Judgments - Jordan (AP) (Appellant) v. Lord Chancellor and another (Respondents) (Northern Ireland) McCaughey (AP) (Appellant) v. Chief Constable of the Police Service Northern Ireland) (Respondent) (Northern Ireland)

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    11.  By section 13 of the 1959 Act a coroner has some discretion whether to hold an inquest, but the Attorney General has power under section 14 to direct him to do so. As enacted, section 18 provided, in terms plainly modelled on section 13(2) of the 1926 Act:

    "18.(1) If it appears to the coroner, either before he proceeds to hold an inquest or in the course of an inquest begun without a jury, that there is reason to suspect that-

      (a) the deceased person came by his death by murder, manslaughter, child destruction, or infanticide; or

      (b) the death occurred in prison; or

      (c) the death was caused by an accident, poisoning or disease notice of which is required, under or in pursuance of any enactment, to be given to a government department, or to any inspector or other officer of a government department; or

      (d) the death was caused by an accident arising out of the use of a vehicle in a road or other public place; or

      (e) the death occurred in circumstances the continuance or possible recurrence of which is prejudicial to the health or safety of the public or any section of the public;

    he shall instruct the district inspector of the district where the body is found, or in his absence a constable acting for him, to summon a sufficient number of persons of full age and capacity to attend and be sworn as jurors upon such inquest at the time and place specified by the coroner.

    (2) If in any case other than those referred to in sub-section (1) it appears to the coroner, either before or in the course of an inquest begun without a jury, that it is desirable to summon a jury, he may proceed to cause a jury to be summoned in accordance with the said sub-section."

This section was amended by article 12 of the Criminal Justice (Northern Ireland) Order 1980 by deleting paragraphs (a) and (d). Section 23 required the coroner, after the inquest, to send to the appropriate registrar of deaths a certificate giving the particulars required to be registered concerning the death, the findings with regard to those particulars and the cause of death.

    12.  Section 31(1) of the 1959 Act has featured prominently in the argument on this appeal. It remains in force unamended and provides:

    "(1)  Where all members of the jury at an inquest are agreed they shall give, in the form prescribed by rules under section thirty-six, their verdict setting forth, so far as such particulars have been proved to them, who the deceased person was and how, when and where he came to his death."

Section 36 gave power to the Ministry of Home Affairs, now the Lord Chancellor, to make rules governing inquests and to prescribe forms of verdict for use at inquests.

    13.  In exercise of the power conferred by section 36, the Ministry made the Coroners (Practice and Procedure) Rules (Northern Ireland) 1963 (SI 1963/199). By rule 3 the coroner, on being notified of a death, must make such inquiries and take all such steps as may be required to enable him to decide whether or not an inquest is necessary. Rule 9(1) gave effect to the traditional witness privilege against self-incrimination (slightly expanded by amendment in 1980), but was supplemented in subsection (2) by a more extensive privilege which was disapproved by the European Court of Human Rights in Jordan v United Kingdom, above, and has since been amended. The unamended rule provided:

    "(2)  Where a person is suspected of causing the death, or has been charged or is likely to be charged with an offence relating to the death, he shall not be compelled to give evidence at the inquest."

In response to the Jordan judgment, rule 9 was amended by the Coroners (Practice and Procedure) (Amendment) Rules (Northern Ireland) 2002 (SI 2002/37) to read

    "(1)  No witness at an inquest shall be obliged to answer any question tending to incriminate himself or his spouse.

    (2)  Where it appears to the coroner that a witness has been asked such a question, the coroner shall inform the witness that he may refuse to answer."

    14.  Rule 15 of the 1963 Rules is in identical terms to rule 26 of the 1953 Rules applicable to England and Wales, save that rule 26(c) is omitted and the registration particulars are those required by the Northern Irish Registration Acts. Rule 16 of the 1963 Rules was in the same terms as rule 27 of the 1953 Rules, save that it made explicit that the coroner and the jury were not to express any opinion on questions of criminal or civil liability. The rule was amended in 1980 by the Coroners (Practice and Procedure) (Amendment) Rules (Northern Ireland) 1980 (SI 1980/444) by deleting the proviso to the rule. Rule 22 of the 1963 Rules reflected section 31(1) of the 1959 Act. It provided:

    "22.(1) After hearing the evidence the coroner, or, where the inquest is held by a coroner with a jury, the jury, after hearing the summing up of the coroner shall give a verdict in writing, which verdict shall, so far as such particulars have been proved, be confined to a statement of who the deceased was, and how, when and where he died.

