Sunday, 8 April 2012

Dr Michael Powers QC speaks out on the death of Dr David Kelly

Dr Kelly was a brilliant man who did his best for his country. We owe it to him and ourselves to discover the true cause of his death

In this powerfully argued article, doctor and barrister Dr Michael Powers QC explains why justice demands an inquest is held
Dr Michael Powers
Doubts: Dr Michael Powers QC says key questions were not asked about Dr Kelly
Since his untimely death in July 2003, questions have continued to be raised about the circumstances of Dr David Kelly’s death. Many wonder whether he really killed himself and speculate that he was murdered. His sudden death shocked the nation – how could it have happened?
As a specialist practitioner in law and medicine, I feel a responsibility to the two professions to air my doubts about a case that bridges both worlds.
Any question of suicide or murder has to follow the determin­ation of the cause of death. To do otherwise risks putting the cart before the horse. It would, for example, be scientifically and logically unsound to assume suicide and then to set about finding evidence to prove it.
Before asking whether a deceased himself or a third party put the ­bullet in the head, it is necessary to determine first that there was a hole in the head and secondly that the deceased died because of it.
For 1,000 years, coroners have been investigating sudden, violent and unnatural deaths. They have got good at it. Suicide used to be a crime and a finding of self-murder is an unhappy reflection on the victim and his family and friends.
That is why suicide has to be proved to the same high standard as murder. It has to be proved beyond reasonable doubt that the deceased did the act which killed him with that intention in mind.
Dr David Kelly
Puzzle: Many wonder whether Dr Kelly really killed himself. Below, how the Mail on Sunday reported on the story
The normal inquest process in the case of David Kelly was interrupted by the order of the Government. Lord Falconer, the Lord Chancellor at the time, exercised a rarely used power to require the Oxfordshire coroner to adjourn his investigation and to give that responsibility to Lord Hutton.
The coroner had the power to compel witnesses to attend and to give ­evidence on oath. The Government which took our country to war with Iraq chose not to give these considerable powers to Lord Hutton.
Although there were 24 days of evidence taken over two-and-a-half months, the whole of the medical evidence took no more than a half day. The evidence of the pathologist, toxicologist and forensic ­biologist can be read in 30 minutes. No one could say this was a detailed investigation into the death.
I was trained as a doctor and during my years in medical practice I often had to pass fine catheters into the radial artery in the wrist. This is where medics usually feel the pulse. It can even be seen pulsating in many people. Dr Kelly’s wrists were not slit. Neither radial artery was cut. This alone is a strange finding in someone who intends suicide by this method.
Deeper in the wrist on the side of the little finger lies the ulnar artery. It is not used for catheterisation because it is too small. Yet Lord Hutton, on the unchallenged evidence of a single pathologist, concluded that Dr Kelly bled to death from the severance of this single small artery in the left hand.
No courtroom drama would be complete without critical witnesses being challenged through the cross-examination process. Like all barristers, I received a rigorous training in advocacy and, because of its enormous importance, I take time from my practice to train barristers in this art. A skilful cross-examination is often the key to ascertaining the truth.
None of this happened in Lord Hutton’s inquiry and witnesses were simply led through prepared evidence. Reading the transcripts, far from providing any sense of satisfaction, leaves me with feelings of frustration. Opportunity after opportunity was lost to pursue answers until every avenue had been thoroughly explored and every ‘escape route’ closed.
At the very end of his evidence, Dr Nicholas Hunt, the pathologist who had conducted the post-mortem, was asked: ‘Is there anything else you would like to say concerning the circumstances leading to Dr Kelly’s death?’
Kelly Ragout
Such a question gives the witness who is favourably disposed to the questioner an open opportunity to go further than his witness statement. It is NOT a question ever asked in cross-examination as it provides a free pass to an escape route.
Dr Hunt answered: ‘Nothing I could say as a pathologist, no.’ He is an experienced expert witness. What on earth did that answer mean? He was there to give evidence as a pathologist. He knew that. Everyone knew that. So why did he give that answer? It begged the question whether there was anything else he knew. Was he ­concerned about any other forensic or factual evidence? These questions were never asked.
Hutton focused on the so-called dodgy dossier and the conflict between the Government and the BBC which, at that time, was more in the public eye. Because it was taken for granted that Dr Kelly had killed himself, the medical evidence was insufficiently explored.
Kelly ragout
In the absence of any bleeding tendency from a clotting deficiency (and there was no evidence of this) fatal haemorrhage from a severed ulnar artery is so improbable that more evidence was essential before such a conclusion could be reached.
If you want to know how much beer has gone from a full pint glass, it is easy. You can either measure how much has been poured out or measure how much remains. To be confident, you would measure both. The same approach should have been adopted in this case.
As it was not, there is no evidence as to whether there was sufficient haemorrhage from the ulnar artery to cause death. The inquiry fell into the trap of the circular argument: Dr Kelly died, therefore he must have lost sufficient blood.
In my work as a barrister I meet many medics, but I have never met a single doctor who has disagreed with the proposition that it is extremely improbable that haemorrhage from a single, severed ulnar artery would ever be a primary cause of death.
Kelly Ragout
Yet this extreme unlikelihood was never explored with Dr Hunt. Whatever the reason, this was a serious failure of the Hutton Inquiry. It has understandably led to a suspicion of cover-up. This could not have been the cause of death, the argument goes. If it were not the cause, then what did cause his death? Was it something Dr Kelly did to himself, intending to cause his own death, which has not yet been discovered? Was it part of some elaborate plan by others to end his life?
The only way to stop the many theories which abound is for there now to be a thorough and open investigation by way of a fresh inquest. Surely the Government realises that the way to foster conspiracy theories is to be secretive and to resist calls to disclose all the medical evidence. We should pay tribute to Dr Kelly. He was a brilliant man who did his best in the service of this country. He deserves our gratitude and respect. We owe it to him and ourselves to ensure the true cause of his death is ascertained.
* Dr Michael J. Powers QC is a barrister specialising in medical causation and a Fellow of the Faculty of Forensic and Legal Medicine of the Royal College of Physicians to which he is an appointed examiner.

