David Kelly Judicial Review - Module 2 - ACC Page lied to the Hutton Inquiry

This post consists largely of the text of Module 2 of the Pre-Action Protocol.

In Module 2 I raise the issue of Assistant Chief Constable Michael Page appearing to have lied to the Hutton Inquiry with respect to fingerprint evidence.

The title of my email to the Attorney General is:

David Kelly Judicial Review - Module 2 - ACC Page lied to the Hutton Inquiry

The text of the email of Module 2 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: The false evidence of Assistant Chief Constable Michael Page to the Hutton Inquiry

On 13th May 2011 I wrote to the Attorney General informing him that it appeared that Assistant Chief Constable Michael Page had lied to the Hutton Inquiry. See http://chilcotscheatingus.blogspot.com/2011/05/death-of-david-kelly-unreliability-of.html

ACC Page told the Hutton Inquiry that there were no "extraneous fingerprints" on Dr. Kelly's dental records.

The true position as revealed by a Freedom of Information Request in 2011 was that there were six unidentified fingerprints. The full text of the Thames Valley Police FOI Response is included towards of this link: http://chilcotscheatingus.blogspot.com/2011/05/death-of-david-kelly-unreliability-of.html and, for convenience, is repeated after my signature in this email.

ACC Page's false evidence misled the Hutton Inquiry since it appeared to exclude the presence of a third party (or parties) at the dental surgery (where the dental records had disappeared and myseriously re-appeared) when, in fact, the presence of unidentified fingerprints indicated the opposite. In other words, the presence of unidentified fingerprints on Dr. Kelly's dental records indicated that an unknown person (or persons) had handled Dr. Kelly's dental records and had, potentially, had the opportunity to tamper with the dental records.

I intend to return to the issue of dental records in a later Module relating to the uncertainties of the identification of the body found at Harrowdown Hill.

The "suicide hypothesis" rests on a process of "logic" which excludes the presence of third parties at Harrowdown Hill.

Given that ACC Page appears to have lied to the Hutton Inquiry with the effect of falsely excluding the presence of third parties at the dental surgery there is a very real possibility that he may also have lied with respect to the suppposed exclusion of third parties at Harrowdown Hill.

At a minimum a careful evaluation of the previously assumed reliability of Assistant Chief Constable Page's evidence is required, I suggest.

In all the circumstances I provisionally conclude:

1. Assistant Chief Constable Michael Page appears to have lied to the Hutton Inquiry about forensic evidence as it relates to Dr. Kelly's dental records. Inevitably that calls into question all other aspects of the extensive body of evidence that ACC Page gave to the Hutton Inquiry. It seems to me, therefore, that the Attorney General's statement "There is no possibility that, at an inquest, a verdict other than suicide would be returned." is irrational.

2. The Attorney General failed to investigate the false evidence of ACC Page and the implications for the totality of ACC Page's evidence despite the matter having been drawn to the Attorney General's attention on 13th May 2011. In my view the Attorney General failed to do something that he ought to have done before reaching a decision.

3. The Attorney General appears to have failed to draw to Lord Hutton's attention the information about the unreliability of ACC Page's evidence in my email of 13th May 2011. Given that Lord Hutton disclosed to the Attorney General several pre-meetings with ACC Page the potential for pervasive effect on the integrity of the Hutton Inquiry of dishonesty by ACC Page is obvious. The Attorney General failed to do something that I believe, in context, he ought to have done.

4. It appears to me that the Attorney General premeditatedly misled the House of Commons on 9th June 2011 since he failed to disclose that this serious issue had been raised with him about four weeks prior to his statement. I find the conclusion unavodable that the Attorney General acted dishonestly, lied to the House of Commons and committed a Contempt of Parliament.

[In the context of point 4. this email is copied to the Speaker of the House of Commons, John Bercow and the Chairman of the Standards and Privileges Committee, Kevin Barron.]

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

Arguably, when considered with other actions and failures to act, the Attorney General may have committed the criminal offences of Misconduct in Public Office and Perversion of the Course of Justice, given the evidence that Dr. David Kelly may have been murdered. Viewed narrowly, that is not a matter to be decided by any Judicial Review.

