Coroner for the Birmingham Inquests v Hambleton & Ors [2018] EWCA Civ 2081

“1. Duty to investigate certain deaths - (1) A senior coroner who is made aware that the body of a deceased person is within that coroner's area must as soon as practicable conduct an investigation into the person's death if subsection (2) applies. (2) This subsection applies if the coroner has reason to suspect that - (a) the deceased died a violent or unnatural death; (b) the cause of death is unknown; or (c) the deceased died while in custody or otherwise in state detention.” (a) the deceased died a violent or unnatural death; (c) the deceased died while in custody or otherwise in state detention.”

“5. Matters to be ascertained (1) The purpose of an investigation under this Part into a person's death is to ascertain - (a) who the deceased was; (b) how, when and where the deceased came by his or her death; (c) the particulars (if any) required by the 1953 Act to be registered concerning the death. (2) Where necessary in order to avoid a breach of any Convention rights (within the meaning of the Human Rights Act 1998 … the purpose mentioned in subsection (1)(b) is to be read as including the purpose of ascertaining in what circumstances the deceased came by his or her death. (3) Neither the senior coroner conducting an investigation under this Part into a person's death nor the jury (if there is one) may express any opinion on any matter other than - (a) the questions mentioned in subsection (1)(a) and (b) (read with subsection (2) where applicable); (b) the particulars mentioned in subsection (1)(c). This is subject to paragraph 7 of Schedule 5.”

“10. Determinations and findings to be made - (1) After hearing the evidence at an inquest into a death, the senior coroner (if there is no jury) or the jury (if there is one) must - (a) make a determination as to the questions mentioned in section 5(1)(a) and (b) (read with section 5(2) where applicable), and (b) if particulars are required by the 1953 Act to be registered concerning the death, make a finding as to those particulars. (2) A determination under subsection (1)(a) may not be framed in such a way as to appear to determine any question of - (a) criminal liability on the part of a named person, or (b) civil liability.” (a) make a determination as to the questions mentioned in section 5(1)(a) and (b) (read with section 5(2) where applicable), and (a) criminal liability on the part of a named person, or (b) civil liability.”

“(5) In the case of an investigation resumed under this paragraph, a determination under section 10(1)(a) may not be inconsistent with the outcome of: (a) the proceedings in respect of the charge (or each charge) by reason of which the investigation was suspended; (b) any proceedings that, by reason of subparagraph (2), had to be concluded before the investigation could be resumed.” (a) the proceedings in respect of the charge (or each charge) by reason of which the investigation was suspended; (b) any proceedings that, by reason of subparagraph (2), had to be concluded before the investigation could be resumed.”

“Only one change is in our opinion needed: to interpret “how” in section 11(5)(b)(ii) of the Act … in the broader sense previously rejected, namely as meaning not simply “by what means” but “by what means and in what circumstances”.”

“The deceased took his own life, in part because the risk of his doing so was not recognised and appropriate precautions were not taken to prevent him from doing so.”

“…to identify the key topics which will be considered in the inquests which will be held…into these tragic deaths”

“4. I hope that the inquests will provide many answers about the events of 21 November 1974 and those who died. But I must state firmly and clearly at the outset that the inquests must (a) comply with the law, both statute and case law, (b) focus upon the four statutory questions of who died, how, when and where they came by their death (section 5 and 10 of the Coroners and Justice Act 2009), and (c) be realistic about the availability of relevant evidence 43 years on. 5. It is for these reasons that the inquests may not achieve, and could not realistically achieve, all that the families seek. That may be disappointing and frustrating. I understand that. But, even where no inquests have been held before and where no person has been brought to justice, it is not in the public interest for these investigations and inquests to pursue unachievable, or indeed unlawful, objectives.”

“14. It is the duty of the coroner as the public official responsible for the conduct of inquests, whether he is sitting with a jury or without, to ensure that the relevant facts are fully, fairly and fearlessly investigated. He is bound to recognise the acute public concern rightly aroused where deaths occur in custody. He must ensure that the relevant facts are exposed to public scrutiny, particularly if there is evidence of foul play, abuse or inhumanity. He fails in his duty if his investigation is superficial, slipshod or perfunctory. But the responsibility is his. He must set the bounds of the inquiry. He must rule on the procedure to be followed. His decisions, like those of any other judicial officer, must be respected unless and until they are varied or overruled.”