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Tuesday, 14 February 2012

Transcript of Mr Justice Nicol's strange judgement on 19 December 2011

Neutral Citation Number: [2011] EWHC 3759 (Admin)
Royal Courts of Justice
London WC2A 2LL
Monday, 19th December 2011
B e f o r e:
Computer-Aided Transcript of the Stenograph Notes of
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(Official Shorthand Writers to the Court)
Mr John Cooper QC (instructed by Withers LLP) appeared on behalf of the Claimant
Mr Jonathan Swift QC and Mr Jonathan Glasson (instructed by Treasury Solicitor)
appeared on behalf of the Defendant
(As Approved by the Court)
1. MR JUSTICE NICOL: This is an application for permission to apply for judicial
review of a decision of the Attorney-General to refuse to apply to the court, under
section 13 of the Coroners Act 1988 for an inquest or further inquest into the death of
Dr David Kelly.
2. The claimant is one of a group of doctors who in September 2010 asked the Attorney to
exercise his power under that provision to make application to the court.
3. As is well-known, Dr David Kelly CMG was an eminent scientist who had a high
reputation both nationally and internationally as a weapons inspector. He came to
public attention in July 2003, when he was identified as the alleged source of a news
report by the BBC journalist Andrew Gilligan. Request was made for him to give
evidence before the Foreign Affairs Committee and the Intelligence and Security
Committee on Thursday 10th July. He gave evidence on 15th and 16th July. On 18th
July 2003 his body was found in a wood at Harrowdown Hill, a few miles away from
his home in Oxfordshire.
4. Later that same day Lord Hutton, a former Lord Chief Justice of Northern Ireland and
who was at the time a Lord of Appeal in Ordinary, was requested by the Right
Honourable Lord Falconer of Thoroton, then the Lord Chancellor and the Secretary of
State for Constitutional Affairs, to conduct an inquiry into the death of Dr David Kelly.
His terms of reference were urgently to conduct an investigation into the circumstances
surrounding the death of Dr Kelly.
5. On 21st July 2003 an inquest into Dr Kelly's death was opened by Mr Nicolas Gardiner,
Her Majesty's Coroner for Oxfordshire. On 12th August 2003 Lord Falconer invoked
section 17A of the Coroners Act and informed the Oxfordshire Coroner that an inquiry
had been established to investigate Dr Kelly's death. Section 17A(i) says this:
"(1)If on an inquest into a death the coroner is informed by the Lord
Chancellor before the conclusion of the inquest that—
(a)a public inquiry conducted or chaired by a judge is being, or is to be,
held into the events surrounding the death; and
(b)the Lord Chancellor considers that the cause of death is likely to be
adequately investigated by the inquiry.
the coroner shall, in the absence of any exceptional reason to the contrary,
adjourn the inquest and, if a jury has been summoned, may, if he thinks
fit, discharge them."
6. The inquest was in accordance with that provision adjourned. On 28th January 2004
Lord Hutton completed his report and submitted it to Lord Falconer. The report was
laid before the Houses of Parliament on that date and statements were made in the
House of Commons by the Prime Minister and, in the House of Lords, by the Lord
Chancellor the same afternoon. Lord Hutton came to the conclusion that Dr Kelly took
his own life in the wood at Harrowdown Hill at a time between 4.15 pm on 17th JulySMITH BERNAL WORDWAVE
and 1.15 am on 18th July 2003, and that the principal cause of death was bleeding from
incised wounds to the left wrist which Dr Kelly inflicted on himself with the knife
found beside his body. It is probable that the ingestion of an excess amount of
Coproxamol tablets coupled with apparently clinical silent coronary artery disease
would both have played a part in bringing about death more certainly and more rapidly
than would otherwise have been the case. Accordingly the causes of death are 1A
haemorrhage, 1B incised wounds to the left wrist, 2 Coproxamol ingestion coronary
arteriosclerosis. He also concluded that no other person was involved in the death of
Dr Kelly and gave his reasons for that.
7. Section 17A(4) also says:
"(4)A coroner may only resume an inquest which has been adjourned in
compliance with subsection (1) above if in his opinion there is
exceptional reason for doing so; and he shall not do so—
(a)before the end of the period of 28 days beginning with the day on
which the findings of the public inquiry are published; or
(b)if the Lord Chancellor notifies the coroner that this paragraph applies,
