Bennett v A & Anor, Officers & Ors [2004] EWCA Civ 1439

Case No CI/2004/1472

[2004] EWCA Civ 1439

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEENS BENCH DIVISION ( THE ADMINISTRATIVE COURT)

(MR JUSTICE MITTING)

CO/498/2004

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Tuesday, 2 November 2004

Before

LORD JUSTICE MUMMERY

LORD JUSTICE MAURICE KAY

LORD JUSTICE GAGE

Between

FAMILY OF DEREK BENNETTAppellant

OFFICERS 'A' AND 'B'Respondents

HM CORONERInterested Party

COMMISSIONER OF POLICE FOR THE METROPOLISInterested Party

(Transcript of the Handed Down Judgment of

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Mr Kamlish QC and Mr Soorjoo (instructed by Imran Khan & Partners) for Appellant

Mr Millar QC and Mr Stern (instructed by Russell Jones & Walker) for Respondent and Mr Beggs of Counsel for the Commissioner of Police

Judgment

Lord Justice Gage :

Introduction

[1]This is an appeal from a decision of Mr Justice Mitting in judicial review proceedings brought by two police officers, the respondents to this appeal. The two officers, who for present purposes can be referred to as Officer A and Officer B, are sergeants in the Metropolitan Police Service. By their claim they sought to challenge a decision of Her Majesty’s Coroner for Inner South London ( hereafter the coroner ) refusing to grant them anonymity when giving evidence at an inquest to be held by her into the death of Derek Bennett. The appellant in this appeal is the family of Derek Bennett which together with the Commissioner of Police of the Metropolis were interested parties to the claim. The coroner, the defendant in the proceedings, has taken no part in the proceedings before the judge or in this court. The appeal concerns the relationship between the court’s requirement for its proceedings to be open and in public and the right of a witness to be protected by the cloak of anonymity when he has genuine fears for his safety.

[2]Derek Bennett died on 16 July 2001 as a result of gunshot wounds. He was shot by Officera. A. At the time Officer A was accompanied by Officer

b. B. In late July 2001 an inquest was opened and adjourned pending a police inquiry. In March 2003 the CPS decided that no prosecution should be brought against any person. Accordingly steps were taken to re-open the inquest. On 22 December 2003 an application was made to the coroner, Mrs Lynch, for an order granting anonymity to Officer A and Officer B. The basis of the application was that the two officers feared for their own safety and for that of their families. It is alleged that their fears are based on reasonable grounds and that there is no compelling justification for them being named. By her decision dated 5 January 2004 the coroner refused to grant the applications for anonymity. Her reasons are set out in a written ruling running to nine pages. It is this decision which was the subject of the judicial review. Mr Justice Mitting held that the respondents’ rights to life under

Article 2 of the European Convention on Human Rights

were engaged and that the only reasonable decision open to the coroner was to protect the anonymity of the officers. Accordingly he quashed her decision and directed her to grant anonymity to the respondents, including the use of screens when they are giving evidence at the inquest.

[3]The family appeal the decision of the judge on a number of different grounds. The issues in the appeal are in essence what is the correct test for determining whether a witness’ Article 2 rights are engaged on an application for anonymity; and whether on the facts of this case the respondents’ Article 2 rights were engaged. It is the appellant’s case that the coroner correctly directed herself on the law applicable to applications for anonymity of witnesses; and that her findings of fact are unassailable. It is submitted that the judge was wrong to interfere with her decision. In addition, a subsidiary issue arises on the question of whether or not the judge was entitled to have substituted his own decision for that of the coroner rather than remitting the matter for her to decide in the light of his rulings.

