Monday, March 08, 2010

Adjournment debate - 5 March 2010

Dr. David Kelly (Inquest)

5 Mar 2010 : Column 1188

Motion made, and Question proposed, That this House do now adjourn.-( Kerry McCarthy.)

2.33 pm

Norman Baker (Lewes) (LD): I am pleased to have the opportunity to raise this important issue. It is perhaps symbiotic that I have this Adjournment debate while the Chilcot inquiry is in progress, with the Prime Minister giving evidence. While Sir John Chilcot is considering the overtly political issues of 2003, I will argue that it is not possible to secure closure on the events of 2003 until those surrounding David Kelly's death have been properly investigated.

David Kelly was, of course, intimately linked with the events of 2003, not least through his briefing of Andrew Gilligan, which precipitated many of the problems that occurred early in that year and was the source of the suggestion that the Government's dossier had been "sexed up". I do not intend in the limited time that I have to go over those particular issues today. Suffice it to say that they are all extant and I hope that the Chilcot inquiry will reach a sensible conclusion that satisfies the population at large, who are currently not satisfied. However, there is no doubt that involvement in the Iraq issue caused David Kelly's death, no matter how people think that occurred.

I believe that this country and the world owe David Kelly a huge debt for his tremendous work as a United Nations weapons inspector on behalf of this country and, indeed, the world though the 1990s and the early part of this century. It is a tragedy for him, his family and his friends that he ended his life as he did. They deserved better than for him to be found dead in a wood on Harrowdown hill, particularly given that at the same time, the then Prime Minister was receiving 16-or was it 17?-standing ovations from the US Congress for providing an intellectual justification for the war in Iraq. I hope that some way can be found, even at this stage, for David Kelly to be recognised through a posthumous honour. Although I am told that that is not possible, I hope the Government recognise the case for it. They owe him that, not least for having briefed that he was a kind of Walter Mitty figure shortly after his death and for having tried to ruin his reputation in that way.

I recognise that this remains painful for many people, not least David Kelly's family and friends, but it is a matter of national importance-it is unfinished business, which is why I am returning to it today. In the limited time I have, I want to focus on the narrow issue of the process used to deal with his death. The Minister will be aware that the normal process for any unexplained or violent death is through a coroner's court, with all the safeguards that that implies. That is a proper process, open to the public, with proper rules of engagement and cross-examination, and certain hurdles to overcome before particular verdicts can be reached. It is astonishing that in this most sensational-if that is the appropriate word-tragic and important death of the past decade, we will instead be given a non-statutory inquiry established under section 17A of the Coroners Act 1988.

That provision was introduced by a previous Government for, I believe, defensible reasons. As I understand it, it was introduced to deal with multiple deaths with the
same cause. It was therefore used in February 2000 for the investigation of 31 deaths in the Ladbroke Grove rail crash, the 311 deaths connected with Harold Shipman, and the four deaths connected with the sinking of the Gaul in November 2003. On all those occasions, there was a statutory inquiry and more than one death was involved. This is the only occasion in history that section 17A has been used for a non-statutory inquiry into a single death. It is astonishing that Dr. Kelly's death has been investigated to a lower standard than any other similar death would have been.

Even that might have been passable if Lord Hutton had done his job thoroughly, but he did not-not by a long stretch of the imagination. I therefore want to argue today for a proper inquest to be held-there has still not been one-and to invoke section 13(1)(b) of the 1988 Act, on two grounds: first, insufficiency of inquiry; and secondly, the discovery of new facts or evidence. Either ground should encourage or persuade the Attorney-General to apply to the High Court for the inquest to be reopened, and I suggest that both provide a compelling case.

The Minister will know that I wrote to the Attorney-General on 4 September 2008 to make that request, and she has so far not seen fit to agree with my analysis. Doubtless the Minister will respond to that.

I shall refer to what Lord Hutton said about his own inquiry when he wrote subsequently in the "Inner Temple Yearbook 2004-2005", which I accept is not a publication that many people will have read. He stated:

"At the outset of my appeared to me that a substantial number of the basic facts of the train of events which led to the tragic death of Dr Kelly were already apparent from reports in the press and other parts of the media. Therefore I thought that there would be little serious dispute as to the background facts...I thought that unnecessary time could be taken up by cross-examination on matters which were not directly relevant."

