It was a letter from the office of the Lord Chancellor, Lord Falconer, on 12 August 2003 that brought Section 17A of the Coroners Act 1988 into play. This letter was addressed to the Oxfordshire Coroner Nicholas Gardiner with a copy sent to Lord Hutton. It might be thought that this was the first intimation Mr Gardiner had that Section 17A would be invoked but this wasn't the case as I shall explain in a separate post.
Although, in strictly legal terms, the Inquiry didn't become the Inquest, it took over that role. In fact Hutton, in a letter to the Attorney General dated 3 September 2010, stated:
Under section 17A of the Coroner's Act 1988 the public inquiry took the place of an inquest and carried out the functions of an inquest.
I think that although the Inquiry remained an inquiry its legal status took on a new dimension when 17A was invoked. As such surely Hutton would make some reference to the fact. One way of doing this would have been via a press notice on the Hutton website ... there are 18 notices but no mention of Section 17A. Perhaps, having received a copy of the letter sent to Mr Gardiner, he would mention the fact in open court. No, he didn't. The last chance then was to bring the fact to our attention in his report on the 28 January 2004 or in his accompanying statement. Once again a search draws a blank.
So Hutton on 28 January delivers an opinion on the death of Dr Kelly without once explaining that Section 17A had been invoked. Why the reticence? It is absolutely incredible that at the time he makes no reference whatsoever to the fact that the Inquiry was supposedly carrying out 'the functions of an inquest'.
An answer though could lie in the fact that his was an "ad hoc" inquiry, an inquiry not hemmed in by the statutory requirements required of any inquest.
During the course of 2004 the Public Administration Select Committee was taking evidence about inquiries. The use of Section 17A was very rare but bearing in mind it had been invoked for the Hutton Inquiry then you would think that it would be discussed when Lord Hutton and then Lord Falconer appeared as witnesses in front of the committee.
Hutton was examined on 13 May 2004 http://www.publications.parliament.uk/pa/cm200304/cmselect/cmpubadm/606/4051301.htm His very gentle "grilling" was spread over 170 questions ... there is though absolutely no mention of the fact that Section 17A was invoked.
How about Lord Falconer then, the person who both set up the Inquiry and invoked 17A. Surely he would be quizzed about using Section 17A. He appeared before the committee on 25 May. http://www.parliament.the-stationery-office.co.uk/pa/cm200304/cmselect/cmpubadm/606/4052510.htm None of the 100 questions that came his way looked at Section 17A.
Two separate examinations and a total of 270 questions. The question of invoking Section 17A isn't raised. Didn't at least one of the committee have an interest in the subject? Were they muzzled? Or, and I think that this is quite believable, maybe none of them had an awareness or understanding of 17A and that it had been used in the Hutton Inquiry.