    (2)  When it is proved that the deceased took his own life the verdict shall be that the deceased died by his own act, and where in the course of the proceedings it appears from the evidence that at the time the deceased died by his own act the balance of his mind was disturbed, the words 'whilst the balance of his mind was disturbed' may be added as part of the verdict."

In 1980 the last eleven words of para (1) were replaced by "the matters specified in rule 15", the only effect of which was to include reference to the registration particulars. Rule 23(1) of the 1963 Rules provided:

    "(1)  Any verdict given in pursuance of Rule 22 shall be recorded in the form set out in the Third Schedule."

Rule 23(2) reproduced in identical language rule 34 of the 1953 Rules. It was replaced in 1980 by a sub-rule providing:

    "(2) A coroner who believes that action should be taken to prevent the occurrence of fatalities similar to that in respect of which the inquest is being held, may announce at the inquest that he is reporting the matter to the person or authority who may have power to take such action and report the matter accordingly."

    15.  Rule 41 provided that the forms set out in the Third Schedule, with such modifications as circumstances might require, might be used for the purposes for which they were expressed to be applicable. Form 21 in the Third Schedule provided a standard form of certificate to be sent by the coroner to the registrar. Provision was made for identification of the disease or condition directly leading to death, antecedent causes (morbid conditions, if any, giving rise to the direct cause of death, stating the underlying condition last) and other significant conditions contributing to the death but not related to the disease or condition causing it. The last three columns of the form provided for entries recording "How injuries were sustained", "(a) Date and place where accident occurred, and (b) whether deceased was at work" and "Verdict". When the Rules were amended in 1980 these columns were deleted and the simple entry "Findings" was substituted.

    16.  Form 22 in the Third Schedule provided a standard form of verdict on inquest. The cause of death was to be stated and was defined as "the immediate cause of death and the morbid conditions (if any) giving rise to the immediate cause of death". The form stated that one of the following forms of words should be used to express the verdict of the jury or the conclusion of the coroner as to the death: "died from natural causes; died as the result of an accident/misadventure; died by his own act [with the addition, where appropriate, of 'whilst the balance of his mind was disturbed']; execution of sentence of death; open verdict (to be used where none of the above forms of verdict is applicable)". By the 1980 amendment a new form 22 was substituted. This new form provided for inclusion of findings as to the cause of death in the same manner as in form 21. For the forms of words previously provided to express the verdict of the jury or the conclusion of the coroner there was substituted, in line with the new form 21, "Findings".

    17.  The Prosecution of Offences (Northern Ireland) Order 1972 (SI 1972/538)(NI.1) provided in article 6(2) that "Where the circumstances of any death investigated or being investigated by a coroner appear to him to disclose that a criminal offence may have been committed he shall as soon as possible furnish to the Director [of Public Prosecutions] a written report of those circumstances". This provision was repealed by section 86 of and Schedule 13 to the Justice (Northern Ireland) Act 2002, but it was replaced in section 35(3) of that Act by a provision to very similar effect.

    18.  Section 56 of the Criminal Law Act 1977 provided that the purpose of a coroner's inquest should not include the finding of any person guilty of murder, manslaughter or infanticide and that a coroner's inquisition should in no case charge a person with any of those offences. This section did not apply to Northern Ireland, but it seems that the same result had been achieved there by the 1959 Act: see Leckey and Greer, Coroners' Law and Practice in Northern Ireland (1998), p 19, f.n. 90.

    19.  The Coroners Rules 1984 (SI 1984/552) now have effect as if made under section 32 of the Coroners Act 1988 (see below), by virtue of section 17(2)(b) of the Interpretation Act 1978, and apply only to England and Wales. They replace the 1953 Rules and a number of other Rules made between 1956 and 1983. Rule 36(1) of the 1984 Rules reproduces rule 26 of the 1953 Rules, omitting (c) (relating to murder, manslaughter and infanticide) and so reproduces the effect of rule 15 of the 1963 Rules. Rule 36(2) reproduces the effect of rule 27 of the 1953 Rules and rule 16 of the 1963 Rules, but without the proviso to each of those rules. Rule 42 of the 1984 Rules follows but differs (in its reference to criminal liability) from rule 33 of the 1953 Rules and (in its reference to a named person) from rule 16 of the 1963 Rules. It provides:

    "No verdict shall 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".

