On 28 January 2004 Lord Hutton delivered his report. One outcome of this was the fact that Mr Gardiner had to consider whether there were exceptional circumstances for him to reconvene the inquest. The very fact that Hutton hadn't heard evidence under oath was an exceptional reason I suggest. I made the point in my last post that Mr Gardiner had a couple of practical problems to deal with if he decided to reconvene and these I will now discuss.
The first of these was the fact that Lord Falconer and Tony Blair stated that they were satisfied with the report ... it was hardly likely that they wouldn't be of course! So the Lord Chancellor and Prime Minister were content with the report resulting from an inquiry carried out by a very senior judge. If Mr Gardiner had reconvened it would suggest that he disagreed with these very big guns. The point is though so far as David Kelly's death was concerned the coroner was still king. He should not have let himself be overawed by them.
It wasn't just possible timidity on Gardiner's part though. His second practical problem was of his own making - I'm not aware of anyone really discussing it before now. On 14 August Mr Gardiner formally accepted the final report of Dr Hunt and the first report of Dr Allan at the resumed hearing of that date. From these reports he provided information for the registrar to register Dr Kelly's death four days later (two of those days were the weekend). Of course Mr Gardiner couldn't declare at the same time whether his conclusion was one of "suicide", "unlawful killing" or an "open verdict". This was before the advent of narrative verdicts by the way.
At a renewed hearing he would have to contemplate the possibility that some of the previously registered details were incorrect. Suppose that he did conclude that the verdict was suicide then "Found dead at Harrowdown Hill" would not be satisfactory, bearing in mind dead men don't walk. What would happen if some significant detail was expressed differently when evidence was heard under oath. He had already accepted Dr Hunt's explanation about the mode of death without question. "The Doctors", had already expressed disquiet about Dr Hunt's conclusions and the ambulance crew in both commenting at the Inquiry about the lack of blood had poured more cold water on whether death could be from haemorrhage.
It can be seen then that if Mr Gardiner pressed ahead, as he should have done, he would have faced a range of uncertainties, allied to the fact that he might have appeared unwise even incompetent in registering the death when all he should have done to comply with Section 17A was to provide an interim certificate confirming the identity of the deceased.
Mr Gardiner found himself in an invidious position on 16 March. He decided to take the easy option.
Showing posts with label Lord Falconer. Show all posts
Showing posts with label Lord Falconer. Show all posts
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.
Sunday, 8 July 2012
Lord Falconer and Section 17A(1)
This is the wording of Section 17A (1) of the Coroners Act 1988 with my emphasis added:
(1)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,
the coroner shall, in the absence of any exceptional reason to the contrary, adjourn the inquest and, if a jury has been summoned, may, if he thinks fit, discharge them.
The invoking of Section 17A is a strictly legal decision and as such it has to be the Lord Chancellor who carries this out.
So did Lord Falconer (the Lord Chancellor) consider that the cause of death was "likely to be adequately investigated by the inquiry"? There can be no doubt whatsoever that Falconer would be fully conversant with such legal requirements as power of subpoena and taking evidence under oath that any inquest demands. No such powers were vested in Lord Hutton's "ad hoc" Inquiry, the Inquiry having been set up by Falconer himself.
Remember that it was Hutton who wrote, in a letter to the Attorney General in September 2010:
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.
We are expected then to believe that both Falconer and Hutton believed that the Inquiry would adequately investigate the cause of this controversial death. It is true that Section 17A doesn't specifically state that an Inquiry should take evidence under oath. But should it need to? Commonsense comes into play here. The very fact that an inquiry is effectively replacing an inquest surely means that the inquiry should be at least to the same legal standard as the inquest. Clearly in this instance it wasn't. Falconer and Hutton were both aware of this. Dr Kelly's death is unique: there hasn't been another instance of a violent or unnatural death occurring where the official cause of death has been determined by unsworn testimony.
There is an interesting exchange at the hearing of the Select Committee on Public Administration when Lord Falconer was examined. The context is the discussion between Tony Blair and Falconer when Blair was on the plane heading for Tokyo on 18 July:
Q180 Chairman: Did the issue arise as to whether this ought to be done under the 1921 Act with powers or whether it should just be set up and got on with?
Lord Falconer of Thoroton: We did not discuss precisely the format of the inquiry or what its powers should be but the purpose of setting up the inquiry was so that there could be a complete, open investigation of what had happened so the public should be aware of what had happened and so that there should be in a sense no doubts about what the definitive set of circumstances leading to the death of Dr Kelly were.
