The text of that letter follows below, for reference.
25th October 2010
Dominic Grieve QC,
The Death of Dr. David Kelly – information indicating that a Coroner-led inquest, taking evidence on oath, is needed
Dear Attorney General,
I write to you to request that you apply to the High Court for an order that a Coroner-led inquest be conducted with respect to the death of Dr. David Kelly in 2003, as provided for on the grounds enumerated in Subsection 13(1)(b) of the Coroner’s Act 1988.
Of the grounds mentioned in Subsection 13(1)(b) I consider the following grounds potentially to be of relevance in an application to the High Court with respect to the death of Dr. David Kelly.
1. Rejection of evidence
2. Irregularity of proceedings
3. Insufficiency of inquiry
4. Discovery of new facts or evidence
As I read Subsection 13(1)(b) any one of these deficiencies is sufficient grounds on which to apply for an order from the High Court. Given persistent public concerns about how Dr. Kelly met his death I find it difficult to conceive how the High Court could conclude otherwise than such an inquest is in the interests of justice.
I will list some causes for concern under each of the four headings previously mentioned. In some situations it is not immediately clear whether a particular point of concern should most appropriately be considered under a single heading or multiple headings. To avoid unnecessary repetition I will attempt to list a cause for concern under the single heading that appears to me to be most relevant.
The following lists do not purport to be exhaustive. They simply represent causes for concern that I observed after only a few hours reading the Hutton Inquiry transcripts, the Report and other potentially relevant material, as they refer to matters relating to the cause of death of Dr. David Kelly.
Rejection of Evidence
Lord Hutton made it clear in his introductory statement that decisions about who to call to give evidence rested with him. It seems to me that a number of individuals who could potentially have given useful evidence regarding Dr. Kelly’s death were excluded from giving evidence. I can only assume that Lord Hutton rejected them as witnesses, hence my including them under the “Rejection of Evidence” heading. Lord Hutton’s approach to the evidence of these individuals might equally be classified under the “Insufficiency of Inquiry” heading.
1. A Detective Constable Shields was stated (by DC Graham Coe) to have been present when DC Coe first saw Dr. Kelly’s body. DC Shields was not asked to give evidence.
2. Dr. Eileen Hickey accompanied her colleague, the forensic biologist Mr Roy Green, and spent some 5 hours at the scene where Dr. Kelly’s body was found. Dr. Hickey was not asked to give evidence, nor so far as I can ascertain was her area(s) of expertise explored by Hutton.
3. Mr. Green testified that at least three Scenes of Crimes Officers were present at the scene. None was asked to give evidence about what they might have found or seen.
Irregularity of Proceedings
1. When evidence was taken from Mr Roy Green, forensic biologist, he stated in his testimony that his tests were ongoing. He was not asked to give further oral evidence and the results of his tests, so far as I am aware, are not known (at least I can find no public record of the results having been made available to the Hutton Inquiry or, alternatively, made publicly available by the Inquiry).
2. Supposedly, Assistant Chief Constable Page was to give evidence at his second appearance before Lord Hutton about the results of Mr. Green’s tests. He did not do so in any meaningful way and the absence of information about completed tests conducted by Mr. Green was ignored by both Assistant Chief Constable Page and by the Hutton Inquiry. In any case, it was in my view highly irregular that someone who is not a technical expert should be asked to give evidence on a technical subject about which he has negligible or no expertise. In addition, the technical detail of Mr. Green’s tests was not investigated in oral questioning which seems to me to be grossly irregular and insufficient.
Insufficiency of Inquiry
There are numerous individual points where, so it seems to me, Lord Hutton was negligent in terms of conducting a credible and diligent inquiry, equivalent to an inquest.
Each of the listed points which follow indicates, in my view, “insufficiency of inquiry” by Lord Hutton. Taken together they are more consistent with Lord Hutton jumping to a politically convenient conclusion of “suicide” rather than conducting a comprehensive and diligent inquiry as to how Dr. David Kelly died.
