sources of his research. At page 9 he states ‘In carrying out my review of the evidence, I have given careful consideration to the original report from Thames Valley Police. I have considered the statements taken by the police and seen all of the germane documentary evidence. I have seen many photographs of the scene, the body, Dr Kelly’s home, and the post-mortem. I have familiarised myself with the proceedings before the Oxfordshire Coroner and before the Hutton Inquiry. I have read relevant extracts from the book by Norman Baker and I have read the very many submissions made by members of the public. I have been assisted by the care with which many of that (sic) arguments have been put by the solicitors acting for the medically qualified individuals.’ The Attorney General goes on ‘I have sought comments on the various submissions made by the Oxfordshire Coroner, Mr Gardiner, from Lord Hutton, Lord Falconer and the Ministry of Justice. I have sought information and views from the forensic pathologist, Dr Hunt, the toxicologist Dr Allan and Thames Valley Police…I have also commissioned independent expert evidence from a Home Office pathologist, Dr Richard Shepherd, and from an independent expert toxicologist, Professor Flanagan. I have had the benefit of legal advice from a member of the independent Bar with expertise in this field and the advantage of discussing the case with my fellow Law Officers, the Solicitor General and Advocate General for Scotland.’
67. The Claimant will argue that the Attorney General irrationally and unreasonably exceeded his powers in reinvestigating the issues relating to Dr Kelly’s death. Although the Claimant has seen a small number of the reports referred to by the Attorney General in his post-Hutton investigation, the Claimant is completely unaware of what information the Attorney General may have gleaned from his ‘very unusual step of carrying out’ his own personal investigation.
68. In particular the Claimant is unaware of what the Attorney General means by ‘germane documentary evidence’; what photographs and post-mortem documentation he has seen; what extracts from Norman Baker’s book he has read; from whom and what was the substance of the ‘very many submissions made by members of the public’; the totality of submissions received from the Oxfordshire Coroner, Mr Gardiner, Lord Hutton, Lord Falconer and the Ministry of Justice (some of which have been disclosed but the predominant part has not, including, significantly, any response from Lord Falconer); what ‘information and views’ the Attorney General received from Dr Hunt and Dr Allan and furthermore the Thames Valley Police, including specifically what ‘assistance’ they provided; whether there is any disclosable detail of the advice that the Attorney General received from ‘an independent member of the Bar with expertise in this field’ and any information concerning the discussions that the Attorney General had with his ‘fellow Law Officers, the Solicitor General and Advocate General for Scotland.’ The Attorney General's recognition of the submissions made by the Thames Valley Police failed, at the same time, to note the same force had withheld from the inquiry at least 8 items of important evidence.
69. In the conclusion of his statement of 9 June 2011 the Attorney General at page 10 states ‘In considering all the evidence available… I have only found evidence that supports and confirms the findings of the Coroner and Lord Hutton.’ (See tab 4 Core Bundle). The Claimant would like to see all this information and, it is argued, is entitled to see this information.
70. The Claimant will also argue that the Attorney General had a conflict of interest in making his decision whether to apply to the High Court to order a new inquest in the light of the fact that he voted in the House of Commons in favour of the war in Iraq, including supporting the then Government's continuing efforts in the United Nations to disarm Iraq of its weapons of mass destruction and the declaration of war. The Claimant will assert that Dr Kelly’s death, on any verdict, was all about the war on Iraq and the intrigue woven around it, especially the ‘dossier’ in relation to which Dr Kelly had testified shortly before his death. The Attorney General was, at the time, one of the MPs who voted for the war on Iraq, while Dr Kelly could be said to be one of its many victims. In the light of this, the Claimant will assert that there is a clear conflict between the Attorney General’s vote in the Commons on 18 March 2003 and his decision to reject the plea of the doctors’ group to apply for a new inquest.