before the end of the period of 28 days beginning with the day on which
the public inquiry is concluded."
8. On 16th March 2004 the Oxfordshire Coroner held a further public hearing to
determine whether to resume the inquest into Dr Kelly's death. He gave advance
notification of his intention do so. In a subsequent letter to the Attorney-General's
Office of 8th December 2010, the Coroner said this:
"I was anxious to ensure, so far as possible, anyone who considered
themselves properly interested should have the opportunity of making
representations to me."
9. The hearing that took place on 16th March 2004 was attended by, amongst others,
representatives of the Kelly family and the UK Government. Counsel for the family
argued that there were no exceptional reasons justifying the resumption of the inquest.
On behalf of the government, no submissions were made.
10. The Coroner considered the matter and in a considered and careful decision, concluded
that there were no exceptional reasons to justify the resumption of the inquest.
11. The request which the claimant and his colleagues made to the Attorney-General, was
for the Attorney to exercise his powers under section 13 of the Coroners Act. That says
as follows:
"(1)This section applies where, on an application by or under the
authority of the Attorney-General, the High Court is satisfied as respects a
coroner ('the coroner concerned') either—
(a)that he refuses or neglects to hold an inquest which ought to be held; orSMITH BERNAL WORDWAVE
(b)where an inquest has been held by him, that (whether by reason of
fraud, rejection of evidence, irregularity of proceedings, insufficiency of
inquiry, the discovery of new facts or evidence or otherwise) it is
necessary or desirable in the interests of justice that another inquest
should be held.
(2)The High Court may—
(a)order an inquest or, as the case may be, another inquest to be held into
the death either—
(i)by the coroner concerned; or
(ii)by the coroner for another district in the same administrative area;
(b)order the coroner concerned to pay such costs of and incidental to the
application as to the court may appear just; and
(c)where an inquest has been held, quash the inquisition on that inquest.
(3)In relation to an inquest held under subsection (2)(a)(ii) above, the
coroner by whom it is held shall be treated for the purposes of this Act as
if he were the coroner for the district of the coroner concerned."
12. In this case the claimant sought to persuade the Attorney-General that an application
should be made to the court for a number of reasons. In summary they were as follows.
First, Lord Falconer's decision to appoint Lord Hutton to conduct an inquiry was said to
have been unlawful and an interference with the inquisitorial process that would
otherwise have been conducted. Secondly, there were criticisms which the claimant
and his colleagues made of certain features of Lord Hutton's investigation and its
adequacy or rather alleged inadequacy. Thirdly, it is said that, because Lord Hutton
was appointed to conduct an inquiry on an ad hoc basis and because therefore he lacked
power to summon witnesses or examine them on oath, there was necessarily a
deficiency in the investigation which he could conduct and, because what he conducted
was not a statutory inquest, he was unable to make the recommendations that a Coroner
could have made pursuant to rule 43 of the Coroners Rules 1984, 1984 SI No 552.
Further, it is said that there had been a considerable quantity of new evidence that had
been assembled and that new evidence ought to be considered by a freshly summoned
13. As can be seen from section 13(1) there are two alternatives that may justify an
application by the Attorney-General. One is where a Coroner refuses or neglects to
hold an inquest which ought to be held, and, second, is where an inquest has been held.
The Attorney in this case was required to consider which of those two alternatives was
applicable in the present situation ie. where an inquest had been started but not
14. The conclusion that he reached was that there had in substance and in practice not been
an inquest and therefore section 13(1)(a) was the applicable provision. If I may say so,SMITH BERNAL WORDWAVE
sensibly, the Attorney decided, since the matter was not clear cut, to consider the
application that was made to him, on the alternative basis that it should be dealt with
under section 13(1)(b).
15. There is another pair of alternatives in section 13(1). That is, the Attorney may
authorise another person to make an application to the High Court with his authority