1. No evidence was taken on oath. This raises questions about the validity of some evidence and leaves open questions about discrepancies between the evidence given by different individuals. Evidence to the Hutton Inquiry is, in its entirety, of less evidential credibility than had it been taken on oath.
2. It appears that someone may have moved Dr. Kelly’s body between it being found by the volunteer searchers and it being seen (some hours later) by Dr. Hunt, the forensic pathologist. The body was stated by Paul Chapman to be sitting against a tree. The body was stated later to be lying flat on its back. If someone moved the body in the interim it needs to be established how that came about and an assessment made of its significance. The following is apparently a statement made subsequent to the Hutton Inquiry by one of the paramedics (who was at the scene some two hours before Dr. Hunt arrived at the scene) to the Daily Mail:
‘When I was there the body was far enough away from the tree for someone to get behind it. I know that because I stood there when we were using the electrodes to check his heart. Later I learned that the dog team said they had found him propped up against the tree. He wasn’t when we got there. If the earlier witnesses are saying that, then the body has obviously been moved.’
3. Only one of the “three” plain-clothes individuals seen by the volunteer searchers was questioned by Hutton, DC Coe. So far as I can ascertain he wasn’t asked if the other officer(s) present had touched or moved the body. He stated that he hadn’t personally approached the body.
4. Each of the two searchers state that they met “three” individuals, presumably not in uniform, shortly after they found Dr. Kelly’s body. DC Coe said that only he and the mysterious DC Shields were present. Counting to two or three is not complex. Someone is either mistaken or someone is not telling the truth. Lord Hutton failed either to identify the discrepancy in evidence or to take steps to resolve the discrepancy by further questioning of witnesses.
5. The possibility exists that the mysterious “third man”, if he existed, moved the body. Lord Hutton, so far as I can ascertain, made no attempt to identify or question the “third man”. Given that Assistant Chief Constable Page indicated that Special Branch had been informed at an early stage about Dr. Kelly’s disappearance, the possibility exists that the “third man” was a Special Branch individual.
6. The Police created a “common approach path” several feet wide. So far as I can ascertain no witness was asked if the creation of the “common approach path” could have obliterated evidence of Dr. Kelly having been carried to the scene where his body was found. Since Assistant Chief Constable Page asserts that an inquiry of the highest quality was carried out, this seems a fundamental omission in the Police inquiry, paralleled by a subsequent insufficiency by Hutton.
7. It seems to be widely assumed that Dr. Kelly used his own knife to kill himself. In testimony it became clear that Mrs Kelly was never shown the knife found beside Dr. Kelly’s body. How then can any reliable identification of the knife have supposedly been made?
8. It seems to be widely assumed that Dr. Kelly used his wife’s co-proxamol tablets to kill himself. At no point was it established that any of his wife’s tablets were missing. The Hutton Inquiry did not ask her and she did not volunteer any information on the subject.
9. As a result of the irregularities previously mentioned with respect to Mr. Green’s evidence there is no assurance that “blood” mentioned in the evidence of others is indeed blood. Nor that it is human blood. Nor that it is Dr. Kelly’s blood. At best this is a “loose end”, not identified or clarified with sufficient diligence by the Hutton Inquiry.
10. Dr. Hunt speculated that the observation that Dr. Kelly’s watch was not on his wrist indicated that Dr. Kelly had removed the watch in order more effectively to cut his wrist. However, the evidence of DC Coe is that the watch was “on top of” the knife when he first saw the body. If the watch was “on top of” the knife, it wasn’t removed to allow better access to cut the wrist, at least not with the knife that was underneath the watch. So far as I can see, Lord Hutton failed to observe the discrepancy or to take steps to inquire into how it might definitively be resolved.
11. On page 4 of the Pathologist’s report (final paragraph) mention is made of “broken branches” close to Dr. Kelly’s body. Were those branches freshly broken (consistent with disturbance of the area by a third party)? So far as I can ascertain from the Hutton Inquiry documents this question was not explored. In my view, in order to adequately consider the possibility of a third party being involved, this question should have been thoroughly explored.
