Tuesday, February 28, 2012

ICO - Kelly FOIA requests 'vexatious'


23 February 2012, 16:06:00

The complainant requested information from Thames Valley Police (the Police) about the death of former weapons inspector, Dr David Kelly, in 2003. The Police refused to comply with these requests on the basis that they were vexatious. The Commissioner’s decision is that the Police were entitled to refuse to comply with these requests on the basis that they were vexatious.


Thursday, February 23, 2012

Kelly inquest denial judgement published

Dr Stephen Frost has now published Mr Justice Nicol's judgement relating to Dr David Halpin's application to the High Court for permission to apply for judicial review of a decision of the Attorney-General to refuse to apply to the court, under section 13 of the Coroners Act 1988 for an inquest or further inquest into the death of Dr David Kelly:

(N.B. Line-breaks edited for easier reading)

Transcript of Mr Justice Nicol's judgement on 19 December 2011

Neutral Citation Number: [2011] EWHC 3759 (Admin)
Royal Courts of Justice
London WC2A 2LL

Monday, 19th December 2011

B e f o r e:








Computer-Aided Transcript of the Stenograph Notes of
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(Official Shorthand Writers to the Court)

Mr John Cooper QC (instructed by Withers LLP) appeared on behalf of the Claimant

Mr Jonathan Swift QC and Mr Jonathan Glasson (instructed by Treasury Solicitor)
appeared on behalf of the Defendant


(As Approved by the Court)


1. MR JUSTICE NICOL: This is an application for permission to apply for judicial review of a decision of the Attorney-General to refuse to apply to the court, under section 13 of the Coroners Act 1988 for an inquest or further inquest into the death of Dr David Kelly.

2. The claimant is one of a group of doctors who in September 2010 asked the Attorney to exercise his power under that provision to make application to the court.

3. As is well-known, Dr David Kelly CMG was an eminent scientist who had a high reputation both nationally and internationally as a weapons inspector. He came to public attention in July 2003, when he was identified as the alleged source of a news report by the BBC journalist Andrew Gilligan. Request was made for him to give evidence before the Foreign Affairs Committee and the Intelligence and Security Committee on Thursday 10th July. He gave evidence on 15th and 16th July. On 18th July 2003 his body was found in a wood at Harrowdown Hill, a few miles away from his home in Oxfordshire.

4. Later that same day Lord Hutton, a former Lord Chief Justice of Northern Ireland and who was at the time a Lord of Appeal in Ordinary, was requested by the Right Honourable Lord Falconer of Thoroton, then the Lord Chancellor and the Secretary of State for Constitutional Affairs, to conduct an inquiry into the death of Dr David Kelly. His terms of reference were urgently to conduct an investigation into the circumstances surrounding the death of Dr Kelly.

5. On 21st July 2003 an inquest into Dr Kelly's death was opened by Mr Nicolas Gardiner, Her Majesty's Coroner for Oxfordshire. On 12th August 2003 Lord Falconer invoked section 17A of the Coroners Act and informed the Oxfordshire Coroner that an inquiry had been established to investigate Dr Kelly's death. Section 17A(i) says this:

"(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."

6. The inquest was in accordance with that provision adjourned. On 28th January 2004 Lord Hutton completed his report and submitted it to Lord Falconer. The report was laid before the Houses of Parliament on that date and statements were made in the House of Commons by the Prime Minister and, in the House of Lords, by the Lord Chancellor the same afternoon. Lord Hutton came to the conclusion that Dr Kelly took his own life in the wood at Harrowdown Hill at a time between 4.15 pm on 17th July and 1.15 am on 18th July 2003, and that the principal cause of death was bleeding from incised wounds to the left wrist which Dr Kelly inflicted on himself with the knife found beside his body. It is probable that the ingestion of an excess amount of Coproxamol tablets coupled with apparently clinical silent coronary artery disease would both have played a part in bringing about death more certainly and more rapidly than would otherwise have been the case. Accordingly the causes of death are 1A haemorrhage, 1B incised wounds to the left wrist, 2 Coproxamol ingestion coronary arteriosclerosis. He also concluded that no other person was involved in the death of Dr Kelly and gave his reasons for that.

7. Section 17A(4) also says:

"(4)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."

