R (on the application of Hurst) (Respondent) v. Commissioner of Police of the Metropolis (Appellant)
54. Since, however, the point was fully argued, and since Buxton LJ's view that "Even before the HRA domestic tribunals were bound to give full weight to the United Kingdom's international obligations to be found in the ECHR" has caused some concern in particular to the intervener, I shall briefly indicate why, from my part, I think the Court of Appeal were in error on this issue too, even supposing, as for this purpose one must, that to re-open the inquest would enable the coroner to satisfy the UK's international obligations in respect of Mr Hurst's death.
55. Must a statutory discretion be exercised "to give full weight to the UK's international obligations?" There are, of course, many dicta of high authority supporting the proposition that it is lawful to have regard to unincorporated treaty obligations in the exercise of a discretion. One such, in the context of the Convention, appears in Lord Bingham's opinion in R v Lyons  1 AC 976, para 13:
56. It is another thing, however, to say that the decision-maker is bound to have regard to such obligations and, moreover, (a necessary further part of the respondent's argument), bound to give effect to them unless there is good reason not to. Such a contention appears to run flatly counter to this House's authoritative decision in R v Secretary of State for the Home Department, Ex p Brind  1 AC 696. It was there held that decision-makers are under no obligation to exercise discretionary powers conferred upon them in domestic law so as to comply with unincorporated international obligations. Of the argument that by the same token that international obligations will determine the construction of ambiguous legislation so too where a discretion can be exercised either so as to conform to or to infringe a basic human right it must be exercised so as to conform, Lord Bridge said this (at p 748):
Similar views are to be found in the other speeches. As, indeed, Neill LJ was later to observe in R v Secretary of State for the Environment, Ex p NALGO (1992) 5 Admin LR 785, 798, only Lord Templeman thought that article 10 was "a relevant matter to be taken into account." A series of earlier Court of Appeal decisions had been to the same effect: R v Chief Immigration Officer, Heathrow Airport, Ex p Salamat Bibi  1 WLR 979, Fernandes v Secretary of State  Imm AR 1; Chundawadra v Immigration Appeal Tribunal  Imm AR 161.
57. Some considerations are required to be taken into account by decision makers. Others are required not to be. But there is a third category: those considerations which the decision maker may choose for himself whether or not to take into account. As was stated by Cooke J in the New Zealand case of CREEDNZ Inc v Governor General  1 NZLR 172, 183:
A little later he added that even if the statute was silent,
Lord Scarman in In re Findlay  1 AC 318,334 approved those two passages in Cooke J's judgment as "a correct statement of principle."
58. Applying that principle to the present case it seems to me quite impossible to say that the unincorporated international obligation on the UK here was "so obviously material" to the coroner's decision whether or not to resume this inquest that he was required to give it "direct consideration". Still less in my judgment was he obliged to give effect to it, the very contention so roundly rejected in Brind.
59. Even, therefore, had the coroner recognised and felt able to satisfy the international law obligation upon the United Kingdom by re-opening the inquest, I for my part would not hold his refusal to do so irrational or otherwise unlawful.
60. There remains one final argument advanced by the respondent as a basis for upholding the Court of Appeal's decision, the contention (not previously advanced but nonetheless entertained by the House) that, even were she not otherwise able to rely on section 3 of the 1998 Act, she can do so here in reliance upon sections 22(4) and 7(1)(b) of the Act. Those sections provide:
(Section 7(6) provides that "legal proceedings" in section 7(1)(b) includes "proceedings brought by or at the instigation of a public authority.")
61. It is Mr Starmer's submission that a coroner's inquest is a proceeding "brought by or at the instigation of a public authority" and that the respondent is accordingly entitled to rely on her Convention right to an article 2 compliant inquest notwithstanding that her son's death occurred before 2 October 2000 so that the coroner would not otherwise be acting unlawfully under section 6 of the Act. I would reject this argument for reasons which can be very briefly stated.
62. Whilst it is clearly the case that the coroner is a public authority and that it is he who, in circumstances prescribed by section 8 of the Coroners Act, is required to "hold an inquest into the death of the deceased", it does not seem to me that the holding of an inquest constitutes the bringing (or instigating) of proceedings within the meaning of this legislation. There has been a great deal of discussion in the case law about the true scope of section 22(4). Essentially, however, it has been recognised to operate so as to allow victims to invoke rights which would otherwise be unenforceable in domestic law. Convention rights may be used as a shield to defeat proceedings brought against victims by public authorities, but not as a sword. As the late Peter Duffy QC explained in the annotations to section 22(4) in Current Law Statutes, vol 3 (1999), it was "to enable the Act to be used defensively against public authorities with retrospective effect but not, it appears, offensively", an explanation noted by Lord Hope of Craighead in R v Kansal (No 2)  2 AC 69 at para 56.
