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)
49. For the reasons given by my noble and learned friend, Lord Mance, I too have difficulty understanding why a verdict of lawful or unlawful killing should be available in England and Wales but not in Northern Ireland. The statutory basis for the verdict in each case is virtually identical. In Northern Ireland, the jury is required to give 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": Coroners Act (Northern Ireland) 1959, section 31(1). In England and Wales, an inquisition "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": Coroners Act 1988, section 11(5)(b). A finding of lawful or unlawful killing is consistent with rule 42 of the Coroners Rules 1984, although these prohibit "the framing of a verdict in such a way as to appear to determine" any question of criminal liability on the part of a named person or civil liability. Why then should it not be consistent with rule 16 of the Northern Ireland Rules, which prohibit "the expression of any opinion on questions of criminal or civil liability"? The object is to avoid attributing blame to any individual or individuals, while being as precise as the evidence permits in answering the four factual questions posed by the legislation. In reality, if that is done, then the difference of opinion between my noble and learned friends will make little difference in practice. The inquest will have done its job.
LORD BROWN OF EATON-UNDER-HEYWOOD
50. I have had the advantage of reading 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 too would make the orders proposed.
51. I gratefully adopt the account of the facts and of the statutory background given by my noble and learned friend Lord Bingham of Cornhill in his opinion which I have had the advantage of reading in draft.
52. In Mr Jordan's appeal, I agree with the answers which Lord Bingham gives in paragraph 35 of his opinion on the four issues put before the House for decision. On the question which arises in both Mr Jordan's and Mr McCaughey's appeals, as to what findings or verdict may a coroner's jury return, I have the misfortune to disagree with the views expressed by Lord Bingham, with which Lord Rodger of Earlsferry and Lord Brown of Eaton-under-Heywood concur. In my view, there is no reason why a coroner's verdict in Northern Ireland may not reach a verdict of unlawful as well as lawful killing, and I would have allowed the appeal from the decision of the Court of Appeal in Northern Ireland dated 10 September 2004 so far as it determined the contrary.
53. A Northern Ireland coroner's jury is on any view entitled to go as far as Lord Bingham indicates in paragraphs 39 and 40 of his opinion. But he concludes in paragraph 38 that a Northern Ireland jury may not return a verdict of unlawful or lawful killing.
54. Such a verdict is permissible in England and Wales, notwithstanding the provisions of rule 42 of the Coroners Rules 1984 (SI 1984/552), whereby:
If it is consistent with the English and Welsh prohibition on appearing "to determine any question of . civil liability" to reach a verdict of unlawful (or lawful) killing, I do not see why such a verdict should be inconsistent with the prohibition in rule 16 of the Coroners (Practice and Procedure) Rules (Northern Ireland) 1963 which reads:
55. The "last foregoing rule" is rule 15, providing that
The language of rule 15 reflects the language of section 31(1) of the governing statute, the Coroners Act (Northern Ireland) 1959, providing for a coroner's jury to give a 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". The equivalent English and Welsh statutory provision, using in this respect identical terms, is section 11(5) of the Coroners Act 1988.
56. The consistency of the English and Welsh rule 42 with a verdict of unlawful killing has been affirmed in a number of cases, most notably R v Surrey Coroner, Ex p Campbell  QB 661 and R v HM Coroner for Western District of East Sussex, Ex p Homberg, Roberts & Manners (1994) 158 JP 357. In the former case, Watkins LJ quoted with approval the comment in Jervis on Coroners, 9th ed (1957), p 179, that consistency was achieved (in the case of a verdict of death aggravated by lack of care) by refraining from identifying any particular person or persons as responsible for the lack of care. If that is consistent with the English and Welsh prohibition on appearing "to determine any question of . civil liability", there is no reason why it should not be consistent with the Northern Irish prohibition on expressing any opinion on questions of criminal or civil liability.
57. Furthermore, in both cases cited in the preceding paragraph, it was observed that any conflict between rule 42 and the statutory provision (section 11(5) in the English and Welsh Act) must be resolved in favour of the latter. As Simon Brown LJ put it in the latter case:
The point was also accepted by my noble and learned friend, Lord Bingham, in R v Coroner for North Humberside and Scunthorpe, Ex p Jamieson  QB 1, 24, paragraph (5):
58. This reasoning appears to me to be equally applicable to the Northern Irish legislation and rules. Until 1980, form 22 in the Third Schedule to the Coroners (Practice and Procedure) Rules (Northern Ireland) 1963 would have indicated that (in addition to the requirement to state the cause of death) any verdict should be an open verdict - save in case of death from natural causes, death as the result of an accident/misadventure, death by his own act or execution of sentence of death. But the Coroners (Practice and Procedure) (Amendment) Rules (Northern Ireland) 1980 substituted a new form 22, replacing this latter provision with a simple indication that the verdict should include "Findings". This revised wording is unqualified and general, and on its face a relaxation of the previous limitation. I see no reason why it should not be so treated, or why, therefore, a Northern Irish coroner's verdict should not be a verdict of unlawful as well as lawful killing.
59. In reality, the point is unlikely to make much, if any, difference to the impact of a Northern Irish coroner's verdict, in the light of the conclusions, with which I agree, in paragraphs 39 and 40 of my noble and learned friend Lord Bingham's opinion. They mean that a coroner's verdict in Northern Ireland can make explicit factual findings pointing towards a conclusion that criminal or civil responsibility exists, although such a conclusion cannot expressly be stated, even in terms which do not identify anyone who might have responsibility.