Tuesday, 31 July 2012

The evidence of Ruth Absalom (3)

At the end of my last post I was suggesting that Hutton really wasn't too concerned about the exact fit of Ms Absalom's testimony.  She had vouched for the fact that she had bumped into Dr Kelly at the top of Harris's Lane thus giving credence to the perception that he was on his way to Harrowdown Hill.  This though is what she had to say to Mr Dingemans about Dr Kelly's direction of travel:

Q. And did you see what direction he left in?
A. Well, he was going for his walk. I suppose he went to my right, along the road towards Kingston Bagpuize  I suppose in the end, if he had gone round that way, but obviously he was going down to the fields down the road or down to the fields down the back.
Q. Was that the last time you saw Dr Kelly?
A. Yes. 

The road towards Kingston Bagpuize is Appleton Road and its direction is east from the top of Harris's Lane whereas Harrowdown hill is a little to the west of north from this point.  Questions about the local geography appear to have left Hutton untroubled.  It's been down to assiduous investigators before my involvement who have pointed out that Dr Kelly was apparently headed the wrong way.

The description given by Ms Absalom of 'but obviously he was going down to the fields down the road or down to the fields down the back' is initially confusing.  I am indebted though to another investigator who knows the land there and has been able to give a credible interpretation of the point Ruth Absalom was making.

Ms Absalom of course was aware that Dr Kelly's body was found in the wood on Harrowdown Hill.  It seems with her description that she was explaining to Dingemans how Dr Kelly would have got to Harrowdown Hill having set off down Appleton Road.  Part way along this road he could have turned left (north) along the track to Draycott Moor Farm.  It is possible to take a path west that would then allow Dr Kelly to once again head for Harrowdown Hill.  In very simple terms he would have walked three sides of a square.  By using "google maps" at a suitably large scale it's possible to see the names of the roads.

The evidence of Ruth Absalom (2)

There is considerable doubt about the timings of some of the events on 17 July but one good "fix" is a telephone call taken by Dr Kelly in the mid afternoon.  This is number 53 in the schedule of responses to issues raised http://www.attorneygeneral.gov.uk/Publications/Documents/Schedule%20of%20responses%20to%20issues%20raised.pdf

Mrs Kelly mentions that Dr Kelly took a telephone call shortly before leaving.  She assumed it was the MOD.  This was not investigated.
The matter was investigated.  Dr Kelly took a call from the MOD at 14.52. 

When Wing Commander John Clark made his first visit to the Inquiry on 27 August there was this exchange with Mr Knox:

Q. At what time did you attempt to ring Dr Kelly?  
A. It was -- I have since been told by the police -- I thought it was close to 3 o'clock but it was about 3.20, and I was told by his wife who answered the telephone that Dr Kelly had gone for a walk at 3 o'clock.  
Q. Can you recall what the last telephone conversation you actually had with Dr Kelly was before that attempt to get hold of him? 
A. Yes, I had a call with him which was just before 3 o'clock. Again I thought it was earlier but we have been able to track that down from investigating my log of e-mails and the telephone log that the police were able to provide. So about 6 or 7 minutes before 3 o'clock was the last conversation. That was the one where we discussed Susan Watts and the business cards.
Q. When you say Susan Watts, i.e. appearing in the body of the text?  

A. Absolutely right. So that had been agreed. 

The timing of this phone call creates a problem with Ms Absalom's evidence ... at least with the timings here:

Q. On 17th July, what time did you walk your dog?
A. Well, I usually go about 3 but I went earlier that day, I suppose about quarter past 2.
Q. Quarter past 2?
A. Yes.
Q. Did you see anyone while you were walking the dog? 

A. Not until I met Dr Kelly.
Q. And when did you meet Dr Kelly? What time was that?
A. Round about 3 o'clock. I could not tell you for sure, I did not bother to look at my watch but I was taking the dog for a walk and --
Q. Where did you meet him?
A. The top of Harris's Lane, which is in Longworth, the next village. It is about -- roughly about a mile from
my home.
Q. How far from his home is that?
A. Well, he is only a matter of yards across the road from me.
Q. So about just under a mile from his home; is that right?
A. Yes.

If Ms Absalom habitually took her dog for a walk at 3 o'clock then the fact that on one day she left about 45 minutes early would perhaps be something that stuck in her mind.  My best guess is that she did go at about 2.15 one day, but not on the 17th.  Her two page witness statement (date not revealed) might give different timings.  I don't think that Hutton would be concerned if that was the case, from his perspective I imagine his primary concern was validation of the fact that Dr Kelly was seen at a point between his home and Harrowdown Hill during that afternoon.

In reviewing the times given by Ms Absalom I would suggest that Dr Kelly was 15 - 20 minutes from his home by the shortest route when he met her at the top of Harris's Lane.   

The evidence of Ruth Absalom (1)

According to the official narrative the last person to see Dr Kelly alive was a near neighbour Ms Ruth Absalom.  As her testimony is quite brief I think I can do no better than quote it in totality before making any comments:

Tuesday, 2nd September 2003
(10.30 am)
Examined by MR DINGEMANS
LORD HUTTON: Good morning ladies and gentlemen.  Mr Dingemans, I understand Ms Absalom is going to give evidence on the video link.  Good morning Ms Absalom. Thank you very much for agreeing to give evidence to this Inquiry. I will ask Mr Dingemans, the senior counsel, to take you through your evidence.
MR DINGEMANS: Ms Absalom, can you hear me?
A. Yes.
Q. Where are you at the moment?
A. Where am I? Sorry.
Q. You are in Oxford, are you? What village do you live in?
A. Southmoor.
Q. Did you know Dr Kelly?