12. On page 5 of the Pathologist’s report (first new paragraph) Dr. Hunt states that there was a “pool of blood” extending for “2’ – 3’” i.e. for 2 to 3 feet! from the left arm of Dr. Kelly. The testimony of others is that the paramedics stood (and presumably knelt to apply the ECG electrodes) in this area (and laid what I assume to be a portable defibrillator on the ground) yet, if Dr. Hunt’s observations are correct, failed to observe a “pool of blood” some 2 to 3 feet long! I find it inexplicable that this discrepancy in the evidence was not explored in detail at the Hutton Inquiry. Having on many occasions applied ECG electrodes to the chest I cannot easily conceive of how the paramedics would have carried out the necessary actions of unbuttoning Dr. Kelly’s shirt etc and applying the electrodes without either seeing, kneeling in or standing in a “pool of blood” some 2 to 3 feet long.
13. In numbered paragraph 7 on page 13 of the Pathologist’s report Dr. Hunt uses the fact that Dr. Kelly’s spectacles were in his Barbour pocket to speculate that this was a supporting indicator that Dr. Kelly committed suicide. So far as I can ascertain Dr. Hunt did not inquire (or record) what sight defect(s) caused Dr. Kelly to possess spectacles. Nor did Lord Hutton, so far as I can ascertain. If Dr. Kelly’s spectacles were reading glasses and he wasn’t reading, is there any reason to assume that he would be wearing them? If Dr. Kelly had reading glasses and wasn’t reading (no reading material was recorded at the scene, so far as I can ascertain) it seems bizarre to use the finding as supposed evidence of suicide.
14. In numbered paragraph 8 on page 14 of the Pathologist’s report, Dr. Hunt asserts a “lack of obvious signs of trampling of the undergrowth” and speculates on that basis that this suggests self-harm. We know from testimony to Hutton that several people (the volunteer searchers, the paramedics, DC Coe and possibly others) had walked, stood or kneeled in or close to the area. But Dr. Hunt missed the signs of the recent presence of those individuals. I suggest that it can be assumed that Dr. Hunt would also have missed evidence of the hypothetical presence of a malevolently-minded third party (or parties) several hours earlier. Dr. Hunt’s assertion is, at best, of limited value and this should have been identified by Hutton, in my view and further targeted questioning have taken place.
15. The attribution in paragraph 11 on page 14 of clinical significance to anatomical coronary artery lesions is largely speculative. Lord Hutton should have explored with Dr. Hunt to what degree his assertion is speculative.
16. In numbered paragraph 13 on page 14 of the Pathologist’s report Dr. Hunt attributes cardiac toxicity to dextropropoxyphene (of which the concentration was measured) but did not consider the likely greater importance of the metabolite propoxyphene (whose concentration was not measured, I understand). The absence of information about the concentration of propoxyphene renders Dr. Hunt’s speculation significantly more uncertain than it purports to be.
17. The abrasions to the head mentioned in numbered paragraph 17 on page 15 of the Pathologist’s report might be consistent with the body having been moved by a third party. Dr. Hunt appears not to have considered that possible interpretation nor does Lord Hutton seem to have inquired about that possibility.
18. Dr. Hunt attributes death to blood loss. He, so far as I can ascertain, did not attempt to measure or estimate how much blood was lost. This renders his primary conclusion speculative, to a potentially significant degree. Lord Hutton failed to identify or explore the limitations of Dr. Hunt’s primary conclusion.
19. Professor Hawton repeated in his oral evidence, as if fact, the points about which I raise concern with respect to Dr. Kelly’s glasses, his watch and the evidence (or otherwise) of trampling at the scene. Essentially, in these matters Professor Hawton’s “evidence” amounts to little more than hearsay echoing Dr. Hunt’s evidence and amplifying the potentially erroneous observations and interpretation of Dr. Hunt. Lord Hutton failed to identify and inquire into such points of concern regarding Professor Hawton’s evidence.