Are we really expected to believe that Falconer and Blair didn't discuss whether the Inquiry should be an informal one or whether it should be under the 1921 Act (which latter would have entailed recalling both Houses of Parliament). Falconer's response is a politician's fudge to a straightforward question.
(1)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,
the coroner shall, in the absence of any exceptional reason to the contrary, adjourn the inquest and, if a jury has been summoned, may, if he thinks fit, discharge them.
The invoking of Section 17A is a strictly legal decision and as such it has to be the Lord Chancellor who carries this out.
So did Lord Falconer (the Lord Chancellor) consider that the cause of death was "likely to be adequately investigated by the inquiry"? There can be no doubt whatsoever that Falconer would be fully conversant with such legal requirements as power of subpoena and taking evidence under oath that any inquest demands. No such powers were vested in Lord Hutton's "ad hoc" Inquiry, the Inquiry having been set up by Falconer himself.
Remember that it was Hutton who wrote, in a letter to the Attorney General in September 2010:
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.
We are expected then to believe that both Falconer and Hutton believed that the Inquiry would adequately investigate the cause of this controversial death. It is true that Section 17A doesn't specifically state that an Inquiry should take evidence under oath. But should it need to? Commonsense comes into play here. The very fact that an inquiry is effectively replacing an inquest surely means that the inquiry should be at least to the same legal standard as the inquest. Clearly in this instance it wasn't. Falconer and Hutton were both aware of this. Dr Kelly's death is unique: there hasn't been another instance of a violent or unnatural death occurring where the official cause of death has been determined by unsworn testimony.
There is an interesting exchange at the hearing of the Select Committee on Public Administration when Lord Falconer was examined. The context is the discussion between Tony Blair and Falconer when Blair was on the plane heading for Tokyo on 18 July:
Q180 Chairman: Did the issue arise as to whether this ought to be done under the 1921 Act with powers or whether it should just be set up and got on with?
Lord Falconer of Thoroton: We did not discuss precisely the format of the inquiry or what its powers should be but the purpose of setting up the inquiry was so that there could be a complete, open investigation of what had happened so the public should be aware of what had happened and so that there should be in a sense no doubts about what the definitive set of circumstances leading to the death of Dr Kelly were.
Are we really expected to believe that Falconer and Blair didn't discuss whether the Inquiry should be an informal one or whether it should be under the 1921 Act (which latter would have entailed recalling both Houses of Parliament). Falconer's response is a politician's fudge to a straightforward question.
Coroner on the sidelines - thanks to Falconer (1)
The coroner Nicholas Gardiner would, one imagines, have become aware of the Inquiry on the date it was set up ... the day of the discovery of the body (18 July 2003). He must have been bemused, even concerned, about this. How was his process going to dovetail into an Inquiry if at all?
I suggest that two things would have become apparent to Mr Gardiner quite quickly: firstly that this was going to be an ad hoc inquiry without the sort of statutory provisions that an inquest has to have. Secondly that Hutton was a person in a hurry: it looked as if he would be taking evidence long before Mr Gardiner would be overseeing his resumed inquest. On that second point, the coroner has stated that he had anticipated carrying out the inquest in September. Even by the first of that month Hutton had listened to about three dozen witnesses.
It looks as if it was on the 4th of August that the coroner had the first formal indication that the Lord Chancellor was invoking Section 17A (I'm not sure if this date was when the letter was written or received). So, about ten days before the inquest was indefinitely adjourned Mr Gardiner was aware that Section 17A would be invoked whether he liked it or not. Lord Hutton would have been kept in the loop on this.
In Blair's first government in 1997 Falconer became Solicitor General. It was followed by a stint as Minister of State at the Cabinet Office and he took over the responsibility for the Millenium Dome after the first resignation of Peter Mandelson (Somebody had to do it I suppose!). The possibility exists that Falconer had some input into the mammoth Access to Justice Act 1999 with its 110 sections and 15 schedules. This act was the origin of our Section 17A and it's not impossible that Falconer had some part in producing the act, even the content of section 71 which was to become 17A in the Coroners Act.
An intriguing question now is whether, when Falconer set up the Hutton Inquiry, he was aware of the availability of Section 17A ... which he could use to stop the inquest in its tracks. If he wasn't at that moment then I'm sure it didn't take him long to find out.