A. Yes.
Q. How long had you known him for?
A. Well, from the time he came into the village, I suppose.  I do not know how long that was, but a good many years -- several years.
Q. What were you doing on 17th July? Do you remember the
17th July?
A. Is that the day I met David?
Q. Yes.
A. Just walking the dog.
Q. And how far is your house from Dr Kelly's house?
A. The width of a road, a main road. I do not know how many yards.
Q. How many minutes walk?
A. A couple.
Q. A couple of minutes walk.
A. Yes.
Q. On 17th July, what time did you walk your dog?

A. Well, I usually go about 3 but I went earlier that day, I suppose about quarter past 2.
Q. Quarter past 2?
A. Yes.
Q. Did you see anyone while you were walking the dog?
A. Not until I met Dr Kelly.
Q. And when did you meet Dr Kelly? What time was that?
A. Round about 3 o'clock. I could not tell you for sure, I did not bother to look at my watch but I was taking the dog for a walk and --
Q. Where did you meet him?
A. The top of Harris's Lane, which is in Longworth, the next village. It is about -- roughly about a mile from
my home.
Q. How far from his home is that?
A. Well, he is only a matter of yards across the road from me.
Q. So about just under a mile from his home; is that right?
A. Yes.
Q. How was he dressed?
A. Normally. I did not take that much notice.

Q. Do you remember whether he was wearing a jacket or ...?
A. Well, he had obviously got a jacket on but whether it was a suit or an odd jacket and odd trousers I have no idea. We just stopped, said hello, had a chat about nothing in particular --
Q. What did you say to him?
A. He said, "Hello Ruth" and I said, "Oh hello David, how are things?" He said, "Not too bad". We stood there for a few minutes then Buster, my dog, was pulling on the lead, he wanted to get going. I said, "I will have to go, David". He said, "See you again then, Ruth" and that was it, we parted.
Q. How did he seem to you?
A. Just his normal self, no different to any other time when I have met him.
Q. Did you see whether he was carrying anything?
A. No, I do not think he was.

Q. And do you remember how long you spoke to him for?
A. Five minutes at the most.
Q. And did you see what direction he left in?
A. Well, he was going for his walk. I suppose he went to my right, along the road towards Kingston Bagpuize I suppose in the end, if he had gone round that way, but obviously he was going down to the fields down the road or down to the fields down the back.
Q. Was that the last time you saw Dr Kelly?
A. Yes.
Q. And is there anything else surrounding the circumstances of Dr Kelly's death that you can help his Lordship with?
A. None whatsoever. I am sorry, I wish I could, but that is all I can tell you. I met him at the top of the road there and we had a few minutes' chat and then Buster was pulling his lead and David said, well, he said, "I must get going" and that was it. We parted and he said, "Cheerio Ruth", I said "Bye David". That was it.
LORD HUTTON: Thanks very much indeed for giving your evidence. That is very helpful.
A. All right.
LORD HUTTON: Now would you like me to rise?
MR DINGEMANS: Just for a few minutes, my Lord.
(10.35 am)
(Short Break)

One question that has been raised in the past is "Why didn't Ms Absalom go up to London to give evidence?".  I don't have a problem with an elderly lady whose evidence was only five minutes long being spared that trip.  It seems that communication was via a two way video link which is in contrast with Mrs Kelly and Rachel giving their evidence by audio link the previous day. 

Initially, and I would suggest unsurprisingly, she appeared to be a little disorientated.  I assume that she was whisked off to Oxford by police car and was speaking from inside a building she had never visited.  Add to this that presumably it was the first occasion in which she had talked over a video link. 

The next witness was Dr Kelly's GP Dr Warner and there might be an argument  that he could have given Ruth Absalom a lift.  It seems to me that early morning witnesses would have been provided with accommodation the previous night in London and that I suspect happened with Dr Warner.  

If anything Dr Warner's testimony, to be considered later, was even briefer.  Perhaps, as a person giving medical evidence, it was thought that he had to appear in person.  I make this point because otherwise it seems something of an anomaly for Ms Absalom to go to Oxford while Dr Warner traipsed up to London.

More thoughts on Ms Absalom's testimony to come. 

Sunday, 29 July 2012

The death of Dr Kelly's mother

Keith Hawton, Professor of Psychiatry, was one of several witnesses to make a second visit to the Inquiry.  His return on 16 September appears to have been primarily concerned with the presumed suicide of David Kelly's mother while he was studying at university.  Mr Dingemans asked whether his mother's death might have had an influence on Dr Kelly committing suicide.  This is the exchange:

Q. You have given evidence to the Inquiry on 2nd September.  Had you, before you gave evidence, interviewed  Mrs Kelly? 
A. I had.
Q. And had she provided information to you to the effect that Dr Kelly had confided in her his belief that his mother, who had suffered a stroke, might have committed suicide although an open verdict had been recorded at the inquest?
A. Yes, she did.
Q. That was not adduced in your oral evidence to the Inquiry on 2nd September.  At that stage, what was your view about its possible relevance?
A. I think the relevance of that fact was extremely uncertain and would have been speculation to have put forward.
Q. Have you since you gave evidence on 2nd September received further information?
A. I have.
Q. And what is that further information?
A. I have received three items of information. One is a copy of a letter that was sent by Martin Hemming, legal adviser to the Ministry of Defence, to the solicitor for the Inquiry on 22nd September.  Another piece of information was a copy of the register of Dr Kelly's mother's death, the register entry I should say, and the third was a copy of an entry by a general practitioner in Leeds on Dr Kelly when he was a --
presumably a student at Leeds University in 1964.
Q. Turning first to the letter from the legal adviser to the Ministry of Defence. What relevant information does that disclose?
A. I will read what it says. It says: "I enclose two extracts from Dr Kelly's vetting file which were prepared based on a report prepared by the investigating officer handling his initial positive vetting clearance in 1985. The first records an interview on 20th November 1985 with Dr Kelly in which he referred to his mother's death."  The relevant passage, quoting from the letter, reads: "'Dr Kelly said his mother died by her own hand in 1964, never having remarried. For many years prior to her death she suffered from depression and he has little doubt that the verdict of the coroner at the inquest into her death that the balance of her mind was disturbed was correct.'"
Q. Was there any other information in the letter?
A. Yes, there is a -- as follows: "The second extract --
LORD HUTTON: I think there should be no reference to anyone's name, Professor Hawton, or to any particular locality.
A. I understand. The second extract reports an interview on 28th November with a friend of Dr Kelly who had known him for many years, who he had nominated as one of his character referees. I am quoting here. The relevant passage seems to be as follows:  "The main incident in their lives that had brought them ..."   Sorry: "He thought that the main incident in their lives that had brought them closer friendship was that their mothers each took their own life within a short period of each other. They were in many ways able to give each other encouragement and help following these tragedies, which helped them to develop a closer bond of friendship between them."  Then another following extract: "He recalls the death of his mother [here one assumes he is referring to Dr Kelly, Dr Kelly's mother], which occurred at a time during his student days at the University of Leeds and was known to be engrossed in his studies and whilst the tragedy distressed him, he appeared to ride the period well and at no time when [they] were together did he display any mental reaction to this unfortunate matter. In fact, the referee said 'he can be considered a well balanced person'."
MR DINGEMANS: Turning to the second piece of information which I think you have told us was entry on the death register. Can you identify any relevant and only relevant extracts?
A. This concerns, as I said earlier, Margaret Kelly's death, that is Dr Kelly's mother's death, on 13th May 1964, and the cause of death is stated as bronchopneumonia, that is a chest infection due to barbiturate poison, and an open verdict was given.
Q. So it was an open verdict?
A. Yes.

Q. And the final piece of information, I think you referred to some GP records.
A. Yes, there is a GP record just dated May 1964, the specific date is not given. I think one can deduce it was following Dr Kelly's mother's death. It reads as follows: "Insomnia following death of mother". Then there is an indication that a tranquilliser was prescribed.
Q. In what ways might this further information be relevant?
A. I think it is uncertain whether this adds anything further to the information that I had already had at the time of my previous appearance at the Inquiry.
Q. Are there three possible ways in which suicide in a family can potentially be relevant?
A. Yes, indeed. The first way is fairly clear, and that is through transmission through generations, in other words from parents to children, of severe mental illnesses which are known to be associated with risk of suicide, and the evidence suggests this is largely a genetic transmission. The sorts of illnesses one is referring to here are manic depressive illness, for example, severe depression, alcoholism and so on.
Q. From what we have heard about Dr Kelly there does not appear to be any evidence of that, is that right?
A. No, I do not think this applies. There is certainly no evidence that he had significant mental illness, either at the time of his death or previously.
Q. The second way in which it might be relevant?
A. Well, the second way -- and we get on to slightly less certain ground here -- is through transmission of -- through generations of certain personality characteristics which might increase the risk of suicide.
Q. In the past you told us that those characteristic traits would be, for example, aggression, impulsiveness.
A. Hmm.
Q. Is there any evidence that Dr Kelly had those personality traits?
A. Absolutely not, and indeed the reverse I would say.
Q. So we come to the third possible way. What is that?
A. Well, this gets into a much more uncertain area and this is whether having a suicide in a family can affect an individual within that family's attitude towards suicide. There is virtually no research on this somewhat for obvious reasons, in that it is difficult to ascertain attitudes particularly in people who have died by suicide themselves. But one can speculate that this could have an effect on an individual but it might work in one of two possible ways.
Q. What are those two ways?
A. Well, the first might be that if a person is in a situation in which they are faced by apparently insurmountable problems and are feeling hopeless and suicidal, having had a family member commit suicide might possibly make them somewhat more comfortable with
the idea of suicide. On the other hand, such a person is likely to have intimate knowledge of the terrible impact that suicide very often and usually has on families, which may indeed actually serve to decrease the likelihood of suicide in that individual.

There is the somewhat odd situation then that an open verdict was returned at the same time as the coroner stated 'the balance of her mind was disturbed'.  It seems to me likely that the coroner just couldn't be sure "beyond reasonable doubt" that there was an intention to commit suicide.  This is in marked contrast to Hutton's certainty about Dr Kelly's death.

It was three years later that Dr Kelly married Janice ... my assumption is that his mother's death occurred some time prior to him meeting his wife to be.

There was no suicide note

For a coroner (or coroner's jury) to return a verdict of suicide there has to be evidence of intent to commit suicide.  Sometimes there is really good evidence for this ... such as the deceased leaving a note of his or her intention.  Then there is visual evidence, for instance someone throwing themselves off the platform in front of a train.  Another indicator might be a history of previous attempts to commit suicide.