That appears to me as an admission from Lord Hutton himself of "insufficiency of inquiry", but we also need to consider the key witnesses who were simply not called or, in some cases, not referred to in Lord Hutton's inquiry. The police officer in charge of the investigation was Chief Inspector Alan Young-he has since been promoted-of Thames Valley police. As far as I can tell, he was not even mentioned in the Hutton inquiry, let alone called to give evidence. Mai Pederson, who was David Kelly's contact in the US armed forces, probably knew David Kelly better than anyone else apart from his close family, but she was not asked to give evidence. Indeed, it appears that she offered to give evidence, but the Thames Valley police told Lord Hutton that she had nothing of value to say.

Then there is the conflicting evidence that Lord Hutton appeared to think it unimportant to clear up. There was a huge amount of conflicting evidence in the police statements, including such basic matters as where the body was, how far it was from a tree or whether it was against the tree, and whether various possessions of David Kelly were near the body or not. Lord Hutton tried to resolve this by saying that

"entirely honest witnesses often give evidence as to what they saw at the scene which differs as to details. In the evidence which I heard from those who saw Dr Kelly's body in the wood there were differences as to points of detail, such as the number of police officers at the scene and whether they were all in uniform, the amount of blood at the scene, and whether the body was lying on the ground or slumped against the tree...These differences do not cause me to doubt that no third party was involved in Dr Kelly's death."

It appears that Lord Hutton did not feel it necessary to resolve any of those matters, but I suggest that a coroner's court would certainly have sought to resolve them. Indeed, Lord Hutton concludes that if police officers give conflicting evidence, it proves that they are telling the truth, because if they had been telling lies, they would all have told the same story. I suggest that had the police all told the same story, no one would have concluded that they had lied. The answer is that Lord Hutton was going to believe whatever he was told and failed to investigate conflicts of evidence when they were presented to him. There are other conflicts of evidence that I will not go into, given the limit on time, but Lord Hutton failed to examine any of them during his inquiry.

In a reply to me, the then Solicitor-General cited, as reasons for not pursuing the matter further, the evidence of Alex Allan, the toxicologist, and Dr. Nicholas Hunt, the pathologist, at the Hutton inquiry. But she appeared not to know that Dr. Hunt changed his evidence in the run-up to the inquiry. That much was revealed by information and documentation released to me by the then Solicitor-General, who is now the Leader of the House. She was very generous and provided lots of information that demonstrated that the Oxfordshire coroner had been leant on by a Minister. I am not happy with coroners being leant on by Ministers, but that is what the evidence shows. It also showed that Dr. Hunt had changed his evidence. We do not know in what way he changed his evidence, but we do know that he contacted Channel 4 in March 2004, indicating that he thought that the inquest should be reconvened.

In evidence to the Hutton inquiry after being asked about any third-party involvement, the pathologist said that

"the features are quite typical, I would say, of self inflicted injury if one ignores all the other features of the case."

What does that mean? Lord Hutton never bothered to ask. This is a charade of a legal process and the Government cannot let it stand as it does.

A death certificate was issued in the name of the Oxfordshire coroner, giving the reasons for death. It was issued on 18 August 2003-significantly, just barely after the Hutton inquiry started sitting. What was the point of an inquiry to investigate the circumstances surrounding the death of David Kelly if the Oxfordshire coroner, through an aborted inquest process-and that is what it was-rushed out a certificate giving the reasons for death before Lord Hutton had even considered the matter? The certificate includes as causes co-proxamol ingestion and coronary artery disease. It subsequently turned out that Alex Allan, the toxicologist that the Attorney-General prayed in support of her decision not to reopen the inquest, actually gave evidence at the inquiry that the level of co-proxamol was insufficient to cause death. In that case, why was it on the death certificate? Why were coronary artery problems mentioned when David Kelly's GP said that he had no problems with coronary artery disease?