Alternatively the Attorney can make the application himself.
16. Mr Swift QC on the Attorney-General's behalf did not consider that there was a
difference in test, according to which of those alternatives was to be adopted. My
provisional view is that he was correct in this regard. Mr Cooper QC for the claimant,
did not argue for a contrary position.
17. There have been a number of authorities on the test which is to be applied by the court
if an application is made to it under section 13. In R (on the application of Sutovic) v
HM Coroner for the Northern District of Greater London [2006] EWHC 1095 (Admin),
the Divisional Court reviewed the authorities. At paragraph 54 it said this:
"The power contained in section 13(1)(b) is stated in very broad terms.
The necessity or desirability of another inquest may arise by reason of
one of the listed matters 'or otherwise'. Notwithstanding the width of the
statutory words, its exercise by courts shows that the factors of central
importance are an assessment of the possibility (as opposed to the
probability) of a different verdict, the number of shortcomings in the
original inquest, and the need to investigate matters raised by new
evidence which had not been investigated at the inquest...
55. In cases in which the court is satisfied that a different verdict is not
possible or doubts that it would be, the fact that the deceased died in
custody may be 'a compelling additional factor'... This is because of the
need (see paragraph [37] above) in such cases for an investigatory regime
which will not only expose past violations of obligations under Article 2
[of the European Convention on Human Rights] but also promote
measures to prevent or minimise the risk of future violations. The lapse
of time since the death is a factor that has generally been seen as a factor
against ordering a further inquest... but this is not always so ... it was
stated that a new inquest may be ordered even if there is a high
probability that the verdict would be the same."
18. It is clear from that and other authorities therefore, that the task of the court would not
be to decide whether there is a probability of a fresh inquest returning a verdict of the
same kind but whether there is a possibility that another inquest may return a different
19. There is an initial matter which is raised by the Attorney-General in his summary
grounds of resistance to this application and that is whether the court has jurisdiction to
review the decision of the Attorney-General not to institute proceedings. Two
authorities in particular are relied upon by the Attorney-General. The first is Queen vSMITH BERNAL WORDWAVE
Attorney-General ex parte Ferranti. On 1st July 1994 Popplewell J concluded that the
court had no jurisdiction. The matter went to the Court of Appeal which on 8th
February 1995 was prepared to assume, without deciding the question of jurisdiction. It
held that the Attorney-General's decision in that case anyway could not be regarded as
even arguably unlawful.
20. The second case on which the Attorney-General in particular relies is Queen v
Solicitor-General ex parte Michelle and Lisa Taylor, a decision of the Divisional Court
on 31st July 1995. That was a case concerning the ability of two people who had been
facing criminal proceedings to compel the Solicitor-General to bring proceedings for
contempt of court. Section 7 of the Contempt of Court Act provides that such an
application can only be made by or with the permission of the Attorney-General. The
Divisional Court concluded that there was no jurisdiction to review the refusal of the
Solicitor-General to give authorisation for such proceedings. Both these authorities in
turn both go back to the decision of the House of Lords in Gouriet v The Union of Post
Office Workers [1978] AC 435.
21. Mr Swift made clear that the Attorney continued to rely on those authorities for the
proposition that this application was not justiciable. However, realistically, he
appreciated that the Attorney needed to address the merits of the claimant's application
as well.
22. If, hypothetically, there were substantial grounds for considering that the Attorney had
acted unlawfully in refusing his consent, it would be an unattractive position, to put it
neutrally, if that illegality was beyond the power of the courts to judicially review. I
was grateful therefore for Mr Swift turning to the merits of the case.
23. Mr Cooper QC, explained that the background to the application was the concern that
the claimant's rights under Article 6 of the European Convention on Human Rights had
been improperly interfered with by Lord Falconer's decision to appoint Lord Hutton to