In the interests of transparency this Module of the Pre-Action Protocol will be placed online on my "Chilcot's Cheating Us" blog here: http://chilcotscheatingus.blogspot.com/2011/08/david-kelly-judicial-review-module-2.html

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




Reference No: RFI2011000301

I write in connection with your request for information dated 18th April 2011 which I have repeated below with our response to each point.

1. Were Dr David Kelly's dental records ever reported to Thames Valley Police as being missing and, if so, on what date?

Our records show that at 22.21hrs on Sunday 20th July 2003 the dental surgery reported that they had been unable to locate the notes on Friday (18/07/03) but that they were present that day (Sunday). The notes were therefore in the possession of the dentist before the Police were made aware.

2. On what date was it officially established by Thames Valley Police that Dr. David Kelly's dental records had been found?

As above

3. Were the folder containing Dr Kelly's records, and the records themselves, ever checked by Thames Valley Police (or, to your knowledge, any other organisation) for fingerprints and/or DNA?

The dental records of Dr Kelly were examined for fingerprints as were the covers for the records either side of his. DNA was an inappropriate method for this type of item.

4. If so, on what date did this happen, and were any fingerprints and/or DNA found on the folder or on the records?

This is a staged process spanning from 15th – 18th August 2003. A total of 15 marks were revealed for photography. Two marks were revealed on the outside cover of an adjacent set of patient records, neither of these marks was of a usable quality. No marks were revealed on the adjacent cover. The remaining thirteen marks all came from Dr Kelly’s record’s folder and contents. Five of these were unusable and two were eliminated to a member of staff.

The remaining six marks were of sufficient quality to be checked against elimination prints. These were all negative. None of the six marks were of sufficient quality to be permanently loaded on to the national database. All six marks were filed.

5. Was it possible positively to identify any of the fingerprints or DNA?

As above

6. If so, whose fingerprints or DNA was found?

As above

Please contact me quoting the above reference number if you would like to discuss this matter further.

Yours sincerely,



Malcolm Hopgood | Information Compliance Officer | Telephone 01865 846321 | Internal 700 6321 | Address Thames Valley Police HQ, Oxford Road, Kidlington, Oxon OX5 2NX

David Kelly Judicial Review - Module 1 - The sharpness of the knife has never been tested

In Module 1 of the Pre-Action Protocol I ask the Attorney General to consider whether it is rational to exclude the possibility of an inquest returning a different verdict when the sharpness of the knife found at Harrowdown Hill has never been tested.

If we don't know that the knife is sharp enough to inflict the wounds we cannot logically conclude that the knife did inflict the wounds. The possibility remains open that another knife inflicted at least some of the wounds.

In my view the Attorney General's stated view is irrational.

The title of the email is:

David Kelly Judicial Review - Module 1 - Sharpness of the knife

The content of the email 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: The sharpness of the knife

I described the issue on 13th June 2011 here: http://chilcotscheatingus.blogspot.com/2011/06/death-of-david-kelly-what-evidence-is.html and drew it to the attention of the Attorney General on that date.

To the best of my knowledge, the sharpness of the knife found at Harrowdown Hill has never been tested.

The inability of a forensic pathologist to give an authoritative view on the issue, together with the need for specific laboratory testing is expressed to the Attorney General in Dr. Shepherd's report of 16th March 2011 on page 14:

""It does not lie within the remit of the forensic pathologist to make a final assessment of the sharpness of an object at the scene. ... The pathologist must rely on assessments made by forensic expert scientists in controlled laboratory conditions.""

In other words, neither Dr. Shepherd (nor his predecessor forensic pathologist Dr. Nicholas Hunt) can say whether or not the knife was sharp enough to inflict the observed wounds.

This seems to me to raise at least the following important points:

1. In the absence of laboratory testing, it is unknown whether or not the knife is sufficiently sharp to inflict the observed wounds. It seems to me, therefore, that the Attorney General's statement "There is no possibility that, at an inquest, a verdict other than suicide would be returned." is irrational, given that the sharpness of the knife has never been tested.

2. In failing to ensure that the sharpness of the knife has been tested it seems to me that the Attorney General has failed to take an action which, in context, he ought to have taken.

