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House of Commons Hansard
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12 March 2013
Volume 560

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It is a great pleasure, Mrs Main, to address the Chamber under your chairmanship. Robert Darren Powell was born on 29 December 1979 at Glanamman hospital near Ammanford. Robbie and his parents lived in the Upper Swansea valley in the town of Ystradgynlais. The community is part of the Brecon and Radnorshire constituency, which I represented in Parliament between 1992 and 1997. Although I am no longer the Member of Parliament for the family, my hon. Friend the Member for Brecon and Radnorshire (Roger Williams) has kindly agreed to let me lead this debate as many of the matters that I intend to raise are ones that arose when I served either as the family’s MP or as the Member of the European Parliament for Wales.

Robbie Powell was just 10 years and four months old when he died. A post-mortem examination took place and the cause of death was recorded as Addison's disease, which is a rare disease that affects one in 10,000 people. It can, however, be effectively diagnosed by the ACTH— adrenocorticotropic hormone—test. If that had taken place in Robbie’s case, he would be alive today and living a full and normal life.

The case of Robbie Powell has become notorious as an example of the failure of multiple individuals and agencies. The satirical magazine Private Eye has described it as one of the most shocking and astonishing stories in the history of the NHS. The multiple failures even affected how the case was dealt with by Welsh Office officials, which led to two Cabinet Ministers, my right hon. Friends the Members for Wokingham (Mr Redwood) and for Richmond (Yorks) (Mr Hague) giving parliamentary answers that later proved to be untrue. For the purposes of today’s debate, however, I wish to focus on the role of the prosecuting authorities in considering the issue of whether a criminal prosecution should have been authorised in this case.

Robbie died on 17 April 1990. He had been unwell for more than a fortnight and his parents had requested no fewer than seven consultations with five local GPs over that period as they became increasingly concerned about his condition. Robbie had excessive weight loss and was so weak in the last four days of his life that he could not walk. If Robbie had been referred immediately for hospital treatment it is likely that his life would have been saved, but a number of general practitioners who dealt with him did not refer him to hospital for an investigation. On the final day of his short life, his father had to take him by car to Morriston hospital, after being refused an ambulance at the second GP consultation of the day. Robbie stopped breathing on arrival at the hospital and never regained consciousness.

All of the evidence shows that the father had been pleading with GPs to refer Robbie to Morriston hospital. What Mr Powell could not have known at that time is that four months earlier, a hospital consultant had recommended that Robbie should be tested for Addison’s disease. It later emerged that a letter to that effect had been sent to the GP practice. It said that Robbie needed the ACTH test and should be immediately re-referred if there was any recurrence of his symptoms. Clearly, after Robbie had died one would have expected that all of the background circumstances and failures would have come to light. However, the reality is that virtually all the organisations that had the responsibility for establishing the facts operated in ways that blocked, impeded or even falsified the evidence.

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I pay tribute to my hon. Friend for the skill with which he has pursued this case. However, I am sure that he would also like to put on the record the tenacity with which Robbie’s father has pursued the case. Without his tenacity, we would not be where we are today.

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I am certainly very happy to acknowledge that tenacity, as I will elaborate on later in my remarks, and as I said earlier I thank my hon. Friend for his support for my raising this matter today.

My own concerns as the then MP for the Powell family became so great that they led me to request the then Secretary of State for Wales, my right hon. Friend the Member for Wokingham, to authorise a full public inquiry to get at the facts, a request that was framed in joint terms with the then spokesman for Her Majesty’s Opposition and later First Secretary of Wales, Rhodri Morgan. My right hon. Friend the Member for Wokingham wrote to me on 8 May 1994 indicating that he had given the issue of whether to hold a public inquiry very careful consideration but did not think that he would be justified in holding one. However, we now know that at that time the Welsh Office officials were providing him with false information about the case.

However, my right hon. Friend offered to set up a non-statutory inquiry under an independent chairman if my constituents—the Powell family—felt that such an inquiry would help to get to the bottom of the issue. Although the family wanted a full public inquiry, they accepted this course of action but received a notification six months later that the family’s general practitioners had refused to co-operate. Furthermore, at one point the medical notes in the case, which were crucial in terms of the request for the Addison’s disease test, went missing. Questions were asked in Parliament. In June 1995, that led my right hon. Friend to assert that he had been advised that no package containing those documents had ever been received by his Department.