Hutton and Dingemans visited Mrs Kelly and the family on 26 July. One of the objectives it seems was to get Mrs Kelly to give evidence at the Inquiry. At that time she might well have expressed concern about going to the Inquiry if she was aware that she would almost certainly be giving evidence to an inquest. But what if Hutton could have assured her that there wouldn't be an inquest, then the trauma of going to the Inquiry would be lessened I would think, particularly if Hutton was able to tell her that her testimony could be delivered by an audio link. Before going to Southmoor it would certainly have been useful from Hutton's perspective if he could inform Mrs Kelly: 'Don't worry, there won't be an inquest'.
My belief is that the decision to sideline the coroner was taken either on the 18th July or shortly thereafter.
I suggest that two things would have become apparent to Mr Gardiner quite quickly: firstly that this was going to be an ad hoc inquiry without the sort of statutory provisions that an inquest has to have. Secondly that Hutton was a person in a hurry: it looked as if he would be taking evidence long before Mr Gardiner would be overseeing his resumed inquest. On that second point, the coroner has stated that he had anticipated carrying out the inquest in September. Even by the first of that month Hutton had listened to about three dozen witnesses.
It looks as if it was on the 4th of August that the coroner had the first formal indication that the Lord Chancellor was invoking Section 17A (I'm not sure if this date was when the letter was written or received). So, about ten days before the inquest was indefinitely adjourned Mr Gardiner was aware that Section 17A would be invoked whether he liked it or not. Lord Hutton would have been kept in the loop on this.
In Blair's first government in 1997 Falconer became Solicitor General. It was followed by a stint as Minister of State at the Cabinet Office and he took over the responsibility for the Millenium Dome after the first resignation of Peter Mandelson (Somebody had to do it I suppose!). The possibility exists that Falconer had some input into the mammoth Access to Justice Act 1999 with its 110 sections and 15 schedules. This act was the origin of our Section 17A and it's not impossible that Falconer had some part in producing the act, even the content of section 71 which was to become 17A in the Coroners Act.
An intriguing question now is whether, when Falconer set up the Hutton Inquiry, he was aware of the availability of Section 17A ... which he could use to stop the inquest in its tracks. If he wasn't at that moment then I'm sure it didn't take him long to find out.
Hutton and Dingemans visited Mrs Kelly and the family on 26 July. One of the objectives it seems was to get Mrs Kelly to give evidence at the Inquiry. At that time she might well have expressed concern about going to the Inquiry if she was aware that she would almost certainly be giving evidence to an inquest. But what if Hutton could have assured her that there wouldn't be an inquest, then the trauma of going to the Inquiry would be lessened I would think, particularly if Hutton was able to tell her that her testimony could be delivered by an audio link. Before going to Southmoor it would certainly have been useful from Hutton's perspective if he could inform Mrs Kelly: 'Don't worry, there won't be an inquest'.
My belief is that the decision to sideline the coroner was taken either on the 18th July or shortly thereafter.
Saturday, 7 July 2012
Keeping quiet about Section 17A
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.
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.
Section 17A of the Coroners Act 1988
At the time of Dr Kelly's death the determining legislation regarding inquest procedure was the Coroners Act 1988 http://www.legislation.gov.uk/ukpga/1988/13/contents It is Section 17A of the Act that is of special relevance to the Hutton Inquiry, and the way that the Coroner Nicholas Gardiner was sidelined.
Section 17A is titled "Adjournment of inquest in event of judicial inquiry" http://www.legislation.gov.uk/ukpga/1988/13/section/17A As can be seen it is quite short and fortunately, compared to much legislation, easy to read. Section 17A was brought about by Section 71 of the Access to Justice Act 1999 http://www.legislation.gov.uk/ukpga/1999/22/section/71
So why was this additional section in the 1999 legislation created ... to be then inserted into the 1988 Coroners Act? Well it is evident that what was to become Section 17A was a very small part of the comprehensive Access to Justice Act, in other words it needs to be emphasised that Section 17A was very far removed from being a one off piece of legislation. It seems to me that government lawyers were looking at a whole range of legislation in the justice field to see whether it could be modified or improved.
