“Evidence given from behind a screen 18.—(1) A coroner may direct that a witness may give evidence at an inquest hearing from behind a screen. (2) A direction may not be given under paragraph (1) unless the coroner determines that giving evidence in the way proposed would be likely to improve the quality of the evidence given by the witness or allow the inquest to proceed more expediently. (3) In making that determination, the coroner must consider all the circumstances of the case, including in particular— (a) any views expressed by the witness or an interested person; (b) whether it would be in the interests of justice or national security to allow evidence to be given from behind a screen; and (c) whether giving evidence from behind a screen would impede the effectiveness of the questioning of the witness by an interested person or a representative of the interested person. (4) A direction may be given under paragraph (1)— (a) on the application by the witness, or in the case of a child witness the parent or legal guardian of that witness; (b) on an application of an interested person; or (c) on the coroner’s own initiative.”
“offends what can be appropriately described as natural justice, in the sense of the fair and impartial application of law and procedure to all parties to a particular legal process.”
“I take the view that if I give a positive direction pursuant to the first provision of Rule 18(2), I need not consider the second.”
“To the extent that my decision has involved a balancing of competing interests between the officers and the family, I take the view that the wider interests of justice as set out above justify my decision, having regard to the purposes of my decision as per Rule 18(2) and the provisions of Rule 18(3)(c), which provide protection for the family.”
"The Defendant misdirected himself, in that he failed to recognise (i) the fundamental importance of open justice and to give it great weight; (ii) the particular importance of open justice in this inquest, as it involves a controversial death in police custody of a black man following police restraint; (iii) that his decision interfered with the rights of the press withinarticle 10 of the European Convention on Human Rights ; (iv) that screening is only permitted in exceptional circumstances; and (v) that in this context screening, particularly screening of all factual police witnesses, is a serious incursion into open justice." (ii) Ground 2: "
"The Defendant proceeded on the basis that screening is permitted if that would improve the quality of evidence, and thereby misdirected himself." (iv) Ground 5: "
“where there is a balancing exercise to be undertaken, particular weight is to be attached to this fundamental principle and one of the consequences of attaching particular weight to that consideration is that the incursion into openness should be no more than necessary.”
“(i) it undermines the effectiveness of the investigation because the public would not be prompted to bring forward further evidence; (ii) the observing of the witnesses is an important part of the investigative process (not limited to the process undertaken by the decision makers); (iii) preventing the witnesses being seen undermines public confidence in the process; (iv) not being able to see the witnesses reduces the prospect of catharsis for the family of the deceased.”
“(i) Under rule (2) the coroner may give a direction only if he determines either (a) that giving evidence in the way proposed would be likely to improve the quality of the evidence given by the witness or (b) that it will allow the inquest to proceed more expediently. (ii) Paragraph (3) then provides that the coroner must consider all the circumstances of the case and, in particular the matters at (3)(a) to (c), in making "that determination". (iii) Strictly read "that determination" can only be a reference to the determination referred to at (2)(a) or (b) as to quality of evidence or expediency. The effect of rules Rule 18(2 and 3) would, therefore, seem to be, somewhat oddly, to require the consideration of the interests of justice (which I take to include the interest in open justice) only in the context of that determination. But there is no express requirement to consider the interests of justice in the overall consideration of whether to make such an order pursuant to rule 18(1). (iv) Thus on the basis of that reading, the rule does not expressly require any overarching consideration to be given to the principle of open justice.”
“37. The difficulty with this reading of the ruling, however, lies in paragraph 48. That is the only paragraph in which the coroner makes specific reference to balancing the competing interests of the officers and the family. The exercise which he then undertakes is a binary one in which he weighs the purpose of his decision "as per Rule 18(2)" and the provisions of Rule 18(3)(c). By the purpose of his decision as per Rule 18(2), he appears to mean that the quality of the evidence is likely to be improved by the use of screens (which is itself in the interests of justice) and he weighs against it simply whether the effectiveness of questioning will be impeded by the presence of a screen. That, in my judgment, is too limited a balancing exercise. If those were the only factors to be taken into account, it would have the almost invariable consequence that if a witness genuinely expressed fear but the family of the deceased were able to cross examine, screens would be directed. That would not, and in the present case does not, take into account the interest that the public and the family has in seeing those who may be implicated in the death give evidence - an interest the coroner had already recognised – and it takes no account of the fundamental importance of public confidence in the process of the inquest particularly where the death involved raises issues of more general public concern. 38. The exercise is not, so to speak, saved by reference to the broader submissions that were made to the coroner in the absence of findings as to which submissions were accepted or rejected, not least because the Chief Constable's submissions put the matter on a very different basis from those of the claimant.”