There are cases where it looks like suicide has occurred but the intent can't be demonstrated and then the coroner falls back on an "open verdict".  So far as Dr Kelly is concerned there has never been proof that he intended to commit suicide.  Considering that one point alone it can be seen that Mr Gardiner should have resumed the inquest following his hearing of 16 March. 

Although the Hutton Inquiry was fairly clear about the absence of a suicide note I see that the subject was raised as part of a Freedom of Information request with Thames Valley Police http://www.thamesvalley.police.uk/aboutus/aboutus-depts/aboutus-depts-infman/aboutus-depts-foi/aboutus-depts-foi-disclosure-log.htm  In the Investigations Log it can be read under reference item RFI2011000383 and is question 3:

Was a suicide note from Dr Kelly found at Harrowdown Hill, at the Kelly family home, or at any other location?      No.

At the Inquiry suicide expert Professor Keith Hawton is quizzed by Mr Dingemans on the question of there being no suicide note:

Q. And for older people, what is the sort of evidence of planning that you can see? 
A. Well, evidence of planning would be, for example, saving up medication to carry out an act, deliberately going and obtaining a specific method for the act, obviously seeking out a place to carry out the act, where one is least likely to be disturbed, and things such as a person putting their affairs in order, changing their will and so on. 
Q. And do you always have to communicate your intention to commit suicide? Is there always a note left? 
A. Not at all, no. In recent studies from the United Kingdom, somewhere between 40 and 50 per cent of people who die leave a suicide note or a suicide message, it is not always a note.
Q. So the majority do not leave a note?
A. That is correct. 

Not for the first time we see Mr Dingemans leaning his questions towards a conclusion that Dr Kelly committed suicide.  The clear inference is that as the majority do not leave a note then there is nothing odd at all about Dr Kelly not doing so.  I've no reason to disbelieve Hawton's statistics but obviously one should probe a lot deeper.  There are people who just don't write at all, there are very sadly some folk who commit suicide who feel so lonely and isolated that they have nobody to whom they can write a note.  These are examples of groups where you would be surprised to find a note.  Contrast them with Dr Kelly.  He had for instance arranged to meet one of his daughters, Rachel, later that day.  Not only that, he had been looking forward to her wedding in less than three months time.  Would he really have killed himself without leaving some sort of message for her?  Applying Hawton's bald figures without qualification is totally misleading.  I've no doubt at all that Dingemans was well aware of that.

Dingemans has form in driving the suicide hypothesis.  In questioning Mrs Kelly the day before Hawton made his first visit to the Inquiry he tried to link her supply of co-proxamol with the tablets Dr Kelly had allegedly taken.  I included that subject in an earlier post http://drkellysdeath-timeforthetruth.blogspot.co.uk/2012/06/co-proxamol-4.html 

Hutton was no doubt well pleased with his senior counsel carefully cultivating the ground so that a conclusion that Dr Kelly committed suicide could be readily reached.   

Representations to Mr Gardiner on 16 March

As part of his hearing on 16 March 2004 the coroner, Mr Gardiner, heard representations from those he regarded as "properly interested persons" as to whether he should resume the inquest into Dr Kelly's death.  It has to be recognised that the representations couldn't be determinant, however if one of the parties had requested resumption then I think Mr Gardiner would have had grave difficulty in ignoring such a request.

This is what happened as recorded in the transcript of the hearing:

An inquest is essentially a fact finding exercise and there can be no parties to it, this I take to be the justification for the Coroner's Rule 20, which defines the various categories of properly interested persons.  The public at large is clearly not included in those provisions.  The discretion under Rule 20(2)(h) being only applicable to persons of the like nature to those previously listed in the Rules.

I understand that Mr. D. Pearson represents the various interested Departments and Mr. Gompertz represents Mrs. Kelly.  I have indicated the basis of these Proceedings, do either of you have any representations to make?

by Mr. Gompertz:
I submit, on behalf of the family of Dr. David Kelly, that there is no exceptional reason justifying the resumption of the Inquest pursuant to the provisions of Section 17A Subsection 4 of 1988.  I am instructed that the family accepts Lord Hutton's findings as to the mode and proximate cause of Dr. Kelly's death.  The family, however, is disappointed that Lord Hutton did not consider more fully the extent to which the state of mind in which Dr. Kelly chose to take his own life was induced by the failings of the Ministry of Defence in the exercise of the duty of care owed to him as his employer.  I am not suggesting that that disappointment constitutes an exceptional reason.

by Mr. Pearson:
I have no representations.

I did indicate I would be prepared to consider whether there are any other interested persons.  This would be the time to come forward.
(None did.)

It's worth noting that very substantial written representations dated 7 October and 16 October 2003 had been made by the family and sent to Lord Hutton.  http://webarchive.nationalarchives.gov.uk/20090128221550/http://www.the-hutton-inquiry.org.uk/content/fsb/fsb_3.pdf

Monday, 16 July 2012

This blogger is taking a rest

In the next week or so there will be little or no blogging from me.  There is still plenty to blog about of course but I really need to take a break from it ... perhaps reconnect with other things in my life!

So for those following this blog I will be back.  Unsurprisingly most readers are in the UK but I have noticed some from the US, Russia and a number of other countries.  That's the joy of the internet, one isn't constrained by national boundaries.