If we don't know that the knife is sharp enough to inflict the wounds we cannot logically conclude that the knife did inflict the wounds. The possibility remains open that another knife inflicted at least some of the wounds.

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

In the interests of tranparency this Module of the Pre-Action Protocol will be placed online on my "Chilcot's Cheating Us" blog here: http://chilcotscheatingus.blogspot.com/2011/06/death-of-david-kelly-what-evidence-is.html

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 June 2011.

Thank you

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

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: http://chilcotscheatingus.blogspot.com/2011/06/death-of-david-kelly-i-invite-attorney.html

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: http://chilcotscheatingus.blogspot.com/2010/10/open-letter-to-attorney-general.html

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 http://chilcotscheatingus.blogspot.com/

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: http://chilcotscheatingus.blogspot.com/2011/08/david-kelly-judicial-review-pre-action.html

Thank you

(Dr) Andrew Watt

David Kelly Judicial Review - Request for URGENT disclosure of documents

This morning I am writing to Dominic Grieve and Kevin McGinty seeking urgent disclosure of documents relating to Mr. Grieve's dishonest decision announced to the House of Commons on 9th June 2011.

Twenty four hours ago I fully expected not to be part of any process to seek Judicial Review of Dominic Grieve's decision.

Circumstances have changed.

The email is, I hope, self-explanatory.

The title of the email is:

David Kelly: Judicial Review - request for URGENT disclosure of documents

The text of the email is:

Mr. Grieve / Mr. McGinty,

When I wrote to you on 21st August I had no thought that I might, personally, seek Judicial Review of Mr. Grieve's dishonest statement to the House of Commons of 9th June 2011 and the underlying dishonest decision. I had assumed that others might undertake the task of seeking Judicial Review.

Circumstances have changed. I now intend to lodge papers with the High Court seeking a Judicial Review of Mr. Grieve's decision.

I now ask that the Attorney General URGENTLY release the documents I requested in my email of 21st August in order not visibly to obstruct me in the process of lodging papers seeking a Judicial Review.

Should the Attorney General refuse to disclose the requested documents I anticipate seeking full disclosure of these, and other, documents during the Judicial Review process.

The list of documents sought follows my signature in this email in the full text of my email of 21st August.

I therefore ask for full disclosure of the documents specified in my email of 21st August no later than 17.00 on Friday 2nd September 2011.

In response to my request of 21st August, Mr. McGinty informed me that my request would be treated as a request under the Freedom of Information Act.

Given the 20 working days allowed for response to an FOI Request, the Attorney General's Office would be given until around 16th September to respond.

Conveniently, for Mr. Grieve, around a week too late to be used in papers seeking a Judicial Review.

I view Mr. McGinty's response as a shameful procedural manoeuvre intended to protect a shameful decision from legitimate Judicial Review.

That procedural manoeuve is part of a pattern of obstruction by the Attorney General's Office. I understand that other doctors have sought such documents from the Attorney General, without success.

I now repeat, as a matter of urgency, my request for full disclosure of the documents requested on 21st August.

I anticipate writing again in the very near future seeking disclosure of further documents, given my intention to seek Judicial Review.

In the interests of transparency I am placing a copy of this email on my "Chilcot's Cheating Us" blog here: http://chilcotscheatingus.blogspot.com/2011/08/david-kelly-judicial-review-request-for.html

I look forward to your early reply. I reserve the right to include that reply in papers to be lodged with the High Court.

Thank you

(Dr) Andrew Watt


********************************


Mr McGinty,

In the context of the Third Application to the Attorney General re the need for an inquest into the suspicious death of Dr. David Kelly I wish to request disclosure of the following documents.

1. A list of all photographs taken at Harrowdown Hill on 18th July 2003, together with a brief description and the time that each photograph was taken. I should mention that I understand there were at least three sets of photographs (those by PC Sawyer, Mr McGee and Dr. Eileen Hickey).

2. A copy of all correspondence between the Attorney General's Office and Thames Valley Police with respect to the Annexes disclosed by the Attorney General on or around 9th June 2011 and to the report to which the annexes related. The Attorney General disclosed correspondence to Dr. Shepherd and Professor Flanagan. Why not comparably disclose correspondence with Thames Valley Police? Assuming, of course, that such correspondence would bear public scrutiny.