“… The inquiry is almost bound to stretch wider than strictly required for the purposes of a verdict. How much wider is pre-eminently a matter for the coroner whose rulings upon the question will only exceptionally be susceptible to judicial review.”

“63. As she clarified at the May hearing, Ms Williams submits that the Birmingham 6 trial should in effect be revisited on an extensive basis. She submits that the jury at the inquests should assess whether each of the six (whether alive or no longer alive) were guilty or innocent, that the evidence relating to the Court of Appeal issues of the records made of alleged confessions given while in police custody and scientific evidence purportedly showing the handling of explosive materials should be considered afresh, that all possible suspects including the Birmingham 6 and others should be assessed through evidence for guilt or innocence, and that any person in this category could be ‘named and shamed’ in the media whether innocent or guilty. 64. She submits that in relation to the Birmingham 6 it is irrelevant that their convictions were quashed by the Court of Appeal. The inquests, she says, can review their innocence or guilt. The prohibition on a determination not being ‘inconsistent’ with the outcome of the proceedings [in the Birmingham 6 appeal]’ does not apply: see para.8(5) of Schedule 1 to the 2009 Act, below. 65. She says that the Birmingham 6, or any others who may be guilty, are not entitled to any special protection in the inquest process, save that ‘possibly’ they could apply and obtain anonymity orders or ‘possibly’ Contempt of Court Act orders. Mr McGowan suggested that ciphers could be used, although I believe that his clients want names to be named. In any event he accepted that individuals would inevitably be named in evidence. 66. Ms Williams explained that the only limitation on this wide-ranging form of investigation by the coroner and the jury would be that the jury would not be able to name any guilty person in their conclusions: see section 10(2)(a) of the 2009 Act, below. She submits that the jury would be able to hear evidence about the identity of perpetrators (in open court), they could make findings for themselves having identified guilty perpetrators, but they are prevented by law from naming them in their conclusions. 67. In summary she submits (in para.42) that the identity of the perpetrators is ‘part of the “circumstances” that led to the fatalities’ and is of the greatest public importance particularly since no one has been charged with offences relating to the bombings, except in the case of the Birmingham 6 which led to ‘discredited convictions’. She submits that there is credible evidence, mostly from journalists, of the true identities and evidence should be called accordingly.”

“4. This prohibition in the Rules is fortified by considerations of fairness. Our law accords a defendant accused of crime or a party alleged to have committed a civil wrong certain safeguards rightly regarded as essential to the fairness of the proceedings, among them a clear statement in writing of the alleged wrongdoing, a right to call any relevant and admissible evidence and a right to address factual submissions to the tribunal of fact. These rights are not granted, and the last is expressly denied by the Rules, to a party whose conduct may be impugned by evidence given at an inquest.”

“78. Ms Williams argues that the prohibition in section 10(2)(a) is limited to the jury’s conclusion and provides no restriction on the scope of the investigation or evidence called at the inquest on the identity of a possible perpetrator. Had Parliament intended to prohibit the identity of perpetrators from evidence, she submits, the statute would have said so. ...”

“… I do not agree. Sir Thomas Bingham’s words above describe the opposite, particularly in the phrase ‘to a party whose conduct may be impugned by evidence given at an inquest’. They clearly envisage that the prohibition may be a relevant factor to be considered in the exercise of the coroner’s discretion on the scope of an investigation.”

“81. The prohibition does not, however, exclude an examination of relevant facts, as Sir Thomas Bingham explained in Jamieson at p24 at (5): Plainly the coroner and the jury may explore facts bearing on criminal and civil liability. But the verdict may not appear to determine any question of criminal liability on the part of a named person nor any question of civil liability.”