Friday, 13 July 2012

Mr Gardiner refers to other experts on 16 March

In his hearing on 16 March Mr Gardiner makes reference to other experts (apart from Dr Hunt):

Others, although I think not generally experienced Forensic Pathologists, have expressed doubts as to the views of Dr. Hunt and accepted by Lord Hutton.  It is certainly not exceptional for experts to disagree with each other.  It is probably exceptional if they do not.  This disagreement is far more likely to occur if some of them do not have full access to all the data, and I do not consider those disagreements to amount to exceptional reason, and in any event are as likely to arise out of an Inquest as out of a Public Inquiry. 

Gardiner is having to walk a tightrope here, he has to be careful to avoid total denigration of the opinions given by "The Doctors"Whilst he points out that the views of Dr Hunt were accepted by Lord Hutton he fails to note that the cause of death as described by Dr Hunt was also accepted by himself.  This is really important.  It seems as if Dr Hunt's final report of 25 July and conclusions therein were formally accepted as evidence when Mr Gardiner resumed on 14 August ... without question.  From there it was one small step to advise the registrar about the cause of death.  Thus Mr Gardiner might find it professionally difficult to cast any doubt on Dr Hunt's findings.

It is of course obvious that a forensic pathologist will have greater expertise in certain areas than other medical specialists.  Changes in the body after death including the onset of rigor mortis would be one such area I suggest.  I have covered this before but it need to be stated again: successful suicide by wrist slashing is very rare, attempted suicide (including a "cry for help") much more common.  There is no evidence that as a pathologist Dr Hunt had ever attended a scene where someone had died from a cut wrist, he certainly never mentioned it.  Again we don't know whether Mr Green had actually visited such an event. Their experience  in dealing with such a situation would be at best minimal and very likely non-existent.

Contrast this with the ambulance team: Vanessa Hunt and Dave Bartlett had attended plenty of attempted suicides by wrist slashing, in other words they knew what the scene would look like under such circumstances.  Mr Bartlett was to later comment that he had seen more blood from a nosebleed than he had noted at Harrowdown Hill.  Similarly one of the doctors trying to get an inquest, David Halpin, has had a lot of experience in repairing cut wrist arteries and knows that if one such artery is completely transected the body's defences are fired up and the small, matchstick thickness artery retracts and stops the bleeding.  The blood loss is quite minimal providing the person isn't suffering from a blood clotting disorder.  There was no evidence of such a problem with Dr Kelly.  

It must be remembered too that Dr Hunt, on the 19th July, had stated the cause of death simply as haemorrhage and incised wounds to the left wrist.  It wasn't until his altered report six days later that he decided to add co-proxamol ingestion and coronary artery atherosclerosis.

Mr Gardiner's factual inaccuracies on 16 March

When specialists in their field such as coroners and forensic pathologists make factual errors in their statements and reports then one's confidence in their reliabilty as experts is diminished.  In normal circumstances you and I would, I imagine, be prepared to accept what they say without demur.  When they are just plain wrong about something then the question arises as to whether it is laziness or carelessness, an arrogant disregard for factual accuracy perhaps.  It would be quite wrong though to tar every such expert with the same brush ... it's just unfortunate that Mr Gardiner, Dr Hunt, Dr Allan and Mr Green have all given rise to concern about what they have written or said.

In the case of Mr Gardiner it was vital that his pronouncements on 16 March 2004 were factually correct.  Well, they weren't.  One particular instance involved him misdirecting himself and this was touched on in my penultimate paragraph in this post:  http://drkellysdeath-timeforthetruth.blogspot.co.uk/2012/07/coroner-on-sidelines-thanks-to-falconer_3195.html
Mr Gardiner was making the point that the Hutton Inquiry was lacking in powers (correct of course) but that all public inquiries similarly lack the powers given to a coroner.  A statutory public inquiry set up by parliament would certainly have the powers of compellability and taking evidence under oath, powers that Mr Gardiner enjoyed by right.  For Mr Gardiner to have failed to understand this is extremely concerning.

Another instance of Mr Gardiner getting it wrong on the 16th occurred here:

The Act does not seek to define "exceptional reason".  A Public Inquiry of this sort is in itself exceptional, I understand that the provisions of Section 17(A)1 have only been utilised on three occasions, the latest in 1999, and none of them related to the death of a single individual.

In fact it was first used in Lord Cullen's Inquiry following the Ladbroke Grove train collision of 5 October 1999It was also used in the Shipman Inquiry chaired by Dame Janet Smith which began its hearings in 2001 and lastly in Mr Justice Steel's re-opened Formal Investigation into the sinking of the fishing boat Gaul. 

I certainly don't claim to be infallible but if I was a coroner I wouldn't be very happy if I was responsible for the sort of errors made by Mr Gardiner.

Thursday, 12 July 2012

Mr Gardiner's practical problems on 16 March

On 28 January 2004 Lord Hutton delivered his reportOne 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. 

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. 

Wednesday, 11 July 2012

The Death Certificate of Dr David Kelly

Click this link and you will see a copy of Dr Kelly's "Death Certificate" on Dr Stephen Frost's blog http://drdavidkellyinquestrequired.blogspot.co.uk/2011/06/death-certificate-of-dr-david-kelly.html  More correctly it is a "Certified Copy of an Entry Pursuant to the Births and Deaths Registration Act 1953".  In common parlance such a document has become known as a "Death Certificate" and for covenience I shall use this term.

