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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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    28.  On 6 March 1988 two men and a woman, believed to be members of the Provisional IRA engaged in terrorist operations, were shot dead by members of the SAS in Gibraltar. An inquest was held in Gibraltar, at which the coroner invited the jury to choose between three verdicts: "(a) Killed unlawfully, that is unlawful homicide. (b) Killed lawfully, that is justifiable, reasonable homicide. (c) Open verdict". The jury returned majority verdicts of lawful killing. Proceedings to challenge this outcome in Northern Ireland were struck out. The applicants then complained to the Commission that the United Kingdom had violated article 2 of the Convention. The Commission found by a majority that there had been no violation: McCann v United Kingdom (1995) 21 EHRR 97, p 151. But the Court held, following the opinion of the Commission, that article 2 of the Convention required by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the state: p 163, para 161. This procedural or investigative obligation as it came to be called, if foreshadowed at all by previous jurisprudence, had not been generally appreciated. But the Court found, on the facts, that various shortcomings in the conduct of the inquest of which complaint had been made had not "substantially hampered the carrying out of a thorough, impartial and careful examination of the circumstances surrounding the killings": pp 163-164, paras 162-163. The application succeeded, by a bare majority, on another ground not relevant to the present appeal.

    29.  In his application to the European Court against the United Kingdom, Mr Jordan complained (as he still complains) that his son Pearse had been unjustifiably killed on 25 November 1992 by Sergeant A of the RUC and that there had been no effective investigation into the circumstances of his death: Jordan v United Kingdom (2001) 37 EHRR 52, para 94. Thus he complained of breaches both of the substantive obligation in article 2 of the Convention (not in issue on this appeal) and also of the procedural, investigative obligation declared in McCann. In respect of this investigative obligation he made a number of complaints relating to the conduct of the police investigation, the role of the Director of Public Prosecutions, the lack of legal aid, the non-compellability of suspects under rule 9(2) of the unamended Rules and other matters which need not be considered here. He also complained of restrictions on the scope of the inquiry and the verdict in Northern Ireland. In this context the report referred to certain provisions of the 1959 Act and the 1963 Rules, and after quoting rules 15 and 16 as amended in 1980, stated:

    "65.  The forms of verdict used in Northern Ireland accord with this recommendation, recording the name and other particulars of the deceased, a statement of the cause of death (for example bullet wounds) and findings as to when and where the deceased met his death. In England and Wales, the form of verdict appended to the English Coroners Rules contains a section marked 'conclusion of the jury/coroner as to the death' in which conclusions such as 'lawfully killed' or 'killed unlawfully' are inserted. These findings involve expressing an opinion on criminal liability in that they involve a finding as to whether the death resulted from a criminal act, but no finding is made that any identified person was criminally liable. The jury in England and Wales may also append recommendations to their verdict.

    66.  However, in Northern Ireland, the coroner is under a duty to furnish a written report to the DPP where the circumstances of any death appear to disclose that a criminal offence may have been committed."

It was understood that rules 15 and 16 followed from recommendations of the Brodrick Committee on Death Certification and Coroners (Cmnd 4810) (see para 70) and reference was made to some domestic authority, attributing to the Court of Appeal in Jamieson a statement made by the Court of Appeal in Northern Ireland in Re Ministry of Defence's Application. In considering the scope of the inquest, the Court in its judgment noted that the inquest in McCann had been held to satisfy the state's procedural obligation under article 2 (para 125) but pointed to differences between the McCann inquest and inquests held in Northern Ireland (para 126). The first difference (para 127) related to the non-compellability of suspects. The Court then continued (paras 128-130):

    "128.  It is also alleged that the inquest in this case is restricted in the scope of its examination. According to the case law of the national courts, the procedure is a fact-finding exercise and not a method of apportioning guilt. The Coroner is required to confine his investigation to the matters directly causative of the death and not to extend his inquiry into the broader circumstances. This was the standard applicable in the McCann inquest also and did not prevent examination of those aspects of the planning and conduct of the operation relevant to the killings of the three IRA suspects. The Court is not persuaded therefore that the approach taken by the domestic courts necessarily contradicts the requirements of Art. 2. The domestic courts accept that an essential purpose of the inquest is to allay rumours and suspicions of how a death came about. The Court agrees that a detailed investigation into policy issues or alleged conspiracies may not be justifiable or necessary. Whether an inquest fails to address necessary factual issues will depend on the particular circumstances of the case. It has not been shown in the present application that the scope of the inquest as conducted so far has prevented any particular matters relevant to the death being examined.

