Monday, 25 July 2011

Lord Falconer did not act "entirely reasonably"

In his written statement of 9 June 2011, as opposed to his verbal statement of the same date, the Attorney General Dominic Grieve wrote:

The then Secretary of State (and Lord Chancellor),Lord Falconer, acted entirely reasonably in exercising his powers to set up an Inquiry and in exercising the statutory powers,given to him by Parliament, to suspend the Inquest opened by the Oxfordshire Coroner and transferring responsibility for investigating the circumstances of Dr Kelly's death to the Inquiry. The Secretary of State cannot be criticised for the proper exercise of his discretion.

Was Mr Grieve right?  I suggest that the answer is a resounding "No".  Going to the Guardian website there is a story timed at 15.08 on 18 July 2003:  These are the first two paragraphs from it -

Tony Blair has promised an independent judicial inquiry if David Kelly has died, journalists travelling with the prime minister on his flight from Washington to Tokyo have said.

His spokesman, Godric Smith, came to the back of the plane less than an hour ago to announce the possible inquiry.

So between 14.08 and 15.08 Godric Smith speaking for Mr Blair announced there would be an independent judicial inquiry.  Holding of an Inquiry clearly would only make sense if it had been established that Dr Kelly had committed suicide. There is no legitimate way that Mr Blair, in the air on the way to Tokyo, could have known at the time Godric Smith was talking to journalists that Dr Kelly had committed suicide. The forensic pathologist and forensic scientist didn't start their examination until 14.10, the post mortem wasn't completed until 00.15 the following day.  On the 18th the police were putting out the message that it was an unexplained death, in other words it was possible that Dr Kelly's demise resulted from foul play.

Dr Kelly's death was clearly an unusual one and, as such, the established legal process of an inquest should have taken place. At the conclusion of the inquest and, no doubt depending on the verdict reached, it would then have been open to the government to hold an inquiry. That was self evidently the correct procedure to follow, to complete the inquest before any inquiry was started.  In fact this is so obvious when one thinks about it but like many obvious things missed in particular by the media.

On 21 July 2003 it would seem that Lord Hutton was expecting an inquest to go ahead in the normal way because, in a press statement of that date, he says:

I intend to sit in public in the near future to state how I intend to conduct the Inquiry and to consider the extent to which interested parties and bodies should be represented by counsel or solicitors. In deciding on the date when I will sit I will obviously wish to take into account the date of Dr Kelly''s funeral and the timing of the inquest into his death.

Mr Grieve states that Lord Falconer invoked section 17A of the Coroners Act on 12 August 2003. A letter was sent to the Oxfordshire Coroner announcing that decision. This letter from Sarah Albon, Principal Private Secretary to Lord Falconer was copied to Lord Hutton. Lord Hutton didn't make a statement as to the change of status of his Inquiry at his sittings, nor was there a press notice about it on the Inquiry website.

It was known that Lord Hutton was taking evidence that wasn't under oath or affirmation, which would be a requirement at an inquest. By the time that Lord Falconer had invoked section 17A of the Coroners Act Lord Hutton had started taking evidence and it is a matter of common sense that the Inquiry couldn't change to taking evidence on oath at that stage. It was irrational for Lord Falconer to invoke section 17A in this instance knowing full well that the Inquiry would be inferior to an inquest in that evidence wouldn't be under oath or affirmation. Grieve knows full well that it's inadequate to have an Inquiry with testimony that's not under oath but doesn't discuss this matter in his statement to the House, it is only in his written statement that it is out in the open.

Mr Grieve - you are absolutely wrong in that part of your written statement about Lord Falconer.


  1. Brian

    I'm sorry to have to take issue but;

    "It was irrational for Lord Falconer to invoke section 17A in this instance knowing full well that the Inquiry would be inferior to an inquest in that evidence wouldn't be under oath or affirmation."

    It depends on what the rational was, if it was to prevent the truth emerging then it was perfectly sensible.

    I do agree it all seemed a bit grubily rushed; Hutton appointed before Dr Kelly had been identified and before the cause of death was known. Or did they in fact know the cause of death before the post mortem and forensic tests were completed?

  2. LL, it depends on how we use the word "irrational" I suppose. I was using it in a more legal sense, working on the assumption that an AG would be speaking honestly and on behalf of the country at large and devoid of political consideration. Not the case here I know!

    At the time of the Inquiry announcement, and the timing is of absolutely fundamental importance, it should have been the case that TVP were keeping their options open as to cause of death.

    Mrs Kelly was saying on the 18th that her husband had committed suicide. We need to be told about who from the police spoke to her and what they said.

  3. Contemporaneous reporting of the decision to hold an inquiry conditional upon the body being Dr Kelly's is nicely captured in this Middle East forum

  4. Brian, Andrew Watt has also written eloquently about the manoeuvrings of Lord Falconer here.

    The immediacy of setting up the Inquiry into the death of Dr Kelly is astonishing and seems without precedent.

  5. Brian, there is another Guardian article. by Nicholas Watt timed at 01.43 BST 19 July 2003, entitled Airborne Blair distressed by news

    Key passages are
    "A "distressed" Tony Blair spent most of a 14-hour flight from Washington to Tokyo in crisis talks with ministers and officials in London after being told that David Kelly had gone missing.
    Within minutes of hearing the news, as his chartered British Airways Boeing 777 crossed the Bering Strait, the prime minister used the aircraft's satellite phone to agree the terms of a judicial inquiry."

    " At 2.17pm London time, with the aircraft descending, the spokesman finally began his briefing.