Trying to read it is very unkind to the eyes so I am repeating the information it contains below:
  1. Date and place of death    Eighteenth July 2003     Found dead at Harrowdown Hill, Longworth, Oxon.
  2. Name and surname   David Christopher KELLY 
  3. Sex   Male
  4. Maiden surname of woman who has married   ----------
  5. Date and place of birth    14th May 1944    Pontypridd, South Wales
  6. Occupation and usual address    Civil Servant    Westfield, Faringdon Road, Southmoor, Oxon.
  7. (a) Name and surname of informant  (b) Qualification  (c) Usual address   Certificate on inquest adjourned received from N G Gardiner Coroner for Oxfordshire.  Inquest held Fourteenth August 2003. 
  8. Cause of death  1(a) Haemorrhage (b) Incised Wounds to the Left Wrist                           2  Co-proxamol ingestion and coronary artery atherosclerosis
  9. I certify that the particulars given by me above are true to the best of my knowledge and belief ------------------------------------------- Signature of informant
  10. Date of registration   Eighteenth August 2003 
  11. Signature of registrar   Val Farrant Registrar 
The information that has been given on the certificate has led to a lot of concern being expressed and I'll summarise what others or myself have thought about these particulars.

Regarding the date of death it seems to me that the 18th was selected as it was the date on which the body was found.  Dr Hunt though stated that death had likely occurred between 16.15 on the 17th and 01.15 on the 18th.  Therefore it could be argued that there was a greater chance of it having happened on the 17th.  

The place of death being described as 'Found dead at Harrowdown Hill ... ' has raised a few eyebrows, suggesting the possibility that the body had been moved to that location.  In my opinion this is an acknowledgement that the death might not have been suicide and that possibly the body was transferred to the position in which it was found by a third party.  

Saying in "7" : 'Inquest held Fourteenth August 2003' gives the mistaken impression that the inquest was completed on that day although the registrar had previously used the words 'Certificate on inquest adjourned received from N G Gardiner ...'  It's not really satisfactory.

No signature of informant which, to me, invalidates the legality of the document.  I don't approve either of the typed signature of the registrar.


Monday, 9 July 2012

"No knowledge" of the inquest being reconvened

This is from Hansard on 30 January 2007:

David Kelly

24. Norman Baker (Lewes) (LD): If she will make a statement on the actions of the Oxfordshire coroner in August 2003 in respect of the death of David Kelly. [112044]
The Minister of State, Department for Constitutional Affairs (Ms Harriet Harman): The Oxfordshire coroner briefly resumed the inquest into the death of Dr. David Kelly on 14 August 2003 to admit post mortem evidence. He then adjourned the inquest, in accordance with the provisions of section 17(a) of the Coroners Act 1988, having been informed by the Lord Chancellor that Dr. Kelly’s death was likely to be adequately investigated by the Hutton inquiry.
Norman Baker: I thank the Minister for her reply. She will know my view that the coroner acted in a most peculiar way and contrary to the 1988 Act in resuming the inquiry after Lord Hutton had been appointed. In a letter that I received from Lord Hutton last week, he tells me that he had “no knowledge” of the inquest being reconvened, and no knowledge of the meeting with her officials, which she was aware of, that took place at the Oxfordshire coroner’s request, in August 2003. Is this not an extraordinary situation, and does the Minister not agree that it would be helpful if the Oxfordshire coroner agreed to a meeting with the Minister and me, at which we could discuss these matters in more detail? It is clear that there are a great many loose ends.
Ms Harman: I do not agree that the coroner acted in a most peculiar way. I have looked into this issue with great care and in great detail, and I do not think it
30 Jan 2007 : Column 85
necessarily odd that Lord Hutton had no knowledge of, or information about, the meeting that the coroner held with officials from the Department for Constitutional Affairs. I know that the hon. Gentleman remains suspicious and thinks that something underhand has gone on regarding the meeting between the Oxfordshire coroner and officials from the Lord Chancellor’s Department, but I do not
30 Jan 2007 : Column 86
think that that is the case. I have so far been unable to reassure the hon. Gentleman through very detailed letters and parliamentary answers, but perhaps he should meet the officials who were involved in that meeting, who I am sure can reassure him of its propriety. Obviously, I cannot offer a meeting with the Oxfordshire coroner, who is an independent judicial official.

So, in a recent letter to Norman Baker, Hutton avers that he had "no knowledge" of the inquest being reconvened!  Compare that with the list of documents sent by the coroner to the Inquiry, which was the subject of my last post.  On the face of it Hutton is being dishonest.

Unfortunately Mr Baker links the "no knowledge" of the inquest being reconvened with no knowledge of the meeting with her officials.  Ms Harman gives an unusually detailed response to the question of the meeting between the coroner and her officials thereby giving the impression that she has given Mr Baker a very full answer.  This is a prime example of the deviousness of politicians because she has disguised the fact that the question of Lord Hutton having "no knowledge" of the inquest being reconvened is totally ignored.

I do not believe that Hutton had "no knowledge" of the inquest being reconvened on 14 August.

The COR prefix documents

On 23 January 2012 I contacted the National Archives with a Freedom of Information request regarding any documents they had with a COR prefix ... in other words documents involving the coroner.  They came back to me with a list of 15 items.  This is the request and response:

This FOI request is for a schedule of all the documents submitted to the Hutton Inquiry to which the Inquiry used the prefix "COR". These to include any that have been returned to the sender. The information required is the COR number of each document, the date of each document together with a brief description of each document.”

               - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Your request has been handled under the Freedom of Information Act 2000 (FOIA). I can confirm that we hold the information you have asked for and have communicated this to you below.

Since the transfer of the documents to the National Archives I can confirm that no documents have been removed from the COR prefix.

The following documents were transferred to The National Archives using the COR prefix created by the Hutton Inquiry Secretariat:

COR prefix documents

Post Mortem Report COR/1/0001-0014

Letter Hughes / Gardiner 22 July 2003 COR/1/0020-0021

Letter Lord Hutton / Gardiner 28 July 2003 COR/1/0188

Letter Lord Chancellor / Janice Kelly 13 August 2003 COR/2/001-002

Letter Gardiner / Lord Hutton 14 August 2003 COR/2/0236

Letter Gardiner / Lord Hutton 20 August 2003 COR/2/0237

Notes of Evidence from 21 July 2003 COR/2/0238

Letter from Dr Kelly’s Medical Centre/Coroner’s Office 4 August 2003 COR/2/0239

Final Post Mortem Report COR/1/0240-0253

Witness Statement of Toxicologist Dr Allan 21 July 2003 COR/2/0254-0259

Witness Statement Janice Kelly COR/2/0260

Notes of Coroner 14 August 2003 COR/2/0261-0262

Letter Gardiner / Allan 23 January 2004 COR/7/0001

Note of Coroner’s Rules 1984 23 January 2004 COR/7/0002

Letter Gardiner / Lord Hutton 28 January 2004 COR/7/0003


I have been critical of the coroner Nicholas Gardiner in the past, and will continue in like vein where appropriate.  Here though it appears that he was behaving in a perfectly professional manner in keeping the Hutton Inquiry informed of his activities.

Mr Gardiner briefly reconvened the inquest on 14 August and from the schedule it can be seen that the Inquiry received a letter from him (COR/2/0236) and his notes of that day (COR/2/0261-0262).  This is of particular interest when related to a letter sent by Hutton to Norman Baker in 2007, something to be discussed in my next post.

One other quick point to flag up is the fact that it is only the first of Dr Allan's three reports that is listed here.  In fact reports 2 and 3 weren't written until after 14 August, they aren't listed on the Hutton website and it seems that Hutton was oblivious of their presence.  It wasn't until Mr Grieve made his statement on 9 June 2011 that they were listed anywhere.  The letter from Mr Gardiner to Dr Allan of 23 January 2004 - five days before Hutton published his report is intriguing (COR/7/001), particularly when allied to the fact that on the same date the "Note of Coroner's Rules 1984" (COR//7/0002) was sent.

I imagine that the first document listed COR/1/0001-0014 is Dr Hunt's original report of 19 July 2003 ... Hutton certainly refers to that ealier report when he makes his opening statement on 1 August.

There is some linework at the bottom of the schedule which shouldn't be there, that's my fault.  I don't know how to delete it from blogger unfortunately!

Sunday, 8 July 2012

Mr Gardiner and Section 17A (2)

This is the text of Section 17A (2) of the Coroners Act 1988:

Where a coroner adjourns an inquest in compliance with subsection (1) above, he shall send to the registrar of deaths a certificate under his hand stating, so far as they have been ascertained at the date of the certificate, the particulars which under the 1953 Act are required to be registered concerning the death.

The phrase I have emphasised is particularly important in the case of Dr Kelly's death I believe.

It was the Ladbroke Grove rail crash on 5 October 1999 that led via the Cullen Inquiry to the first use of Section 17A of the Coroners Act 1988.  This was a very clear example of how sensible it was to use 17A: 31 people died violent, unnatural deaths and so legally there would need to be inquests.  I'm not sure how far the inquests progressed before Section 17A was invoked but it was clear that the "who, how, when and where" could be ascertained and therefore a coroner could adequately comply with clause 2 in 17A.  The big question that the Inquiry had to address was how on earth the two trains collided.

In the "Ladbroke Grove" type of scenario then it can be seen that a coroner is likely to be able to supply sufficient information for the registrar to complete the registration of the deaths.  This seems desirable to me, particularly as the deliberations of an inquiry can be protracted.  Back to my emphasis now and the words "so far as they have been ascertained at the date of the certificate".  It's clear to me that the legislation was correctly worded to show that on occasion the coroner wouldn't have all the necessary particulars.

The letter dated 12 August 2003 from Sarah Albon indicated that Mr Gardiner could briefly reconvene the inquest prior to adjourning under section 17A.  The identity of the deceased had been ascertained when Mr Gardiner originally opened the inquest on 21 July and this information is enough for an interim death certificate to be completed.  For a full certificate the "how, when and where" would also have to be addressed.

When Mr Gardiner reconvened he formally took into evidence Dr Hunt's final report of 25 July 2003 and the first report of toxicologist Dr Allan dated 21 July 2003.  He evidently accepted the mode of death without question based on these reports.  Although the body was found at Harrowdown Hill he failed to take steps in open court to try and confirm that that was the place where death occurred.  Dr Hunt's totally speculative conclusions about "self harm" were pointing towards a conclusion of suicide.  By accepting Dr Hunt's report without query it seems to me that Mr Gardiner was tacitly agreeing with Dr Hunt.