[4]At the hearing of the application the coroner received evidence in the form of witness statements from a member of the family of the deceased and a number of police officers. In addition she was shown risk assessments made contemporaneously by a police officer, DS Homer. She set out her findings of facts with what the judge described as “admirable clarity”. In summary the her findings of fact are based on conversations between a local police officer, PC Sacre and a member of the Management Committee of the local Rastafarian Temple in St Agnes Place in Kennington referred to throughout as Mr C. Mr C appears to have been a friend of the deceased. The coroner noted that in May 2003 two loaded firearms and a quantity of cannabis were found in the Temple during a police search. A member of the Management Committee was also alleged to have been an occupant of a vehicle in which a revolver was found. Further she found that the Temple had been the venue for a number of stabbings and shootings thought to have been drug-related. Mr C told PC Sacre of threats to the police officers involved in the shooting, the subject of the inquest, in terms which indicated that they and their families would be at risk if the inquest failed to return the correct verdict. The implication being that the correct verdict would be a verdict of unlawful killing.

[5]The coroner also referred to the risk assessments made by DS Homer. She records DS Homer as assessing the risk in November 2003 as low but one which would increase at the start of the inquest. She records that officer as commenting that the threats were of a general nature and that he did not change his opinion once he became aware of the identity of Mr C. In paragraph 29 of her reasons the coroner stated that the officer was of the opinion that most people would await the outcome of the Inquest before deciding upon any course of action, legal or otherwise.

[6]Before the Judge, criticism was made of paragraph 29 of the coroner’s reasons. It was contended on behalf of the respondents that she had understated and so misrepresented the risk assessment on which the paragraph was based. The judge accepted this criticism. He pointed out that the risk assessment contained the following opinion:

“… if the verdict does not meet their expectations, and the identity of the two officers has been revealed, then the risk to the officers and their families is assessed as serious.”

[7]The coroner was invited by both the appellant and the respondents to apply a threefold test when reaching her decision. The test involved three questions. They were first whether the respondents feared for their own safety and for that of their families. Secondly whether their fears were justified on an objective basis. Thirdly, whether there was no compelling justification for naming them. She concluded that the respondents did have genuine fears for their own safety and for that of their families. Her conclusion on the second issue was as follows:

“59. In view of the available evidence, the fears arising from the comments of Mr C are not objectively justified. In spite of Mr C’s connection with those who have the capacity to carry out the threat, little action seems to have been taken against him except a warning to moderate his behaviour. The warning in August 2003 appears to have had some measure of success. 60. If Mr C’s threats were considered to be serious, I have no doubt that he would have been arrested and /or questioned, both in relation to his own intentions , and to obtain information about others who were making threats. If PC Douglas-Smith is accurate in his recollection, Mr C was liable to be charged with making threats to kill, yet the matter was not even reported. 61. The threats are vague and emotional, directed at the police generally. It is undoubtedly the case that inflammatory and emotional threats and comments are made following every death in custody particularly during and directly after the Inquest. Thankfully , unlike the situation that exists in Northern Ireland those threats are rarely if ever put into effect. 62. The criminal activities that took place at the Temple are sadly commonplace in many areas of the country, and do not appear to present a significant and specific threat to Officers A and B. Regrettably, they may well present a threat to ordinary police officers policing the area both now and in the future. 63. On the evidence disclosed, there is no reasonable chance or serious possibility of harm to the officers or their families. I see no exceptional circumstances so as to depart from the general principle of open justice.”

[8]These conclusions necessarily involved the coroner in a finding that the respondents’ Article 2 rights were not engaged. In view of that conclusion there was no need for her to conduct the balancing exercise required by the third question.

[9]The judge criticised the coroner for applying an over-precise definition of the threshold of risk involved in the second test. On the basis her finding of facts, he made his own assessment of what objectively they demonstrated. He said:

“23. Her very clear findings of fact reveal to me, and in my judgment to any reasonable decision-maker, the following essential propositions. First, Mr C made in the course of time outbursts which were sometimes, but by no means always, emotional, which contained threats to police officers generally; the last of which occurred in August 2003, just over two years after the killing. Secondly, Mr C reported threats, which, if taken seriously, were serious threats to the police officers involved in the killing, namely by those who might on his behalf (that is to say for his purposes rather than as his agent) wish to exact retribution. 24.Thirdly, there were available to those who may well have made those threats firearms and ammunition which would permit them to carry them out. Fourthly, Mr C was connected to a temple in which two loaded firearms had been recovered.”