However, after further investigations that were undertaken by my right hon. Friend the Secretary of State for Foreign and Commonwealth Affairs when he became Welsh Secretary, it was established that the information that had been provided to Parliament was completely untrue and as a result my right hon. Friend—who was then the new Welsh Secretary—was obliged to set up an independent investigation into the management of papers by the Welsh Office. Needless to say, the fact that MPs and Cabinet Ministers had been provided with false information on such matters by civil servants did nothing to improve the Powell family’s confidence that the true facts of the case would ever come to light.

I set out these issues as the context of this debate, because responsibilities in relation to health are now clearly within the remit of the Welsh Assembly. More recently, the First Minister, Carwyn Jones, ordered an independent review of the case, which reported last year. In advance of ordering that review, however, the First Minister had asked the Attorney-General whether he would join the Welsh Assembly Government in establishing a full public inquiry into the case, as the matters of concern that I intend to raise in this debate are not wholly within the remit of the Welsh Assembly Government but relate specifically to the manner in which the prosecuting authorities had considered the matter.

It was about that issue that I wrote on 4 April 1996 to the then chief crown prosecutor for Swansea expressing concern about the case and pointing out that it might be necessary to require a full and detailed investigation of the actions—or should I say the inactivity?—of the prosecuting authorities. The response that I received was directly from the then Director of Public Prosecutions in London, the late Dame Barbara Mills QC, who set out—I am bound to say in rather simplistic fashion—the “realistic prospect of conviction” test. Dame Barbara indicated that the Crown Prosecution Service had first been consulted about the case in November 1994 and had given preliminary advice to the police, before offering additional advice to the police in December 1994. In December 1995, following what was described by Dame Barbara as an “extensive” inquiry, the Dyfed Powys police submitted a further file to the CPS seeking advice, and the case again received detailed consideration with advice being given to the police on 5 January 1996. Dame Barbara set out in that letter that she had advised that the evidence available at that stage was insufficient to support a prosecution, but she indicated that she would be happy to consider any further evidence. She reiterated this stance in a letter to me on 26 July 1996.

At a later stage, and following complaints made by Mr Powell to the then chief constable of Dyfed Powys police and the Police Complaints Authority, it was decided that Dyfed Powys police’s handling of the case would be independently reviewed by another police force. Detective Chief Inspector Poole of West Midlands police was appointed and his November 2000 review made 25 recommendations. The Avon and Somerset police force was instructed to undertake a disciplinary investigation, and in fact a detective chief superintendent and a superintendent from Dyfed Powys police were both formally issued with discipline notices. However, as was sadly becoming rather familiar, both senior officers were then permitted to retire and the investigation went no further.

That investigation was called Operation Reboant, and it focused on the handling of the investigation itself. Although Dame Barbara had spoken about the detail of the Dyfed Powys police investigation, the conclusion of the Avon and Somerset police force on this matter was shockingly different. It concluded that Dyfed Powys police had been institutionally incompetent in respect of the police investigation into the circumstances surrounding the death of Robbie Powell. The manner in which employees of Dyfed Powys police had dealt with Robbie’s father was also criticised. The inquiry concluded that, as an organisation, Dyfed Powys police had failed to investigate professionally, efficiently or effectively the circumstances surrounding and subsequent to the death of Robert Powell at Morriston hospital, and that the criminal investigations were badly managed by senior detectives. However, the inquiry did not authorise prosecution for misconduct in public office as Dyfed Powys police was neither a body corporate nor a person for prosecution purposes. Furthermore, it should be noted that the GPs who were under investigation were, at the material time, actually employed by Dyfed Powys police as police surgeons, and that this conflict of interest was not disclosed.

The second investigation was entitled Operation Radiance and it was an investigation into whether any criminal offences had been committed by the general practitioners, whose role had been to provide health care to the Powell family. This investigation was undertaken by DCI Poole, who concluded that there was the potential for up to 35 individual criminal offences to be considered in the case, ranging from manslaughter to the falsification of documents, perverting the course of justice and conspiracy to pervert the course of justice. Core to those charges was the revelation that a secretary in the GP practice constructed a referral letter after Robbie had died requesting that Robbie should be tested for Addison’s disease in response to the original referral on that issue, which had taken place months earlier. The letter was then backdated to the time that Robbie was still alive and placed in his file of papers. Two persons in the GP practice accepted that they had been involved in this exercise, the clear purpose of which was to mislead the investigations that were taking place into the circumstances that led to Robbie’s death. Another GP confessed that she had watched a television investigative report into the scandal that had been broadcast in Wales, and following that broadcast she had constructed a series of notes, backdated them to a date when Robbie was alive and then placed them in his notes. Again, it seems clear that this action was contrived in order to give a misleading impression regarding the medical care that was being offered.