Mr Gardiner had been anticipating that he would hold the inquest in September.  However on 14 August, on the basis of two written reports only, he was able to furnish the registrar of deaths with enough particulars for the registration of death to be made.  It was patently absurd for Mr Gardiner to do this and, under the circumstances, there was no need to reconvene: an interim certificate could have been completed merely confirming the identity of the deceased. 

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.


Coroner on the sidelines - thanks to Falconer (3)

MP Norman Baker spent some time asking questions about the process whereby Section 17 was invoked and then devoted a useful amount of space in his book covering the subject.

The first letter sent to the coroner from Sarah Albon, Principal Private Secretary to Lord Falconer, appears to be the one of 4 August referred to in a previous post.  Significantly she seems to have waited until after Hutton had officially started his Inquiry on Friday 1 August by way of his opening statement.  In my last post I reproduced part of the letter sent by Mr Gardiner to Mr McGinty at the Attorney General's Office.  In it it seems that Ms Albon had made an informal approach, perhaps by telephone, regarding Section 17A being invoked and that this occurred in the week leading up to Dr Hunt writing his amended report of 25 July ... if Mr Gardiner's recall of the sequence of events is accurate.

Part of the letter dated 4 August was reproduced by Norman Baker:

... the coroner should, in the absence of any exceptional reason, adjourn the inquest.  One of the purposes is to prevent duplication of proceedings ..... He [the Lord Chancellor] has asked if you would kindly signify within 7 days your agreement that there is no exceptional reason why the inquest should not continue to be adjourned.  

According to Mr Baker the coroner responded to this letter on 6 August (coincidentally the day of Dr Kelly's funeral).  Mr Gardiner made the point:

I had envisaged that it might be possible to conclude the Inquest during September.

He also said:

As you will know, a Coroner has power to compel the attendance of witnesses.  There are no such powers attached to a Public Inquiry.  If I do adjourn under Section 17A(1), I would be unable to resume, if at all, until after the Public Inquiry has been concluded and thus would not be in a position to assist Lord Hutton.   

It looks then that at that time Mr Gardiner felt that he should be allowed to continue with the inquest, partly because as a coroner he had greater powers than Lord Hutton, so far as compelling witnesses at least.

Mr Gardiner in fact makes a very basic mistake in his assertion, something he repeated in his statement on 16 March 2004 when he decided not to resume the inquest.  It would be quite correct to point out that Hutton's "ad hoc" Inquiry was lacking in powers but Mr Gardiner implies that this relates to any public inquiry.  He is wrong: if the Inquiry, as it should have been, had been convened under the "Tribunals of Inquiry (Evidence) Act 1921" then Hutton would have had powers of compellability and the evidence would have to have been given under oath.  It is worrying that Mr Gardiner failed to understand this.

Ms Albon wrote again on 14 August and that letter is reproduced in full on pages 4 and 5 here: http://www.attorneygeneral.gov.uk/Publications/Documents/Gardiner%20to%20AGO%206%20May%202011.pdf  
Again, very worryingly, Mr Gardiner appears to be incorrect in saying that the meeting with the Department's officials was on the afternoon of 8 August rather than on the 11th.  I have no reason to think that Mr Gardiner would be intentionally dishonest, it is more a concern that he wasn't totally on top of the facts - it must be remembered though that his letter to Mr McGinty was almost eight years after the event and that he might have written from memory rather than checking his diary for factual accuracy. 

Coroner on the sidelines - thanks to Falconer (2)

In his letter of 6 May 2011 to Mr McGinty at the Attorney General's Office Mr Gardiner says:

..... The toxicology and histology tests were carried out very quickly and within a few days Dr Hunt was able to tell me that as a result he needed to expand upon the cause of death by indicating that co-proximal and heart disease would be given as contributing causes.

In the mean time I had been contacted by the Department of Contitutional Affairs (Ms Albon) and it was becoming clear that the Lord Chancellor would be making a request under Section 17(A)1.  By that time I was aware that Dr Hunt wished to expand on the causes of death he had originally given.  The agreement that I had thought that I had reached with Ms Albon was that I would briefly resume the inquest for the purpose of accepting a full cause of death and then would accede to the Lord Chancellor's request.

However at that point there was a change of heart in the Lord Chancellor's office and it was indicated that I should adjourn under Section 17 immediately.  My problem was that if I did that I would have to register the death with an incomplete cause of death that is I would be making a statement that I knew to be false.  I was not content to do this.  It so happened that at the time I was a member of the Coroner's advisory group and we had a meeting on the 8th August which I attended. I discussed the problem with the then secretary of the Coroner's Society of England and Wales (Mr Round) and he agreed with the point I was making.

Our meeting concluded at lunchtime and so we telephoned the Department of Constitutional Affairs and went to meet them that afternoon.  Eventually they were persuaded to my point of view.  I enclose herewith a copy of a letter dated 12th August 2003 which I received from Ms Albon.  Following this as you know the inquest was briefly resumed to admit the proper cause of death which I was then able to convey to the registrar so that the death certificate would accurately reflect the pathologists view.  

The highlighted words are more evidence of my belief that a very early decision had been made to invoke Section 17A bearing in mind that it was 25 July when Dr Hunt expanded on the cause of death.  I am more confident now about the suggestion I had made that Hutton was able to assure Mrs Kelly on the 26th that she wouldn't have to attend an inquest.

According to Mr Gardiner the meeting with the Department of Constitutional Affairs was on the afternoon of the 8th (a Friday).  Their version of events is that the meeting took place on the following Monday.


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.