Rule 43 of the 1984 Rules reproduces rule 23(2) of the 1963 Rules as amended by substitution of a new paragraph in 1980. Rule 60 provides that the forms set out in Schedule 4, with such modifications as circumstances may require may be used for the purposes for which they are expressed to be applicable. Schedule 4 includes a model form of inquisition in form 22. This is closely modelled on form 18 scheduled to the 1953 Rules (including, as one possible conclusion, "CD was killed lawfully") and is similar in effect to form 22 scheduled to the 1963 Rules before that rule was amended in 1980. But it includes one sentence not found in any previous version of the form in Northern Ireland or England and Wales:

    "(c)  In the case of murder, manslaughter or infanticide it is suggested that the following form be adopted:-

    CD was killed unlawfully".

This verdict has been used in cases such as R v Director of Public Prosecutions, Ex p Manning [2001] QB 330.

    20.  The law in England and Wales was consolidated with amendments in the Coroners Act 1988. By section 8 the coroner is subject to a duty to hold an inquest:

    "(1)  Where a coroner is informed that the body of a person ('the deceased') is lying within his district and there is reasonable cause to suspect that the deceased-

      (a) has died a violent or unnatural death;

      (b) has died a sudden death of which the cause is unknown; or

      (c) has died in prison or in such a place or in such circumstances as to require an inquest under any other Act,

    then, whether the cause of death arose within his district or not, the coroner shall as soon as practicable hold an inquest into the death of the deceased either with or, subject to subsection (3) below, without a jury."

Subsection (3) requires a jury to be summoned where, among other things, the death occurred in prison or at the hands of the police. This is a simpler provision than section 13(2) of the 1926 Act or section 18 of the 1959 Act. Section 11(5) of the Act, in line with section 4(3) of the 1887 Act, rule 26 of the 1953 Rules, section 31(1) of the 1959 Act, rule 15 of the 1963 Rules and rule 36(1) of the 1984 Rules, provides:

    "(5)  An inquisition-

      (a) shall be in writing under the hand of the coroner and, in the case of an inquest held with a jury, under the hands of the jurors who concur in the verdict;

      (b) shall set out, so far as such particulars have been proved-

        (i) who the deceased was; and

        (ii) how, when and where the deceased came by his death, and …".

    21.  There are obvious differences between the legislative regime applicable to inquests in Northern Ireland as compared with that in England and Wales. For example, the mandatory duty laid on coroners by section 8 of the 1988 Act may be contrasted with the duty, expressed as if discretionary, in section 13 of the 1959 Act, although, given the effect of sections 14 and 18 of the 1959 Act, this difference is superficial. Similarly, the forms of verdict suggested in the 1953 and 1984 Rules are more detailed than those in the 1963 Rules or the 1980 amendment, although "Findings" is not in itself a restrictive heading. Much more striking than the differences between the two legislative regimes as they have developed over time, however, are the similarities. In both jurisdictions recognisably similar office-holders are conducting or directing recognisably similar investigations and enquiries in recognisably similar situations for recognisably similar purposes. For reasons that are all too well known, Northern Ireland has experience of deaths caused by agents of the state to an extent not experienced in England and Wales. But deaths so caused, for all the problems of security and evidence which any investigation may raise, are not less in need of investigation and decision than violent, unnatural or suspicious deaths otherwise caused. It would at first blush be surprising if the differences between the two regimes, such as they are, were to lead to markedly different outcomes.

The authorities

    22.  As there has been cross-fertilisation between the regulatory regimes applicable in Northern Ireland and England and Wales, so there has been cross-fertilisation between the lines of authority in the two jurisdictions. But both have also been strongly influenced by the impact of decisions made in Strasbourg. It is necessary briefly to touch on the most significant decisions in the immediate past.