20. There is a puzzling piece of toxicology evidence regarding the concentrations measured by Dr. Allen of paracetamol and dextropropoxyphene. Assuming the likely formulation of co-proxamol the ratio of the two substances ingested is 10:1. In the serum concentrations measured the ratio was 97:1. Given the metabolism of the two substances I cannot immediately identify how such a ratio could have come about, given the underlying assumption that only co-proxamol was ingested. This may be no more than a pharmacokinetic curiosity but I do consider that the Hutton Inquiry should have explored whether the somewhat surprising ratio found in serum concentrations might have any significance.
New facts or evidence
1. One of the paramedics who attended the scene indicated to a national newspaper that that the body was moved. He was not informed about the position of the body as seen by the searchers so at the time of the Hutton Inquiry was in no position to indicate that it was different when he saw it.
2. On page 4 of the Pathologist’s report recently released by the Ministry of Justice, Dr. Hunt states that the “left hand” was over the right side of Dr. Kelly’s shirt. Elsewhere in his report he states the “left hand” was to the left of the body. The discrepancy may be no more than a simple error but should be resolved.
3. On page 4 of the Pathologist’s report (third and second last paragraphs) Dr. Hunt indicates that the knife was “adjacent” to the watch. He seems entirely unaware of the evidence of DC Coe (who saw Dr. Kelly’s body some 3 hours earlier) that the watch was “on top of” the knife when he first saw the body (before the scene was potentially disturbed by the paramedics and others). This point is potentially of crucial importance. If the watch was initially “on top of” the knife Dr. Hunt’s speculation that the removal of the watch was for the purpose of inflicting a deeper wound with the knife is seriously undermined.
4. The matters discussed in the preceding numbered paragraph raise doubts about Dr. Hunt’s findings at numbered paragraph 7 on page 13 of the Pathologist’s report. Specifically, he was (so far as I can ascertain) unaware that the watch was initially “on top of” the knife. His conjecture that the watch was removed to allow better access to the wrist is seriously undermined, in my view, if DC Coe’s evidence is correct.
In light of my having commented on several technical aspects of the Pathologist’s finding and speculations I have noted my qualifications beside my name below.
In my opinion the conclusion that Dr. David Kelly killed himself is unsafe on the basis of the currently incomplete and/or contradictory evidence presented to the Hutton Inquiry, as discussed earlier in this letter. It is my view that in the interests of justice it is necessary that an inquest be held taking evidence on oath from all those who may have relevant information.
Andrew H Watt BA, BMedBiol(Pathology), MBChB, MD(Hons), DipPharmMed, FRCP(Ed)
Dominic Grieve QC
Attorney General’s Office
20 Victoria Street
The points you have raised in the letter to the Attorney General are very well argued. What we hear now though from Mr Grieve is that he is in no hurry to make a decision about a new inquest.ReplyDelete
I'm not sure how old Oxfordshire coroner Nicholas Gardiner is but it would be nice to think he would have retired by the time an inquest takes place. He of course arranged for a FULL death certificate to be issued long before Lord Hutton had concluded his Inquiry. This was totally unacceptable. I would certainly like to see any inquest held under a new coroner.
I too was struck by the speculative, heresay nature of much of Professor Hawton's answers. He also seemed to have had access to large amounts of police evidence to the Hutton Inquiry and I fail to see why that should have been since he was just one witness, whose purpose was to answer questions about suicide in general. Can we find out which other witnesses were also privy to information submitted to the Inquiry by Thames Valley Poliice much of which was not made available for release?ReplyDelete
A list is here.
In fact from his closing statement, it seems that Prof. Hawton has assumed control of the whole police investigation, and delivered his verdict of suicide ("it is well nigh certain that he committed suicide")
"Yes. I would just like to thank all the people who have helped me do my investigation into this case"
"the nature of the injuries to his wrist are very consistent with suicide."
But look what happens how Prof Hawton gets confused when the toxic subject of Co-proxamol comes up...
"What do you understand the position to be in relation to that Coproxamol?"
"Well, I understand that the evidence found from blood levels and from the contents of Dr Kelly's -- in Dr Kelly's stomach suggests that he had absorbed -- he had taken approximately 30 tablets -- I am sorry, the number of tablets is based on the number that were missing from the sheets he had with him."
Mr Dingemans " Right."