    Thus one may assume that the decision to hold a judicial inquiry was agreed some time before 14.17 hrs BST.

    In fact, a rough estimate of when the plane crossed the Bering Strait by a great circle route is 3/4 the way through a 14 hour flight ending about 14.30hrs BST. So, probably about 11.00hrs BST!

  6. Felix, many thanks for flagging up the Guardian link of 19 July. It helps a lot to get a better fix on the fast moving events of the 18th involving Tony Blair whilst on the plane to Tokyo.

  7. Of course,Brian, if one or both of the radio masts erected in Mrs Kelly's garden (about which the Thames Valley Police pointedly refuse to answer any questions, significantly) were used to communicate with the Boeing 777 carrying Blair and entourage, then the masts would probably have been scrambled soon after take off. This of course leads to one possible conclusion, viz. that Tony Blair knew there was "trouble at t'mill" before midnight.

    The question then is why the masts needed to be in Southmoor.

  8. LL
    A further thought:
    Since ABC was allowed to run an interview with Dr Kelly with FCO clearance provided that the discussion did not stray onto Iraq, how then, in October 2002 was permission granted for Dr Kelly to do an interview with Panorama (not broadcast) where he DID talk up the threat from Saddam Hussein?
    "The interview was recorded for Panorama in October 2002, a month after the prime minister presented the dossier to parliament, but never broadcast
    (why do the interview, but never broadcast it?)
    Shades of the mysterious Observer article of 31 August 2003,conveniently published during the Hutton Inquiry and immediately before the Kelly family gave evidence not under oath,penned by Dr Kelly himself in January 2003 and gently edited in very early March 2003 shortly before the invasion and approved by Dr Kelly in which he allegedly (in February 2003) talked up the threat from Iraq.(Only Regime Change will avert the threat) with the accompanying article by
    Julie Flint
    What Kelly really thought about the war in Iraq who was not called as a witness to the Hutton Inquiry yet who, unusually, made a submission marked "not for release".

  9. Felix

    Press coverage regarding Dr Kelly gives rise to many suspicions, even before his name was leaked to the press. Dr Kelly’s own words can’t be taken as factual given Campbell’s assertion that he had been “well schooled” at the FAC & ISC.

    Important news pieces are no longer available on the internet, Coe’s 8th Aug 2010 interview is only accessible thanks to, the mail carries a watered down 9th Aug version.

    News has systematically been; 1) placed, 2) falsified and 3) withdrawn, today we are not being told the truth about Dominic Grieve’s false statement to Parliament on the 9th June this year.

    Murdoch made his money by printing what people wanted to read; the power elite get to enjoy their privileges by making sure we only read what they want us to read.

  10. LL

    Perhaps the worst offender of all is the Guardian newspaper. What is it hiding?

  11. Brian/LL -

    to continue my thread about the posthumous article by David Kelly, I find I am having problems relating it closely to the article which Dr Kelly wrote for Julie Flint in early March 2003.
    The article in semi-finished form may be found at COM/4/0146-8 and later at COM/4/0141-4

    This article commissioned by Julie Flint in early 2003 was not published in Julie Flint's Iraqi Crisis Report, although several articles by her and others were published during 2003 under that title.

    The article commissioned in March 2003 and the article which appeared under the name of David Kelly, Only regime change will avert the threat
    seem to be rather a long way apart.

    Did Dr Kelly really write the Observer article which appeared "in a gently edited version that David approved in the first days of March" (Flint's accompanying words)?

    The email exchange is dated 4 and 5 March 2003. Surely that fits the first days of March? Compare the two!

  12. PS Sorry, the correct article by Flint is here and in an earlier comment at 19.53 31 July 2011 : "Only regime change will avert the threat"
    I had mistakenly linked to a later Observer article of Flint from 5 October 2003: "Free after 50 years of tyranny - We may have fought for the wrong reasons, but there is more good than bad in post-Saddam Iraq"

  13. Julie Flint was also a friend of Ahmed Chalabi, as quoted in this piece by Toby Manhire , Guardian 8 May 2003: so clearly had an interest in invasion of Iraq:
    "In the Iraqi Crisis Report of the Institute for War and Peace Reporting, Julie Flint agreed that criticism of Mr Chalabi, a friend of hers, had gone overboard. "His critics say his long struggle against Saddam's cruel regime boils down to personal ambition. But many of those who know him well believe that nothing could be further from the truth. [He] has been seeking democracy for Iraq single-mindedly, without regard for his comfort or safety, for much of his life." "

  14. Incidentally, the entry in Dr Kelly's diary is heavily redacted between 1-6 March 2003 while he is in the USA at the time of his Iraq article. He has met Gabrielle Kraatz-Wadsack twice the previous week in New York and then has taken the train out,perhaps to the Virginia/Maryland/Washington area. Why is the diary redacted?

  15. Brian
    Agence France Presse has allowed a better estimate of the timing of Godric Smith's announcement to the journalists of between 14.00 and 14.25 hrs BST on 18 July 2003:
    The British Airways Boeing 777 carrying the prime minister and his wife, Cherie, landed at Tokyo's Haneda airport on a flight from Washington shortly after 10:35 pm (1335 GMT), according to an AFP photographer at the airport.

  16. this of course, fits in with the 14.17 hrs briefing commencement, noted above. Was the announcement delayed until the last minute for the timeline? Or did the identification (by Dr Warner??) set in train several hours of phoning between the plane and the UK which only concluded after 14.00 hrs BST?