Wednesday, 31 August 2011

David Kelly Judicial Review - Pre-action Protocol - Preliminaries

Today I am sending to Dominic Grieve a document formally asking him to consider whether he should withdraw the decision announced on 9th June 2011.

If Mr. Grieve withdraws his dishonest decision now it avoids unnecessary use of the time of the High Court in considering an application for Judicial Review.

I very much believe that, at a minimum, an inquest is required into the suspicious death of Dr. David Kelly in Oxfordshire in 2003.

A thorough and publicly-accessible inquest is an important step towards eliciting a truth that has been covered up for 8 years with considerable ingenuity and energy.

The email is hopefully self-explanatory but discussion in the Comments is welcome, particularly if some aspect of the document is unclear.

The title of the email is:
David Kelly Judicial Review: Pre-action protocol - Preliminaries

The content of the email is:

Mr. Grieve / Mr. McGinty,

I am writing to you to seek to determine whether or not it may be possible for the Attorney General to withdraw his decision announced on 9th June 2011 without my having to have recourse to seeking Judicial Review of the decision.

That decision relates to an application in terms of Section 13 of the Coroners Act 1988 with a view to seeking an order from the High Court that an inquest be held into the suspicious death of Dr. David Kelly in Oxfordshire in 2003.

Correspondence from myself and others in that context invited the Attorney General carefully to consider the grounds expressed in subsections 13(1)(a) and 13(1)(b) of the Coroners Act 1988:

(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; or(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.

It is my considered view that the decision of the Attorney General is seriously defective and therefore potentially subject to Judicial Review.

I am unable to identify any mechanism that allows me, and potential co-appellants, to appeal the Attorney General's decision announced on 9th June 2011 otherwise than by seeking Judicial Review of Mr. Grieve's decision.

Given the applicable time limits I would be grateful if the Attorney General would give his URGENT attention to this matter, with a view to avoiding unnecessary use of the time of the High Court.

I understand that, broadly, the High Court prefers that the Appellant seeking Judicial Review of a decision should communicate in some manner with the decision maker indicating to the person or body whose decision may be judicially reviewed that the Appellant is sufficiently concerned by the decision in question so as to be contemplating Judicial Review.

It is the purpose of this email formally to do so.

Further, the decision maker should be invited to reconsider or withdraw his decision. In this email, I again invite Dominic Grieve to give careful consideration to the possibility that withdrawing now the decision announced on 9th June 2011 is the least damaging way forward.

Withdrawal of the decision will, no doubt, reflect negatively on Mr. Grieve personally.

However a willful persistence by Mr. Grieve in defending an irrational and dishonest decision can, in my view, only cause serious long-lasting harm to the credibility of the office of Attorney General.

In my view, the decision of the Attorney General announced on 9th June is materially defective. Such defects, in my assessment, are apparent in each of the three elements of what I term the "Diplock triad" - broadly those are "illegality", "irrationality" and "procedural impropriety".

I would be grateful if you would consider this email together with other relevant correspondence from me since 9th June as constituting what I understand to be termed a Pre-action Protocol. My email of 12th June 2011 may be a useful starting point.

My email of 12th June is online here:

As you may recall, I copied my email of 12th June to David Cameron (as well as Craig Oliver and Steve Field at Number 10). Mr. Cameron seems to have displayed inactivity in relation to this matter similar to his response to concerns about Andy Coulson.

However, the primary purpose of this email is not to highlight the deficencies of David Cameron's judgement. One might say, however, that an important purpose of this email is to begin to draw attention to serious errors of judgement by the Attorney General.

It seems to me that Dominic Grieve has taken the "never mind the quality feel the width" approach when considering the application made to him under Section 13 of the Coroners Act 1988 by myself and others, not least Dr. Stephen Frost, Mr. David Halpin and other medical colleagues who I understand to have submitted a Memorial to the Attorney General via Leigh Day & Co, solicitors, in or around September 2010.

I do not repeat here the extensive correspondence in this context from myself to the Attorney General beginning with my Open Letter of 25th October 2010 which is online here:

Unusually, given the time limitations, the Pre-Action Protocol to be sent to the Attorney General will be modular. Further modules are to be sent to the Attorney General for his consideration as soon as each component is expressed with what I hope to be sufficient clarity.

By doing so I think I can give the Attorney General the maximum opportunity in the circumstances to consider whether he ought publicly to announce that he is withdrawing his decision announced on 9th June 2011. This approach facilitates him forwarding a module specifically to, say, Dr. Richard Shepherd for his assessment of a specific issue relevant to his area of expertise.

Withdrawal of the decision will not, I imagine, be a congenial possibility. However, it may be the way to do least lasting harm to the office of Attorney General. That latter matter is, of course, for Mr. Grieve and Mr. Cameron to consider.

Mr. Grieve may recall that I expressed one of the many aspects of my concerns in an email on 12th June 2011 in somewhat forceful but, in my view, fully justified terms.

It remains my view that Mr. Grieve's decision is contrary to the totality of the evidence.

Of course, whether or not the Attorney General continues in his post depends primarily on the continuing confidence of the Prime Minister. Accordingly, I am copying this and associated emails to David Cameron MP.

I am also copying this email for information to my MP, Malcolm Bruce.

For the avoidance of doubt my part in this correspondence will be put, as time allows, into the public domain. Typically I plan to do so by posting copies of the modules of the Pre-Action Protocol on my "Chilcot's Cheating Us" blog at

Readers of my blog and recipients of blind copies of each email should feel free to distribute their content as they see fit. I view this correspondence as public.

The text of this email is being placed on my "Chilcot's Cheating Us" blog here:

Thank you

(Dr) Andrew Watt


  1. In these times of austerity it would be wise for the Attorney General to carefully consider the alternative to fighting a legal challenge.

    Mr Gardiner, the Oxfordshire Coroner, wrote to the Attorney General last year and commented that an inquest into the death of David Kelly, in his considerable experience, would take less than half a day.

    The Attorney General has already spent a huge amount of time and money evading an inquest, to waste more time and money when a simple, cheap alternative is available to him.

    How much more of tax payers money is he prepared to spend. Millions have already been spent but we still don't know where Dr Kelly died, when he died or how he died. A Coroner is the person legally charged to answer these questions.

    The Attorney General in his statement to Parliament asked "If the body had been moved, then why, by whom and for what purpose?" Mr Grieve recognises these are central and extremely important questions but he did not attempt any investigation to try and answer them. A Coroner could examine these questions.

    New evidence provided by DC Coe last year sheds light of the moving of the body; this evidence has not been investigated by police nor by the Attorney General's investigative team. This evidence therefore constitutes "new evidence" referred to in section 13(1)b. This alone is reason for the AG to send an application to the High Court so that the questions he has raised in Parliament can be answered in a Coroners Court.

  2. LL,

    Tha matters which Dominic Grieve seeks to conceal are so important that the costs of judicial review are trivial in context.

  3. Your right Andrew but the government has a responsibility and duty to spend our money wisely and get value for money.

    In continuing to waste public funds preventing a legally required inquest the government, in my view, is a continuing a malfeasance, not to mention misfeasanse and nonfeasance. Particularly as the remendy that is being called for (an inquest) will cost considerably less than fighting a legal challenge.

    Perhaps MP's should be asking just why Grieve is spending millions to prevent an inquest that might cost £5000.

    Grieve for Justice