An Invaluable Public Servant

(This photograph, of Gruinard Island, is by Kevin Walsh, of Oxford, who is not responsible for any of the following text. Medawar hopes this attributes the photograph as required by the licence which Mr Walsh has kindly granted to the world to use it.)

Today (9th of June 2011), the Attorney General of England, Mr Dominic Grieve QC MP, has told Parliament that he sees no need for there to be any proper inquest into the death of Dr David Kelly, and that he finds the evidence that Dr Kelly committed suicide to be "very strong". At no time in the history of Coroner's courts in England, has the subjective perception by an official that the evidence made a particular verdict a likely outcome of an inquest, been accepted as a legally valid reason for not holding such an inquest. Nor is it all usual for anyone except the coroner to decide whether or not to hold an inquest.

A coroner's court is different from any other court in two respects: inquest findings, in the form of a verdict or narrative, are a finding of fact and not guilt or liability -and the findings of an inquest are not the sole or even the primary reason for holding one. The public examination of evidence, under oath but also under privilege to stop the truth being used against someone who tells it, the testing of that evidence by counsel for interested parties and by the coroner, the comparison of evidence and testimony from divers sources, are an end in themselves and definitively in the public interest.

The Hutton Inquiry did not test any of the evidence or testimony, none of which was presented under oath. Evidence from official sources was largely accepted at face value and read into the record. Including evidence from a police officer who now admits lying to conceal the presence of a third officer when he testified that he and one colleague attended the scene where Dr Kelly's body was discovered.

The Hutton Inquiry did not call many of the most expert and important witnesses: most conspicuous by her absence was a forensic botanist; normally the most competent authority on where the deceased might have been prior to death -and in this instance, Medawar believes, one of the most competent forensic authorities in the country.

It is impossible to share Mr Grieve's supine contentment with the inquiry as a substitute for an inquest, and it's certainly an abuse of the English language to describe that inquiry as being as good as an inquest, which in effect is what he did today. Evidence was not tested, false evidence from a police officer was not noticed, challenged or punished, and whole sweeping categories of evidence, such as forensic botany, (customarily relied on to establish the truth about locations and movement history) were excluded altogether, without explanation.

In fact, the only normally acceptable reason to delay an inquest, is to allow the police and other authorities to complete a criminal investigation and prosecution. Since a criminal case would require the rigorous examination of much of the evidence which the Hutton Inquiry accepted at face value, or ignored completely -and because of this, a criminal case might satisfy the public interest in a way that neither Lord Hutton's Inquiry nor Mr Grieve's fag-packet review of it, possibly can.

This brings us to the greatest misapprehension surrounding the David Kelly case: for there to be a crime that can be brought to court, there has to be specific evidence of unlawful killing. Even many of those calling for a formal inquest, including Dr Stephen Frost QC, appear to have fallen for this. It simply isn't true.

Persons who discover a dead body are legally obliged to report the matter to the local coroner, promptly and accurately. Any misrepresentation, wilful omission or trans location of evidence, including the body itself, is a crime. Any wilful action on the part of anyone thereafter, which tends to prevent or hinder the detection and prosecution of that crime, is "conduct tending to pervert the course of justice" or "conspiracy to pervert the course of justice."

If Dr Kelly died by suicide, accident or natural causes, but in a location or manner other than which was reported, a crime was committed there and then, and any subsequent attempt to conceal that fact in turn, was also a crime. As both Lord Archer and Mr Jonathan Aitken have proved, in far less serious circumstances, perverting the course of justice is a crime for which even cabinet ministers can be convicted and jailed. Precisely because the Hutton Inquiry was given a non-judicial status, there was no oath, but no privilege either, so nobody involved in that inquiry would actually be immune from prosecution for perverting the course of justice or other offences.

Those campaigning now for an inquest might be heartened to read that Medawar expects that they will eventually get one. The problem lies with "eventually" because the government can spend unlimited amounts of public money delaying this for as long as the higher courts will allow, which will make any subsequent criminal prosecutions very difficult indeed.

However, whilst a long-delayed inquest might derail a criminal prosecution, the reverse is rarely true, which is why they normally occur in the order of criminal case first and then the inquest. Indeed, a criminal case, having both a prosecution and a defence actively discovering and presenting evidence, can set the stage nicely for a formal inquest to establish the definitive truth for the public, and historical, record.

The other argument in favour of a couple of swift private criminal prosecutions to break the logjam of evidence withheld and ignored, is that individuals, especially those in positions of authority and trust, must be held to account for their actions. Medawar isn't interested in "conspiracy" as such, other than where that is a legal description on a charge sheet. The only way to fight conspiracies in the first place, is to hold individuals to account for their own actions, and nine times out of ten, that is what any conspiracy is intended to avoid in the first place.

Sometimes, there is only evidence available to prosecute one individual or two out of many who might be involved in a hypothetical conspiracy. This is only a problem if one is obsessed with the conspiracy itself. If one puts the conspiracy to one side, to deal with the actions of individuals as evidence emerges, then things acquire a natural order and progress can be made before the "whole picture" can be seen. And in the end, justice can only be served by holding individuals accountable, anyway.

An inquest isn't there for "justice", we hold them because human beings are not expendable machines or puppets that can be discarded. We have a duty to account for every unnatural death, simple as that. Inquests are the standard way of doing this and there is no compelling need for there to be an exception, especially not in a case of the greatest possible public concern. The inquest has to happen, but it can come later.

For now, there is apparently incontestable evidence that one junior police officer gave a false account, and allowed a still unknown colleague to conceal the fact that he had been one of the first policemen on the scene. The doctors and lawyers pursuing an eventual inquest, have every right to bring a private prosecution in the meantime, either for "conduct tending to pervert the course of justice" or the lesser charge of "wilful misconduct in a public office."

There is also alleged to be evidence that a much more senior officer, an Assistant Chief Constable, also misled the public and key officials, and may have misdirected inquiries being carried out by his subordinates and various Home Office experts. If that evidence is indeed available and compelling, then the ACC, too, could be the subject of a private prosecution for the same charges.

Private prosecutions usually require the prosecuting party to have a legitimate interest in the case: Dr David Kelly was a internationally famous expert in microbiology, who taught and furthered the careers of other important experts, such as Dr Timothy Hampton. He made safe biological warfare test ranges dating from the second world war and earlier, he detected and helped bring an end to a treaty-violating programme by the Soviets to weaponize the Smallpox virus, which was a far greater threat to our national security than anything found or suspected in Iraq ever was. His career, had it continued to the present day, was highly likely to bring benefits to the whole of British society, and beyond. This man was of value to all of us, we all have an legitimate interest in his case.

This isn't an attempt, either, to single out and persecute two individuals, it is merely the start of a vital process of holding every individual to account for his or her own actions. If it is done consistently enough, and fairly enough, this process will free us from all conspiracy and all fear of conspiracy, because there is no point to any conspiracy at all if the individuals involved will inevitably be called to individual account.