63. Section 7(1)(a) allows the victim of an actual or threatened unlawful act to "bring proceedings against the authority". Section 7(1)(b) allows him to rely on his Convention rights in legal proceedings brought by the authority. Only in the latter case can he rely on conduct violating his rights which was not unlawful in domestic law when it took place.
64. Inquest proceedings are in no sense brought against those participating in them. Least of all are they brought against those like this respondent whose sole concern is that such proceedings should be brought. In the present case, your Lordships will appreciate, the inquest stands adjourned and it is the respondent who seeks, the coroner who refuses, its re-opening. The true analysis here is that the respondent is herself "bring[ing] proceedings against the authority" within the meaning of section 7(1)(a) rather than relying on a Convention right in a legal proceeding brought by a public authority within the meaning of section 7(1)(b).
65. In my opinion, therefore, none of the respondent's arguments for upholding the Court of Appeal's judgment are sustainable. I would accordingly allow the Commissioner's appeal and hold the coroner's decision of 19 November 2002 to have been lawful.
66. I have had the advantage of reading in draft the opinions of my noble and learned friends, Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood.
67. Three issues requiring resolution by the House were identified in the agreed Statement of Facts and Issues. They were:
"(i) Whether by virtue of section 3 of the Human Rights Act 1998, sections 16 and 11(5)(b)(ii) of the [Coroners Act 1988] are to be read and given effect so as to be compatible with Article 2 of the Convention [on Human Rights].
(ii) Alternatively, whether irrespective of the Human Rights Act 1998 being applicable to the discharge of his statutory duties, in exercising his discretion under section 16(3) of the 1988 Act, the coroner was required to take into account the United Kingdom's international obligations under Article 2 of the Convention.
(iii) If the inquest is only resumed in accordance with (ii) above, what does section 11(5)(b)(ii) of the 1988 Act require the scope of the inquiry to be."
68. In his case, Mr Starmer QC for Mrs Hurst identified a wider-ranging set of issues. These included a new argument under section 22(4) of the Human Rights Act 1998, which the House undertook to resolve. It is in substance another route by which Mr Starmer seeks to succeed on issue (i). They also included a suggestion that, quite apart from the Convention, the coroner's decision not to resume the inquest was based upon too narrow an interpretation of his discretion under section 16(3) of the 1988 Act. In oral submissions before the House, Mr Starmer recognised realistically that he could not pursue any such suggestion.
69. Mr Starmer continued however to support the affirmative answer which was given by the Court of Appeal to issue (ii): cf paragraphs 29 and 31 per Buxton LJ (with whose reasons the other two members of the court agreed). This constituted one of two "separate and distinct conclusions" which led Buxton LJ to order the coroner to resume the inquest: paragraph 64. The other (matching issue (i)) was that section 11(5)(b)(ii) of the 1988 Act should, in the light of section 3 of the Human Rights Act 1998, be read compatibly with the United Kingdom's international duty under article 2 of the Convention to hold a full inquest meeting the standard set by the European Court of Human Rights in McCann v United Kingdom (1995) 21 EHRR 97: cf paragraphs 62 and 64 per Buxton LJ.