The Minister will also be aware of the challenge that several leading medical experts have launched, demanding a proper inquest and saying that, in their view, it is clinically impossible for David Kelly to have died in the way that Lord Hutton described. They have asked for information about the death and it has turned out that Lord Hutton recommended-astonishingly-that the information should be kept secret for 70 years. A coroner's inquest is normally a public event, but here is Lord Hutton keeping information a secret for 70 years. What has he got to hide? However, that information is now with a Government Department, so it is within the Government's power to release it to the doctors, as they have requested, and I trust that they will do so. I submitted a freedom of information request some time ago for that information to be revealed, but I have had no substantive reply despite the fact that the normal statutory time for reply has now been exceeded.

The second reason for reopening this matter relates to new evidence. I have not got time to go into this in huge detail, but there is a lot of new evidence. It was subsequently discovered-by me I might say, through a freedom of information request to Thames Valley police-that there were no finger prints on the knife, despite the fact that Dr. Kelly was not wearing gloves. We are invited to work out how he is supposed to have slit his wrists without leaving prints. Why was it left to me to find that out? Why did Lord Hutton not find out that most basic fact in his inquiry? It suggests that he was not at all thorough. There is also the fact that Mia Pederson, Dr. Kelly's close friend, stated to a national paper, The Mail on Sunday, that she had a meal with Dr. Kelly shortly before his death. He had had an accident-a painful injury to his right elbow-and as his hands gripped the silver, he struggled to get a knife through a steak he had ordered. How was he supposed to cut his wrists, when he could not even cut through a steak?

I have not even gone into the medical evidence that the doctors have brought together. Suffice it to say that when I asked the national statistician, Karen Dunnell, how many deaths there had been, in 2003 in the entire UK, from incising an ulnar artery-a tiny artery of matchstick thickness in the wrist-I was told one. It does not add up, I am sorry to say.

Then there is the issue about the helicopter. We have subsequently found out, again from freedom of information requests, and through my parliamentary questions to the Ministry of Defence, that the times and routes given at the Hutton inquiry for the helicopter have been proved to be wrong. The MOD, in parliamentary answers to me, has contradicted the evidence given at the Hutton inquiry, and a freedom of information request by a journalist has demonstrated that the route of the helicopter went directly over the place where Dr. Kelly's body was subsequently found, with heat-seeking equipment, and yet failed to detect the body. None of this adds up. The Minister needs to recognise that and respond appropriately.

The Minister will know that politicians from all parties have expressed doubts about the matter, and have gone public in doing so. He will also know that Mia Pederson's lawyer in the United States, Mark Zaid, on her behalf, has written to his Department demanding that the matter be reopened, because she is not happy with the matter either. He will know that I, and the doctors, are pursuing the matter. I say to the Minister that the lid cannot be kept-and nor should it be kept-on the matter for much longer. In a coroner's court, it would be necessary to prove beyond reasonable doubt-that is the test-before a verdict of suicide can be returned. I challenge the Minister, or anyone else for that matter, to tell me, on the basis of the farrago of nonsense produced by Lord Hutton and the evidence that has emerged subsequently, that that conclusion can be reached. It cannot be reached, and we owe David Kelly a proper investigation. We owe him an inquest, which anyone else would have had they suffered a violent and unexplained death. That has so far been held back from David Kelly. We must have it now, and if we do not, we will not be able to draw a line under the events of 2003, whatever Sir John Chilcot concludes.

2.48 pm

The Minister of State, Ministry of Justice (Mr. Michael Wills): As is customary, I start by congratulating the hon. Member for Lewes (Norman Baker) on securing the debate. I would also like to associate myself with some of his remarks. First, I agree that this was a terrible tragedy, for Dr. Kelly, his family and many others. Secondly, I agree that this country owes a significant debt of gratitude to Dr. Kelly for his many years of distinguished public service. Thirdly, we should all recognise, as the hon. Gentleman did, that this incident was particularly painful and distressing for the family, and continues to be so, and all of us need to approach the matter with sensitivity. Indeed, I think that he has done that. Finally, he was right to highlight the fact that many people are not satisfied with what has happened, and to that extent it remains a matter of legitimate public concern. I agree with him on all those points. He has been an indefatigable campaigner on the issue.