conduct an independent inquiry. Article 6 provides that in the determination, amongst
other things, of a person's civil rights and obligations, there is a right to an independent
tribunal. The concept of a civil right has been said on many occasions by the
Strasbourg Court and by the domestic courts to be an autonomous concept i.e. it is to be
defined and determined by reference to Strasbourg case law rather than by the meaning
which might be attributed to that expression in any one of the contracting States that are
party to the Convention.
24. In this case, Mr Cooper submits that the civil right in question was that of the claimant,
either to be added as an interested party at an inquest of Dr Kelly, or for his application
to be treated as an interested party to be properly considered. The phrase "an interested
party" is the common shorthand expression referring to Rule 20 of the Coroners Rules.
That says:
"(1) Without prejudice to any enactment with regard to the examination
of witnesses at an inquest, any person who satisfies the coroner that he is
within paragraph (2) shall be entitled to examine any witness at an inquest
either in person or by [an authorised advocate as defined by sectionSMITH BERNAL WORDWAVE
119(1) of the Courts and Legal Services Act 1990]:[6]
Provided that...
(2) Each of the following persons shall have the rights conferred by
paragraph (1)..."
A number of categories are listed between paragraphs (a) to (g). Mr Cooper does not
suggest that the claimant comes within any of them. However, there is then paragraph
(h) which reads:
"any other person who, in the opinion of the coroner, is a properly
interested person."
25. Mr Cooper submitted that the claimant would be such an interested person because of
the investigations which he and his colleagues had conducted into the circumstances
surrounding the death of Dr Kelly and the contribution that they could make to a
properly conducted inquest.
26. Mr Swift makes two responses. First, even if it be assumed that the claimant would
have an arguable case to be treated as an interested party, that is not anywhere near to
being the kind of right which Strasbourg would recognise as a "civil right". Second, he
submits that if and to the extent that there was any interference with that right, it was
not in consequence of Lord Falconer's decision to appoint Lord Hutton to conduct the
inquiry but as a result of the Coroner's decision not to resume the inquest. Any
determination therefore flowed from that decision, not from Lord Falconer's.
27. In my judgment Mr Cooper was not able to satisfy me that it is even arguable that the
right he advanced on the claimant's behalf was of the nature of a "civil right" as the
term is understood in the context of Article 6. Second, I accept Mr Swift's submission
that it would have been open to the Coroner to resume the inquest notwithstanding Lord
Hutton's inquiry. He would have had to be satisfied that there were exceptional reasons
to justify doing so. But, if and so far as he was persuaded that the inquiry by Lord
Hutton was deficient and he had not adequately investigated the cause of Dr Kelly's
death, or had not sufficiently probed the witnesses who were called by Lord Hutton,
then it would have been open to him to do so. In any event, as Mr Swift argued, it was
the decision of the Coroner not to resume the inquest, which had the effect of curtailing
any issue as to whether interested parties could take part or further part in the
inquisitorial proceedings.
28. Mr Cooper made a more general attack on what Lord Falconer had done in 2003 as
being a violation of the constitutional principle of the separation of powers. Phrases of
that kind need to be unpacked. Many of the complaints which in the past would have
been characterised in that way are now dealt with as examples of the impact of the
European Convention on Human Rights. In legal terms all that Lord Falconer was
doing in 2003 was exercising his power under section 17A(I) to inform the Coroner that
an inquiry chaired by a judge was being held and his opinion the cause of death was
likely to be investigated adequately by that inquiry. In my judgment that involved noSMITH BERNAL WORDWAVE
constitutional impropriety. Lord Falconer was simply exercising a statutory power that
Parliament had given to him.
29. The claimant and his colleagues made a number of criticisms of the investigation which
Lord Hutton had carried out. As part of his consideration of their application the
Attorney-General went back to Lord Hutton and asked for certain comments from him.