“(i) There is nothing unlawful per se in the use of screens but there is, as I have already concluded above, a balancing exercise to be undertaken. (ii) Amongst the factors in that balancing exercise is the fundamental importance of open justice. That is why the provision of screens should only be ordered where necessary and to the extent necessary. The fact that witnesses may still be available for cross-examination is relevant but not conclusive, as is the fact that the family may have the opportunity to crossexamine. (iii) The impact on the witnesses is a further factor. That is itself multi-faceted. The consideration of the impact on the quality of their evidence (and thus the interests of justice) may bring into play their subjective fears and concerns. But it is also necessary to consider whether those fears and concerns are objectively justified and they may carry greater weight in the balance if they are.”
“the high point of the evidence that a named family member might become engaged with Qassim Hall, out of a sense of loyalty, in steps against the officers by disclosing their identity or otherwise.”
“63. There is genuine fear and concern amongst the officers who will give evidence about threats that Qassim Hall may make against them or their families and might carry through if they are identified. As the coroner concluded, that in itself is a factor that may adversely affect the quality of their evidence and it was certainly open to him to conclude that the quality of their evidence is likely to be improved if they are relieved of that fear and concern. 64. On the evidence before me, if the general public are able to see the officers give evidence, there is a real risk of their identification by or to Qassim Hall. The family (in the sense of the named members) are, however, in a different position. Although in one sense closer to Qassim Hall, it is accepted that they themselves pose no threat to the officers. Even if they are able to identify any of the officers, there is no obvious reason why they would identify the officers to Qassim Hall knowing the concern that there is about him. The identity of two of the officers is already known to the family and they have not disclosed this information. The suggestion that they may be forced by Qassim Hall to disclose the identities of the officers is pure speculation. In these respects, the case is factually very different from that in Hicks where the family members were expressing similar views to those making threats on social media. 65. The submission on behalf of the Interested Parties is that that looks at the position now and that the position may be entirely different after the evidence has been given at the inquest or indeed many years into the future. That is a risk which I recognise but it is one that will always arise and the matter to be taken into account is, I think, the likelihood of that risk arising. As Mr Thomas QC submits it involves a number of hypotheses – that the officers will be visually identified by the family; that the family members will breach the anonymity order and disclose their identity to Qassim Hall; that Qassim Hall will threaten or otherwise harass or attack them as a consequence. There is no compelling reason to think that this risk will materialise and the risk should be given less weight.”
“But it is a factor, and the interest in open justice is another weighty factor. When the balancing exercise comes to be done, the validity of any fears and concerns must also be factored in not least because it goes to the justification for the incursion into the public nature of the proceedings. 67. It seems to me that the coroner's decision was reached without any real consideration of that issue. The result was that the decision assumed that the acceptance that the fears and concerns of the officers were genuine necessarily meant that they were well-founded, when that involved the series of hypotheses that Mr Thomas QC identified, but without sufficient consideration of the evidence to support those hypotheses. The coroner's assessment of the evidence is to be found in paragraph 39 of his ruling. So far as the objective risk is concerned, he says simply that he finds the threat to be credible and continues: "QH has convictions for offences of violence (including violence against the police), and a history of making threats of violence (including threats to kill). I accept that QH blames the police for Andrew Hall's death …." That amounts to little more than a conclusion that, because Qassim Hall has some convictions for offences of violence and threats of violence, the threat to the police officers is a credible one. There is no consideration of the nature and context of those offences or of the events since Andrew Hall's death. More particularly, however, there is no consideration of the risk of the anonymity orders being breached by those who may be able to identify the officers. As a matter of common sense, that risk increases the greater the number of people who are able to see the officers give evidence and the more impracticable it becomes to enforce the orders for anonymity. But if the family only are permitted to see the officers give evidence, the position is very different because undertakings can be given by the individuals, there is no evidence that they are likely to breach those undertakings, and the assertion that they may be forced to do so is pure speculation. 68. Even if I had not concluded that the coroner misdirected himself in law, I would have found his decision irrational because it failed to take into account adequately or at all the objective risk to the officers in being seen by the family when giving their evidence and, in that sense, it made a greater incursion than was necessary into open justice.”