I think that Section 17A was a worthy piece of legislation. Previously there had been duplication of procedure where there had been multiple deaths. A classic instance was the Zeebrugge Ferry disaster on the night of 6 March 1987 in which 193 people died http://en.wikipedia.org/wiki/MS_Herald_of_Free_Enterprise#Investigation_and_inquiry Obviously this event necessitated a public inquiry and the legislation of the time also demanded that inquests be carried out on the deceased. In this instance a coroner's jury returned a verdict of unlawful killing http://news.bbc.co.uk/onthisday/hi/dates/stories/october/8/newsid_2626000/2626265.stm The inquest took place after the conclusion of the inquiry; in this particular case it was obviously important for the inquiry to proceed with expedition.
In bare essentials an inquest asks the questions: "Who, how, when and where". With the Zeebrugge situation and other multi death disasters the answers are, in large part, fairly apparent. It is the question of how such a terrible event can happen that demands the greater attention. If witnesses are examined under oath and if there are full powers of subpoena, which ought to happen with every public inquiry in my opinion, then where there there isn't controversy about the "who, how, when and where" it seems eminently sensible to let the public inquiry carry out the function of the inquest ... at least where multiple deaths are concerned.
Falconer, as Secretary of State for Constitutional Affairs, set up the Hutton Inquiry. Replacing his political hat with his judicial one as Lord Chancellor, he invoked Section 17A of the Coroners Act 1988 on 12 August 2003. Uniquely this was an occasion concerning a single death, and a death where the "how, when and where" were far from clearcut.
This post has been merely an introduction to Section 17A ... how it affected the Kelly case will be looked at in much more detail later.
Section 17A is titled "Adjournment of inquest in event of judicial inquiry" http://www.legislation.gov.uk/ukpga/1988/13/section/17A As can be seen it is quite short and fortunately, compared to much legislation, easy to read. Section 17A was brought about by Section 71 of the Access to Justice Act 1999 http://www.legislation.gov.uk/ukpga/1999/22/section/71
So why was this additional section in the 1999 legislation created ... to be then inserted into the 1988 Coroners Act? Well it is evident that what was to become Section 17A was a very small part of the comprehensive Access to Justice Act, in other words it needs to be emphasised that Section 17A was very far removed from being a one off piece of legislation. It seems to me that government lawyers were looking at a whole range of legislation in the justice field to see whether it could be modified or improved.
I think that Section 17A was a worthy piece of legislation. Previously there had been duplication of procedure where there had been multiple deaths. A classic instance was the Zeebrugge Ferry disaster on the night of 6 March 1987 in which 193 people died http://en.wikipedia.org/wiki/MS_Herald_of_Free_Enterprise#Investigation_and_inquiry Obviously this event necessitated a public inquiry and the legislation of the time also demanded that inquests be carried out on the deceased. In this instance a coroner's jury returned a verdict of unlawful killing http://news.bbc.co.uk/onthisday/hi/dates/stories/october/8/newsid_2626000/2626265.stm The inquest took place after the conclusion of the inquiry; in this particular case it was obviously important for the inquiry to proceed with expedition.
In bare essentials an inquest asks the questions: "Who, how, when and where". With the Zeebrugge situation and other multi death disasters the answers are, in large part, fairly apparent. It is the question of how such a terrible event can happen that demands the greater attention. If witnesses are examined under oath and if there are full powers of subpoena, which ought to happen with every public inquiry in my opinion, then where there there isn't controversy about the "who, how, when and where" it seems eminently sensible to let the public inquiry carry out the function of the inquest ... at least where multiple deaths are concerned.
Falconer, as Secretary of State for Constitutional Affairs, set up the Hutton Inquiry. Replacing his political hat with his judicial one as Lord Chancellor, he invoked Section 17A of the Coroners Act 1988 on 12 August 2003. Uniquely this was an occasion concerning a single death, and a death where the "how, when and where" were far from clearcut.
This post has been merely an introduction to Section 17A ... how it affected the Kelly case will be looked at in much more detail later.