    23.  In R v Coroner for North Humberside and Scunthorpe, Ex p Jamieson [1995] QB 1 the deceased had taken his own life while serving a long sentence of imprisonment. At the inquest held into the death, the coroner had directed the jury not to return any verdict in which the words "lack of care" formed a part. This direction was unwelcome to the brother of the deceased, who sought a jury verdict recording that inadequate steps had been taken by the prison authorities to prevent the deceased taking his own life. He moved for judicial review to challenge the coroner's ruling, and the focus of argument in the Queen's Bench Divisional Court and the Court of Appeal was on the permissible jury verdict or finding in a case where the death had not been caused by an agent of the state but where the state was said to have failed to take adequate steps to prevent the fatality. In its judgment the Court of Appeal summarised the relevant legislative and administrative history of inquests since 1887, with particular reference to self-neglect and lack of care, and reviewed the leading authorities decided during the preceding decade. The court expressed its conclusions in a series of numbered propositions, almost all of which were directed to the form of the verdict. It ruled (p 24, sub-paragraph (2)) that "how" in section 11(5)(b)(ii) of the 1988 Act and rule 36(1)(b) of the 1984 Rules meant "by what means", a question directed to how the deceased came by his death. While a verdict could properly incorporate a brief, neutral, factual statement, the verdict was to be factual, expressing no judgment or opinion and it was not the jury's function to prepare detailed factual statements (p 24, sub-paragraph (6)). The issue in Jamieson did not concern the permissible breadth of the inquiry at an inquest, but it was accepted (p 24, sub-paragraph (5)) that in case of conflict the statutory duty to ascertain how the deceased came by his death must prevail over the prohibition in rule 42 of appearing to determine any question of criminal liability on the part of a named person or any question of civil liability. The court further recognised (p 26, sub-paragraph (14)) the duty of the coroner

    "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."

    24.  Two points may be made on this authority. First, the thrust of the judgment was to discourage verdicts referring to causes indirectly and perhaps remotely contributing to a death, which were at the time routinely sought at inquests to bolster claims in subsequent civil litigation. Secondly, and very shortly after its decision in Jamieson, the Court of Appeal had occasion to consider the permissible breadth of an inquest investigation in R v Inner West London Coroner, Ex p Dallaglio [1994] 4 All ER 139. Simon Brown LJ (at p 155) recognised some tension between the duty to inquire in section 8 and the limitations on verdict imposed by section 11(5)(b) of the 1988 Act and rule 36 of the 1984 Rules, acknowledging that "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 …". This was echoed in my own judgment (p 164), where it was observed that the investigation need not be limited to the last link in the chain of causation and that it was for the coroner to decide, on the facts of a given case, at what point the chain of causation became too remote to form a proper part of his investigation.

    25.  Re Ministry of Defence's Application [1994] NI 279 was argued in the Court of Appeal in Northern Ireland (Hutton LCJ, MacDermott LJ and Nicholson J) before the Court of Appeal had heard argument in Jamieson, but judgment was given after the Court of Appeal judgment in that case. The alleged facts were that one or other or both of two soldiers (A and B) had shot dead three men, two of them said to be armed, who were robbing a bookmaker's premises. An inquest was ordered. A and B gave statements to the coroner, but indicated in reliance on rule 9(2) of the 1963 Rules (at that time unamended) that they were not willing to give evidence. The coroner proposed to call other soldiers, including C, G and H, not directly involved in the shooting. This prompted the Secretary of State for Defence to issue a public interest immunity certificate. This was however qualified in its terms, seeking only to prevent soldiers C, G, H from giving oral evidence unless effectively screened from observation by any save the coroner, the jury and the legal representatives of interested parties. The coroner, giving detailed reasons for his decision, ruled in effect that a certificate could not properly be given in relation to oral evidence and that the use of screens was a matter to be resolved at the hearing. On the Ministry's application for judicial review of this ruling, McCollum J differed from the coroner on both points, but instead of quashing the coroner's decision remitted it to him for re-consideration. The personal representatives of the three deceased appealed against the judge's decision but the Court of Appeal agreed with the judge's order. Most of the Lord Chief Justice's lengthy judgment was directed to the issues raised and argued. But at p 307 he addressed a view, which he took to be implicit in the coroner's ruling, that it was the coroner's duty to conduct an inquiry into a death to provide the answers to all the questions related to the death which the next of kin may wish to raise. In that context the Lord Chief Justice referred to the 1959 Act, the 1963 Rules and the 1980 amendments, and quoted at length from the judgment of Simon Brown LJ in R v HM Coroner for Western District of East Sussex, Ex p Homberg (1994) 158 JP 357 where he said (at p 369) that "how" means "by what means" rather than "in what broad circumstances". He also quoted from the judgment of the Court of Appeal in Jamieson. He concluded (p 314) that the purpose of an inquest should be confined to allaying rumours and suspicions about how the deceased came by his death and not to allaying rumour and suspicions about the broad circumstances in which the deceased came by his death. MacDermott LJ also considered the proper scope of inquiry at an inquest (pp 315-316), agreeing with the Lord Chief Justice: the scope of the inquiry should not be allowed to drift into uncharted seas of rumour and allegation; the coroner should investigate the facts which it appears are relevant to the statutory issues before him. Nicholson J (p 318) briefly expressed a similar conclusion. It may be doubted whether these observations were necessary for determining the appeal, but nothing was said to suggest an intention to diverge from current English authority, although that authority was not of course binding.