Prof Hawton "But that he had consumed well in access of a therapeutic dose of Coproxamol and given the blood levels and the relatively small amounts in his stomach, although he had vomited, I believe you have heard evidence he has vomited, but this would suggest he had consumed Coproxamol some time before death."
Nicholas Gardiner had no choice in what he did, so far as I read the Coroner's Act 1988.
In Section 17A(2) we read:
Where a coroner adjourns an inquest in compliance with subsection (1) above, he shall send to the registrar of deaths a certificate under his hand stating, so far as they have been ascertained at the date of the certificate, the particulars which under the 1953 Act are required to be registered concerning the death.
I think that what he did is far from ideal, but he had, so far as I can see, no choice because of the subsection quoted above.
I had noticed how deeply dependent Professor Hawton's evidence is no Dr. Hunt's. But hadn't made all the connections that you point out.
Thank you for those.
The interaction between the evidence of Dr. Hunt (forensic pathologist), Dr. Allan (toxicologist) and Professor Hawton (psychiatrist) shows cooperation / collusion that I would hope a Coroner would not have allowed.
If the verdict relies on co-proxamol being vomited up as evidence for a significant (29 tablets) orally taken dose of it and since there was ,presumably dried, vomit present on the face and ground, this ought to have been analysed for Co-proxamol and Paracetamol. The ratios would be 1:10 or as close as, though quantitative analysis would be problematic.(but no greater than assessing blood loss perhaps, which Mr Hunt said was the cause of death although it was not measured)ReplyDelete
I have seen evidence elsewhere that Dextropropxyphene has between 3 and 6 times the half-life of Paracetamol , such that the standard ratio of Paracetamol: Dextropropoxyphere in Co-proxamol will reduce from 10:1 with time in the blood.
Your point about the relative half-lifes of paracetamol and dextropropoxyphene is a good one.
The ratio of paracetamol to dextropropoxyphene in the blood in the toxicology report is 97:1.
If it starts at approximately 10:1 and reduces (because of the relative half-lifes) how, with the assumptions that Nicholas Hunt made, does it get to 97:1?
The wording of Section 17(A)2 of the Coroners Act 1988 is very interesting (and thank you for quoting it by the way). I think that the key phrase is "so far as they have been ascertained at the date of the certificate".
Thinking about an example where Section (17) has been acceptably used: the Ladbroke Grove Rail Crash. I believe that 31 people sadly lost their lives as a result. Presumably they all had accidental death as the reason for their demise on their death certificates and it wouldn't have been necessary to wait for the findings of the Inquiry to do this.
My contention in the unique case of Dr Kelly would be that the reason for death hadn't at all been ascertained when the full death certificate had been issued. As I understand things Forensic Pathologist Dr Hunt and Toxicologist Mr Allan did come back (while Hutton was sitting) and give evidence to Mr Gardiner so that the latter could get the death fully registered. On a legal point some might say then that evidence as to cause of death had been supplied by these two witnesses to give Mr Gardiner a clear run. Because their evidence was to be tested at Hutton (well sort of)it seems logical that their evidence as to cause of death in front of Mr Gardiner would be inadmissible at that time.
Of course the question can be asked "when did logic ever come into it?"
From my limited reading, it seems that since 2003 the law has changed to make it easier to suspend a Coroner's Inquest as happened in the Kelly case.ReplyDelete
In the 2005 Inquiries Act,Ch.12 Sect 1, we read
(1)A Minister may cause an inquiry to be held under this Act in relation to a case where it appears to him that—
(a)particular events have caused, or are capable of causing, public concern, or
(b)there is public concern that particular events may have occurred.
And in the 2009 Coroners and Justice Act c.25 Schedule 1 Part 1 Ch 3 Para 1 (a) (b) A Senior Coroner may suspend an investigation if...
the Lord Chancellor requests the coroner to do so on the ground that the cause of death is likely to be adequately investigated by an inquiry under the Inquiries Act 2005 (c. 12) that is being or is to be held...
Schedule 1 Part 2 refers to resumptions of Suspended Investigations.
So it seems we might be in line for a few more of these kind of events.