8. On 16th March 2004 the Oxfordshire Coroner held a further public hearing to determine whether to resume the inquest into Dr Kelly's death. He gave advance notification of his intention do so. In a subsequent letter to the Attorney-General's Office of 8th December 2010, the Coroner said this:

"I was anxious to ensure, so far as possible, anyone who considered themselves properly interested should have the opportunity of making representations to me."

9. The hearing that took place on 16th March 2004 was attended by, amongst others, representatives of the Kelly family and the UK Government. Counsel for the family argued that there were no exceptional reasons justifying the resumption of the inquest. On behalf of the government, no submissions were made.

10. The Coroner considered the matter and in a considered and careful decision, concluded that there were no exceptional reasons to justify the resumption of the inquest.

11. The request which the claimant and his colleagues made to the Attorney-General, was for the Attorney to exercise his powers under section 13 of the Coroners Act. That says as follows:

"(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.

(2)The High Court may—

(a)order an inquest or, as the case may be, another inquest to be held into the death either—

(i)by the coroner concerned; or

(ii)by the coroner for another district in the same administrative area;

(b)order the coroner concerned to pay such costs of and incidental to the application as to the court may appear just; and

(c)where an inquest has been held, quash the inquisition on that inquest.

(3)In relation to an inquest held under subsection (2)(a)(ii) above, the coroner by whom it is held shall be treated for the purposes of this Act as if he were the coroner for the district of the coroner concerned."

12. In this case the claimant sought to persuade the Attorney-General that an application should be made to the court for a number of reasons. In summary they were as follows.

First, Lord Falconer's decision to appoint Lord Hutton to conduct an inquiry was said to have been unlawful and an interference with the inquisitorial process that would otherwise have been conducted. Secondly, there were criticisms which the claimant and his colleagues made of certain features of Lord Hutton's investigation and its adequacy or rather alleged inadequacy. Thirdly, it is said that, because Lord Hutton was appointed to conduct an inquiry on an ad hoc basis and because therefore he lacked power to summon witnesses or examine them on oath, there was necessarily a deficiency in the investigation which he could conduct and, because what he conducted was not a statutory inquest, he was unable to make the recommendations that a Coroner could have made pursuant to rule 43 of the Coroners Rules 1984, 1984 SI No 552.

Further, it is said that there had been a considerable quantity of new evidence that had been assembled and that new evidence ought to be considered by a freshly summoned inquest.

13. As can be seen from section 13(1) there are two alternatives that may justify an application by the Attorney-General. One is where a Coroner refuses or neglects to hold an inquest which ought to be held, and, second, is where an inquest has been held. The Attorney in this case was required to consider which of those two alternatives was applicable in the present situation ie. where an inquest had been started but not completed.

14. The conclusion that he reached was that there had in substance and in practice not been an inquest and therefore section 13(1)(a) was the applicable provision. If I may say so, sensibly, the Attorney decided, since the matter was not clear cut, to consider the application that was made to him, on the alternative basis that it should be dealt with under section 13(1)(b).

15. There is another pair of alternatives in section 13(1). That is, the Attorney may authorise another person to make an application to the High Court with his authority Alternatively the Attorney can make the application himself.

16. Mr Swift QC on the Attorney-General's behalf did not consider that there was a difference in test, according to which of those alternatives was to be adopted. My provisional view is that he was correct in this regard. Mr Cooper QC for the claimant, did not argue for a contrary position.

17. There have been a number of authorities on the test which is to be applied by the court if an application is made to it under section 13. In R (on the application of Sutovic) v HM Coroner for the Northern District of Greater London [2006] EWHC 1095 (Admin), the Divisional Court reviewed the authorities. At paragraph 54 it said this:

"The power contained in section 13(1)(b) is stated in very broad terms. The necessity or desirability of another inquest may arise by reason of one of the listed matters 'or otherwise'. Notwithstanding the width of the statutory words, its exercise by courts shows that the factors of central importance are an assessment of the possibility (as opposed to the probability) of a different verdict, the number of shortcomings in the original inquest, and the need to investigate matters raised by new evidence which had not been investigated at the inquest... 55. In cases in which the court is satisfied that a different verdict is not possible or doubts that it would be, the fact that the deceased died in custody may be 'a compelling additional factor'... This is because of the need (see paragraph [37] above) in such cases for an investigatory regime which will not only expose past violations of obligations under Article 2 [of the European Convention on Human Rights] but also promote measures to prevent or minimise the risk of future violations. The lapse of time since the death is a factor that has generally been seen as a factor against ordering a further inquest... but this is not always so ... it was stated that a new inquest may be ordered even if there is a high probability that the verdict would be the same."