[10]On this basis he held that the respondents’ Article 2 rights were engaged. Further he said that the coroner ought to have considered the second and third questions together. He then went on to consider the matter himself. His conclusions were:

“The risk to Sergeants A and B in such an eventuality were both serious and of serious harm. Harm, by contrast to the family and to any members of the public who may wish to know their identities, from their identities not being revealed, was, on any view, negligible. It was not suggested that anonymity will prevent any proper line of enquiry being pursued into the conduct of Sergeants A and B. It is not suggested, for example, that it will be more difficult to test the credibility of their account if their names are withheld. The only reasonable decision, in my view, open to the Coroner, was to protect the anonymity of Sergeants A and B until the verdict of the jury was returned and/or until some other event occurred before or during the inquest which demanded, in the interests of justice, that their identities be revealed. When the jury’s verdict is returned, if no blame is put upon Sergeants A and B then, although the question does not arise for decision now, it seems to me that there is unlikely to be any good reason for removing their anonymity. If the verdict does cast blame upon them, and in particular if a verdict of unlawful killing is returned, then although, again, this does not fall for decision today, it would be difficult to see how the anonymity of at least Sergeant A could properly be preserved. Those questions, if and when they arise for decision, must be determined by the Coroner in the events that then occur.”

[11]Accordingly the judge quashed the decision of the coroner and directed her to grant Officers A and B anonymity for the hearing of the inquest The appellant’s grounds of appeal and submissions.

[12]The appellant’s notice of appeal specifies five grounds. However, before us Mr Kamlish QC, leading counsel for the appellant, advanced just two of those grounds. They were first that the judge on the facts as found by the coroner was wrong to conclude that her decision was one, which no reasonable coroner could make. Essentially, his submission on this ground was that the coroner’s finding that there was no reasonable chance or serious possibility of harm to the respondents and/or their families was one which she was entitled to make. He submitted that her findings of fact on the evidence before her and her conclusions were entirely justified.

[13]In order to make good this ground Mr Kamlish QC referred in some detail to the witness statements, which were before the coroner and the other documentary evidence consisting of information reports and risk assessments. By reference to these documents he submitted that the objective evidence of risk was confined to hearsay evidence provided by PC Sacre and Superintendent Tillyer of conversations with Mr C. He referred to inconsistencies in respect of the threats made by Mr C and the fact that on one occasion those threats were withdrawn. He invited us to conclude that the only evidence before the coroner of threats came from Mr C, an unreliable witness, and of whom PC Sacre and Superintendent Tillyer had said that they did not believe that he would personally take the law into his own hands or deliberately encourage others to take retributive action on his behalf. Mr Kamlish QC submitted that on this basis the coroner was entitled to conclude, as she did, that the threats were vague and emotional and that they were directed at the police generally. In short, his submission was that the decision of the coroner cannot be categorised as irrational or perverse.

[14]The second ground relied on by Mr Kamlish QC concerned the second element of the threefold test. Mr Kamlish QC pointed out that before the coroner it was agreed that the test involved a decision on whether or not there was objective evidence to show that the fears of the Respondent established a serious or real possibility of danger to life. The phrase “serious possibility” was taken from a passage in the judgment of Burton J in R v Bedfordshire Coroner ex parte Local Sunday Newspapers Ltd 164 JP 283. Mr Kamlish QC submitted that this was the test adopted by the coroner and that she was right to do so.

The respondent’s submissions

[15]Mr Millar QC, leading counsel for the respondents, submitted that the judge was entitled to hold as he did, that the coroner’s decision was irrational. He submitted that the coroner had been guilty of either ignoring or failing to attach sufficient weight to the opinions of PC Sacre and Superintendent Tillyer. He submitted that if she had given proper weight to their opinions she would have inevitably concluded that the respondents’ fears were supported by objective evidence.