30. In the course of his oral submissions, Mr Cooper focused particularly on the fact that
Lord Hutton did not have the power to summon witnesses or administer an oath. That
was one of the matters on which the Attorney asked Lord Hutton to comment. Lord
Hutton responded that no one whom he would have wished to come before him and
give evidence had refused, and therefore the lack of a power to summon witnesses was,
in his view, immaterial. Lord Hutton also commented that he did not consider the
absence of evidence being given on oath was of any significance. He observed that
much of the evidence in relation to the causes of Dr Kelly's death was scientific and
expert evidence, where the presence or absence of an oath is not likely to be of
significance. He also commented that there had not been a suggestion from any of the
parties that any of the lay witnesses who gave evidence bearing on the cause of death
had a reason to lie. Overall therefore, he considered that the absence a power to require
evidence to be given on oath was of any particular significance. Mr Cooper suggested
that this was to denigrate an important part of procedures which are commonplace in
courts and that such playing down of the significance evidence being given on oath
should not be allowed to stand.
31. In my judgment though, these were all matters for the Attorney-General to consider as
part of his overall consideration as to whether he ought to bring an application before
the court under section 13. He was entitled to take the view that in the circumstances of
this particular case, the absence of the oath by witnesses to the inquiry was not of
particular significance and would not therefore play a substantial part in the overall
consideration as to whether such an application should be brought.
32. Mr Cooper also commented that because Lord Hutton was conducting an ad hoc
inquiry, he would not have had a power to make recommendations as a Coroner would
have had under Rule 43 of the Coroners Rules. Rule 43 says this:
"A coroner who believes that action should be taken to prevent the
recurrence of fatalities similar to that in respect of which the inquest is
being held may announce at the inquest that he is reporting the matter in
writing to the person or authority who may have power to take such
action and he may report the matter accordingly."
The Attorney-General did not place significance on that. In my judgment, he was
entitled so to do. Lord Hutton's inquiry was conducted in a blaze of publicity. His
report attracted enormous public attention. It is not arguable that the absence of his
power to make a Rule 43 report would have been of particular significance.
33. A very substantial part of the material presented to the Attorney-General was new
evidence or new commentary which the claimant had assembled. TheSMITH BERNAL WORDWAVE
Attorney-General's response went through each of the points made by the claimant and
his colleagues in a schedule running to 60 pages and 169 items. It was plainly a very
detailed response. That is perhaps unsurprising given that on 16th March 2010
Dominic Grieve QC MP who is now the Attorney-General but who was then the
Shadow Secretary of State for Justice had written to Dr Michael Powers QC about
investigations that had been made into the death of Dr David Kelly.
34. Mr Grieve said:
"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. In the absence of being in government it is
impossible to make judgment on the reasons for withholding medical and
scientific evidence. However this is something I would review if in
government as I am conscious this is a matter where the public have not
be reassured that the Hutton inquiry satisfactorily resolved the matter."
(quote unchecked)
35. In his statement to Parliament, at which the detailed responses to the new evidence
were presented, the Attorney-General also referred to material that he had gathered as
part of his consideration of the request. It included a further report from a Home Office
pathologist, Dr Richard Shepherd, and a report from a toxicologist, Professor Flanagan.
He also assembled comments and statements from Thames Valley Police who had been
involved in the initial investigation. He said this:
"I have concluded that the evidence that Dr David Kelly took his own life
is overwhelmingly strong. The test set out by section 13 of the Coroners
Act is not met."
A little later on in his statement he said:
"There is no possibility of a different verdict on the basis of the evidence
of Dr Shepherd and Professor Flanagan."
And repeated:
"In my view the evidence that Dr Kelly took his own life is overwhelming
and it would not be even necessary or desirable in the public interest to