18. It is clear from that and other authorities therefore, that the task of the court would not be to decide whether there is a probability of a fresh inquest returning a verdict of the same kind but whether there is a possibility that another inquest may return a different verdict.

19. There is an initial matter which is raised by the Attorney-General in his summary grounds of resistance to this application and that is whether the court has jurisdiction to review the decision of the Attorney-General not to institute proceedings. Two authorities in particular are relied upon by the Attorney-General. The first is Queen v Attorney-General ex parte Ferranti. On 1st July 1994 Popplewell J concluded that the court had no jurisdiction. The matter went to the Court of Appeal which on 8th February 1995 was prepared to assume, without deciding the question of jurisdiction. It held that the Attorney-General's decision in that case anyway could not be regarded as even arguably unlawful.

20. The second case on which the Attorney-General in particular relies is Queen v Solicitor-General ex parte Michelle and Lisa Taylor, a decision of the Divisional Court on 31st July 1995. That was a case concerning the ability of two people who had been facing criminal proceedings to compel the Solicitor-General to bring proceedings for contempt of court. Section 7 of the Contempt of Court Act provides that such an application can only be made by or with the permission of the Attorney-General. The Divisional Court concluded that there was no jurisdiction to review the refusal of the Solicitor-General to give authorisation for such proceedings. Both these authorities in turn both go back to the decision of the House of Lords in Gouriet v The Union of Post Office Workers [1978] AC 435.

21. Mr Swift made clear that the Attorney continued to rely on those authorities for the proposition that this application was not justiciable. However, realistically, he appreciated that the Attorney needed to address the merits of the claimant's application as well.

22. If, hypothetically, there were substantial grounds for considering that the Attorney had acted unlawfully in refusing his consent, it would be an unattractive position, to put it neutrally, if that illegality was beyond the power of the courts to judicially review. I was grateful therefore for Mr Swift turning to the merits of the case.

23. Mr Cooper QC, explained that the background to the application was the concern that the claimant's rights under Article 6 of the European Convention on Human Rights had been improperly interfered with by Lord Falconer's decision to appoint Lord Hutton to conduct an independent inquiry. Article 6 provides that in the determination, amongst other things, of a person's civil rights and obligations, there is a right to an independent tribunal. The concept of a civil right has been said on many occasions by the Strasbourg Court and by the domestic courts to be an autonomous concept i.e. it is to be defined and determined by reference to Strasbourg case law rather than by the meaning which might be attributed to that expression in any one of the contracting States that are party to the Convention.

24. In this case, Mr Cooper submits that the civil right in question was that of the claimant, either to be added as an interested party at an inquest of Dr Kelly, or for his application to be treated as an interested party to be properly considered. The phrase "an interested party" is the common shorthand expression referring to Rule 20 of the Coroners Rules. That says:

"(1) Without prejudice to any enactment with regard to the examination of witnesses at an inquest, any person who satisfies the coroner that he is within paragraph (2) shall be entitled to examine any witness at an inquest either in person or by [an authorised advocate as defined by section 119(1) of the Courts and Legal Services Act 1990]:[6] Provided that...

(2) Each of the following persons shall have the rights conferred by
paragraph (1)..."

A number of categories are listed between paragraphs (a) to (g). Mr Cooper does not suggest that the claimant comes within any of them. However, there is then paragraph (h) which reads:

"any other person who, in the opinion of the coroner, is a properly interested person."

25. Mr Cooper submitted that the claimant would be such an interested person because of the investigations which he and his colleagues had conducted into the circumstances surrounding the death of Dr Kelly and the contribution that they could make to a properly conducted inquest.

26. Mr Swift makes two responses. First, even if it be assumed that the claimant would have an arguable case to be treated as an interested party, that is not anywhere near to being the kind of right which Strasbourg would recognise as a "civil right". Second, he submits that if and to the extent that there was any interference with that right, it was not in consequence of Lord Falconer's decision to appoint Lord Hutton to conduct the inquiry but as a result of the Coroner's decision not to resume the inquest. Any determination therefore flowed from that decision, not from Lord Falconer's.