The conclusions of Operation Radiance were delivered to the CPS and led to a meeting between the CPS and their advising counsel on 2 April 2003, the effect of which was to inform the parents that no prosecution would be undertaken in relation to any of the issues arising from the treatment of their son. I have rarely read a more self-serving document than that six-page letter, but the essence of the viewpoint conveyed by the CPS is that it would no longer be justifiable to resurrect the offences as any case brought against the doctors for forgery or for perverting the course of justice would inevitably be stopped as “an abuse of process”.

It is difficult to understand why the prosecution of conduct of the sort to which I have referred could be regarded as “an abuse of process”. However, the first sentence of the final page of that letter gives a hint, when the CPS says that

“the important considerations are the passage of time and the earlier CPS decisions”.

I cannot imagine for one moment that an argument of that sort would cut much ice in the considerations that Parliament has given to the issues surrounding the deaths at Hillsborough in 1989, more than a year before the death of Robert Powell. Accordingly, the passage of time in itself surely should never be relied upon by the prosecuting authorities as a reason why no prosecution should be taken forward, and I can imagine the outcry if such a claim were to be made in the Hillsborough case.

However, it is the remaining words of that sentence that give a hint as to why the prosecuting authorities had concluded that no action would be taken over these shocking events. The words are

“and the earlier CPS decisions”.

In my correspondence with Dame Barbara Mills in 1996, she made it clear that the Crown Prosecution Service was still open to considering further evidence in the case, but on the final page of the six-page letter of 17 April 2003, crown prosecutor Mr Andrew Penhale says these extraordinary words:

“for a variety of reasons, the important evidential points were missed and the doctors were given an unqualified assurance that they would not be prosecuted.”

It seems, in that context, that the prosecuting authorities conclude that the initiation of criminal proceedings, at the very least for forgery and perverting the course of justice, might be regarded as an abuse of process. Two serious issues arise from this. Although the use of evidence that arises following a declaration that no prosecution would be forthcoming might make that evidence inadmissible, is it really the opinion of the Attorney-General that such a statement would preclude any further prosecution of such an individual? This proposition requires clarification. If the granting by the prosecuting authorities of what effectively amounts to an immunity from prosecution is regarded by the Attorney-General as effective, does that not set out even more starkly the need for a full and thorough public inquiry, to establish quite how such an appalling situation has arisen?

I am aware that the Attorney-General does not feel a public inquiry is necessary, as all the facts are now known, albeit they have been dragged into the public spotlight after years of lies and obfuscation. However, I do not know why the GPs were given immunity from prosecution in respect of serious offences of forgery and perverting the course of justice. The Powell family and I would be interested in hearing an answer to that.

As my hon. Friend the Member for Brecon and Radnorshire said, I pay credit to Mr and Mrs Powell, who have fought relentlessly for justice for their son since his untimely death, very often in the face of obstruction, lies, forgery and abuse. Mr and Mrs Powell are not seeking vindictive retribution against those who failed their son and then wilfully obstructed the investigation of the circumstances. The Attorney-General declined to participate in a public inquiry as he feels that the facts are known, but he should acknowledge that it has only been the relentless challenge of Mr Powell that has brought the appalling truth to light in this case.

Back in 2001, the Bristol inquiry concluded that when things go wrong, hospitals and health care professionals owe a duty of candour and that they should be open and honest. The Robbie Powell case in May 2000 highlighted the absence of any duty of candour for health care professionals. A judgment in the European Court of Human Rights states:

“Whilst it is arguable that doctors had a duty not to falsify medical records under the common law…there was no binding decision of the courts as to the existence of such a duty. As the law stands now”,

in this country,

“doctors have no duty to give parents of a child who died as a result of their negligence a truthful account of the circumstances of the death, nor even to refrain from deliberately falsifying records.”

The Health Committee has proposed twice that this duty should be established in statute and it remains the family’s aim to see that achieved. The recent Francis report, of the Mid Staffordshire NHS Foundation Trust public inquiry, has also recommended implementing this duty of candour, as has the former chief medical officer for England, Sir Liam Donaldson. Hon. Members will not be surprised that those people who have campaigned to establish such a duty wish to call it Robbie’s law, in acknowledgment of the appalling failures in the case that I have outlined.

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It is a pleasure to serve under your chairmanship, Mrs Main. I congratulate my hon. Friend the Member for Cardiff North (Jonathan Evans) on securing this debate.