Wednesday, 4 July 2012
Falconer could have selected a different judge
In my last post I stated some reasons why I felt Lord Hutton shouldn't have chaired the Inquiry. Lord Falconer wasn't limited to a choice of just one judge, in fact he admitted to the Select Committee on Public Administration that the number of suitable judges was in the tens. It's also clear that he homed in on Hutton without really considering possible alternative chairmen. This is the relevant text from the committee's examination of Falconer regarding his degree of choice in this matter:
Lord Falconer of Thoroton: I was
very conscious of the fact that the person taking on this job
would be stepping into the eye of a great storm that was then
raging, that the person appointed to do the job would have to
be somebody of real experience, of real steadiness, and somebody
whom everybody, the public in particular, would have confidence
in being able to do the job in a fair and objective way. So somebody
not experienced, a recently appointed, quite junior judge would
not have been appropriate for the job. Somebody who had been a
judge for a long time who had had experience of the potential
dangers of being a judge—I do not mean physical dangers
but the dangers inherent in being a judge in somewhere like Northern
Ireland—and somebody who had ended up in the House of Lords
Judicial Committee was plainly somebody with that experience and
that weight to do the job. Was I aware of the sensitivity of the
job that Lord Hutton was being asked to do? Yes I was. Was I aware
of the fact that it would require incredibly sensitive handling?
Yes I was.
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Q187 Chairman: Before we lose the business of selecting our judge, because I think it is quite interesting to get a sense of this, let's take the Hutton case, you decided you wanted a judge, you wanted a steady judge—your words—you wanted an experienced judge. There are not an infinite number to choose from because a lot them will be judging, will they not?
Q190 Chairman: Sorry to interrupt but you told us that you had already decided that you wanted a member of the Judicial Committee of the House of Lords so you had brought the number down anyway.
There has been discussion about whether there had been any input from Peter Mandelson on the 18th. I'm not aware of any public acknowledgement of him being involved but of course as a former Secretary of State for Northern Ireland he would have been aware of Lord Hutton being a senior judge there. Norman Baker clearly has his suspicions as can be seen by reading pages 73-74 in his book.
A final thought ... there is an old adage about selecting a person to chair an inquiry that goes something like this: "You don't want to select a person who you might have to lean on, you need a person that you don't need to lean on". Perhaps Hutton was viewed as such a person.
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Q187 Chairman: Before we lose the business of selecting our judge, because I think it is quite interesting to get a sense of this, let's take the Hutton case, you decided you wanted a judge, you wanted a steady judge—your words—you wanted an experienced judge. There are not an infinite number to choose from because a lot them will be judging, will they not?
Lord Falconer of Thoroton: They
will all be judging except for the retired ones. If you are going
for a current judge he has got the job of a judge.
Q188 Chairman: They will be judging either
actively or passively at that precise moment, will they not?
Lord Falconer of Thoroton: Yes.
Q189 Chairman: You have only got a certain
number from which you can choose. You do not want the junior ones,
you want the steady, experienced ones, so the number has already
contracted. You have got some who are actively out there on cases.
The number gets fewer as you start to think about it, does it
not? Just tell me how that works?
Lord Falconer of Thoroton: If
you want a sitting judge, ie somebody who is sitting as a current
judge, I think the figures are something like 102 High Court judges,
34 Appeal Court judges and 12 judicial Members of the House of
Lords. That is 148 senior judiciary and that is not counting those
in Northern Ireland and Scotland. There are enough people—
Q190 Chairman: Sorry to interrupt but you told us that you had already decided that you wanted a member of the Judicial Committee of the House of Lords so you had brought the number down anyway.
Lord Falconer of Thoroton: I said
that was one of the attractions of Lord Hutton but I would not
regard, for example, a member of the Court of Appeal as excluded
from consideration in relation to it. The number is quite small,
as it were tens of people who could do this particular job, but
the number is not so small that the choice is unduly restricted.
Q191 Chairman: But you did not have to
ask anyone else before you asked Lord Hutton?
Lord Falconer of Thoroton: No,
he was, as it were, my first choice and he, as he said and I say,
accepted it without demur on the basis of it was his public duty
to do it.
Q192 Chairman: Did you go back to the
Prime Minister and say, "I have got Lord Hutton; will he
do?"
Lord Falconer of Thoroton: No.
Lord Hutton was chosen and I did not speak to the Prime Minister
again after. We informed all the relevant bits of the government
that Lord Hutton was to be the inquirer.There has been discussion about whether there had been any input from Peter Mandelson on the 18th. I'm not aware of any public acknowledgement of him being involved but of course as a former Secretary of State for Northern Ireland he would have been aware of Lord Hutton being a senior judge there. Norman Baker clearly has his suspicions as can be seen by reading pages 73-74 in his book.