27. In my judgment Mr Cooper was not able to satisfy me that it is even arguable that the right he advanced on the claimant's behalf was of the nature of a "civil right" as the term is understood in the context of Article 6. Second, I accept Mr Swift's submission that it would have been open to the Coroner to resume the inquest notwithstanding Lord Hutton's inquiry. He would have had to be satisfied that there were exceptional reasons to justify doing so. But, if and so far as he was persuaded that the inquiry by Lord Hutton was deficient and he had not adequately investigated the cause of Dr Kelly's death, or had not sufficiently probed the witnesses who were called by Lord Hutton, then it would have been open to him to do so. In any event, as Mr Swift argued, it was the decision of the Coroner not to resume the inquest, which had the effect of curtailing any issue as to whether interested parties could take part or further part in the inquisitorial proceedings.

28. Mr Cooper made a more general attack on what Lord Falconer had done in 2003 as being a violation of the constitutional principle of the separation of powers. Phrases of that kind need to be unpacked. Many of the complaints which in the past would have been characterised in that way are now dealt with as examples of the impact of the European Convention on Human Rights. In legal terms all that Lord Falconer was doing in 2003 was exercising his power under section 17A(I) to inform the Coroner that an inquiry chaired by a judge was being held and his opinion the cause of death was likely to be investigated adequately by that inquiry. In my judgment that involved no constitutional impropriety. Lord Falconer was simply exercising a statutory power that Parliament had given to him.

29. The claimant and his colleagues made a number of criticisms of the investigation which Lord Hutton had carried out. As part of his consideration of their application the Attorney-General went back to Lord Hutton and asked for certain comments from him.

30. In the course of his oral submissions, Mr Cooper focused particularly on the fact that Lord Hutton did not have the power to summon witnesses or administer an oath. That was one of the matters on which the Attorney asked Lord Hutton to comment. Lord Hutton responded that no one whom he would have wished to come before him and give evidence had refused, and therefore the lack of a power to summon witnesses was, in his view, immaterial. Lord Hutton also commented that he did not consider the absence of evidence being given on oath was of any significance. He observed that much of the evidence in relation to the causes of Dr Kelly's death was scientific and expert evidence, where the presence or absence of an oath is not likely to be of significance. He also commented that there had not been a suggestion from any of the parties that any of the lay witnesses who gave evidence bearing on the cause of death had a reason to lie. Overall therefore, he considered that the absence a power to require evidence to be given on oath was of any particular significance. Mr Cooper suggested that this was to denigrate an important part of procedures which are commonplace in courts and that such playing down of the significance evidence being given on oath should not be allowed to stand.

31. In my judgment though, these were all matters for the Attorney-General to consider as part of his overall consideration as to whether he ought to bring an application before the court under section 13. He was entitled to take the view that in the circumstances of this particular case, the absence of the oath by witnesses to the inquiry was not of particular significance and would not therefore play a substantial part in the overall consideration as to whether such an application should be brought.

32. Mr Cooper also commented that because Lord Hutton was conducting an ad hoc inquiry, he would not have had a power to make recommendations as a Coroner would have had under Rule 43 of the Coroners Rules. Rule 43 says this:

"A coroner who believes that action should be taken to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held may announce at the inquest that he is reporting the matter in writing to the person or authority who may have power to take such action and he may report the matter accordingly." The Attorney-General did not place significance on that. In my judgment, he was entitled so to do. Lord Hutton's inquiry was conducted in a blaze of publicity. His report attracted enormous public attention. It is not arguable that the absence of his power to make a Rule 43 report would have been of particular significance.

33. A very substantial part of the material presented to the Attorney-General was new evidence or new commentary which the claimant had assembled. The Attorney-General's response went through each of the points made by the claimant and his colleagues in a schedule running to 60 pages and 169 items. It was plainly a very detailed response. That is perhaps unsurprising given that on 16th March 2010 Dominic Grieve QC MP who is now the Attorney-General but who was then the Shadow Secretary of State for Justice had written to Dr Michael Powers QC about investigations that had been made into the death of Dr David Kelly.