My hon. Friend outlined the sad and unhappy history of this matter. At the outset, I acknowledge that it is clear that Mr Powell and his family feel, with justification, very let down by how this matter has been handled.

My hon. Friend’s concerns appear to fall into two categories. The first relates to the decision of the Crown Prosecution Service not to bring any criminal proceedings arising from the circumstances of Robbie Powell’s death. The second is whether, in light of the Crown Prosecution Service’s conduct of this matter, there should be a full public inquiry.

First, on the decision not to prosecute, it is right that Parliament holds public services to account, including the Crown Prosecution Service, for which I am ministerially accountable here. However, I have to preface my remarks with a note of caution. This debate cannot be the place to determine the guilt or innocence of those suspected of criminal activity, and it is not the place where I can engage in detailed analysis of the complex issues that this case involves. I must also be realistic about what I can achieve in the short time available to me in this debate. I do not make those remarks lightly or to brush the matters aside. I know that this is a case where there have been allegations of record falsification and cover up, and it would only fuel those concerns if I were to refuse to engage with them. So I will engage with them, to the extent that I can and that it is possible to do so in this Chamber.

The CPS reviews of evidence in the 1990s were in relation to evidence gathered during a criminal investigation by Dyfed-Powys police, which was later found, as my hon. Friend said, to be institutionally incompetent. It is hardly surprising that decisions made by the CPS on the strength of evidence gathered by an institutionally incompetent criminal investigation may be open to criticism. I will therefore focus on the review of the evidence conducted by CPS in 2003, which was based on police investigations conducted by an independent team supervised by the Police Complaints Authority.

The 2003 evidential review considered whether any of the medical professionals involved in the case could be prosecuted for gross negligence manslaughter. It also considered, in relation to the amended medical records and a backdated referral letter, whether proceedings could or should be brought for forgery and/or perverting the course of justice. That review encompassed a lengthy consideration of papers over a number of months and meetings with officers, initiating further inquiries and consulting the various medical and forensic experts in the case. A senior and eminent Queen’s counsel was instructed by the CPS throughout.

The decision at the end was that no prosecution could be brought. That decision was taken on 14 March 2003. The family were informed by letter, which explained that the CPS intended to meet them to explain the background to the decision. Ahead of that meeting, the CPS and Dyfed-Powys police met the General Medical Council to determine what might be required to initiate a GMC inquiry.

The meeting with the family took place in early April 2003. It was explained at the meeting that this was an extremely difficult decision, based on a complicated set of facts, involving myriad differing medical opinions. The decision had to consider the impact of the earlier CPS decisions not to prosecute and the impact of the passage of time on the fairness of the prosecution, including matters such as the availability of evidence for both the prosecution and defence.

The letter of 17 April 2003, to which my hon. Friend refers, was sent to explain that decision in writing, following the meeting with the Powell family. I am afraid that I do not agree with the description of the letter as “a self-serving document”. Its purpose was to assist the Powell family in understanding the decision making in an extremely complicated case and to set out fairly the Crown Prosecution Service’s evaluation of what was and was not possible.

In 2004, an inquest was finally held in this case, after the then Attorney-General, Lord Goldsmith, consented to an application being made to the High Court for an order that it should take place. Following the inquest, Mr Powell complained that a number of the doctors had committed perjury during the inquest. That was again considered by the same reviewing lawyer and senior Queen’s counsel. In respect of one of the doctors, such a prosecution would have met the same problems as had been highlighted in 2003; in respect of the other doctor, the case was significantly weakened by the medical evidence heard during the inquest. The CPS decision not to prosecute for perjury and the reasons behind it were also explained to the family, in a letter dated 8 December 2005. It was, of course, open to the Powell family to ask for the CPS decisions not to prosecute in 2003 and 2005 to be reviewed within the CPS, or to institute judicial review proceedings.

It remains the case that such a review would still be available. I emphasise that I am not, in saying that, suggesting that the review could possibly come to any different conclusion, because I have no grounds for making that suggestion. I hope my hon. Friend will forgive me for saying that that is all I can say on that aspect of the matter in this context.

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Before the Attorney-General moves away from the 2003 letter, will he respond to my points on the aspect of the letter dealing with unqualified assurances that there would be no prosecution? It is one thing to tell someone that, on the basis of the current evidence, there will not be a prosecution; it is quite another for the Crown Prosecution Service to explain a decision not to prosecute on the basis of previous unqualified assurances that no prosecution would ever take place.