“The principles which apply to a tribunal's common law duty of fairness towards the persons whom it proposes to call to give evidence before it are distinct and in some respects different from those which govern a decision made in respect of an article 2 risk. They entail consideration of concerns other than the risk to life, although as the Court of Appeal said in paragraph 8 of its judgment in the Widgery Soldiers case, an allegation of unfairness which involves a risk to the lives of witnesses is pre-eminently one that the court must consider with the most anxious scrutiny. Subjective fears, even if not well founded, can be taken into account, as the Court of Appeal said in the earlier case of R v Lord Saville of Newdigate, ex p A[2000] 1 WLR 1855 .It is unfair and wrong that witnesses should be avoidably subjected to fears arising from giving evidence, the more so if that has an adverse impact on their health. It is possible to envisage a range of other matters which could make for unfairness in relation of witnesses. Whether it is necessary to require witnesses to give evidence without anonymity is to be determined, as the tribunal correctly apprehended, by balancing a number of factors which need to be weighed in order to reach a determination.”
“In pursuit of this end, I suggest that the exercise to be carried out by the tribunal faced with a request for anonymity should be the application of the common law test, with an excursion, if the facts require it, into the territory of article 2. Such an excursion would only be necessary if the tribunal found that, viewed objectively, a risk to the witness's life would be created or materially increased if they gave evidence without anonymity. If so, it should decide whether that increased risk would amount to a real and immediate risk to life. If it would, then the tribunal would ordinarily have little difficulty in determining that it would be reasonable in all the circumstances to give the witnesses a degree of anonymity. That would then conclude the exercise, for that anonymity would be required by article 2 and it would be unnecessary for the tribunal to give further consideration to the matter. If there would not be a real and immediate threat to the witness's life, then article 2 would drop out of consideration and the tribunal would continue to decide the matter as one governed by the common law principles. In coming to that decision the existence of subjective fears can be taken into account, on the basis which I earlier discussed (see paragraph 22). For the same reasons as those which I have set out in paragraph 20, however, I would not regard it as essential in every case to commence consideration of the issue by seeking to identify such subjective fears.”
“While the ECtHR recognises that the next-of-kin have a legitimate interest in the inquest proceedings this does not mean that the inquest is a lis inter partes between the next- of- kin and the state. There is a clear danger of this principle being lost sight of in a contentious inquest such the present one which the parties may come to feel is adversarial whereas in fact it is inquisitorial. The interests of the next-of-kin are legitimate but not paramount. The coroner’s function is to ensure a full, fair and dispassionate investigation but it is not the function of the coroner and jury to resolve a dispute or to determine the civil rights or criminal liability of any participant.”
“We have amended rule 18 to allow the coroner to permit screened evidence only where this would be [i] likely to improve the quality of the evidence, or [ii] is in the interests of justice or [iii] national security.”
“The balancing exercise is highly fact specific. It must take into account the evaluation of the purpose of the principle of open justice as applied to the facts of the case and the potential value of the information in question in advancing that purpose, as against the risk of harm the disclosure might cause the maintenance of an effective judicial process or to the legitimate interests of others: see the appeal from the Court of Session in A v BBC[2015] AC 588 at [34] - [41] and [46] - [57]. In R (C) v Secretary of State for Justice[2016] 1 WLR 444 , the case involved a mental patient compulsorily detained under a hospital order made by a criminal court under s.37 ands.41 of the Mental Health Act 1983 . The passage in the judgment of Lord Rodger in Re Guardian News and Media Ltd. (which we have set out at paragraph 58 above) was expressly affirmed by Baroness Hale, though this decision depended on a fact sensitive analysis of all the considerations, including the long standing anonymity given to those suffering from a mental disorder.”
“42. The principal purposes of the open justice principle are two-fold and there may well be others. The first is to enable public scrutiny of the way in which courts decide cases - to hold the judges to account for the decisions they make and to enable the public to have confidence that they are doing their job properly. In A v British Broadcasting Corpn, Lord Reed reminded us of the comment of Lord Shaw of Dunfermline, in Scott v Scott[1913] AC 417 , 475, that the two Acts of the Scottish Parliament passed in 1693 requiring that both civil and criminal cases be heard “with open doors”, “bore testimony to a determination to secure civil liberties against the judges as well as against the Crown” (para 24). 43. But the second goes beyond the policing of individual courts and judges. It is to enable the public to understand how the justice system works and why decisions are taken. For this they have to be in a position to understand the issues and the evidence adduced in support of the parties’ cases. In the olden days, as has often been said, the general practice was that all the argument and the evidence was placed before the court orally. Documents would be read out. The modern practice is quite different. Much more of the argument and evidence is reduced into writing before the hearing takes place. Often, documents are not read out. It is difficult, if not impossible, in many cases, especially complicated civil cases, to know what is going on unless you have access to the written material.”