[16]On the issue of what was the correct test to define the threshold on which Article 2 was engaged, his submission was that the test was simply one of reasonable grounds viewed objectively for the respondents’ fears.

The approach of the court

[17]There is no dispute about the test to be applied on judicial review of a decision such as the one the subject of this appeal. It is the one adopted by Sir Thomas Bingham MR in R v Ministry of Defence ex parte Smith [1996]QB 517, @54. It was based on submissions by counsel in that case and was in these terms:

“The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.” 18. Lord Woolf MR in R v Lord Saville of Newdigate ex parteA 2000 1WLR 1855 adopted that test adding the following (p1867): “ What is important to note is that when a fundamental right such as the right to life is engaged, the options available to the reasonable decision-maker are curtailed. They are curtailed because it is unreasonable to reach a decision which contravenes or could contravene human rights unless there are sufficiently significant countervailing considerations. In other words it is not open to the decision-maker to risk interfering with the fundamental rights in the absence of compelling justification. Even the broadest discretion is constrained by the need for there to be countervailing circumstances justifying interference with human rights. The courts will anxiously scrutinise the strength of the countervailing circumstances and the degree of the interference with the human right involved and then apply the test accepted by Sir Thomas Bingham MR in r v Ministry of Defence ex party Smith [1996] QB 517 which is not in issue.”

[18]Lord Woolf also made observations about the role of the Court of Appeal in such cases. He said (p1871): “52 Although all three judgments in the Divisional Court gave very careful consideration to the issues which are before us, in a case of this sort, the outcome of this appeal involves our having to analyse the second decision of the tribunal afresh. We have to form our own judgment as to whether it is flawed on the grounds of unfairness or lack of reasonableness. “

[19]In this case, it is clear from his judgment that no criticism can be made of the judge in respect of his approach to reviewing the decision of the coroner.

The Legal Framework

[20]At the heart of this appeal is the relationship between the requirement for open justice and the right to life under

Article 2 of the European Convention on Human Rights

. It is, of course, a fundamental principle in English common law that the administration of justice is carried out in public (see Scott v Scott1913 AC 1417). Rule 17of the Coroners Rules1984 ensures that this principle applies to inquests. It states:

“every inquest shall be held in public”

. There is a proviso that the coroner may direct that the public be excluded from an inquest or any part of it if it is in the interest of national security to do so. The common law also allows for exceptions and permits witnesses in certain circumstances to be anonymous.

[21]

Article 2 of the Convention

provides:

“ Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which the penalty is decided by law.”

[22]The importance of the state’s duty under Article 2 to investigate a death in custody was considered by the House of Lords in Amin v Secretary of State for 1 AC 653. the Home Department 2004. In that case Lord Bingham said; “ 30. A profound respect for the sanctity of human life underpins the common law as it underpins the jurisprudence under articles 1 and 2 of the Convention. This means that a state must not unlawfully take life and must take appropriate legislative and administrative steps to protect it. But the duty does not stop there. The state owes a particular duty to those involuntarily in its custody. As Anand J succinctly put it in Nilabati Behera v State of Orissa(1993) 2 SCC 746, 747:

“There is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of his right to life”

Such persons must be protected against violence or abuse at the hands of state agents. They must be protected against self-harm: Reeves v Comr of Police of the Metropolis

[2000] 1 AC 360

. Reasonable care must be taken to safeguard their lives and persons against the risk of avoidable harm. 31 The state’s duty to investigate is secondary to the duties not to take life unlawfully and to protect life, in the sense that it only arises where a death has occurred or life-threatening injuries have occurred: Menson v United Kingdom Application No 47916/99) (unreported) 6 May 2003, p 13. It can fairly be described as procedural. But in any case where a death has occurred in custody it is not a minor or unimportant duty. In this country, as noted in paragraph 16 above, effect has been given to that duty for centuries by requiring such deaths to be publicly investigated before an independent judicial tribunal with an opportunity for relatives of the deceased to participate. The purposes of such an investigation are clear; to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others.”

