Thursday, 1 September 2011

David Kelly Judicial Review - Module 3 - Conclusion contrary to logic and the evidence with respect to the supposed absence of third parties

This post consists largely of Module 3 of the Pre-Action Protocol.

It's an important issue since careful consideration of the supposed "logic" of ACC Page and Lord Hutton shows it to be seriously flawed and, additionally, contrary to the facts.

The title of the email being sent to the Attorney General today is:
David Kelly Judicial Review - Module 3 - Flawed logic/evidence re third parties

The content of the email to the Attorney General is:

Dear Mr. Grieve,

This email is one in a series of Modules in an unusually extensive Pre-Action Protocol with a view to avoiding the need for Judicial Review of your decision, announced in the House of Commons on 9th June 2011, refusing an application made by myself and other individuals in terms of Section 13 of the Coroners Act 1988 seeking that an inquest be held into the death of Dr. David Kelly.

Each module attempts to be a self-contained preliminary examination of a specific issue which arises in relation to your decision with respect to the Section 13 application.

Each issue is raised with you with a view to affording you the opportunity to re-consider the matter so, hopefully, avoiding the need to proceed to seek Judicial Review of your decision.

The issue discussed in an individual module relates to an issue which I provisionally consider displays one of what I term the "Diplock Triad": "illegality", "irrationality" and "procedural impropriety".

If the matter proceeds to Judicial Review I anticipate that I will seek to argue that one or more of the "Diplock Triad" applies with respect to this matter.

As you are aware, the Attorney General's Office continues to conceal a substantial number of relevant documents. If those are not voluntarily disclosed I anticipate that I will seek disclosure of such documents by legal process.

For the moment, continued non-disclosure of documents seems to me to inhibit my ability fully to develop potential legal arguments on this issue.

The subject of this module is: Flawed logic and evidence supposedly (but not actually) excluding the presence of third parties at Harrowdown Hill

Lord Hutton based his conclusion of suicide, in part, on the supposed exclusion of third parties at Harrowdown Hill.

Lord Hutton's conclusion is seriously flawed on two grounds:

1. His logic is seriously flawed.

2. His conclusion is contrary to the evidence presented to him.

The Attorney General based his decision announced on 9th June 2011 on Lord Hutton's conclusion and in doing so acted irrationally.

The flaw in the logic

ACC Page made statements to Lord Hutton to the effect that Thames Valley Police had excluded the presence of third parties at Harrowdown Hill.

Lord Hutton adopted that false understanding / logic in his conclusion.

ACC Page made an untrue statement (whether or not he "lied" is immaterial in the immediate context of this Module).

ACC Page's logic was seriously flawed.

ACC Page failed to distinguish two concepts:

1. A failure to find evidence of third parties

2. Finding sufficient evidence to exclude third parties

If ACC Page had genuinely found evidence to exclude third parties then his conclusion might reliably support the "suicide hypothesis".

However a more precise restatement of ACC Page's evidence is that he found no evidence of the presence of third parties, which is a different thing.

At no point did he or any of the forensic scientists conduct any tests or investigations with the capacity to exclude the presence of third parties.

As a result of that seriously flawed process of logic, ACC Page's conclusion was irrational.

Lord Hutton adopted ACC Page's flawed logic. As a result his concluson of sucide is irrational.

The Attorney General also adopted the flawed logic. As a result the Attorney General's absolutist exclusion of the possibility of a different verdict is irrational.

A conclusion contrary to the facts

ACC Page referred (without disclosing detail) to tests that supposedly excluded third parties at the scene.

However, his assertion was contrary to the facts.

The tests and investigations carried out can be demonsrated to be inadequate.

ACC Page and Lord Hutton had the evidence before them to realise this.

As, of course, did the Attorney General.

It is known (and Lord Hutton knew) that at least SEVEN "third parties" had been present at the scene before the relevant tests and investigations were carried out viz Louise Holmes, Paul Chapman, DC Graham Coe, Vanessa Hunt, Dave Bartlett, PC Sawyer and PC Franklin.

Moreover at least two of those people (Vanessa Hunt and Dave Bartlett) had HANDLED the body, according to their oral evidence given to the Hutton Inquiry.

ACC Page's tests failed to detect those SEVEN third parties at the scene.

In other words, third parties were KNOWN to be present at the scene and the Thames Valley Police investigations and tests were insufficient to detect their recent presence.