    129.  Nonetheless, unlike the McCann inquest, the jury's verdict in this case may only give the identity of the deceased and the date, place and cause of death. In England and Wales, as in Gibraltar, the jury is able to reach a number of verdicts, including "unlawful death". As already noted, where an inquest jury gives such a verdict in England and Wales, the DPP is required to reconsider any decision not to prosecute and to give reasons which are amenable to challenge in the courts. In this case, the only relevance the inquest may have to a possible prosecution is that the Coroner may send a written report to the DPP if he considers that a criminal offence may have been committed. It is not apparent however that the DPP is required to take any decision in response to this notification or to provide detailed reasons for not taking any further action. In this case it appears that the DPP did reconsider his decision not to prosecute when the Coroner referred to him information about a new eye witness who had come forward. The DPP maintained his decision however and gave no explanation of his conclusion that there remained insufficient evidence to justify a prosecution.

    130.  Notwithstanding the useful fact-finding function that an inquest may provide in some cases, the Court considers that in this case it could play no effective role in the identification or prosecution of any criminal offences which may have occurred and, in that respect, falls short of the requirements of Art. 2."

The Court accordingly concluded (para 142) that "the inquest procedure did not allow any verdict or findings which could play an effective role in securing a prosecution in respect of any criminal offence which may have been disclosed". On this and other grounds Mr Jordan's complaint was upheld.

    30.  The facts considered by the House in R (Middleton) v West Somerset Coroner [2004] UKHL 10, [2004] 2 AC 182 resembled those in Jamieson. The deceased, having been in prison for nearly 17 years, took his own life. The verdict reached at a first inquest had been quashed for want of sufficient enquiry, and it was accepted that a second inquest had fully explored the issues surrounding the death. The mother of the deceased sought judicial review asking that the jury's finding at the second inquest, attributing the death of the deceased to the failure of the prison authorities to take adequate steps to prevent it, be publicly recorded. It was not, therefore, a case, like that in Re Ministry of Defence's Application, Re Bradley's Application, McCann and the present case, in all of which the deceased had been directly killed by agents of the state. In its considered opinion, the Appellate Committee first considered what if anything the Convention required (by way of verdict, judgment, findings or recommendations) of a properly conducted official investigation into a death involving, or possibly involving, a violation of article 2. To answer that question the Committee reviewed the Strasbourg jurisprudence, contrasting McCann and Jordan, and concluded in para 16:

    "16.  It seems safe to infer that the state's procedural obligation to investigate is unlikely to be met if it is plausibly alleged that agents of the state have used lethal force without justification, if an effectively unchallengeable decision has been taken not to prosecute and if the fact-finding body cannot express its conclusion on whether unjustifiable force has been used or not, so as to prompt reconsideration of the decision not to prosecute. Where, in such a case, an inquest is the instrument by which the state seeks to discharge its investigative obligation, it seems that an explicit statement, however brief, of the jury's conclusion on the central issue is required."

The Committee then considered whether the regime for holding inquests established by the 1988 Act and the 1984 Rules, as hitherto understood and followed in England and Wales, met the requirements of the Convention. It approved Jamieson as an accurate summary of existing law (para 28), and concluded that the article 2 investigative obligation might in some cases be discharged by criminal proceedings (para 30) and in others by a short form of verdict as in McCann (para 31). But the Committee accepted that in other cases a strict Jamieson approach would not meet the Convention requirement (para 31) and held the conclusion to be inescapable (para 32) "that there are some cases in which the current regime for conducting inquests in England and Wales, as hitherto understood and followed, does not meet the requirements of the Convention". It therefore turned to consider the third question, whether that regime could be revised so as to meet the requirements of the Convention, and if so, how. It concluded (paras 34-38) that the regime could be revised by invoking section 3 of the Human Rights Act 1998 but that the scheme enacted by Parliament should be respected save to the extent that a change of interpretation was required to avoid a breach of the Convention. To that end, "how" in section 11(5)(b)(ii) of the 1988 Act and rule 36(1)(b) of the 1984 Rules should where necessary be interpreted as meaning not simply "by what means" but "by what means and in what circumstances". It was recognised (para 36) that there need not be a change of approach in all cases. It was also pointed out (para 37) that the subsection and the rule did not preclude conclusions of fact as opposed to expressions of opinion and that there could be no objection to a judgmental conclusion of a factual nature, directly relating to the circumstances of the death or (para 45) to a narrative verdict or a verdict given in answer to a coroner's questions.