The insufficiencies of the Hutton Inquiry
71. As well as arguing irrationality on the basis of the above purported role of the Attorney General, the Claimant will also seek to argue that the Attorney General entirely misunderstood the potential ambit of coronial proceedings in irrationally refusing to exercise his powers under Section 13 of the Coroners Act 1988. To substantiate this, the Claimant will refer to the Attorney General’s statement to the House of Commons on 9 June 2011 at column 305 (see tab 7 Core Bundle) where he stated ‘Indeed, as I understood it, the decision marked the seriousness with which Lord Falconer took the matter at the time, and it marked his desire to have an inquiry that would be capable of going further in its scope than an inquest, particularly in respect of looking at some of the surrounding circumstances, which an inquest would not be particularly well placed to do.’
72. The Claimant refers to his submissions above in relation to the ambit of an inquest with particular reference to the authorities of Jamieson and Middleton. It is respectfully submitted that had the Attorney General properly understood the ambit of an inquest he would have known, and indeed so should Lord Falconer have known at the time, that the extended role of an inquest, enhanced or otherwise, could properly and fully cover all aspects in the investigation into the death of Dr Kelly. Indeed the Claimant will argue that a point often made by government to avoid a public inquiry, be it statutory or ad hoc, is that an inquest can adequately, properly and thoroughly perform the exercise in any event.
73. The Claimant will also argue that the Attorney General misunderstood the law in relation to the ordering of a fresh inquest (as referred to above). To substantiate this the Claimant will refer to the House of Commons statement by the Attorney General on 9 June 2011 at column 302 (se tab 7 Core Bundle) when he states, in refusing an application for a fresh inquest, that ‘There is no possibility that, at an inquest, a verdict other than suicide would be returned.’ The Claimant will assert that the Attorney General irrationally addressed his mind to whether the inquest would come to a different verdict in contradiction to established case-law, as referred to above in these grounds, which indicates that whether or not an inquest verdict would be altered does not debar a fresh inquest from being ordered.
74. The Claimant will refer respectfully to the responses of Lord Hutton contained in a letter of 1 December 2010 to the Attorney General’s Office concerning the inadequacy of the inquiry processes compared to an inquest: see tab 6(27) Core Bundle. At paragraph 2 of that letter, Lord Hutton is of the view that his Inquiry was a more thorough process than an inquest and states certain reasons. The Claimant deals with them point by point.
75. His Lordship states as an advantage that counsel and solicitors were appointed as counsel and solicitor to the Inquiry and that they gave his Lordship the benefit of their advice as to what witnesses should be called. The Claimant asserts that in a coronial procedure, pre-inquest hearings would allow for all interested parties to have input into this process, which was denied at the Inquiry.
76. Lord Hutton indicates that examination of witnesses was organised by ‘experienced counsel.’ The Claimant will state that an examination of previous high profile inquests also includes the skill and ability of experienced counsel instructed on behalf of interested parties. Counsel to an inquest is also available within coronial proceedings to assist the court.
77. His Lordship observes that the experienced counsel instructed on behalf of the family and others could have cross-examined any of the witnesses about the cause of Dr Kelly’s death. The Claimant refers to his arguments above that no such cross-examination was in fact undertaken but, in the light of the procedural inadequacy referred to above and fresh evidence to be referred to later, there should have been cross-examination or challenge.
78. His Lordship refers to the publication of material on the Inquiry website and he states that this ‘would not occur at most inquests’. Most high profile inquests not only have this facility, the Claimant will argue, but also some inquests have a live feed facility. Therefore it will be asserted by the Claimant, if relevant, that there is no technological advantage achieved at an inquiry over that which could have been achieved at a high profile inquest.
79. The Claimant takes issue respectfully with his Lordship’s observation that 20 pages of his report dealing with the causes of Dr Kelly’s death were in ‘very much more detailed than the inquisition or narrative verdict of an inquest conducted by a coroner.’ The Claimant, as a matter of fact, disputes this with reference to other high profile inquests and in particular the most recent inquest relating to the 7/7 events. The Claimant will also reiterate that his Lordship did not have the facility of a Rule 43 Procedure available at the Inquiry to require post hearing answers and remedy from the State and any relevant organisations.