Those tests can, therefore, be reasonably considered as being inadequate reliably to detect the presence of other possibly malevolent third parties hours before.

I conclude that Lord Hutton acted irrationally in concluding that the presence of "third parties" had been excluded.

The Attorney General acted irrationally in adopting an irrational conclusion.

Attorney General's actions

It seems to me that the Attorney General's failures in this regard arguably meet at least two of the criteria in the Diplock triad:

1. The Attorney General was aware (or ought to have been aware) that the Law at an inquest requires suicide to be proved beyond reasonable doubt. In stating in the House of Commons, "There is no possibility that, at an inquest, a verdict other than suicide would be returned." the Attorney General acted irrrationally.

2. The Attorney General failed adequately to inquire into the matter. Given the absolutist nature of his statement quoted in the preceding paragraph he had a duty to do so. The Attorney General failed to do something he ought to have done.

It seems to me that, at least arguably, on this ground alone the Attorney General's decision announced on 9th June 2011 is materially defective and that the only identifiable remedy for me is to seek Judicial Review of the Attorney General's decision.

In the interests of transparency this Module of the Pre-Action Protocol will be placed online on my "Chilcot's Cheating Us" blog here:

I ask you to give this matter your URGENT attention, in view of the short time available to resolve this issue without lodging papers seeking Judicial Review of the Attorney General's decision.

I again urge the Attorney General to consider whether the least bad way forward is promptly publicly to announce that he is withdrawing his decision of 9th June 2011.

Thank you

(Dr) Andrew Watt
BMedBiol MBChB MD(Hons) FRCP(Ed) DipPharmMed BA


  1. From memory ACC Page misled the Hutton Inquiry on a number of points; eg who first requested the helicopter, where it came from and where it was based and his request for it to be redeployed was ignored. Page’s account of police officers searching the area of Harrowdown Hill before the body was found was contrary to the officers in charge of the search (Franklin and Sawyer).

    In ACC Page’s second appearance at the inquiry he said “Based on the extensive inquiries that we have undertaken thus far, I can find no evidence to suggest any criminal dimension to Dr Kelly's death.” There is evidence that the body was moved and further evidence this has been covered up, this I suggest is evidence of a criminal dimension.

    Page is asked about Mai Pederson;
    “Yes, we interviewed Mia Pedersen. She declined to give a statement as such but I have a record of the interviews that took place.
    Q. Were you able to obtain any relevant evidence from her?
    A. The conversation with Mia Pedersen added nothing that was of relevance to my inquiry at all.”

    This was a lie, Pederson had given a 10 page statement and it contained very relevant evidence. There may be more lies in Page’s evidence but I think it is established, without doubt, that Page’s evidence cannot be trusted.

  2. Page gave his evidence regarding Pederson on the afternoon of 23rd Sept 2003

    This from

    Ms Pederson’s Washington DC lawyer, Mark Zaid, has made available to The Mail on Sunday parts of her final statement to Thames Valley Police, given on September 1, 2003
    Its ten pages would appear critical, since they describe Iraqi death threats and the incident with the laser. She also stated that she was bewildered about how Dr Kelly could have taken an overdose, as he suffered from a disorder that made it difficult for him to swallow pills.
    ‘I was so confused when I heard he had swallowed a load of painkillers,’ she told the officers.
    She also emphasised in the statement that he suffered from pain and problems ‘grabbing things with his right hand, which he attributed to breaking his elbow’.
    Police have implied that she did not give them permission to give her statement to the Hutton inquiry. But in fact she stipulated: ‘If specific information [in the statement] is deemed relevant to the coroner’s inquiry into the death of David Kelly, I am willing for Thames Valley to reveal the information in a non-attributable way.’
    However, her statement was never given to the inquiry. The then Assistant Chief Constable of Thames Valley Police, Michael Page, testified that it ‘contained nothing of relevance’.
    After the inquiry, Ms Pederson started to get death threats. ‘Some were from nuts,’ she said. But others, she believes, may have been related to her sensitive work with Dr Kelly in Iraq. And she spoke on condition that we do not reveal her whereabouts.
    ‘I can’t say for sure that David was murdered,’ she said. ‘But his life had been threatened because he strived to do what was best for humanity.
    ‘He deserved more from his country than an investigation that overlooked the fact that his right hand was so weak that he had problems cutting a piece of steak.’