    31.  In Middleton, as in R(Amin) v Secretary of State for the Home Department [2003] UKHL 51, [2004] 1 AC 653 heard before it and R(Sacker) v West Yorkshire Coroner [2004] UKHL 11, [2004] 1 WLR 796 heard with it, no issue was raised on and no consideration given to the applicability of the 1998 Act to a death occurring before the 1998 Act came into force. On that question these decisions are not authority. But, as my noble and learned friend Lord Brown of Eaton-under-Heywood points out in his opinion in R(Hurst) v Commissioner of Police for the Metropolis [2007] UKHL 13, paras 39, 42-47, 60-65 the retrospectivity issue (whether based on section 6 or section 3 of the 1998 Act) was resolved adversely to applicants, save where reliance can be placed on sections 7(1)(b) and 22(4) of the Act, by the decision of the House in In re McKerr [2004] UKHL 12, [2004] 1 WLR 807.

Mr Jordan's applications

    32.  In its decision now under appeal in Mr Jordan's case, the Court of Appeal ruled on appeals against two decisions of Kerr J, dismissing two applications for judicial review made by Mr Jordan against the Lord Chancellor. The first ground in the first application related to the Lord Chancellor's delay in amending rule 9(2) of the 1963 Rules. Kerr J dismissed this complaint on the ground that an amendment was imminent. The rule has since been amended and no issue now arises on it. The second ground related to the unavailability of a verdict of unlawful killing in Northern Ireland. This was also the basis of the second application, directed to the coroner's decision on 9 January 2002 to conduct the inquest in accordance with existing law and practice, and both challenges have been treated as raising this same issue. In his judgment on this point ([2002] NI 151) Kerr J referred to the recent judgment of the European Court in Jordan and observed that the deficiencies there identified related not to the nature of the inquiry but to its effect, in the absence of an obligation on the DPP to reconsider a decision not to prosecute when criminal offences were identified at an inquest. He considered that a full investigation was possible within the existing rules and giving the jury a right to return a verdict of unlawful killing would not fill the gap.

    33.  In his judgment on appeal ([2005] NI 144) Nicholson LJ reviewed at length the history and the authorities. He relied on the fact (paras 27, 39) that the House had invoked section 3 of the 1998 Act in Middleton and was prepared to hold that Jamieson and Re Ministry of Defence's Application had been implicitly overruled or would have been if the House had been unable to rely on section 3. He shared the view of Kerr J (para 36) that, if the jury was entitled to make findings of fact and reach conclusions of fact on the central issue in the case, namely whether the force used was unjustified, a verdict of unlawful killing was unnecessary, and also agreed with the judge that the coroner had been right not to leave to the jury a verdict of lawful or unlawful killing or an open verdict. But he now considered, in the light of decisions in the House and the European Court, that the jury had a wider fact-finding role than indicated in Re Bradley's Application. Girvan J agreed with the result, and with Kerr J, but for somewhat different reasons. He did not understand McKerr to preclude reliance on the 1998 Act, section 3 was applicable and therefore the inquest should proceed in accordance with the guidance given in Middleton (paras 64-68). McCollum LJ agreed with the judgment of Girvan J.

Mr Jordan's appeal: the issues

    34.  The parties agreed four issues for decision by the House. They are:

    "(1)  Does section 3 of the Human Rights Act 1998 apply to the interpretation of section 31(1) of the Coroners Act (Northern Ireland) 1959 and rules 15 and 16 of the Coroners (Practice and Procedure) Rules (Northern Ireland) 1963 in cases where the death pre-dates 2 October 2000 in the light of the decision in In Re McKerr?

    (2)  Does the Human Rights Act 1998 apply to the investigation of the death of the deceased?

    (3)  Were the decisions in Re Jamieson and Re Ministry of Defence's Application implicitly overruled by Middleton?

