(1) Claimant
(2) D S Halpin
(3) First
(4) 8 September 2011
(5) Exhibit DSH1

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT


IN THE MATTER OF AN APPLICATION FOR PERMISSION FOR JUDICIAL REVIEW

BETWEEN:
R
(on the application of)
DR DAVID SYDNEY HALPIN FRCS
Claimant
and

THE ATTORNEY GENERAL
Defendant
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:

Inroduction
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.

Professional background
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.

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.
 
The grounds for review
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.


Public fundraising
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.


Conclusion

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.

 
I believe that the facts stated in this witness statement are true.

………………………………
Dr David Halpin FRCS
Dated:

(1) Claimant
(2) D S Halpin
(3) First
(4) 8 September 2011
(5) Exhibit DSH1
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

IN THE MATTER OF AN APPLICATION FOR PERMISSION FOR JUDICIAL REVIEW
BETWEEN:
R
(on the application of)
(1) DR DAVID SYDNEY HALPIN FRCS
Claimant
and

(1) THE ATTORNEY GENERAL
Defendant

WITNESS STATEMENT OF
DR DAVID SYDNEY HALPIN FRCS

Withers LLP
16 Old Bailey
London
EC4M 7EG
Tel: +44 (0)20 7597 6000
Fax: +44 (0)20 7597 6543


Ref: jvm/jyg