[23]There are two comparatively recent decisions of the Court of Appeal which in my judgment have the most bearing on the issues in this appeal. They are the two decisions on anonymity of soldier witnesses and the venue for hearing evidence arising in the “Bloody Sunday” Inquiry. The first is R v Lord Saville of Newdigate ex parte A2000 1 WLR 1855 to which I have already referred; and the second R(A) vLord Saville of Newdigate2002 1 WLR 1249. In this case they have been conveniently referred to as Saville (1) and Saville (2).

[24]There is no dispute between the parties that on an application such as this the decision-maker should apply a threefold test when deciding whether Article 2 is engaged; and, if so, whether anonymity should be granted. The test is taken from the judgment of Lord Phillips in Saville (2) and is the threefold test applied by the Coroner in this case. Lord Phillips MR stated at page 1262:

“ 31 We consider that the appropriate course is to consider first the nature of the subjective fears that the soldier witnesses are likely to experience if called to give evidence in the Guildhall, to consider the extent which those fears are objectively justified and then to consider the extent to which those fears, and the grounds giving rise to them, will be alleviated if the soldiers give their evidence somewhere in Great Britain rather than in Londonderry. That alleviation then has to be balanced against the adverse consequences to inquiry of the move of venue, applying commonsense and humanity. The result of the balancing exercise will determine the appropriate decision. This course will, we believe, accommodate both the requirements of article 2 and the common law requirement that the procedure should be fair.”

[25]The issue in this appeal, as I have already said, is whether the judge was correct in concluding that the coroner applied an over-precise test in relation to the threshold of risk involved in the second test; or whether the judge erred in applying a test which was too broad. Before the coroner the threshold of risk was agreed to be satisfied by a test of “serious possibility”. In this court, Mr Millar QC submitted that the test should be “reasonable grounds”. Mr Kamlish QC contended for the “serious possibility” test.

[26]In Saville (1) it is clear that the first and second of the two tests were not in issue. The court was solely concerned with the third test. Nevertheless it is possible to gain some assistance from the judgment of Lord Woolf MR in respect of the second test. He said (p1877):

“ However, in our judgment the right approach here once it is accepted that the fears of the soldiers are based on reasonable grounds should be to ask; is there any compelling justification for naming the soldiers, the evidence being that this would increase the risk?”

[27]This passage in Lord Woolf`s judgment is taken up by Lord Phillips in Saville (2). In Saville (2) the threshold of risk test was in issue. In a passage in his judgment under the heading “Our conclusion on the test” Lord Phillips stated:

“ 28 In R v Governor of Pentonville Prison, Ex p Fernandez [1971] 1 WLR 987, after adumbrating the various phrases which he considered expressed the same degree of likelihood of risk, Lord Diplock referred, at p 994, to the alternative of “applying, untrammelled by semantics, principles of commonsense and common humanity”

. We believe that there is much to commend that approach in the present case. The search for a phrase which encapsulates a threshold of risk which engages article 2 is a search for a chimera. The phrases advanced by Mr Clarke were all taken from decisions involving contexts quite different from the present. These decisions provide no authoritative basis for adopting the phrases as a threshold test for article 2 purposes. Of one thing we are quite clear. The degree of risk described as “real and immediate” in Osman v United Kingdom 29 EHRR 245, as used in that case, was a very high degree of risk calling for positive action from the authorities to protect life. It was “a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party” which was, or ought to have been, known to the authorities: p 305, para 116. Such a degree of risk is well above the threshold that will engage article 2 when the risk is attendant upon some action that an authority is contemplating putting into effect itself. It was not an appropriate test to invoke in the present context. 29 In R v Lord Saville of Newdigate, Ex p A

[2000] 1 WLR1855

, para 68(5) Lord Woolf MR said:

“the right approach here once it is accepted that the fears of the soldiers are based on reasonable grounds should be to ask: is there any compelling justification for naming the soldiers, the evidence being that this would increase the risk ?”