    (4)  Alternatively, should the decisions in Re Jamieson and Re Ministry of Defence's Application be expressly overruled now?"

    35.  The decision of the House in R(Hurst) v Commissioner of Police for the Metropolis [2007] UKHL 13 makes plain the answers to these questions. I summarise the answers very briefly. (1) No. The decision in McKerr precludes reliance on section 3 of the 1998 Act in any inquest into a death occurring before the Act came into force on 2 October 2000. (2) No. The 1998 Act does not apply to the investigation of the death of the deceased. (3) No. Jamieson was approved by the House in Middleton. It continues to apply to inquests into deaths occurring before 2 October 2000 and to inquests into deaths occurring after that date save where re-interpretation of the relevant legislation and rules in accordance with the ruling of the House in Middleton is called for to avoid violation of a party's Convention right to an investigation meeting the requirements of article 2 of the Convention. The decision of the House in Middleton did not overrule the decision in Re Ministry of Defence's Application. (4) No. Jamieson should not be overruled. Nor, to the extent that it is authoritative, should Re Ministry of Defence's Application, but the judgments in that case should be read subject to what is said below.

    36.  The argument addressed to the House by Mr Nicholas Blake QC was not directed to the agreed issues but rested on a submission with which, because of its practical and human importance, the House should deal. He contended that Re Bradley's Application, although invoking Jamieson, Re Ministry of Defence's Application and other authority, had had the effect of constricting a jury's role in finding facts and returning verdicts to an extent not justified by the governing legislation or the authorities in the case of a death directly caused by an agent of the state. Mr Bernard McCloskey QC for the Lord Chancellor resisted this argument, taking his stand on section 31(1) of the 1959 Act and rules 15 and 16 of the 1963 Rules.

    37.  There was no issue between the parties concerning the purpose or scope of an inquest. Thus I take it to be common ground that the purpose of an inquest is to investigate fully and explore publicly the facts pertaining to a death occurring in suspicious, unnatural or violent circumstances, or where the deceased was in the custody of the state, with the help of a jury in some of the most serious classes of case. The coroner must decide how widely the inquiry should range to elicit the facts pertinent to the circumstances of the death and responsibility for it. This may be a very difficult decision, and the enquiry may (as pointed out above) range more widely than the verdict or findings. It is on the latter alone that the parties join issue.

    38.  I agree with the Northern Irish courts, and Mr McCloskey, that a jury in Northern Ireland may not return a verdict of unlawful or lawful killing. Such a verdict is permissible in England and Wales under the 1984 Rules because the prohibition in rule 42 is on the framing of a verdict in such a way as to determine any question of criminal liability "on the part of a named person". Provided no person is named, therefore, such a verdict may be returned. Rule 16 of the 1963 Rules is more absolute, prohibiting the expression of any opinion on questions of criminal liability. It is not suggested that rule 16 is ultra vires, and a verdict of lawful killing (no less than unlawful killing) does express an opinion on a question of criminal liability. The references to lawful and unlawful killing in form 22 scheduled to the 1984 Rules are conspicuously omitted in the Northern Irish form 22, before and after its amendment.

    39.  I also agree with the Northern Irish courts, and with Mr Blake, that nothing in the 1959 Act or the 1963 Rules prevents a jury finding facts directly relevant to the cause of death which may point very strongly towards a conclusion that criminal liability exists or does not exist. That, as it seems to me with respect, was what the jury did in Re Bradley's Application. The findings which were attacked (quoted in para 26 above) expressed the jury's findings based on the evidence they heard, as did the findings which were not attacked. Their tendency, if accepted, was to exonerate the soldiers, but in my opinion the jury were not led into commenting on matters of criminal liability. They were making findings of fact and drawing inferences of fact, the traditional function of a jury. There were clearly procedural features of this inquest which, I do not doubt, justified the decision to quash the inquisition, but I do not with respect think that it was justified by breach of rule 16.

    40.  There is a danger, if a coroner gives the jury in draft a detailed factual summary, that he may appear or be felt to dictate their conclusion. But if the central facts are not contentious or if, as in Re Bradley's Application, the draft is agreed by the parties, there may be advantages in such a course since the jury's attention will be concentrated on, or questions may be framed as to, the factual issues which they must decide. There can be no objection to a very brief verdict, elaborated by more detailed factual findings. Where the jury's factual findings point towards the commission of a criminal offence, or it appears to the coroner that an offence may have been committed, the coroner's duty under section 35(3) of the Justice (Northern Ireland) Act 2002 is to report promptly to the DPP, who should no doubt take such action as is appropriate. He would plainly be failing in his duty if, receiving a report from a coroner indicating the possible commission of a criminal offence, he did not consider or reconsider the case with care.