A final thought ... there is an old adage about selecting a person to chair an inquiry that goes something like this: "You don't want to select a person who you might have to lean on, you need a person that you don't need to lean on". Perhaps Hutton was viewed as such a person.
Tuesday, 3 July 2012
Lord Hutton should NOT have been chosen
It wasn't only, in my view, totally wrong to have set up an Inquiry on 18 July 2003 it was also wrong to have chosen Lord Hutton to chair it. This post will be concerned with the selection of Hutton.
The choice of Hutton was down to Lord Falconer, close friend and former flatmate of Tony Blair. On the 18th July Falconer was Lord Chancellor and Secretary of State for the Department of Community Affairs. Thanks to the industry of Dr Watt investigating this matter it now seems that the newly created Department wasn't yet a legal entity on that date. However there seems no doubt about Falconer being the Lord Chancellor!
During 2004 the whole matter of inquiries was being investigated by the "Select Committee on Public Administration". With Hutton having published his report on 28 January it comes as no surprise that both he and Falconer appeared as witnesses in front of the committee. Falconer had his say on the 25th of May and here he explains his choice of Hutton as Chairman:
Lord Falconer of Thoroton: ...... After some thought and discussion, Lord Hutton was a name that emerged quite quickly as a suitable person to do it. Lord Hutton's particular qualities that made him suitable were that he was a senior judge of unimpeachable standing, he had been a successful Lord Chief Justice of Northern Ireland, he looked completely beyond reproach and he had the right skills to investigate—the skills coming from being a senior judge—a series of facts leading up to somebody's death.
The choice of Hutton was down to Lord Falconer, close friend and former flatmate of Tony Blair. On the 18th July Falconer was Lord Chancellor and Secretary of State for the Department of Community Affairs. Thanks to the industry of Dr Watt investigating this matter it now seems that the newly created Department wasn't yet a legal entity on that date. However there seems no doubt about Falconer being the Lord Chancellor!
During 2004 the whole matter of inquiries was being investigated by the "Select Committee on Public Administration". With Hutton having published his report on 28 January it comes as no surprise that both he and Falconer appeared as witnesses in front of the committee. Falconer had his say on the 25th of May and here he explains his choice of Hutton as Chairman:
Lord Falconer of Thoroton: ...... After some thought and discussion, Lord Hutton was a name that emerged quite quickly as a suitable person to do it. Lord Hutton's particular qualities that made him suitable were that he was a senior judge of unimpeachable standing, he had been a successful Lord Chief Justice of Northern Ireland, he looked completely beyond reproach and he had the right skills to investigate—the skills coming from being a senior judge—a series of facts leading up to somebody's death.
Q174 Chairman: You are not suggesting,
by the way, that there are some judges of impeachable standing,
are you?
Lord Falconer of Thoroton: No.
Q175 Chairman: I thought not!
Falconer's justification here is typical political spin ... he is trying to suggest I think that Hutton had particular qualities to set him apart whereas there were other senior judges who could have been equally suitable. But it's Falconer's economy with the truth that is particularly bothersome. The following are reasons which I suggest should have debarred Hutton from chairing the Inquiry:
- Lord Hutton was a judge in Northern Ireland at the time of "The Troubles". In coming to many controversial decisions it can fairly be seen that he needed constant protection. Even now that he is retired he might still require protection although I don't know whether that is so. What it meant in simplistic language is that somebody had to be prepared to take a bullet on his behalf. Regarding the death of Dr Kelly I think he might have been reluctant to look at any possible involvement or negligence by MI5, MI6 or Special Branch.
- Following the shootings on "Bloody Sunday" (30 January 1972) there were inquests on the dead (no avoiding inquests back then!). Representing the Ministry of Defence was one Brian Hutton. The behaviour of personnel in the Ministry of Defence prior to Dr Kelly's death was obviously going to be at the forefront of the Inquiry. It's difficult to see that there wasn't a potential conflict of interest with Hutton in effect having been previously employed by the MoD.
- The Widgery Tribunal, like the Hutton Inquiry, set up in double quick time, largely exonerated the British soldiers. At the subsequent inquests the coroner, Major Hubert O'Neill, had said there had been no justification for the soldiers to open fire. He said:
'These people may have been taking part in a parade that was banned but I do not think that justifies the firing of live rounds indiscriminately.' Hutton didn't mince his words in responding to the coroner: "It is not for you or the jury to express such wide-ranging views, particularly when a most eminent judge has spent 20 days hearing evidence and come to a very different conclusion," When it came to respect, for coroners, or rather lack of it, Hutton certainly had previous!