The reference to reasonable grounds was, as we understand it, to grounds that were objectively reasonable, but Lord Woolf MR had earlier commented at p 1876, para 68(4): “From their point of view it is what they reasonably fear which is important, not the degree of risk which the tribunal identifies”. 30 In the present appeal, the fact that the soldier witnesses will have subjective fears if called to give evidence in Londonderry is a relevant factor when considering whether it will be fair to require them to do so. Those fears will, however, have much more significance if they are objectively justified. A critical issue is whether such fears are objectively justified, and much of the submissions that we heard were addressed to this issue. .

[28]The passage in Lord Phillips’ judgment then continues with paragraph 31 in which he sets out the threefold test.

[29]Mr Kamlish QC submitted that the test applied by the coroner was derived from Lord Woolf’s reference to Lord Diplock’s observations in ex parteFernandez and as explained by Burton J in R v Bedfordshire Coroner ex parte Local Sunday Newspapers Ltd 164 JP 283. Mr Millar QC submitted that Burton J had fallen into error by running the second and third test together.

[30]In my judgment Mr Millar QC’s submissions on this issue are to be preferred. It seems clear from the observations of Lord Woolf and Lord Phillips that a degree of risk described as “real and immediate”, the Osman test, sets the threshold too high. A test based on speculation would clearly set the test too low. Between these two parameters there will be a spectrum of risks of varying seriousness supported by objective evidence of varying degrees of strength. Like Lord Phillips in Saville (2), a decision which in any event binds this court, I do not think it possible or sensible to give any more definitive description than that there must be reasonable grounds which show that the fears of a witness are objectively justified. It will be for a coroner or other decision-maker in each case in which such an application is made to decide whether the evidence is such as to show that the witness’ fears are objectively justified. When it comes to the balancing exercise involved in the third test, obviously, the more serious the risk and the stronger the evidence objectively justifying the fears of the witness, the more likely the balance will favour the grant of anonymity.

[31]The coroner in this case confusingly describes the threshold as a “ reasonable chance or a serious possibility ” ( see para 40 of her decision ); and “ based on reasonable grounds ” ( para 41). However we have been told that it was agreed at the hearing of the application that she should apply the former test. In the circumstances it seems reasonable to assume that that was the test applied by her. Assuming that it was in my judgment the judge correctly described it as too precise.

The Coroner`s decision

[32]Mr Kamlish QC`s principal ground of appeal was that the coroner carefully weighed all the evidence and reached a conclusion which was demonstrably correct. Alternatively, it was not such as could be described as irrational or perverse adopting the test in ex parte Smith. As I have already indicated both Mr Kamlish QC and Mr Millar QC carefully analysed the evidence available to the coroner and her conclusions.

[33]I say at once that in my judgment the criticism made by Mr Millar QC of the coroner’s reasoning is justified. In the passage in the coroner’s reasons under the heading “extent to which those fears are objectively justified” the coroner refers almost exclusively to threats from Mr C. She dismisses them as vague and emotional, directed at the police generally. What she does not refer to in that passage is the threat mentioned at the end of Superintendent Tillyer’s statement. Superintendent Tillyer states that although Mr C’s intention may not be to encourage others to seek retribution, emotional outbursts from him at the inquest are likely and these outbursts may cause others to seek retribution out of a false sense of loyalty. In the final sentence of his statement Superintendent Tillyer says “These individuals have access to firearms and I genuinely believe that it is in the interest of the safety of the police officers concerned that they should have anonymity at the inquest”.

