QUEEN'S BENCH DIVISION
(on the application of)
DR DAVID SYDNEY HALPIN FRCS
THE ATTORNEY GENERAL
STATEMENT OF FACTS AND GROUNDS
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 Governments 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 Kellys 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 Falconers Private Office informed the Oxfordshire Coroner that an inquiry had been established to investigate Dr Kellys 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.
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 courts 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 prosecutions 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 coroners 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 Generals 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 Generals 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 Generals 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 Generals 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 Generals 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 Generals 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 Claimants argument that the Attorney Generals decision is justiciable.
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 authoritys 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.
- The role of the Attorney General.
- The insufficiencies of the Hutton Inquiry.
- New evidence.
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 Claimants 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.
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 Chancellors 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 Huttons 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 Islands 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 Sarks legislature, the Chief Pleas, and also be the Islands 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 Appeals 2008 judgment is authority for reinforcing the McGonnell principle.
47. It will be the Claimants argument that at the time of the Attorney Generals own investigation into Dr Kellys 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 Falconers 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 Kellys 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:
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.
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 Binghams 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. Kellys 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 coroners 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 Kellys death is not stated, the time of Dr Kellys 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 Allans 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 Kellys 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 Kellys 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 Kellys 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 Kellys 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 Kellys 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 Kellys 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 bodys 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
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 Generals 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 Kellys 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 Kellys 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 Bakers 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 Kellys 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 Generals 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.
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 Generals 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 Kellys 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 Lordships observation that 20 pages of his report dealing with the causes of Dr Kellys 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 Kellys 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 Kellys 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 Kellys 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 coroners 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 Claimants 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:
- 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 Kellys 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 Kellys mood at that time.
- Dr Kellys 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 Kellys 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 Kellys 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 Claimants case that the oath is an important feature and indeed was highlighted recently as an important feature in Lord Levesons 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 Generals 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 Huttons 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 Claimants argument that such a recommendation made by Lord Hutton could not have been made in any inquest and is extremely irregular.
90. With this in mind the Claimant will refer to:
- 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 Kellys 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 Kellys 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 Kellys warm body.
- None of this information was presented by the Thames Valley Police to the Hutton Inquiry.
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.)
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
(on the application of)
DR DAVID SYDNEY HALPIN FRCS
THE ATTORNEY GENERAL
STATEMENT OF FACTS AND GROUNDS