seek a new inquest."
36. In the course of the hearing I questioned with Mr Swift whether the Attorney-General
had in those passages confused the role of the court, which would have to ask itself
whether it would be desirable or necessary in the interests of justice for a fresh inquest
to be held, with his role which was whether to bring an application for such relief
before the court. Mr Swift responded that it was material for the Attorney-General to
reach his own conclusion as to the ultimate issue that the court would be invited to ask,
since it would be the Attorney who would be the moving party seeking precisely that
relief. But in any event, even if there were some lower threshold test which the
Attorney ought to have asked himself, the strength of the views which he expressedSMITH BERNAL WORDWAVE
were such that it would be quite clear how any such lower threshold test would be
answered. I was satisfied by that response.
37. In terms of the remainder of the challenge by the claimant, it is in essence an
irrationality challenge, that is an argument that no reasonable Attorney-General could
reach the conclusion which the Attorney did that the material presented by the claimant
and his colleagues could not lead to the conclusion that an application should be
properly brought before the court.
38. An irrationality challenge always has to cross a high threshold. This is adopted by the
court in recognition of the fact that its task is a secondary one. It is reviewing the
decision which Parliament has entrusted to some other public body or official. In this
case, by section 13, Parliament has given to the Attorney-General the important
filtering decision as to whether or not to make an application for a fresh inquest to the
39. In his reply, Mr Cooper referred to the case of Duggan v The Coroner for Northern
District of Greater London [2010] EWHC 1263 (Admin). He referred to it for the
proposition that even if there was not the possibility of a fresh inquest reaching a
different conclusion, the court may nonetheless order such a fresh inquest to take place
to allay any suspicions which have been raised by the evidence produced to the court.
He submits that the material presented by the claimant and his colleagues is in exactly
the same category. So for it has been considered by the Attorney-General in private,
without the opportunity for challenge, cross-examination and open testing that would
take place in another freshly convened inquest. For that reason, the Attorney-General
has misdirected himself as to what is required and the court ought to give permission
for this application for judicial review to continue.
40. In my judgment though, Duggan was very much a decision on its own facts. There was
assembled in that case very considerable cause for suspicion. It was an application
under section 13, which was brought with the consent of the Attorney-General. It was
therefore a case which had passed through that statutory filter. When one reads the
decision one can well understand why that would have been so.
41. In the present case the Attorney-General has given, as I have explained, extremely
detailed reasons why he did not accept any of the 169 reasons for acceding to the
request that he apply to the High Court under section 13. Mr Cooper is of course right;
that was a process that was not reached in the way that a court would reach it. But the
whole point of the Attorney-General's power under section 13 is that he acts as a filter
before the matter gets to a court. Parliament has considered it necessary and desirable
to have such a filter. In my judgment, he has exercised that discretion and power
lawfully and it is not arguable that he has exercised it unlawfully.
42. This matter has come before the court as an application for permission. It was not
decided on the papers. When it came before Kenneth Parker J on 20th October 2011,
he ordered it in for an oral hearing. He said:
"I am not satisfied that this claim is properly arguable and certain aspectsSMITH BERNAL WORDWAVE
appear to me to be basically misconceived. I reach that view even putting
aside the formidable obstacle posed by Gouriet. Nonetheless given the
particular background and the wider public concerns involved, I believe it
right to allow the claimant, if so minded, to make oral submissions why,
despite my view formed on the papers, permission should be granted."
43. Having heard the able submissions of Mr Cooper on behalf of the claimant, I also come
to the conclusion that this is not a case where permission should be granted.
44. [The court went on to consider costs.]