[34]PC Sacre in his statement also refers to the threat of criminal elements known to associate with Mr C who are more than capable of carrying out threats to kill and who might take on the killing of a police officer to gain advancement in the community. Mr Kamlish QC points out that Superintendent Tillyer and PC Sacre are brother officers of the two respondents. But the criticism that their opinions are not objective evidence in my judgment is unfounded. The fact that their evidence is to some extent opinion evidence does not render it invalid. Both officers are local officers with first-hand knowledge of the community. Their evidence was not challenged by way of cross-examination or otherwise and in my opinion was evidence for the coroner to take into account.

[35]In addition, although the Coroner, in the section of her reasons setting out the concerns of the two respondents, refers to firearms being recovered from the Temple, the public disorder after the death, the likely hostility at the inquest, and the presence of serious violent criminals in the area, she does not appear to give these factors any real weight when considering whether the fears of the respondents are objectively justified. The evidence of those matters all appears in the various witness statements before her and was not challenged.

[36]Taking the evidence as a whole in my judgment it is such as to provide clear grounds which objectively justify the fears of the respondents. In my view, the coroner in this case cannot have given sufficient weight to all the evidence before her and in particular to the evidence of PC Sacre and Superintendent Tillyer. Had she done so, in my opinion, she would have inevitably concluded that the fears of the two respondents were objectively justified. In these circumstances I agree with the conclusion of the judge that Article 2 was engaged and that no reasonable decision-maker could have concluded that it was not.

Conclusion

[37]Mr Kamlish QC submitted that if the court concluded that the coroner had misdirected herself in law the matter should be remitted to her for a further hearing in the light of our judgments. Although I have concluded that the coroner did misdirect herself in respect of the threshold of risk test in my judgment the misdirection was not such as to require this matter to be remitted to her for a further hearing. Mr Kamlish QC accepted that if we concluded, as I do, that the judge’s conclusions at paragraphs 23 and 24 of his judgment were correct, this would inevitably result in the respondents’ Article 2 rights being engaged. Once Article 2 is engaged in my opinion it is also inevitable that the application of the third test would result in the order made by the judge. Put simply there are no countervailing considerations of sufficient weight to tip the balance in favour of an order for anonymity being refused. It is relevant to note that the respondents will still have to give evidence before a jury. Their evidence will be given by video-link and will be subject to cross-examination. This is not a case where the court is concerned with the trial of a defendant. It is a fact-finding exercise conducted by the coroner and the jury. The appellant’s interest in the proceedings, although very important and significant, is not in the same category as the interest of a defendant in a criminal trial. When the verdict has been reached by the jury the coroner will be able to reconsider the issue of anonymity in the light of the jury’s verdict and further submissions made to her.

[38]For these reasons I would dismiss this appeal.

Lord Justice Maurice Kay :

[39]I agree and would add only this. Although the coroner refers to the three risk assessments carried out by DS Homer on 22 July, 20 November and 18 December 2003, she quotes only from the November one. In fact the December one, in addition to being the most up-to-date, was also the most revealing. It concluded that the risk to the two officers up to the conclusion of the inquest is low because “interested parties such as Mr. C and their associates will await the outcome, before deciding upon a course of action, be that legal or illegal”. DS Homer added:

“At that point in time, if the verdict does not meet their expectations, and the identity of the two officers has been revealed, then the risk to the officers and their families is assessed as serious.”

Nowhere in her decision does the coroner do justice to that assessment. She did not expressly reject it. It is difficult to see how she could. If she accepted it, her conclusion that “on the evidence disclosed, there is no reasonable chance or serious possibility of harm to the officers or their families” is unsustainable. For that reason, as well as for the reasons fully set out in the judgment of Gage LJ, I too conclude that there was in truth only one decision open to the coroner on the material before her and that was to grant anonymity to the two officers, at least until the conclusion of the inquest. Lord Justice Mummery

[40]I agree with both judgments. The appeal is dismissed.

ORDER

Appeal dismissed. Minute of order produced to the Court. (Order does not form part of approved Judgment)