“82. Facts may therefore be explored in order to explain, for example, whether a person was lawfully or unlawfully killed or whether they were unlawfully killed or died accidentally (or by misadventure). But the identity of perpetrators is not a question that an inquest is charged with answering. Indeed, it may be prohibited from expressing its view on this matter when, as in this case, the outcome, in one form or another, of the jury’s conclusion must be unlawful killing.”

“87. To permit the identity of perpetrators to be within scope, would be seen to be taking on the role, as one counsel put it, of a proxy criminal trial. If this were to result in a determination identifying those responsible for the attacks that would in my judgment be unlawful. It would contravene both the prohibition in section 10(2)(a) and in the case of the Birmingham 6 the additional prohibition in paragraph 8(5). It would also offend against the decision and explanation of Sir Thomas Bingham in Jamieson above.”

“89. There are also practical difficulties which make the submissions on behalf of the families untenable. One cannot ignore the sheer size and complexity were the inquests to commence an investigation into the guilt of any named individuals. Years of police investigations, inquiries and reviews have yielded no clear result. It would be invidious for the inquests to attempt to do so now, 43 years on, with a fresh search. The approach would inevitably be piecemeal and incomplete, mostly reliant upon persons named in books and the press, mostly by journalists. It would be a task entirely unsuited to the inquest process and its limited resources; the Coroner’s team does not have the resource of an independent police force. It would be disproportionate to the real goal in hand, which is important enough, namely to answer the four statutory questions.”

“91. For these purposes it makes no difference that these are Article 2 inquests. As [counsel to the inquests] submitted (at para.59), the Article 2 procedural duty does not require the state to investigate who perpetrated these bombings through inquests. The state, through the West Midlands Police and the Devon and Cornwall police, has initiated and undertaken extensive criminal investigations into these crimes. The failure to obtain convictions to date does not render those investigations valueless in this context or point to any ‘gap’ that must or could be filled by these inquests in order to discharge that procedural duty.”

“24. First, in an inquest to which article 2 of the ECHR applies the requirement in s.5(1)(b) of the 2009 Act to investigate 'how' the deceased came by his or her death is to be read as, 'by what means and in what circumstances' the deceased came by his or her death, see s.5(2) of the 2009 Act. 25. Second, the ambit of an investigation to achieve this end involves a judgement by a coroner rather than the exercise of a discretion in the conventional public law sense. If authority were required for this proposition it is to be found in passages in two decisions cited to us. 26. In R v. Inner West London Coroner ex p. Dallaglio and another [1994] 4 All ER 139 at 164j, Sir Thomas Bingham MR expressed the point as follows: It is for the coroner conducting an inquest to decide, on the facts of a given case, at what point the chain of causation becomes too remote to form a proper part of his investigation. 27. To similar effect were his observations in the House of Lords decision: Jordan v. The Lord Chancellor and another [2007] 2 AC 226 at 256H. The coroner must decide how widely the inquiry should range to elicit facts pertinent to the circumstances of the death and responsibility for it. This may be a difficult decision, and the enquiry may … range more widely than the verdict or findings. 28. Third, although it is a matter of judgement for the coroner, involving fact-sensitive issues, the exercise of the judgement on the scope of an inquest is not confined by what can be recorded in the verdict and findings, although those limitations may be relevant. 29. Fourth, since the decision involves a judgement rather than the exercise of a discretion, a successful challenge to the decision can be made on the basis that it is wrong, rather than on the more demanding basis that it is irrational or disproportionate. 30. Fifth, nevertheless, where a challenge is made, the Court will give appropriate respect to the views of a coroner on the proper scope of an inquest. This is because the Court recognises that a coroner has an expertise in the conduct of inquests; has an understanding of what can realistically be achieved in a coronial investigation; and because the decision may be difficult and finely balanced. 31. Sixth, when it comes to considering a coroner's ruling on scope, the Court will approach it on the basis that the persons who are most concerned will know the background; that the ruling will reflect arguments which are understood by interested persons; and that the ruling is a summary of facts, reasoning and conclusion, rather than a document that must be subjected to a close critical analysis that is more appropriate to the construction of a commercial contract or the interpretations of a taxing statute. 32. Seventh, although there is reference in Dallaglio to the 'chain of causation', we do not understand the Master of the Rolls to have been suggesting a test of causation as it is understood in the law of contract and tort; but rather to be envisaging a point at which the investigation will become too remote from the circumstances of the death. An inquest must have practical limits which will be circumscribed by considerations of reasonableness and proportionality. For example, an enquiry into the circumstances of a death caused in an affray involving three people is likely to involve different considerations to an enquiry where the death is caused in the course of a riot involving many hundreds of participants.”