    26.  The same underlying facts gave rise to Re Bradley and another's Application [1995] NI 192 and Re Ministry of Defence's Application. Three men, two of them carrying realistic imitation weapons, were shot dead by off-duty soldiers while robbing a bookmaker's premises. An inquest was held, but delayed pending resolution of the challenge to the Secretary of State's certificate in Re Ministry of Defence's Application. The inquest was resumed, and concluded at a very late hour on the final day when the jury reached a verdict. The judgment of Carswell LJ, sitting at first instance, records in some detail the sequence of events before the verdict. Having summed up the evidence to the jury, the coroner gave them a typewritten document of two pages which he had prepared. This consisted of a narrative summary, interspersed with eight questions which the jury were impliedly invited to answer. Counsel for the Ministry of Defence and counsel for the families both objected to the questions in the coroner's draft, which was then retrieved from the jury, evidently to their distress. The jury were then given a revised draft in which the factual narrative remained, with no more than minimal alteration, but the questions were omitted. It is not clear whether the jury again received the original draft also. In due course the jury returned with a written verdict. The coroner asked the jury to reconsider part of their finding as potentially infringing rule 16 of the 1963 Rules as amended, and he reminded them of that rule. The jury then returned with their final verdict. This adopted the factual summary submitted to the jury by the coroner, which was in a form agreed by all parties (pp 204, 206). But into this the jury interpolated findings which, in effect, answered six of the eight questions previously posed by the coroner. In their application for judicial review, the relatives of one of the deceased complained of two of the jury's interpolations. One (as punctuated by the judge: pp 200, 209) was: "Given that the men were dressed in balaclavas, combat jackets and gloves and carrying arms, it would be natural to believe it was a terrorist operation". The second was: "As soldier A approached we believe that [one of the deceased] made a movement towards his feet and as such the soldier had no alternative but to take the action he did". It appears that the submission of draft factual findings to the jury was usual in inquests in Northern Ireland at the time.

    27.  Much of Carswell LJ's judgment was directed to the length of time for which the jury sat on the final day, and is irrelevant for present purposes. Relevantly, he summarised the statutory background in Northern Ireland, commenting (p 198) on "a plainly discernible trend in the provisions governing inquests over many years, whereby successive governments have sought to restrict the power of inquest juries to express opinions about the death of deceased persons." He referred to Jamieson as showing a similar trend in England and Wales. Turning to the facts, the judge considered (p 199) that none of the questions in the coroner's initial draft invited the jury in terms to offer views about criminal or civil liability, but that "the conclusions which several of the questions invited the jury to draw and express were more than mere factual statements. It might justifiably be said that in posing those questions to the jury the coroner was asking them to draw conclusions on issues which would form essential matters in a criminal or civil trial". Counsel for the applicants did not seek to criticise (p 204) the form of the draft findings furnished by the coroner to the jury, but the judge expressed reservations about the practice. He held, citing Jamieson, that the word "findings" in the Rules as amended in 1980 contemplated a brief encapsulation of the essential facts and, although not condemning the practice outright, thought (p 205) it generally "undesirable" for coroners to give juries draft findings before they retired. He concluded (p 205) that the coroner's first draft findings virtually invited the jury to comment on matters pertaining to criminal or civil liability, and that was what the jury had done, in breach of rule 16, when they completed their own findings. The judge read the jury's findings (p 206) as in essence a finding of justifiable homicide, a conclusion of which the relatives were entitled to complain, as the soldiers would have been had the contrary finding been made. In the result, the inquisition was quashed and a new inquest ordered, both because of the procedural irregularity (p 202) and because of the verdict (p 206).

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