Let me rehearse a few of the most salient facts before I deal with the substance of what the hon. Gentleman has said. As the House will know, Dr. Kelly's body was found on the morning of Friday 18 July 2003 on Harrowdown hill in Oxfordshire, near his home. He had been missing since the previous day, and his death was then reported to the Oxfordshire coroner, Nicholas Gardiner. On 21 July, Mr. Gardiner formally opened and adjourned an inquest into Dr. Kelly's death, as is customary when investigations into a death are continuing. The purpose of an inquest is to establish who the deceased was, and how, when and where he or she came by his or her death. Any external investigations into the death can be crucial evidence for the coroner, and can of course preclude the necessity for the coroner to undertake his or her own investigations.

On 18 July 2003, the then Lord Chancellor, Lord Falconer, appointed Lord Hutton to conduct a public inquiry into the death of Dr. Kelly. The terms of reference were

"urgently to conduct an investigation into the circumstances surrounding the death of Dr. Kelly".

The inquest was resumed briefly by Mr. Gardiner on 14 August 2003, to enable the final report of the post-mortem examination on Dr. Kelly to be admitted as evidence. The examination had been undertaken by Dr. Nicholas Hunt, an experienced and Home Office-accredited forensic pathologist, on 18 July 2003. Dr. Hunt submitted his report to Mr. Gardiner on 25 July. Its conclusions were later made public in his evidence to Lord Hutton's inquiry.

As the hon. Gentleman said, section 17A of the Coroners Act 1988 allows for the adjournment of an inquest in the event of a judicial inquiry into a death which, in the Lord Chancellor's view, will investigate the death adequately. The then Lord Chancellor considered that Lord Hutton's inquiry would adequately investigate the cause of Dr. Kelly's death. Therefore, in August 2003, under the provisions of section 17A(1) of the Act, he formally notified Mr. Gardiner of Lord Hutton's inquiry. Mr. Gardiner found no exceptional reason to the contrary, and therefore adjourned the inquest, again in accordance with section 17A of the Act.

Norman Baker: Whose idea was it for the Oxfordshire coroner to issue a final certificate of death giving reasons for the death rather than an interim certificate, which would have been a possible option?

Mr. Wills: As the hon. Gentleman knows, coroners are independent. They are not, as he suggested, subject to ministerial pressure or intervention, and that was the coroner's decision at the time, as he knows. If he wishes to present evidence that, as he said, someone was leant on, I shall be happy to consider it, but these are serious allegations, and I hope he can use terms more precise than airy phrase like "leant on". I assure him that if he writes to me, I will carry out a detailed examination and respond to him. Alternatively, the responsible Minister will respond. The hon. Gentleman knows that I am not normally the Minister who deals with this matter. If he writes to me promptly, I will ensure that he receives a prompt response, before the election is called-whenever that may be.

Lord Hutton's report was published on 28 January 2004. On the same day, the then Lord Chancellor sent the report to Mr. Gardiner in accordance with section 17A(3) of the 1988 Act. Mr. Gardiner then invited representations on whether or not he should resume the inquest into Dr. Kelly's death. At an open hearing in Oxford on 16 March 2004, Mr Gardiner decided that there was no exceptional reason to resume the inquest.

Lord Hutton conducted an extensive inquiry into Dr. Kelly's death. The hon. Gentleman has suggested that the inquiry was of a lower standard than it should have been, but I remind the House that Lord Hutton is a very distinguished member of the judiciary. The inquiry ran, in two stages, between 1 August and 13 October 2003. Evidence was taken from 74 witnesses, including Ministers, civil servants, police officers and ambulance staff. Dr. Hunt, the forensic pathologist, gave evidence, as did a toxicologist who examined items taken from Dr. Kelly's body. Transcripts of the evidence were made available on the inquiry's dedicated website, as were documents that were submitted in evidence, where appropriate. That website can still be accessed today. Everything has been done to make the process as transparent as possible.

I will ensure that the freedom of information request is chased up. I am sorry that the time limit was exceeded. It should not have been. Time limits are there for a reason. Unfortunately, there has been a considerable backlog in various areas, which is not acceptable. We are making considerable progress in clearing that backlog, but I agree with the hon. Gentleman that he should have received a reply by now and I shall ensure that that is chased up. I hope that we will get him a reply without further delay. As I say, we are trying to do everything we can to make this process as transparent as possible.