    41.  For different reasons, I have reached the same conclusion as the Court of Appeal. In the forthcoming, but lamentably delayed, inquest the jury may not return a verdict of lawful or unlawful killing but may make relevant factual findings pertinent to the killing of Pearse Jordan.

Mr McCaughey's application

    42.  On Mr McCaughey's application for judicial review, Weatherup J made declarations that the Chief Constable should furnish to the police what are described in para 3 above as "the withheld documents" and that the investigation into the deaths had not proceeded promptly and with reasonable expedition for the purposes of article 2 of the Convention. On the latter point, the Court of Appeal (Kerr LCJ, Campbell LJ and Weir J) allowed the Chief Constable's appeal, holding on the authority of McKerr that section 3 of the 1998 Act did not apply to an inquest into a death occurring before the Act came into force and that there was accordingly no obligation to hold an article 2-compliant investigation into the deaths. This conclusion involved an unexplained departure from the Court of Appeal's decision on Mr Jordan's appeal, which the court was on ordinary rules of precedent required to follow even if they thought it inconsistent with McKerr. But for reasons given above and in the decision of the House in Hurst, this later decision was right in its understanding and application of McKerr and the earlier decision was wrong. Further elaboration of this issue is unnecessary.

    43.  The disclosure issue turns on the correct construction of section 8 of the 1959 Act, quoted in para 10 above. In its judgment on this point the Court of Appeal noted (para 30) the change of tense in section 8 ("is able to obtain") as compared with section 22 of the 1846 Act ("shall have been able to obtain") but noted the obligation in section 8 to give notice "together with" such information, suggesting the simultaneous supply of the notice and the information. That interpretation, the court held (para 31), was strengthened by the consideration that the purpose of providing information to the coroner in the first instance was to enable him to decide whether to hold an inquest rather than to provide him with the material on which any inquest should be conducted. The court recognised (para 32) that this interpretation was very unsatisfactory but thought it inescapable. It urged legislation to rectify what it regarded as an anomalous position (para 37).

    44.  The point is in practical terms a narrow one, since Mr McCloskey for the Chief Constable did not dispute in the Court of Appeal (para 36) that the police had hitherto regarded themselves as under a continuing obligation to provide relevant information to the coroner. In my opinion, differing with diffidence from the Court of Appeal, the police were right to do so. Plainly, section 8 requires the police to give immediate notice to the coroner in the circumstances specified, and to give the coroner such information as they are then able to obtain. But the coroner has to decide not only whether to hold an inquest (for which purpose he must make his own investigation: section 11), but also whether a jury is necessary or desirable, and what the inquest should investigate. It would so plainly frustrate the public interest in a full and effective investigation if the police were legally entitled, after giving the initial section 8 notice, to withhold relevant and perhaps crucial information coming to their notice thereafter, that I cannot accept that the Senate and the House of Commons of Northern Ireland intended such a result. It is clear that the police have regarded the function of continuing to supply information gathered after the initial notice as the performance of a duty and in my opinion section 8, on a purposive construction, requires no less.

    45.  I would accordingly allow Mr McCaughey's appeal on this point, and declare that section 8 of the 1959 Act requires the Police Service of Northern Ireland to furnish to a coroner to whom notice under section 8 is given such information as it then has or is thereafter able to obtain (subject to any relevant privilege or immunity) concerning the finding of the body or concerning the death.

    46.  The parties to both appeals are invited to make written submissions on costs within 14 days.

LORD RODGER OF EARLSFERRY

My Lords,

    47.  I have had the advantage of considering in draft the speech of my noble and learned friend Lord Bingham of Cornhill. I agree with it and for the reasons he gives I would dispose of the appeals as he proposes.

BARONESS HALE OF RICHMOND

My Lords,

    48.  For the reasons given in the opinion of my noble and learned friend, Lord Bingham of Cornhill, with which I agree, I too would dispose of these appeals in the manner which he proposes.

 
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