QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE AIKENS
| The Queen on the application of Paul and the Ritz Hotel Limited
|- and -
|Assistant Deputy Coroner Of Inner West London
Michael Beloff QC and Tom de la Mare (instructed by Barlow Lyde and Gilbert) for the Ritz Hotel Limited
Ian Burnett QC and Jonathan Hough (instructed by Field Fisher Waterhouse) for the Respondent
Duncan Macleod for the Commissioner of Police for the Metropolis
Hearing date: 16 November 2007
Crown Copyright ©
Lord Justice Thomas :
The factual background
The legal issue
"(1) Subject to the provisions of paragraphs (2) to (4), the coroner may admit at an inquest documentary evidence relevant to the purposes of the inquest from any living person which in his opinion is unlikely to be disputed, unless a person who in the opinion of the coroner is within Rule 20(2) [a 'properly interested person'] objects to the documentary evidence being admitted.
(2) Documentary evidence so objected to may be admitted if in the opinion of the coroner the maker of the document is unable to give oral evidence within a reasonable period.
(3) Subject to paragraph (4), before admitting such documentary evidence the coroner shall at the beginning of the inquest announce publicly -
(a) that the documentary evidence may be admitted, and
(b) (i) the full name of the maker of the document to be admitted in evidence, and
(ii) a brief account of such document, and
(c) that any person who in the opinion of the coroner is within Rule 20(2) may object to the admission of any such document, and
(d) that any person who in the opinion of the coroner is within Rules 20(2) is entitled to see a copy of any such documentary evidence if he so wishes.
(4) If during the course of an inquest it appears that there is available at the inquest documentary evidence which in the opinion of the coroner is relevant to the purposes of the inquest but the maker of the document is not present and in the opinion of the coroner the content of the documentary evidence is unlikely to be disputed, the coroner shall at the earliest opportunity during the course of the inquest comply with the provisions of paragraph (3).
(5) A coroner may admit as evidence at an inquest any document made by a deceased person if he is of the opinion that the contents of the documents are relevant to the purposes of the inquest.
(6) Any documentary evidence admitted under this Rule shall, unless the coroner directs otherwise, be read aloud at the inquest."
The Coroner's Ruling
The hearing of the application during the currency of the inquest.
The legal background to Rule 37
(i) The position prior to the making of a rule in relation to documentary evidence in 1953
"Once again it should not be forgotten that an inquest is a fact-finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish the facts. It is an inquisitorial process, a process of investigation quite unlike a trial where the prosecutor accuses and the accused defends, the judge holding the balance or the ring, whichever metaphor one chooses to use."
"The coroner, also, had one advantage from a certain point of view – namely, that being fettered by no precise rules of evidence, and bound to collect as far as he could all information and knowledge of disasters from neighbours and others who could throw any light upon the cause of death, where death had taken place under suspicious circumstances – he could often times collect evidence, facts, and statements which, whether or not they might ultimately be capable of being turned into evidence against the parties who were to be put up on their trial, were often very valuable as supplying material for investigation by the police, and as affording clues which might lead to successful inquiry. If the coroner rejected evidence which lay before him, on the supposition that he was in the position of a Judge who had to try a prisoner, and that the same wide rules of exclusion of evidence which might act against a particular individual in the dock he could also exclude upon legal grounds, he would throw away a good deal of the remaining usefulness of that institution. The coroner's inquisition could not be too thoroughly understood. "
"Again it is clear that a coroner's inquest is not bound by the strict law of evidence.
No doubt a coroner has considerable latitude as to the way in which he may conduct the inquest; he is not fettered by detailed rules of procedure; but on the other hand, the proceedings are formal, they are conducted on lines which are now established by long usage, and the public and those more particularly interested have a right to expect that the verdict will be given upon the sworn evidence heard at the inquest and upon nothing else."
(iii) The 1953 Rules and the scope of the rule making power
"(1) Documentary evidence as to how the deceased came by his death shall not be admissible unless the coroner is satisfied that there is good and sufficient reason why the maker of the document should not attend the inquest.
(2) If such documentary evidence is admitted at an inquest, the inquest shall be adjourned to enable the maker of the document to give oral evidence if the coroner or any properly interested person so desires."
"The Lord Chancellor may, with the concurrence of the Secretary of State, make rules for regulating the practice and procedure at or in connection with inquests and post-mortem examinations and, in particular (without prejudice to the generality of the foregoing provision), such rules may provide—
(a) as to the procedure at inquests held without a jury;"
"What is meant by "practice and procedure?" The answer to this question must, to some extent, depend upon the context in which the expression is used. In the context of civil proceedings, a distinction has been drawn between "the mode of proceeding by which a legal right is enforced," and "the law which gives or defines the right:" see Poyser v. Minors (1881) 7 Q.B.D. 329, 333, per Lush L.J. Such a distinction is scarcely apt in relation to a coroner's inquisition, which is not concerned with the enforcement of legal rights. Even so, it is sensible to refer to the mode of proceeding by which the coroner exercises his jurisdiction to conduct an inquest, and it is appropriate to refer to rules which regulate that mode of proceeding as being rules which regulate the practice and procedure at an inquest; though, like Lush L.J. in Poyser v. Minors, I doubt whether, in coroners' inquests as in civil proceedings, any material distinction can be drawn between "practice" and "procedure.""