After considering all of the evidence, Lord Hutton concluded that Dr. Kelly took his own life, and that the principal cause of death was bleeding from wounds to his left wrist which Dr. Kelly had inflicted on himself with the knife found beside his body. Lord Hutton also found it probable that the ingestion of an excess amount of co-proxamol tablets, together with coronary artery disease, would have played a part in bringing about Dr. Kelly's death. Lord Hutton was satisfied that no other person was involved in the death and that Dr. Kelly was not suffering from any significant mental illness at the time he took his own life.

Lord Hutton's report was, of course, debated in this House on 28 January 2004, in response to the then Prime Minister's statement. I am aware that, as the hon. Gentleman has again reminded the House, some people have had a considerable degree of dissatisfaction with Lord Hutton's findings. Of course that persists to some extent today, as the hon. Gentleman has exemplified. However, the Government must consider whether there is any basis to go behind Lord Hutton's findings and to re-examine the evidence heard during the inquiry, and at this stage we do not have such a basis on which to proceed. We are always happy to consider new evidence and I again suggest to the hon. Gentleman that if he feels he has new evidence to provide that should cause us to re-examine that decision, we will of course look at it and respond to him. I hope that he will take advantage of that opportunity, if he so wishes.

There was also some critical reaction-we heard this again from the hon. Gentleman today-to Mr. Gardiner's decision not to resume the inquest into Dr. Kelly's death. As I said, coroners are independent judicial office holders, and operational decisions such as this are matters solely for them. It would not, therefore, be appropriate for me, as a Minister, to comment on Mr. Gardiner's decision, other than to say that it was taken fully in accordance with the provisions of section 17A of the Coroners Act 1988. It is important to note that Dr. Kelly's family, the people for whom Lord Hutton's inquiry carried the greatest of personal importance, accepted the findings on the mode and cause of his death, although I am aware that they had some reservations about the extent to which the inquiry considered Dr. Kelly's state of mind at the time and the duty of care owed to him by his employers, the Ministry of Defence. Similarly, it is worth pointing out that Dr. Kelly's family did not challenge Mr. Gardiner's decision not to resume the inquest.

I am also aware-again the hon. Gentleman has reminded the House of this-that calls have been made by third parties for there to be a fresh inquest into Dr. Kelly's death. I believe that the House knows, and I am sure that the hon. Gentleman does, that Ministers do not have any authority to order that a fresh inquest should be held, even if it was considered that there were grounds for such a decision to be taken. The only basis on which a fresh inquest could be held is under the provisions of section 13 of the 1988 Act. Under that section, the High Court

"on an application by or under the authority of the Attorney-General"

can order a further inquest to be held. That can happen only if

"by reason of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts or evidence or otherwise"

the Court considers it

"necessary or desirable in the interests of justice".

I am aware that a group of doctors is considering making such an application, although I understand that it has not done so to date. This has given rise to some discussion in the media about what was mistakenly reported by the media as Lord Hutton's "decision" to bar for 70 years the release of some documents. Neither Lord Hutton nor anyone else has imposed or ordered that the information not be disclosed for 70 years. Lord Hutton made that clear in a statement on Tuesday 26 January. He said that he had "requested" that the post-mortem examination report relating to Dr. Kelly not be disclosed for 70 years in view of the "distress" that could be caused to Dr. Kelly's wife and daughters. I agree that we should reflect on the distress that will potentially be caused to Dr. Kelly's family by a very public re-visiting of the circumstances surrounding his death. That is not to say that some of the evidence cannot be released, and that will be considered on a case-by-case basis by the National Archive and in the Ministry of Justice.

Taking all that together along with the fact that-as far as the Government can see at this stage, based on the information available to us-there is no new evidence to suggest that such a move is necessary, the Government cannot see that there is a basis on which to re-examine the circumstances surrounding Dr. Kelly's death. Having said all that, I know that the hon. Gentleman is an indefatigable campaigner and I am happy to give an undertaking on behalf of the Government today that if he comes forward with new evidence we will engage with him in discussing it and in seeing whether there is any reason to re-examine our position. I am grateful to him for his courtesy in listening to me and I am sure that this dialogue will continue.

Question put and agreed to.

3 pm

House adjourned.

(Crown Copyright)


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