Thursday, 12 July 2012

Mr Gardiner and Section 17A (4)

This is the wording of Section 17A (4) of the Coroners Act 1988:

A coroner may only resume an inquest which has been adjourned in compliance with subsection (1) above if in his opinion there is exceptional reason for doing so; and he shall not do so—
(a)before the end of the period of 28 days beginning with the day on which the findings of the public inquiry are published; or
(b)if the Lord Chancellor notifies the coroner that this paragraph applies, before the end of the period of 28 days beginning with the day on which the public inquiry is concluded.

The emphasis I've added makes clear that the coroner has to make a judgement as to whether he resumes; I also think that when this legislation was drafted the expectation would be that he wouldn't normally resume.  I say this partly because in 17A (1) we read:

If on an inquest into a death the coroner is informed by the Lord Chancellor before the conclusion of the inquest that—
(a)a public inquiry conducted or chaired by a judge is being, or is to be, held into the events surrounding the death; and
(b)the Lord Chancellor considers that the cause of death is likely to be adequately investigated by the inquiry,

In the case of Dr Kelly's death it was the setting up of the "ad hoc" Hutton Inquiry by Lord Falconer within a few hours of the body discovery that was to ultimately lead to Mr Gardiner making one of his most controversional decisions.  For me though the argument is very simple: the only way that the cause of death was likely to be adequately investigated was for the Inquiry to be a statutory one which would mean that all evidence would be heard under oath.  Mr Gardiner was fully aware that evidence at an inquest HAS to be given under oath ... he obviously knew that the Inquiry process was flawed.  Whether Mr Gardiner thought that Hutton had got to the truth of the matter is beside the point, he knew as a custodian of the legal process that the proper legal procedure had yet to be carried out.

Although Mr Gardiner very clearly should have resumed, particularly bearing in mind very grave concerns voiced by some medical experts relating to the alleged cause of death, there were two practical difficulties for Mr Gardiner (one entirely of his own making) and I'll discuss these in my next post. 

1 comment:

  1. These days we are used to politicians leaking what they are later going to say to an audience. So much so in fact that it's more surprising if they don't. Although insulting to those people who have gone to hear them I recognise this as a fact of life in today's world.

    When it comes to the legal process though surely things are different. If there is going to be a hearing in which a coroner will announce whether he is to resume an inquest then one would expect that forum to be the first time that the public are informed as to his decision. Leaking that information prior to the hearing would be totally unprofessional.

    This is the story in the "Mail on Sunday" two days before Mr Gardiner's hearing of 16th March:

    THE coroner investigating the death of Iraq weapons expert David Kelly will rule this week that he took his own life, despite persistent claims of foul play.

    At the hearing in Oxford on Tuesday, coroner Nicholas Gardiner will announce that he agrees with the Hutton Inquiry's conclusion that the 59-year-old scientist killed himself, The Mail on Sunday has been told.

    After studying hundreds of documents, Mr Gardiner will say he has no new evidence to suggest any other verdict and close the inquest, ending one of the most politically explosive periods of Tony Blair's premiership. He will also appeal for Dr Kelly's family to be left alone to grieve.

    Dr Kelly's body was found near his home last July. The expert, who was embroiled in the Iraq dossier row, had taken an overdose of painkillers and cut his wrist.

    Mr Gardiner's behaviour here was totally unacceptable.