70. Buxton LJ's description of these two conclusions as separate and distinct indicates that he did not regard the first conclusion as in any way dependent on his conclusion on issue (i). However, in addressing issue (ii), Mr Starmer accepted that, even if he succeeded on issue (ii), "it would be hard" for him to challenge the coroner's refusal to resume the inquest as a matter of discretion unless he could also show that the inquest, when held, would have been "Convention-compliant". During the course of his submissions, he nevertheless carefully examined the scope of pre-Human Rights Act case-law, including Jamieson, with a view to showing that if offered, as he put it, a sufficient "basis for an investigative inquest in this case - ie were reasonable steps taken to protect Troy Hurst?", even without any such adjustment as he submitted should, if necessary, be made under issue (i). Even though a coroner's verdict may not under pre-Human Rights Act case-law go as far as the jurisprudence of the European Court of Human Rights indicates should be the case under article 2, it would in these circumstances be wrong in my view to regard Mrs Hurst as precluded from pursuing a case to the effect that pre-Human Rights Act case-law enables a sufficiently full investigation to achieve what would, for practical purposes in the present case, be a Convention-compliant process. In paragraphs 64-65 of his written case, Mr Starmer quoted passages from R v. Inner West London Coroner Ex p Dallaglio  4 All ER 139, 154d-155c and 155d-f and 164e-165a. There, Simon Brown LJ and Sir Thomas Bingham MR distinguished carefully between the limited scope of the verdict which the coroner might at the end leave to the jury and the broader scope of the investigation, which might form a proper part of his investigation during the course of the inquest, and Simon Brown LJ said at p.155d that, rather than ask what would be the proper scope of any resumed inquest, the "better questions" were whether a full inquest would now be a practicable proposition and would satisfy any worthwhile purpose; and, in the result, the matter was remitted to a new coroner for him to consider whether to resume the inquest in that light. Mr Starmer's case continued by saying, at paragraph 66, that
71. As Lord Brown observes, issue (i) was the subject of various alternative submissions by Mr Starmer. First, I agree that the Court of Appeal was wrong to conclude that, by virtue of section 3 of the Human Rights Act 1998, section 11(5)(b)(ii) of the Coroners Act 1988 has had since 2 October 2000 to be interpreted to require an inquest complying with the United Kingdom's international obligations under article 2 of the Convention on Human Rights, no matter when the date of death. The Convention rights, in this case the right to life under article 2 in particular, only apply domestically to deaths occurring on or after 2 October 2000. The Convention right to a proper investigation is an ancillary aspect of the right to life under article 2, and therefore also only applies in respect of deaths occurring on or after 2 October 2000. Under section 6, a public authority, failing to carry out such an investigation in respect of a death occurring prior to 2 October 2000, cannot be regarded as acting incompatibly with a Convention right, since the relevant Convention right only applies domestically in respect of deaths occurring on or after 2 October 2000.
72. Second, subject to what I say below with regard to the scope and effect of R v Coroner for North Humberside and Scunthorpe, Ex p Jamieson  QB 1, I am in general agreement with Lord Brown's reasons in paragraphs 48 to 52 for rejecting Mr Starmer alternative submissions. The gist of Mr Starmer's submissions was that the House of Lords decision in R (Middleton) v West Somerset Coroner  2 AC 182 has in some way affected the previous jurisprudence (including Jamieson) on the scope of a coroner's investigation and verdict in relation to deaths occurring prior to 2 October 2000. The answer to them is that the broad interpretation which the House gave in Middleton to section 11(5)(b(ii) of the 1988 Act only applies in relation to deaths, and to inquests held in relation to deaths, involving potential state responsibility and occurring since 2 October 2000.
73. With regard to the new argument based on section 22(4) of the Human Rights Act 1998, I agree that Mrs Hurst cannot succeed for reasons given by Lord Brown in paragraphs 60 to 64 of his opinion.
74. Like my noble and learned friends, Lord Rodger and Baroness Hale, I am not persuaded that the distinction between a "Middleton" inquest and a "Jamieson" inquest is as stark as I believe Lord Brown to be suggesting in paragraphs 51, 56 and 57. In the light of the reasoning in Jamieson and its affirmation in this House in Middleton (which post-dated the coroner's decision in this case not to resume the inquest) the present coroner could not be faulted if he thought that a resumed inquest could lead only to a simple verdict of unlawful killing. A quite different matter is, however, the scope of the investigation which the coroner might undertake during a resumed inquest and which might lead him to make a report to the responsible person or authority under rule 43 of the Coroners Rules 1984 with a view to preventing the recurrence of such a fatality.
75. In this same connection, I have difficulty with the reasoning of the Court of Appeal. Buxton LJ considered at paragraph 18 that any direct causal connection between any police failings and the death was broken by Mr Reid's violent intervention, so that no verdict (beyond unlawful killing) would have been possible. That I can accept. But at paragraph 20 Buxton LJ concluded that, if the coroner had asked himself whether the chain of causation (between any such failings and the death) was too remote to form a proper part of his investigation, the coroner could (in the light of what Buxton LJ had said in paragraph 18) only have answered the question in one way. That I consider, with respect, was a non sequitur. The nature of the verdict and the scope of the coroner's investigation are different matters. Then, at paragraph 29 Buxton LJ concluded that the coroner should, even "absent the Human Rights Act", have taken this country's international obligations under article 2 into account "in deciding whether there was sufficient cause to resume the inquest". That I can also accept. But he went on to say: "I would hold that it was not open to the coroner in terms of rationality as a matter of English domestic law to conclude otherwise than that the article 2 obligation required the resumption of the inquest". The problem here lies in seeing how it could be irrational to refuse to resume an inquest which Buxton LJ had already held in paragraph 20 could achieve no purpose, even in terms of investigation.