3. A copy of the report to the Attorney General by Thames Valley Police (six annexes of which were put in the public domain by the Attorney General on 9th June 2011 or thereby).

4. A copy of the complete version of Dr. Green's report. The version published on 9th June 2011 had had Appendix 2 removed. Can you please confirm whether Appendix 2 in that version of the report was removed by the Attorney General's Office or by Thames Valley Police? If so, why did the Attorney General's Office remove the Appendix? I would also point out that the version of the report on the Attorney General's website refers to matters in 2005 and therefore cannot have been a copy of the original report.

5. A copy of the report by Anne Franc. Dr. Green's report states that his report should be read with that of Anne Franc.

6. A copy of the report to Nicholas Gardiner QC by Alan Young of Thames Valley Police which, supposedly, was "excellent".

7. A copy of the written statement(s) made in 2003 to Thames Valley Police by Mai Pederson. It is my understanding that Assistant Chief Constable Michael Page may have lied to Lord Hutton regarding the content of those statements. I understand that Mark Zaid (Ms Pederson's lawyer) wrote to Mr Grieve in or around June 2010 expressing his concern about related matters.

8. A copy of the report by Professor Gudjonsen.

9. A copy of the medical report on Dr. Kelly on or around 8th July 2003.

10. Copies of the medical reports from the 1990's on the fracture and operation on Dr. Kelly's right elbow.

11. A copy of the letter from Dr. Andrew Shuttleworth (of 30th October 2010) on the disability to Dr. Kelly's right arm consequent on the fracture/operation of the right elbow.

12. A copy of the laboratory report commissioned by the Attorney General in response to Dr. Shepherd's comment on page 14 of his report ( http://www.attorneygeneral.gov.uk/Publications/Documents/Forensic%20medical%20report%20by%20Dr%20Shepherd%2016%20March%202011.pdf ). Dr. Shepherd stated, "The pathologist must rely upon assessments made by expert forensic scientists in controlled laboratory conditions.". What did that examination under laboratory conditions show? If the Attorney General failed to have such a test carried out I ask for an explanation of that failure by Mr. Grieve and how he can have made his statement to the House of Commons when, as might be the case, it is unknown whether the knife found at the scene was or was not sharp enough to produce the wounds described by Dr. Hunt.

13. A copy of Professor Hawton's written report on Dr. Kelly's state of mind etc.

14. A copy of the report reviewing Professor Hawton's evidence. If, in response to my communication to the Attorney General ( http://chilcotscheatingus.blogspot.com/2011/02/death-of-david-kelly-need-for-expert.html )raising concerns about Professor Hawton's evidence the Attorney General decided not to seek expert review of Professor Hawton's evidence I seek an explanation of that failure on the part of the Attorney General.

15. A copy of each of the photographs referred to in numbered item 1.

In the interests of transparency I am placing the text of this email online on my "Chilcot's Cheating Us" blog here: http://chilcotscheatingus.blogspot.com/2011/08/death-of-david-kelly-request-for.html

If it is the decision of the Attorney General's Office to continue to conceal these documents I would be grateful for an explanation of why they were concealed by the Attorney General with respect to the Second Application (by Dr. Frost et al) and why they continue to be concealed now.

If the Attorney General wishes to allay public and medical concerns regarding the suspicious death of Dr. David Kelly I will say straightforwardly that full disclosure will be required in the light of lies told in 2003 and 2011.

Thank you

(Dr) Andrew Watt

The Death of David Kelly - On 18th July 2003 Lord Falconer had no powers as "Secretary of State for Constitutional Affairs"

In this post I draw attention to a fundamental flaw, in Law, in Dominic Grieve's decision and statement to the House of Commons on 9th June 2011.

I believe that the issue may be sufficiently important as to satisfy, at Judicial Review, the "illegality" test in what I'll the "Diplock triad". See http://oxcheps.new.ox.ac.uk/casebook/Resources/CCSUVM_1%20DOC.pdf for what I understand to be the original expression of the "Diplock triad".