34. Mr Grieve said:

"I am aware of the work of the Doctors Group on challenging Lord Hutton's findings. It seems to me that they have been able to make an impressive and cogent case. In the absence of being in government it is impossible to make judgment on the reasons for withholding medical and scientific evidence. However this is something I would review if in government as I am conscious this is a matter where the public have not be reassured that the Hutton inquiry satisfactorily resolved the matter." (quote unchecked)

35. In his statement to Parliament, at which the detailed responses to the new evidence were presented, the Attorney-General also referred to material that he had gathered as part of his consideration of the request. It included a further report from a Home Office pathologist, Dr Richard Shepherd, and a report from a toxicologist, Professor Flanagan. He also assembled comments and statements from Thames Valley Police who had been involved in the initial investigation. He said this:

"I have concluded that the evidence that Dr David Kelly took his own life is overwhelmingly strong. The test set out by section 13 of the Coroners Act is not met."

A little later on in his statement he said:

"There is no possibility of a different verdict on the basis of the evidence of Dr Shepherd and Professor Flanagan."

And repeated:

"In my view the evidence that Dr Kelly took his own life is overwhelming and it would not be even necessary or desirable in the public interest to seek a new inquest."

36. In the course of the hearing I questioned with Mr Swift whether the Attorney-General had in those passages confused the role of the court, which would have to ask itself whether it would be desirable or necessary in the interests of justice for a fresh inquest to be held, with his role which was whether to bring an application for such relief before the court. Mr Swift responded that it was material for the Attorney-General to reach his own conclusion as to the ultimate issue that the court would be invited to ask, since it would be the Attorney who would be the moving party seeking precisely that relief. But in any event, even if there were some lower threshold test which the Attorney ought to have asked himself, the strength of the views which he expressed were such that it would be quite clear how any such lower threshold test would be answered. I was satisfied by that response.

37. In terms of the remainder of the challenge by the claimant, it is in essence an irrationality challenge, that is an argument that no reasonable Attorney-General could reach the conclusion which the Attorney did that the material presented by the claimant and his colleagues could not lead to the conclusion that an application should be properly brought before the court.

38. An irrationality challenge always has to cross a high threshold. This is adopted by the court in recognition of the fact that its task is a secondary one. It is reviewing the decision which Parliament has entrusted to some other public body or official. In this case, by section 13, Parliament has given to the Attorney-General the important filtering decision as to whether or not to make an application for a fresh inquest to the court.

39. In his reply, Mr Cooper referred to the case of Duggan v The Coroner for Northern District of Greater London [2010] EWHC 1263 (Admin). He referred to it for the proposition that even if there was not the possibility of a fresh inquest reaching a different conclusion, the court may nonetheless order such a fresh inquest to take place to allay any suspicions which have been raised by the evidence produced to the court. He submits that the material presented by the claimant and his colleagues is in exactly the same category. So for it has been considered by the Attorney-General in private, without the opportunity for challenge, cross-examination and open testing that would take place in another freshly convened inquest. For that reason, the Attorney-General has misdirected himself as to what is required and the court ought to give permission for this application for judicial review to continue.

40. In my judgment though, Duggan was very much a decision on its own facts. There was assembled in that case very considerable cause for suspicion. It was an application under section 13, which was brought with the consent of the Attorney-General. It was therefore a case which had passed through that statutory filter. When one reads the decision one can well understand why that would have been so.

41. In the present case the Attorney-General has given, as I have explained, extremely detailed reasons why he did not accept any of the 169 reasons for acceding to the request that he apply to the High Court under section 13. Mr Cooper is of course right; that was a process that was not reached in the way that a court would reach it. But the whole point of the Attorney-General's power under section 13 is that he acts as a filter before the matter gets to a court. Parliament has considered it necessary and desirable to have such a filter. In my judgment, he has exercised that discretion and power lawfully and it is not arguable that he has exercised it unlawfully.

42. This matter has come before the court as an application for permission. It was not decided on the papers. When it came before Kenneth Parker J on 20th October 2011, he ordered it in for an oral hearing. He said:

"I am not satisfied that this claim is properly arguable and certain aspects appear to me to be basically misconceived. I reach that view even putting aside the formidable obstacle posed by Gouriet. Nonetheless given the particular background and the wider public concerns involved, I believe it right to allow the claimant, if so minded, to make oral submissions why, despite my view formed on the papers, permission should be granted."

43. Having heard the able submissions of Mr Cooper on behalf of the claimant, I also come to the conclusion that this is not a case where permission should be granted.

44. [The court went on to consider costs.]