80. The Claimant will refer to the authority of Glennys Jones v HM Coroner for the Southern District of Greater London and Dr Deshminder Virdi  EWHC 931 (Admin) to support his contentions relating to the insufficiency of the Inquiry. In that case, Owen J at paragraph 28 stated ‘I consider that a full and proper investigation of the means by which the deceased met his death would have involved investigating in particular whether the quantity of fentanyl prescribed and apparently used by the deceased could have been fatal in certain circumstances and if so, whether such circumstances were present. It would also have involved consideration of whether fentanyl in samples of blood and urine taken at post mortem ...3 days after death, was a reliable indication of the concentration in the blood stream at the time of death’. This was a case examining whether a drug did or did not contribute to death and it is asserted lays down clearly the precise enquiries which should be made by an inquiry into death, which were not in the cited case and not, it is submitted in the case of Dr Kelly at the Hutton Inquiry in relation to toxicology, there being no proper challenge to this evidence at the Inquiry, because as Lord Hutton put it, all parties accepted that the evidence pointed to suicide.
81. Furthermore, Rule 36 of the Coroners Rules 1984 was not met as the place of death is not stated on Dr Kelly’s death certificate. It gives his date of death as 18 July 2003. It then states regarding the place of death: ‘Found dead at Harrowdown Hill, Longworth, Oxon’. On 18 August 2003, less than three weeks into the Hutton Inquiry, which opened on 1 August 2003, Dr Kelly’s death certificate had been completed and the cause of his death officially registered as haemorrhage. Put another way, five weeks before the Hutton Inquiry ended on 24 September 2003, and while Lord Hutton was still hearing evidence about Dr Kelly’s death from witnesses, the official record of the cause of death was written and the case effectively closed. Not only would this never have happened had there been a coroner’s inquest but it suggests that Lord Hutton had made up his mind about the cause of death before his Inquiry finished. And, although it bears the signature of the registrar, the death certificate is not signed by either a doctor or a coroner, as every death certificate should be.
82. The Claimant’s argument that the ad hoc inquiry was inappropriate when compared to coronial procedure relies upon a number of further matters. The Claimant has referred above to the absence of any pre-inquiry hearings. The inquest procedure has developed a process where there may be one or a number of pre-inquest hearings. These hearings not only give opportunity for all parties to make submissions on witnesses that may be called to assist the inquest, but also allow matters of law and procedure to be argued and agreed, if possible, between all parties. This was denied in the ad hoc Hutton Inquiry. The Claimant or any interested party was not given the opportunity to make submissions upon the content and procedure at Stage One or Stage Two of the Hutton Inquiry. The Claimant will argue that this is significant given that a cross-examination of witnesses was only permitted in Stage Two of the Hutton Inquiry.
83. Furthermore the witnesses recalled in Stage Two were recalled at the discretion of his Lordship. The Claimant will argue that such decisions which go to the fundamentals of a thorough and fair inquiry should have been argued or at least the opportunity been given for argument at what in the coronial system would be pre-inquest hearings.
84. Furthermore the Claimant will assert that opportunity should have been given for witnesses to be called and examined who were not called and examined during the process; the Claimant will assert that there at least 25 such witnesses, including the following:
- Mai Pederson. She had served as translator with Dr Kelly's inspection team in Iraq in the 1990s. The Claimant believes that she would have testified, if her identity had been concealed, that an injury Dr Kelly sustained to his right elbow area in the early 1990s meant that his right hand was very weak and she believed he would not have been able to cut his wrist.
- Judith Miller. She was a US journalist and friend of Dr Kelly to whom he wrote an email very shortly before his death saying that there were 'many dark actors playing games'.
- David T McGee. He was the police photographer who could have given useful information in relation to the discrepancies regarding the position of Dr Kelly’s body.