"Illegality" in that context is not the same as saying that Dominic Grieve committed a criminal offence in that respect.

He stated something that was incorrect in Law, and based his decision on a false understanding of the Law.

However, for the avoidance of doubt, I do believe that Dominic Grieve QC MP has committed the offences of Misconduct in Public Office and Perverting the Course of Justice. But that is not the immediate focus of this post.

Dominic Grieve knew on 9th June (or had opportunity to know) that what he was saying to the House of Commons was untrue.

The following quote comes from here: Attorney General Dr Kelly written statement 9 June 2011 and is from page 8.

The then Secretary of State (and Lord Chancellor), Lord Falconer, acted entirely reasonably in exercising his powers to set up an inquiry ...

What Dominic Grieve says is untrue.

On 18th July 2003, in Law, there was no Secretary of State for Constitutional Affairs and consequently Lord Falconer had no powers which he could exercise (reasonably or otherwise) as Secretary of State for Constitutional Affairs.

Lord Falconer did not acquire his powers as Secretary of State for Constitutional Affairs until about a month later, on 19th August 2003.

And Dominic Grieve had been informed of that (by me) on 6th June 2011.

Let me set out the basis for those assertions.

The following email was sent on 6th June 2011 to the Attorney General's Office:

Mr McGinty,

This email is intended for the attention of the Attorney General in connection with a possible application to the High Court for an Order that an inquest be held into the death of Dr. David Kelly.

I do not pretend to be an expert in constitutional matters but a consideration has come to my attention which appears to me potentially to have foundational importance with regard to the consideration by the Attorney General of the need for an inquest into the death of Dr. David Kelly.

Expressed directly, and perhaps overly simplistically, it seems at least arguable that Lord Falconer was not, in Law, Secretary of State for Constitutional Affairs on 18th July 2003 when he verbally asked Lord Hutton to conduct an inquiry nor was he Secretary of State for Constitutional Affairs on 24th July 2003 when he wrote formally to Lord Hutton to confirm that request.

I hope to be able to substantiate later in this communication what might, at first sight, appear to be a bizarre suggestion.

First I'll briefly outline that Lord Falconer made the request in his role as Secretary of State for Constitutional Affairs and then I'll briefly consider the basis in Law for casting doubt on Lord Falconer's status in Law on the dates in question.

In his report, Lord Hutton states:

On 18 July 2003 I was requested by the Rt Hon Lord Falconer of Thoroton, the Secretary of State for Constitutional Affairs, to conduct an Inquiry into the death of Dr David Kelly

See Paragraph 1 in Chapter 1 of the Hutton Report here:
http://www.the-hutton-inquiry.org.uk/content/report/chapter01.htm.

Lord Hutton goes on to state:

My terms of reference were:
"urgently to conduct an investigation into the circumstances surrounding the death of Dr Kelly."

If Lord Falconer was not, on 18th July 2003, the Secretary of State for Constitutional Affairs and/or did not, in Law, have the capacity of a Secretary of State then it is, I suggest, questionable whether he had lawful authority to invite Lord Hutton to conduct a judicial inquiry or authority to define the terms of reference of such a supposed inquiry.

On 24th July 2003 Lord Falconer wrote to Lord Hutton on headed paper conveying the notion that he was "Secretary of State" (for Constitutional Affairs).

See http://www.the-hutton-inquiry.org.uk/content/cf240703.pdf on the Hutton Inquiry web site for the letter of appointment of 24th July 2003.

If my concerns are sound in Law then Lord Falconer's letter of 24th July 2003 is fraudulent since he purports on that date to be one of Her Majesty's Secretaries of State when the office of Secretary of State for Constitutional Affairs may not have existed in Law in the date in question at least in the sense that it appears to have lacked any functions or powers of one of Her Majesty's Secretaries of State.

To my mind, if that interpretation is correct, the question arises as to whether Lord Falconer as Secretary of State for Constitutional Affairs had the power, on 18th July 2003 or 24th July 2003, to ask Lord Hutton to conduct a judicial inquiry.

Consequentially, it seems to me that it comes into question whether, in Law, the Hutton Inquiry can properly be considered to be an "inquiry" in the meaning of Section 17A of the Coroners Act 1988.