Wednesday, 9 May 2012
A short timeline for 18 July - on the ground and in the air
I'm a great believer in timelines in trying to focus on various events and their possible relationship. Following my last post I thought it would be interesting to compare events on the ground at Harrowdown Hill from midday for the next two and a half hours with what was happening on Tony Blair's flight from Washington to Tokyo during the same period.
From a Freedom of Information request there is now information on when Blair and Falconer were in conference; the times I give I think are British Summer Time but I'm not sure so they may be liable to correction, however the duration is right.
Events on the ground are in blue, those in the air are in red.
12.06 DCI Young logged in at the outer cordon
12.10 to 12.13 Blair talks to Falconer
12.20 to 12.55 Blair again talks to Falconer
12.35 Dr Hunt goes to the body to confirm death then withdraws from scene
12.50 PC Franklin is asked by DCI Young to organise a fingertip search
13.08 Start of fingertip search
14.10 Dr Hunt, Mr Green and Dr Hickey go to the body to start the examination
14.17 Godric Smith goes to rear of plane to brief journalists
14.35 Blair's plane lands at Tokyo
This contemporary article in the Guardian usefully helps with the timing of the briefing by Godric Smith, the Prime Minister's Official Spokesman: http://www.guardian.co.uk/politics/2003/jul/19/uk.iraq2
I'm fairly confident about the landing time for the Blair's plane at Tokyo. I think that someone took a photo of the plane at that moment and there is a comment to that effect somewhere on the internet. At the moment I can't find it.
There may well be further timelines on this blog.
From a Freedom of Information request there is now information on when Blair and Falconer were in conference; the times I give I think are British Summer Time but I'm not sure so they may be liable to correction, however the duration is right.
Events on the ground are in blue, those in the air are in red.
12.00 Forensic pathologist Dr Hunt logged into outer cordon
12.04 Dr Hunt is logged in at the inner cordon12.06 DCI Young logged in at the outer cordon
12.10 to 12.13 Blair talks to Falconer
12.20 to 12.55 Blair again talks to Falconer
12.35 Dr Hunt goes to the body to confirm death then withdraws from scene
12.50 PC Franklin is asked by DCI Young to organise a fingertip search
13.08 Start of fingertip search
14.10 Dr Hunt, Mr Green and Dr Hickey go to the body to start the examination
14.17 Godric Smith goes to rear of plane to brief journalists
14.35 Blair's plane lands at Tokyo
This contemporary article in the Guardian usefully helps with the timing of the briefing by Godric Smith, the Prime Minister's Official Spokesman: http://www.guardian.co.uk/politics/2003/jul/19/uk.iraq2
I'm fairly confident about the landing time for the Blair's plane at Tokyo. I think that someone took a photo of the plane at that moment and there is a comment to that effect somewhere on the internet. At the moment I can't find it.
There may well be further timelines on this blog.
There was no need for the Hutton Inquiry
A body, believed to be that of the missing government scientist Dr David Kelly, was discovered by Brock the search dog owned by Louise Holmes at about 9.15 on the morning of Friday 18 July 2003. Louise was accompanied by another volunteer searcher Paul Chapman who attempted to phone their controller but as that phone was set to answerphone Paul had to resort to dialling 999 from his mobile. The 999 call was received at Abingdon police station at 9.20.
The preceding and subsequent events to the discovery of the body will be discussed in later posts but suffice to say at the moment that the forensic pathologist Dr Nicholas Hunt arrived at Harrowdown Hill where the body was found at about midday, shortly followed by the chief investigating officer from Thames Valley Police DCI Alan Young.
Dr Hunt confirmed the fact of death at 12.35 but then withdrew from the scene because a decision had been made to call for a forensic biologist, Mr Roy Green. It seems that the thinking was that it would be better to await the arrival of Mr Green before Dr Hunt proceeded with his examination of the body. It was about one and a half hours later, at 2.10, that Dr Hunt, Mr Green and Mr Green's assistant Dr Eileen Hickey began their examination of the body and the surrounding area.
It can be seen that there was a delay of approximately five hours from the finding of the body to the start of the forensic examination. In that five hour period Tony Blair, en route by plane from Washington to Tokyo, had agreed with former flat mate Lord Falconer that there should be a judicial inquiry into the circumstances surrounding the death of Dr Kelly. Charles Falconer, at that time, was Secretary of State for the Department of Constitutional Affairs and Lord Chancellor.