76. I would resolve that problem by holding, in agreement with what Baroness Hale says in paragraph 23 of her opinion (and also, as I understand it, with what Lord Rodger says in paragraph 8 of his opinion), that Buxton LJ was wrong in paragraph 20 to conclude that a resumed inquest could serve no purpose. It seems to me difficult to accept that it would have served no useful purpose in terms of investigation (cf paragraph 80 below). The coroner appears to me to have been wrong in his decision letter dated 19 November 2002 to give as his reason for not resuming the inquest that "all the matters required to be ascertained have been fully explored and ascertained during criminal proceedings". It follows that his decision is potentially vulnerable to review.Issue (ii)
77. In the light of the way in which this appeal has been argued, issue (ii) is the prism through which the House has to view the question whether the coroner's decision should now be reviewed. The coroner had discretion under section 16(3) of the Coroners Act 1988 "to resume the adjourned inquest if in his opinion there [was] sufficient cause to do so". A decision under section 16(3) was described by Simon Brown LJ in R v Inner West London Coroner, Ex p Dallaglio  4 All ER 139 as "of a highly discretionary character". Issue (ii) raises the question whether Buxton LJ was right in paragraph 29 to consider that, even prior to the 2 October 2000, a coroner was bound at least to take into account this country's international obligations under article 2 of the Convention, when deciding whether to resume an inquest.
78. On this issue, I agree with Baroness Hale's remarks in paragraph 18 of her opinion, both generally and all the more so in circumstances where the coroner did in fact take article 2 into account (even though he did this at a time, prior to the House's decision in In re McKerr  UKHL 12;  1 WLR 807, when it was assumed that he was bound to do so). I have corresponding difficulty in accepting Lord Brown's reasoning in his paragraphs 53 to 59 on what he terms the third issue. R v Secretary of State for the Home Department, Ex p Brind  1 AC 696 establishes that a domestic decision-maker exercising a discretion is not obliged to exercise it in compliance with this country's international obligations. But he or she may do so: R v Lyons  UKHL 44;  1 AC 976, paragraph 13 per Lord Bingham. I find unattractive the proposition that it is entirely a matter for a discretionary decision-maker whether or not the values engaged by this country's international obligations, however fundamental they may be, have any relevance or operate as any sort of guide (the term used by Lord Bingham in R v Lyons at paragraph 13).
79. Lord Brown in paragraph 57 cites Cooke J's words in CREEDNZ Inc v Governor General  1 NZLR 172, 183, approved by Lord Scarman with whose speech all other members of the House agreed in In re Findlay  1 AC 318, 334B. Cooke J said that "there will be some matters so obviously material to a decision on a particular project that anything short of direct consideration of them by the Ministers .. would not be in accordance with the intention of the Act". This country's international obligations in relation to a death potentially involving state responsibility appear to me to merit equivalent recognition at least as a relevant factor, even if the decision-maker were in the event to regard them as outweighed by other considerations. I find support for that approach in the Court of Appeal's reasoning in both Rantzen v Mirror Group Newpapers (1986) Ltd  QB 670, 692D and R v Lord Saville of Newdigate, Ex p A  1 WLR 1855, paragraph 37.
80. Here, in any event, the coroner did direct attention to article 2 (and I do not think that it can be assumed that he would have declined to do this, had the prevailing view at the time been that it was optional whether or not to do so). He concluded that there was no "negligence" in relation to the circumstances giving rise to Troy Hurst's death sufficient to engage article 2 and that a coroner's inquest would not in any event fulfil the requirements of article 2. The former proposition assumes the outcome of any investigation, before holding the investigation. The latter proposition may be accepted as regards any verdict. But the scope of a domestic investigation could well have gone far, if not the whole way, towards meeting this country's international obligations, and the coroner, as I have said in paragraph 76, was wrong in my view to conclude that a domestic investigation could or would add nothing to the previous criminal investigation.
81. These points were and are open to Mr Starmer on behalf of Mrs Hurst under the agreed issues. They do not involve or require any cross-appeal. Mrs Hurst as respondent is seeking to uphold, not to set aside or vary any order made in the courts below. The points were in my judgment covered by Mr Starmer's submissions, even though his primary concern was to establish that Mrs Hurst had a right to an inquest which would be fully compliant with the international standards set under article 2 by McCann. I do not consider that the coroner's discretion to refuse to resume the inquest was exercised upon grounds which can stand scrutiny.