email from me to Rowena Thursby dated 6 March 2004

christopher frost <z2003@yahoo>
wrote: > Date: Sat, 6 Mar 2004 01:46:20 +0000 (GMT)
> From: christopher frost <z2003@yahoo>
> Subject: Re: strategies
> To: Rowena Thursby <rowena@onetel>
> CC: stephen.frost@

> Rowena

> In my opinion, what is "hot" about this story NOW is:

> 1) a group of doctors have had three letters
> published
> in a national broadsheet mainstream newspaper and
> have
> said that they do not accept that Kelly committed
> suicide by the method claimed (by Hunt and Hutton)

> 2) those doctors remain unchallenged

> 3) the coroner, whose job it is to rule out foul
> play
> in sudden unexpected deaths, says he wants to
> achieve
> "closure" at the hearing which he has ostensibly
> convened to decide whether the inquest should be
> resumed

> 4) at the same time, he decides that the doctors who
> have said it was not suicide are not "properly
> interested persons" (when he has the power to decide
> that anybody is "properly interested") but omits to
> put this in writing

> All we need to do, I feel, is to get all our
> correspondence with the coroner published (including
> your first letter and his highly dubious reply to
> our
> second letter).  That would put him in an untenable
> position, bearing in mind 1), 2), 4) (and 3)).  It
> should be pointed out that we have not received a
> proper reply to any of our letters. 

> Additionally: 

> 1) Hutton could not reasonably conclude from the
> evidence he heard, bearing in mind the woefully
> inadequate questioning of witnesses, that Kelly
> committed suicide - crucially he did not, beyond
> reasonable doubt, rule out foul play

> 2) there are only two precedents for an inquest to
> be
> subsumed in a public inquiry : the victims of the
> Ladbroke Grove train disaster and Shipman - neither
> of
> those precedents was politically sensitive

> 3) Hutton lacked the power to call a jury, the power
> to subpoena witnesses and the power to hear those
> witnesses' evidence under oath - all those powers
> are
> available to a coroner

> 4) Hutton had no experience of performing the duties
> of a coroner

> 5) Hutton was appointed by, and reported to, Lord
> Falconer and his (Hutton's) narrow remit was
> determined for him by the latter - he was not
> independent - the coroner "takes orders from nobody"
> (or so I was taught at medical school)

> 6) Hutton was, according to the BBC's lawyers,
> "wrong
> in law" on 12 separate points with regard to his
> judgement on the BBC - was he also "wrong in law"
> with
> regard to his judgement that Kelly committed
> suicide?
> (probably)

> 7) why was the Hutton Inquiry projected as an
> investigation into whether the BBC or the Government
> was responsible for Kelly's "suicide", when nobody
> had
> established that it was suicide?

> 8) why were the press and other media outlets so
> uniformly docile, not mentioning, until our first
> letter had been published, even the possibility that
> Kelly was murdered?

> 9) Kelly was one of the world's leading experts, if
> not the outright leading expert, on biological and
> chemical weapons, and, at the time of his death, had
> questioned, and was perhaps planning to question
> further, the British Government's presentation of
> the
> intelligence used to justify this country going to
> war
> with Iraq - in short, a clear motive existed for
> murder - he knew so much that there is little doubt
> that he could, if he so chose, have brought down
> both
> Blair and Bush singlehandedly

> 10) so, if his position was so sensitive why was he
> not regarded, until proved otherwise, as the victim
> of
> foul play? and why was the investigation of his
> death
> considerably weakened by Lord Falconer's "ordering"
> the coroner to adjourn indefinitely his inquest?

> Finally, the doctors think it highly unlikely 

> (a) that a man of Kelly's intelligence and position
> would commit suicide, 

> (b) that, had he decided to commit suicide, he would
> have chosen the claimed method (particularly in view
> of his area of expertise) and 

> (c) that, had he, against all odds, done so, he
> would
> succeed by completely severing a single small
> artery,
> the left ulnar artery, in the open air.

> Case closed!!!

> Best wishes

> Stephen

Friday, 16 September 2011


Witness Statement of Dr David Sydney Halpin FRCS

Friday, 09 September 2011
(1) Claimant
(2) D S Halpin
(3) First
(4) 8 September 2011
(5) Exhibit DSH1




(on the application of)



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.

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.


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

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


(on the application of)



Withers LLP
16 Old Bailey
Tel:             +44 (0)20 7597 6000 begin_of_the_skype_highlighting            +44 (0)20 7597 6000      end_of_the_skype_highlighting      
Fax: +44 (0)20 7597 6543

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