Monday, 6 June 2011

Letter from Leigh Day & Co. to the Coroner Nicholas Gardiner (sent 15 December 2009)

Nicholas G Gardiner
HM Coroner for Oxfordshire
Challenor Gardiner Solicitors
Southern House
1 Cambridge Terrace

Our Ref: FMS/GS/Frost

Date: 15 December 2009

By fax and first class post:
01865 251804 begin_of_the_skype_highlighting            01865 251804      end_of_the_skype_highlighting

Dear Mr Gardiner

Dr David Kelly – deceased (D.o.d: 18.07.03)

We act for a team of five independent specialist doctors in relation to a potential application for a further inquest in the above matter, pursuant to s.13 of the Coroners Act 1988.  Please find a copy of our clients’ curricula vitae (including details of their relevant qualifications) included at pp. 9 – 11 of the Report enclosed with this letter.

We are instructed to request disclosure of all relevant medical records – including autopsy or post mortem reports, blood test results and all other medical notes of evidence – arising from the inquest into Dr Kelly’s death, pursuant to Rule 57(1) of the Coroners Rules 1984.

Legal basis of the request

To assist the exercise of your discretion on this matter, we enclose a copy of an independent report – prepared by both our clients and Dr Michael J Powers QC - containing their professional opinion on the likelihood that the death of Dr Kelly was the direct result of haemorrhage due to transaction of his left ulnar artery, as determined by the Hutton Inquiry on this matter.  We would ask that you consider our request for disclosure within the context of this report.  Furthermore, although the report will, in due course, be disclosed to the Attorney General and other relevant parties, we request that you keep both the report and its contents confidential at this stage of the proceedings. 

As you are aware, under Rule 57(1) a Coroner is only required to disclose medical records to those that they consider to be ‘properly interested persons’.  For the reasons outlined below, we submit that our clients clearly meet the requirements of this provision.

First, our clients’ clearly satisfy the interest requirements of this provision. 
In R v. South London Coroner, ex. p. Driscoll (1993) 159 J.P 45, Justice Pill held that:

[The word] ‘interest should not be given a narrow or technical meaning.  It is not confined to a proprietary right or a financial interest in the estate of the deceased.  It can cover a variety of concerns about or resulting from the circumstances in which the death occurred. The word ‘interested’ is not used in the rule to describe or identify the persons in the categories in rule 20(a) to (g).

Furthermore, in R v HM Coroner for South Yorkshire, ex. p. Platts [2008] EWHC 2502 (Admin) Justice Wilkie held, inter alia, that the exercise of coronial discretion under Rule 20(2)(h) could not simply be circumscribed  by the provisions contained in 20(a) – (g) of the Coroners Rules 1984.  In this case, for example, Justice Wilkie held that the Coroner had erred by moving directly from considering whether an individual fit within the subcategories specified in 20(a) – (g) to finding that they did not and thereupon were a ‘stranger’ for the purposes of the Rule and the participation in the inquest.

Given the broad scope that is to be given to this element of the Rule and the professional findings of the enclosed report, we therefore submit that our clients - a very specialist team of suitably qualified medical experts who retain serious doubts about the current finding that Dr Kelly committed suicide given the known description of his injuries - clearly meet the ‘interest’ requirements of this provision.

Second, it is clear that our clients’ have a proper interest in this matter.  In the Driscoll case cited above, Lord Justice Kennedy established that a prerequisite for proper interest is that one “must establish more than idle curiosity”.  Furthermore, in the same decision, Justice Pill sought to define the scope of the word ‘properly’ in the following terms:

It remains to consider the significance of the word “properly” in paragraph (h).  In the context it imports not only the notion that the interest must be reasonable and substantial, and not trivial or contrived, but …also the notion that the … concern of the person seeking to intervene is one genuinely directed to the scope of an inquest as defined in rule 36.

We submit that this case is clearly one in which our clients’ interest is reasonable, substantial and squarely directed toward the very core of Rule 36 – that is, how Dr Kelly came by his death.  Within this context, we draw your attention to the conclusion on page 8 of the enclosed Report which finds:

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.  We advise the instructing solicitors to obtain the autopsy reports so that the concerns of a group of properly interested medical specialists can be answered.


It is obviously of huge public interest to establish whether a senior civil servant, who had loyally served the Crown for many decades, died as result of injuries from his own hand or whether there was another cause of death.  No man, let alone one who had worked in the interests of the general public of this country for so long, should be confined to history as a ‘suicide’ if, in fact, the cause of his death cannot be established beyond reasonable doubt or was in some way caused by the hands of others.

As noted above, we request full disclosure of all relevant medical records – including autopsy or post mortem reports, blood test results and all other medical notes of evidence – arising from the inquest into Dr Kelly’s death, pursuant to Rule 57(1) of the Coroners Rules 1984.  We ask that you effect disclosure within 28 days of the date of this letter.  Should you require further time to comply with our request, we ask that you request this in writing before the expiration of this period.

Alternatively, should you decide to refuse to comply with our request, we will expect your reply to clearly stipulate:

a)    the full and detailed reasons and legal bases for refusing the request;
b)    the specific factors that you have taken into account, and the weight accorded to each, in arriving at your decision;
c)    disclosure of all the documents and/or other material relied upon in arriving at your decision.

We look forward to receiving your response no later than Tuesday 12 January 2010.

Yours sincerely

Frances Swaine
Leigh Day & Co


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