I will now explain the basis in Law on which my concerns found.

To the best of my knowledge the post of Secretary of State for Constitutional affairs did not exist prior to the announcement in June 2003 of the creation of the Department for Constitutional Affairs.

The Ministers of the Crown Act 1975 appears to require that the creation of a new post of Secretary of State and the acquiring of functions, powers etc by such a new Secretary of State depend on an Order of Her Majesty in Council.

The text of the Ministers of the Crown Act 1975 is available online here: http://www.legislation.gov.uk/ukpga/1975/26/contents

To create the new post of Secretary of State for Constitutional Affairs it seems to me that the Ministers of the Crown Act 1975 requires Her Majesty to create the new post and give to it any powers and functions that might be appropriate by an Order in Council.

It appears that the Government also recognised that requirement imposed by the Ministers of the Crown Act 1975 since by an Order in Council, expressed in The Secretary of State for Constitutional Affairs Order 2003, the post of Secretary of State for Constitutional Affairs was created and given functions and powers.

The problem for Lord Falconer's actions of 18th July 2003 and 24th July 2003 arises from the following text in the Secretary of State for Constitutional Affairs Order 2003:

Made - - - - 17th July 2003
Laid before Parliament 29th July 2003
Coming into force 19th August 2003

Taken at face value the Order in Council did not come into force until 19th August 2003.

It seems to me, therefore, to be at least arguable that Lord Falconer had no powers or functions of a Secretary of State for Constitutional Affairs on 18th July 2003 or 24th July 2003 to set up a judicial inquiry (or, in fact, to carry out any function of one of Her Majesty's Secretaries of State).

Arguably, I suggest, the setting up of a judicial inquiry by a "Secretary of State" with no powers or functions may render the inquiry void.

If the validity of the judicial inquiry is in question, the question also arises as to whether Section 17A of the Coroners Act 1988 was applied by Lord Falconer acting as Lord Chancellor in circumstances to which it did not apply.

If, on the grounds suggested, there was no Section 17A inquiry the actions and/or failures to act of Nicholas Gardiner QC in early 2004 also come into further question.

If, as may be the case, the Hutton Inquiry is void and the stump "inquest" failed to carry out basic requirements of the Coroners Act 1988 (and the associated Coroners' Rules) then it seems to me that the requirements of Section 13 of the Coroners Act 1988 are met. In other words, an inquest is required into the death of Dr. David Kelly.

If it is already the view of the Attorney General that he should apply to the High Court for an Order that an inquest be held into the death of Dr. David Kelly, this matter need not detain him.

If however, it were the provisional view of the Attorney General that he need not apply to the High Court for an Order, I suggest that this is a further issue which will require detailed consideration, in view of the possibility of Judicial Review of a decision in the negative by the Attorney General.

As is my custom, blind copies of this communication have also been sent to potentially interested individuals.

I would be grateful if you would confirm receipt of this email and that the information contained in it will be drawn to the attention of the Attorney General.

Thank you.

(Dr) Andrew Watt

The Death of David Kelly - Well-intentioned but futile e-petition

Today I stumbled across an e-petition to the Attorney General: Make Dr. David Kelly's autopsy results public.

Regular readers of this blog will know that the postmortem results are already public.

One version was released by the Attorney General on 9th June 2011: Post mortem report by Dr Hunt 25 July 2003.

That is the official version for 25th July 2003.

The most easily searchable, but unofficial, version is here: David Kelly: pathologist's report to the coroner - text version.

Tim Wilkinson of the Surely Some Mistake blog created it from the official version released on 22nd October 2010 by the Ministry of Justice: See Dr Kelly post mortem and toxicology reports.

Dr. Allan's toxicology report of 23rd July 2003 is also available for download from that link.

Simon James, the creator of the e-petition, and the signatories presumably are unaware of the release of the documents just mentioned.

Unfortunately, there is no way to communicate with the creator or signatories of the e-petition.

The Death of David Kelly - Scotsman article on possible Judicial Review

The Scotsman has a brief article about the cover-up of the death of David Kelly and the need for Judicial Review.

See Doctors say David Kelly death 'a cover-up'.