A person goes missing from his home, about eighteen hours later his body is found about two miles away. Under the suspicious and unexplained circumstances appertaining in this case one would obviously expect a thorough police investigation and also for the coroner to be informed. But with no obvious explanation as to the cause of death, whether it is a case of suicide or murder for example, why have a judicial inquiry. Whilst Mr Blair and Lord Falconer were agreeing that there should be a judicial inquiry into the death the only real evidence that the police had was a dead body, believed to be that of David Kelly, a relatively small amount of blood in the vicinity and an open knife close by with blood on it.
Dr Kelly it is true had been under the spotlight the previous Tuesday in a televised session of the Foreign Affairs Select Committee. There was a public perception, aided by careful editing of his FAC appearance on subsequent news bulletins, of a man driven over the edge by the way his name as a mole had been revealed and that he had been mercilessly harangued by certain members of the FAC. Yet careful examination of the totality of the facts fails to support this hypothesis. Publicly, on the day that the body was discovered, Thames Valley Police were treating the death as "unexplained". There was no possible justification for an inquiry at that time.
Let us suppose there had been a thorough, honest investigation by TVP and the coroner had completed his inquest in the normal manner. And let us suppose that he (or a jury if called) had returned a verdict of suicide then at that point there may well have been reason to set up an inquiry. In fact public clamour might well have made an inquiry at that juncture inevitable.
I say again: there was absolutely no legitimate reason to set up an inquiry on the morning of 18 July, the morning that the body was discovered, and at a time when it should have been impossible to know how Dr Kelly died.
The preceding and subsequent events to the discovery of the body will be discussed in later posts but suffice to say at the moment that the forensic pathologist Dr Nicholas Hunt arrived at Harrowdown Hill where the body was found at about midday, shortly followed by the chief investigating officer from Thames Valley Police DCI Alan Young.
Dr Hunt confirmed the fact of death at 12.35 but then withdrew from the scene because a decision had been made to call for a forensic biologist, Mr Roy Green. It seems that the thinking was that it would be better to await the arrival of Mr Green before Dr Hunt proceeded with his examination of the body. It was about one and a half hours later, at 2.10, that Dr Hunt, Mr Green and Mr Green's assistant Dr Eileen Hickey began their examination of the body and the surrounding area.
It can be seen that there was a delay of approximately five hours from the finding of the body to the start of the forensic examination. In that five hour period Tony Blair, en route by plane from Washington to Tokyo, had agreed with former flat mate Lord Falconer that there should be a judicial inquiry into the circumstances surrounding the death of Dr Kelly. Charles Falconer, at that time, was Secretary of State for the Department of Constitutional Affairs and Lord Chancellor.
A person goes missing from his home, about eighteen hours later his body is found about two miles away. Under the suspicious and unexplained circumstances appertaining in this case one would obviously expect a thorough police investigation and also for the coroner to be informed. But with no obvious explanation as to the cause of death, whether it is a case of suicide or murder for example, why have a judicial inquiry. Whilst Mr Blair and Lord Falconer were agreeing that there should be a judicial inquiry into the death the only real evidence that the police had was a dead body, believed to be that of David Kelly, a relatively small amount of blood in the vicinity and an open knife close by with blood on it.
Dr Kelly it is true had been under the spotlight the previous Tuesday in a televised session of the Foreign Affairs Select Committee. There was a public perception, aided by careful editing of his FAC appearance on subsequent news bulletins, of a man driven over the edge by the way his name as a mole had been revealed and that he had been mercilessly harangued by certain members of the FAC. Yet careful examination of the totality of the facts fails to support this hypothesis. Publicly, on the day that the body was discovered, Thames Valley Police were treating the death as "unexplained". There was no possible justification for an inquiry at that time.
Let us suppose there had been a thorough, honest investigation by TVP and the coroner had completed his inquest in the normal manner. And let us suppose that he (or a jury if called) had returned a verdict of suicide then at that point there may well have been reason to set up an inquiry. In fact public clamour might well have made an inquiry at that juncture inevitable.
I say again: there was absolutely no legitimate reason to set up an inquiry on the morning of 18 July, the morning that the body was discovered, and at a time when it should have been impossible to know how Dr Kelly died.
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