“The policy objectives of the coroner reforms in the 2009 Act are to: - put the needs of bereaved people at the heart of the coroner system”
“To the extent that my decision has involved a balancing of competing interests between the officers and the family”
“18. Whilst I assess that [the family members] would not pose significant risk in their own right to officers it is my belief that any officers would be identifiable and there is an enduring risk that their identities may be disclosed to others if they are able to see the officers during the inquest proceedings and/or otherwise discover their names. This disclosure to family members such as Qassim, who I assess would pose a risk, would be either through a sense of loyalty or as a result of fear of what he may do to them if they did not tell them. 19. Throughout the investigation officers’ identities have been protected from disclosure. It is my belief that continuing anonymity is both necessary and proportionate given the objective threat.”
“In this country … 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.”
“6. Families consistently express their need to uncover the truth of the circumstances of death and for those involved to be held accountable through the inquest process. Securing the trust of the family, and of the public, is particularly difficult when lethal force has been used by the state. Open justice is vital to assuage both family and public concerns about cover-ups and to ensure confidence in the investigation. 7. There are a number of benefits to families of seeing important witnesses give evidence, especially those state agents who may be responsible for the death in some way. The first is to secure trust in the investigation. Families often feel, when someone is killed by the police or in state custody, that the authorities try to conceal the circumstances of the death. This is partly because the state is powerful and well-resourced, and it often holds all of the relevant evidence. That includes written evidence: most or all of the eye-witnesses in this type of death are often state agents –colleagues of those responsible. This makes it all the more important that the investigation is fully open. If witnesses give evidence behind screens, this will often make families lose trust and confidence in the investigation. They can suspect a cover-up. 8. The second benefit is that families often place a great deal of weight on the demeanour and body language of the witnesses. For example, families at times decide they did not believe a witness because he or she looked ‘shifty’, evasive or arrogant. They form a view of the credibility of the evidence from seeing as well as hearing the witness. This is especially important when the honest belief of the officer or officers who used force determines whether the killing was lawful or not. When families are prevented from seeing a witness because of screens, they can complain they feel unable to tell, from the voice alone, whether the witness was telling the truth. 9. The third benefit is to secure accountability. For a family, seeing the officers who were responsible for a death stand up in the witness box and have to answer questions, is often one of the most powerful ways of holding the state to account. Families are much less likely to feel an officer is being held to account if he or she is merely an anonymous voice hidden behind a screen. 10. A fourth common benefit is to help bring about catharsis. Seeing the officers responsible for a loved-one’s death explaining what they did can be an important part of the therapeutic process. If families feel excluded from the investigation, or have unanswered questions, or are inhibited, because they cannot see the witness, from judging whether the witness acted wrongly, this can make it more difficult for them to come to terms with the death and move on. Deaths in state custody are normally extremely traumatic for families, and the inquest is often a central part of the grieving process.”
“I emphasise we are not contending more than [that] any family member in this context is vulnerable to the forced extraction of the very information we’re seeking to protect from Qassim Hall. None of them have the history that justifies any assertion and we have not made any such assertion that they would breach the order in themselves. The point is he is the risk and he knows who they are.”
“35. Instinctively, the proposition that the family of a deceased who has died in circumstances that call into question the state’s discharge of its Article 2 obligations should not see the agents of the state who are implicated in that death, while they are giving evidence to the inquest into it, offends what can be appropriately described as natural justice, in the sense of the fair and impartial application of law and procedure to all parties to a particular legal process. 36. That instinct is all the stronger where the application is not based upon any sufficient evidence or intelligence that reflects adversely on the family members most likely to be affected by it.”
“37. Here, the application is based upon fears expressed by the officers in open statements that have been disclosed, and in closed material that has not, that QH, if made aware of the identity of any particular officer or officers, would seek to harm any such officer or officers, on the basis that QH holds the police responsible for Andrew Hall’s death. … 39. I find that threat to be credible. QH has convictions for offences of violence (including violence against the police), and a history of making threats of violence (including threats to kill). I accept that QH blames police for Andrew Hall’s death, and that officers implicated in that death (using the word ‘implicated’ entirely neutrally) have a genuine fear that, were they to be identifiable and identified, that would create a risk of harm to them or their families from the actions of QH. …”