The Death of David Kelly - Was the Hutton Inquiry a Section 17A inquiry?

The Hutton Inquiry was set up by Lord Falconer with the assertion that it was an inquiry in the meaning of Section 17A of the Coroners Act 1988.

One effect of Lord Falconer's assertion is that the Oxfordshire Coroner, Nicholas Gardiner QC, was under the impression that he had to find "exceptional reason" to carry out a genuine inquest in March 2004.

In this post I put on public record an email to the Attorney General sent on 24th February 2011 conveying my conclusion that the Hutton Inquiry, properly considered, was not a Section 17A inquiry.

The title of the email was:

David Kelly - Is the Hutton Inquiry a Section 17A Inquiry?

The content of the email was:

Mr McGinty,

This communication is for the attention of the Attorney General in the context of his consideration of a possible application to the High Court for an order to hold an inquest into the death of Dr. David Kelly.

In this document I ask the fundamental question as to whether the Hutton Inquiry was a "public inquiry conducted or chaired by a judge" in the meaning of Section 17A of the Coroners Act 1988.

I conclude that the Hutton Inquiry is not a "public inquiry conducted or chaired by a judge" in the meaning of Section 17A of the Coroners Act 1988.

In the final part of the document I consider some aspects of the implications of such a conclusion for the process to be followed by the Attorney General and, in due time, the High Court.

The question is, I believe, an important one since the answer to the question importantly influences how Section 13 of the Coroner's Act 1988 should be applied regarding consideration of a possible new inquest into the death of Dr. David Kelly.

There are two broad grounds to question whether or not the Hutton Inquiry was an inquiry as specified in Section 17A(1) of the Coroners Act 1988:

1. Was the Hutton Inquiry of the nature of a "public inquiry" envisaged by Parliament in the context of the Access to Justice Act 1999?

2. Was the Hutton Inquiry "conducted or chaired by a judge"?

1. Was the Hutton Inquiry a "public inquiry" as envisaged by Parliament?

Section 71(1) of the Access to Justice Act 1999 inserts Section 17A into the Coroners Act 1988.

Section 17A(1)(a) refers to "a public inquiry conducted or chaired by a judge".

Broadly, Lord Falconer and Lord Hutton each seemed to have acted as if the meaning of those words was fully met if an inquiry was held in public and conducted by a judge.

It is my view that such an interpretation is erroneous and the resulting approach adopted in the Hutton Inquiry is inappropriately casual.

The correct context in which to consider Section 17A is the Coroners Act 1988.

The Coroners Act 1988 inter alia requires that investigation into a death of specified characteristics is conducted under oath with the Coroner having powers to compel witnesses to attend.

Could Parliament have intended fundamentally to change the basis of inquiry into such a death by inserting Section 17A into the Coroners Act 1988?

I consider that the answer to the preceding question is "No!".

There is nothing in the wording of Section 17A of the Coroners Act 1988 that contains the express or implied meaning that lesser standards of inquiry are permissible when the inquiry is conducted by a judge.

Nor am I able to trace any intention that a lesser standard of inquiry would be acceptable during discussion of the clause in Parliament of the Access to Justice Bill which became Section 71(1) of the Access to Justice Act 1999.

I conclude that in the absence of a clear intention expressed by Parliament that the minimum requirements of taking evidence under oath etc apply to the investigation of any relevant death that such requirements also apply to any valid Section 17A inquiry.

The failures of the Hutton Inquiry in this context are such as to render the Hutton Inquiry of insufficient rigour to constitute a "public inquiry conducted or chaired by a judge".

In other words, I conclude that on that basis the Hutton Inquiry is not an inquiry of the nature specified in Section 17A of the Coroners Act 1988.

To the best of my knowledge this point of law has never been tested in court.

It seems to me that it is a matter which the Attorney General and the High Court will require carefully to examine prior to considering how Section 13 of the Coroners Act 1988 applies to the Memorial which I understand to have been submitted to the Attorney General and my own correspondence to him.


2. Was the Hutton Inquiry "conducted by a judge"?

So far as I am aware there is no basis on which to question whether the Hutton Inquiry was started by a judge.

However, there is good reason to question whether the Hutton Inquiry was completed by a judge.

Lord Hutton retired on 11th January 2004, yet the Hutton Report was not published until 28th January 2004.

It is clear that it can be questioned whether Lord Hutton was a "judge" when the Hutton Report was published.

There is nothing in Section 71(1) of the Access to Justice Act 1999 to suggest that it was Parliament's intention that it was sufficient that a part (even a large part) of a Section 17A "public inquiry" be conducted by a judge.

It is my contention that the wording of Section 17A requires that ALL of an inquiry be conducted by a judge (as well as meet the criteria discussed in question 1 above). It is, in my view, insufficient for a part (even a large part) of an inquiry to be conducted by a judge.

The retiral of Lord Hutton on 11th January 2004 means that the final part of the Hutton Inquiry was conducted not by a judge but by a retired judge.

Thus, it is my view that the Hutton Inquiry, on this ground, was not a "public inquiry conducted or chaired by a judge".

In other words, I conclude that the Hutton Inquiry is not a Section 17A inquiry.

Consequently, Section 17A of the Coroners Act 1998 does not apply to the need for an inquest into the death of Dr. David Kelly.

Implications for further procedure

In the stump inquest held by Nicholas Gardiner on 16th March 2004 he appears to have assumed that the Hutton Inquiry was a Section 17A inquiry.

If my conclusion expressed in this email is correct then Nicholas Gardiner applied the wrong test in the procedure held on 16th March 2004.

He, in effect, asked "Is there exceptional reason to resume the inquest into the death of Dr. David Kelly?". Rightly or wrongly he concluded that there was not "exceptional reason".

If the Hutton Inquiry is not, in fact, a Section 17A inquiry then Nicholas Gardiner would appear correctly to have applied Section 17A(4) of the Coroners Act 1988 but to a situation to which it was not relevant.

If the Hutton Inquiry, correctly viewed, is not a Section 17A inquiry then Nicholas Gardiner applied the wrong test.

He ought to have asked a question to the effect "Is the death of Dr. David Kelly a death regarding which I have a duty imposed on me by the Coroners Act 1988 to conduct an inquest?".

In my view, the answer to that question is that Nicholas Gardiner had, on 16th March 2004, a duty to conduct such an inquest.

He refused or neglected to hold an inquest that ought to have been held.

Accordingly, I consider that Section 13(1)(a) of the Coroners Act 1988 applies in consideration of this matter by the Attorney General and the High Court.

I ask the Attorney General to consider carefully whether the Hutton Inquiry is correctly viewed as a Section 17A inquiry.

I would be grateful if you would confirm receipt of this email and that the Attorney General will consider its content in the context of a possible application to the High Court.

Thank you.

(Dr) Andrew Watt