“… Although inquests should not become proxy criminal trials without the protections afforded to defendants, there may be inquests in which the identity of those involved in violent deaths may properly be within the scope of the inquest. Mr Straw gave the example of armed response police officers shooting a suspect.”

“… The law does not recognise any time limits for the prosecution of defendants. However, it recognises the difficulties that witnesses may have in accurately recollecting events after a long passage of time; as it does the potential unreliability of hearsay and double-hearsay evidence from 'confidential sources' described in books and the press, whose provenance and reliability may be very difficult, if not impossible, to establish and which cannot easily be tested. Such considerations may go to the reasonableness and proportionality of the potential scope of an inquest.”

“We do not agree that the jury would be unable to identify an individual involved in the planning, planting, procuring or authorizing of the bombing without breaching the statutory prohibitions. The statutory regime would circumscribe certain aspects of an enquiry into potential perpetrators but s.10(2) applies to the conclusion not the investigation. A jury can plainly explore facts bearing on criminal and civil liability.”

“57. It is clear that [West Midlands Police] failed in their original investigation and that this resulted in a gross miscarriage of justice. The question is whether that historic failure renders [West Midlands Police] incapable of carrying out the State's investigatory duties to identify the perpetrators of the Birmingham bombings and bring them to justice. We have seen nothing in the material before us to indicate that this is so, and the contents of Assistant Chief Constable Cann's report suggests otherwise. In the time that has passed since the original investigation, there have been many changes in how crimes are investigated and the personnel in [West Midlands Police] are now entirely different. 58. Mr Straw's alternative argument was that the objectionable feature of [West Midlands Police's] involvement was a matter of appearance. Although the analysis of apparent bias applies to a court or tribunal, rather than a police force, he argued that the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that [West Midlands Police] were incapable of carrying out the investigation. We would reject that submission. The observer is to be taken as both fair-minded and informed of the relevant facts. Although the identification of the perpetrators has so far been unsuccessful it has not been through apparent want of resources, effort or expertise.”

“Under the Coroners Act 1988 and its predecessors, a coroner was required to examine such witnesses as appeared 'expedient', see section 11(2). The formulation is different in Schedule 5 to the 2009 Act which simply empowers a coroner by notice to require a person to attend to give evidence or to produce evidence. But the change has not affected the basis upon which a coroner's decision to decline to call or seek evidence may be challenged. The decision about which witnesses to call to give evidence at an inquest may be challenged in judicial review proceedings on traditional public law grounds. The context of any challenge will be that the coroner has a duty to conduct a thorough inquiry within the scope he has determined to enable the statutory purposes to be satisfied. There may be cases in which it can be shown that, absent an identified line of inquiry or examination of a particular available witness, the procedural obligation under article 2 cannot be satisfied. But in the generality of cases the issue will be whether the failure to investigate something or obtain evidence, including by calling a witness, was Wednesbury unreasonable. In McDonnell v HM Assistant Coroner for West London [2016] EWHC 3078 at [28] Beatson LJ summarised the position: “It is clear that, as Lord Lane CJ stated in R v South London Coroner, ex parte Thompson (1982) 126 SJ 625 and Sir Thomas Bingham stated in Jamieson's case at 24 F-G, this type of inquest is a fact finding exercise not a method of apportioning guilt. It is also clear that decisions by a coroner as to the scope of enquiry and as to which witnesses to call are a matter of judgment which may only be challenged on the ground that they are Wednesbury unreasonable, i.e. irrational: see R v Inner West London Coroner, ex p. Dallagio [1994] 4 All ER 139and R (Mack) v HM Coroner for Birmingham and Solihull [2011] EWCA Civ 712 at [9].”