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:
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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.]

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