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I totally understand my hon. Friend’s point. My difficulty is that I am not in a position in this debate to analyse the assurances that were given, their exact terms or their effect. The CPS will have to consider that. What I can say is that, generally speaking, although it is true that there may be exceptional circumstances in which an assurance that a prosecution will not be brought can subsequently be ignored and overridden, and would survive an abuse of process application if a trial were ever to take place, such an assurance will be a powerful argument if someone wishes to argue that there would be an abuse of process if a prosecution were to be brought.

In any event, the abuse of process issue in respect of assurances that no prosecution would take place is only one element in the equation, as I hope I have been able to explain. It is not the sole argument; there are also evidential issues, and I do not think such things can be considered separately. I am afraid that is the best explanation I can give in the time available.

I know my hon. Friend has previously raised with me instances in which earlier decisions not to prosecute have been ignored with prosecutions being brought later, which I accept. I emphasise that such assurances are not an insuperable or absolute bar, but they are without doubt a major obstacle if any further prosecution is to take place.

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My final point is that it is one thing to say that, back in 1996, an unqualified assurance was given and that it was sufficiently important for it to appear in that letter, but in 1996 a letter was sent to a Member of Parliament saying that the CPS remained open to further evidence. Does my right hon. and learned Friend agree that that should at least be considered?

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I have no reason to disagree, but, equally, I have no reason to disagree with the position that the CPS adopted in 2003. That really is as far as I can go on the matter. I have explained that the issue can be reviewed further, but, for the reasons I have already given, I have no reason to think that it will necessarily be a productive avenue. If that is something the family want, it is something they can ask for.

I am conscious that I have very little time, so I will explain the Law Officers’ approach to the public inquiry. The question was most recently considered by the former Solicitor-General, my hon. and learned Friend the Member for Harborough (Sir Edward Garnier), in the summer of 2010. Prior to that, it was considered by Lord Goldsmith in early 2007.

The starting point for those Law Officers who have previously considered the case is that a public inquiry is unnecessary, not because the matter is not serious—the matter is undoubtedly extremely serious—but because issues surrounding the circumstances of Robbie’s death have already been the subject of intense scrutiny. In 2003, there was an inquiry into Dyfed-Powys police’s handling of the case by Avon and Somerset constabulary. In 2007-08, the Independent Police Complaints Commission conducted two further investigations into complaints relating to Dyfed-Powys police. Additionally, the Welsh Assembly Government commissioned their own report, published in February 2012, into the handling of the care and treatment received by Robbie Powell. It is difficult to see that a public inquiry would uncover anything that has not already been uncovered or would identify lessons to be learned that have not already been identified.

Although it was the view of Lord Goldsmith and my hon. and learned Friend the Member for Harborough that a public inquiry is unnecessary, they both agreed that, if the Welsh First Minister maintained that such an inquiry needed to be established, they would not stand in his way provided that any inquiry encompassed the actions of both the police and the CPS. The main concern was that a public inquiry would be seriously impeded if it were not able to consider the actions of all those involved. It would serve no purpose for some participants in the Powell case to be within the scope of the inquiry only for others to be left out.

The Home Office took the view, however, that a public inquiry into the activities of the police was not necessary given the number of existing inquiries into the police arising from the case. The Home Office accordingly now takes the view that any new inquiry into the actions of the police is unlikely to produce any fresh information about the role of the police in this tragic case. For that reason, the Home Office is not convinced that there is a need for a joint inquiry. The decision is for the Home Office, but from the information available to me as a Law Officer, I have no reason to dispute the Home Office’s view.

Had the Home Office agreed to an inquiry, it would have been a further condition of the Law Officers’ consent that the inquiry did not extend to question the correctness or otherwise of a prosecutorial decision. That is because it is a fundamental constitutional principle that decisions by prosecutors are taken independently of the Executive and are free from political influence. If such decisions are reviewed anywhere, they have to be reviewed in a court of law. Any other approach risks the perception that the Government are holding the threat of an inquiry over the head of prosecutors to push them into making prosecutorial decisions in a way more to the Government’s liking.

Of course, the Home Office is right: this very tragic case has been the subject of a large number of reviews that have undoubtedly identified areas where things could have been done much better. It is important that the recommendations of those reviews are implemented.

Robbie Powell’s death was almost 23 years ago, and the passage of time continues to run. The concerns expressed by Lord Goldsmith and my hon. and learned Friend the Member for Harborough about whether a public inquiry could ever be appropriate in this case perhaps apply with greater force today than they did in 2010.

I can conclude only by expressing my sympathy for the family.