- John Dabbs and Pamela Dabbs. They were the married couple with whom Dr Kelly spent the last weekend of his life and could have given useful information about Dr Kelly’s mood at that time.
- Dr Kelly’s dentist. Her name is unknown but she is known to the police because she alerted them to an alleged break-in at her surgery on the day Dr Kelly’s body was found. On that day, she discovered that his dental records had, according to her, disappeared from a filing cabinet in the surgery. They subsequently reappeared in their rightful place in a filing cabinet in the surgery within about 48 hours (with unidentified fingerprints on them).
- Chief Inspector Alan Young, of Thames Valley Police, who led the investigation into Dr Kelly’s death.
85. The Claimant will also argue that the issue concerning whether a jury should or should not have been appointed to an inquest would have been considered at a pre-inquest hearing. The very inception of an ad hoc Inquiry deprived any party from the benefit of jury deliberation. It will be argued that in the context of an inquest a jury might have been empanelled under Section 8 (4) of the Coroners Act 1988.
86. The Claimant will seek to criticise the ad hoc Inquiry on the basis that none of the witnesses gave sworn evidence. There were 74 witnesses called in this Inquiry and Lord Hutton at page 5 of his letter of the 1 December 2010, paragraph 5(iii) indicates that he was not ‘hampered’ by the fact that witnesses did not give their evidence on oath. Lord Hutton indicated that there was nothing before him to indicate that any of the witnesses had cause or reason to give false evidence. The need for an oath is also minimalised by the Attorney General in his response document referred to above of 9 June 2011 at page 8. He states ‘I accept that the evidence received by the Inquiry was not given on oath when it would have been at an Inquest but I am doubtful as to how significant such a difference it made in the circumstances of this case. The threat of perjury charges does not make honest witnesses more careful in giving evidence – errors will still creep in and perjury charges would only be brought in respect of deliberate statements made which were known or believed by the maker to be untrue. Nor is the threat of perjury charges likely to deter a dishonest witness who had been involved in a murder or was complicit in seeking to pervert the course of justice… The perceived benefit of hearing evidence on oath is also inevitably reduced in respect of expert evidence and other evidence that can be corroborated in other ways…’
87. It will be the Claimant’s case that the oath is an important feature and indeed was highlighted recently as an important feature in Lord Leveson’s phone-hacking inquiry. It will be argued that if the Attorney General is right in the ‘perceived’ benefit of an oath then this will utterly undermine the important function that an oath plays in any hearing, let alone one of such public importance. It will be argued by the Claimant that the Attorney General’s position on the oath is tantamount to an argument that an oath is not necessary where witnesses are inherently dishonest or in respect of expert evidence or other evidence which can be corroborated. This, it will be argued, is untenable and irrational.
88. The Claimant now refers to the highly unusual decision of Lord Hutton in the Inquiry to recommend (paragraph 165 of the 60 page Attorney General Schedule at tab 5 Core Bundle) that certain material including post-mortem reports and other medical reports (unspecified) should not be made available for inspection by third parties for 70 years. This recommendation was made in secret. Its existence was not included in the Hutton Report or spoken of by Lord Hutton or anyone else connected with the Hutton Inquiry at any stage. It was only revealed in January 2010 by the Oxfordshire Coroner in a letter to Dr Halpin and four other medical doctors. Furthermore its legal basis has never been explained. Although this recommendation has now been countermanded in respect of some documents, the Claimant argues that for the vast majority of documents, Lord Hutton’s secrecy recommendation means that they still remain hidden. His Lordship responds to this observation in his first response to the Office of the Attorney General on 3 September 2010 by indicating that ‘evidence given by witnesses’ was put on the Inquiry website (tab 6(25) Core Bundle). This does not deal with the primary documentary sources. It will be the Claimant’s argument that such a recommendation made by Lord Hutton could not have been made in any inquest and is extremely irregular.
89. The Claimant will refer to a number of items of fresh evidence which could be presented at a new inquest to assist in the examination of this case. The Claimant would remind the Court that, in any event, this may lead to and should have led to a view being taken that a fresh inquest should be ordered in the interest of justice and repeat the words of Elias LJ in the case of Duggan (referred to above) ‘if for no other reason that it should seek to allay suspicions which have been naturally raised by all the evidence which has now been produced to the court.’. In this context the Claimant refers to the remarks of the Attorney General on 9 June 2011 in the House of Commons as recorded by Hansard at column 305 that there was ‘huge and legitimate public concern’ in this matter.
90. With this in mind the Claimant will refer to:
- Evidence produced by request under the Freedom of Information Act 2000 to the Thames Valley Police which revealed that no fingerprints or DNA were recovered from the spectacles found on Dr Kelly’s body despite three tests being carried out; no tests were carried out to find fingerprints or DNA on the keys or a key fob found on Dr Kelly’s body; that the mobile telephone found in the possession of Dr Kelly was not interrogated; and that no fingerprints were found on the knife allegedly used to cause the death of Dr Kelly. This particular knife was established to have been a knife that Dr Kelly had owned since boyhood and there was no evidence that gloves were found at the scene.
- Furthermore, as a result of the request it has been revealed that no fingerprints were discovered on the blister packs of medication that Dr Kelly allegedly swallowed at the time of his death.
- Furthermore, from this request it has been revealed that no fingerprints were found or discovered from a water bottle allegedly found near Dr Kelly’s body.
- Significantly, it also emerged from the request that a police helicopter with heat seeking equipment searched for Dr Kelly on the night he disappeared. At 2:50am on 18 July 2003 it flew over the exact spot where his body was later found less than six hours later at 8:30am. Yet Dr Hunt, who took Dr Kelly’s rectal temperature but only as late as 7:15pm on 18 July 2003, determined that Dr Kelly could have been alive at 1:15am on that day. It is very strange, therefore, that the helicopter did not find Dr Kelly’s warm body.
- None of this information was presented by the Thames Valley Police to the Hutton Inquiry.
91. The Claimant will argue that the absence of fingerprints and DNA material upon the various items is potentially highly suspicious and should have been examined at the Hutton Inquiry. Furthermore, there was no examination as to whether DNA or fingerprint marks were removed from any of these items, which again would tend to support an outcome other than suicide.
92. The Claimant refers to a medical report signed by a number of eminent doctors concluding that it is highly improbable that Dr Kelly could have died as a result of the pathological factors given by Dr Hunt as the cause of death. (This report is at page 1 of DSH1.)
93. The Attorney General’s decision on 9 June 2011 not to exercise his power under Section 13 of the Coroners Act 1988 to apply to the High Court to seek an order to quash the inquest held by the Oxford Coroner Nicholas Gardiner in 2003/04 and order a new inquest into the death of Dr David Kelly is both irrational and unreasonable for all the above stated reasons. The Attorney General should now apply to the High Court or allow a third party to do so so that a new inquest be initiated. The Claimant argues that the Attorney General’s above mentioned decision was Wednesbury unreasonable so as to sanction the court to quash his decision on the grounds of irrationality and direct that he apply to the High Court.IN THE HIGH COURT OF JUSTICE
94. The Claimant also seeks a protective costs order on the grounds that he is retired and is of relatively modest means and is relying on public fundraising in order to bring the current proceedings, which are of great public importance and concern. Although funds have been raised to cover legal expenses (with solicitors and counsel working on discounted rates) there is no provision for any adverse costs order. The Claimant has no private interest in the outcome of the case and may not be able to continue these proceedings, which he is bringing in the public interest, unless a protective costs order is made.
QUEEN'S BENCH DIVISION
IN THE MATTER OF AN APPLICATION FOR PERMISSION FOR JUDICIAL REVIEW
(on the application of)
DR DAVID SYDNEY HALPIN FRCS
THE ATTORNEY GENERAL
STATEMENT OF FACTS AND GROUNDS