Of course, a distinction has to be drawn between the coroner's jurisdiction itself, which must be a matter of substantive law, and rules which regulate the manner in which he is to exercise that jurisdiction. But even so, there is a difficulty. For many rules of procedure do inhibit, in one way or another, the power of a tribunal to conduct its own proceedings. The whole function of rules of procedure is to create a system of rules which provide a framework within which the relevant process shall be conducted, thereby regulating the manner in which the tribunal conducts that process."
"(1) A document may be admitted in evidence at an inquest if the coroner considers that the attendance as a witness by the maker of the document is unnecessary and the document is produced from a source considered reliable by the coroner.
(2) If such a document is admitted in evidence at an inquest the inquest may, at the discretion of the coroner, be adjourned to enable the maker of the document to give oral evidence if the coroner or any properly interested person reasonably so desires.
"Nor, in my opinion, does the mere fact that a rule restricts the power of a coroner as to the evidence which he may call prevent the rule in question from being one which regulates practice or procedure. In this connection, rule 17, concerned with documentary evidence at inquests, provides an apt illustration. I have already set out the text of that rule (as amended). A similar, though not identical, rule applies in relation to documentary evidence at coroners' inquests in England and Wales: see rule 37 of the Coroners Rules 1984 (S.I. 1984 No. 552). The general rule is that a coroner, who is conducting an inquisitorial process concerned to elicit certain facts, is not bound by the strict rules of evidence. Yet here, in rule 17, we find a rule which defines the power of a coroner to admit documentary evidence. I cannot, for my part, see why that fact should prevent the rule from being described as a rule which regulates practice or procedure at a coroner's inquest. It plainly does, in that it regulates the manner in which the coroner shall, at an inquest, set about his task of eliciting the relevant facts."
"But, even if the coroner had admitted hearsay evidence, we know of no rule precluding a coroner from admitting evidence of this kind. Rule 28 of the Coroners Rules 1953 (S.I. 1953 No. 205) contains provisions concerning documentary evidence, though not about oral evidence; but there is no general prohibition against admission of hearsay evidence, either in the Coroners Act 1887 (50 & 51 Vict. c. 71) or in the Rules. Indeed, there is authority that it is clear that a coroner's inquest is not bound by the strict laws of evidence: see Rex v. Divine, Ex parte Walton  2 K.B. 29, 36 per curiam."
See also the decision in R v Lincolnshire Coroner ex p Hay  Lloyd's Rep Med 264 at paragraphs 58-62.
(iii) The revision to the Coroners Rules in 1980 and the difference between Rule 28 of the 1953 and Rule 37 of the 1980 Rules
"(2) Any other documentary evidence as to how the deceased came by his death shall not be admissible at an inquest unless the coroner is satisfied that there is good and sufficient reason why the maker of the document should not attend the inquest.
(3) If such report or document is admitted in evidence at an inquest, the inquest shall be adjourned to enable the maker of the report or the document to give oral evidence if the coroner or any properly interested person so desires."
He expressed the view, at page 268B:
"It is of some interest to consider how the present question would have been answered under rule 17 in its original form. It is plain that in the case of any document to which rule 17(2) applied -- which was any document other than the report of a post-mortem examination carried out at the request of the coroner -- the coroner would have had power under rule 17(2) to admit the document if the maker was dead or there was some other good and sufficient reason why he should not attend the inquest, for example because he was ill, or overseas, or was not compellable to give evidence if summoned to attend. Furthermore in such a case the coroner would not have been bound under rule 17(3) to adjourn the inquest if a properly interested person desired him to do so, because an adjournment would not have been to enable the maker of the document to give oral evidence."
Lord Goff noted that as it was being contended in that case that this result was not possible under the revised version of the rule, (which we have set out at paragraph 30 above), the court had to consider whether the rule making authority had intended to make a change to the eminently sensible position under Rule 17(2) in its original form. He concluded, having considered the construction of the revised version of Rule 17(1) and (2) against the legislative background of the original rule, that the contrary was the case. Therefore the coroner had power to admit the written statements of the three soldiers as documentary evidence under Rule 17, as he purported to do: page 269E.
(iv) The particular features of an inquest relevant to the issue
i) It is the duty of a coroner to hold an inquest into deaths that are violent or unnatural or which occur suddenly and where the cause of death is unknown (s. 8 of the Coroners Act 1988).
ii) The coroner has power to summon witnesses and can fine and otherwise punish anyone who does not attend in answer to a summons ... s.10(2) and (4)).
iii) It is for the coroner to decide what witnesses to summon and it is for him to examine them. S. 11(2) of the Coroners Act 1988 provides:"The coroner shall, at the first sitting of the inquest, examine on oath concerning the death all persons who tender evidence as to the facts of the death and all persons having knowledge of those facts whom he considers it expedient to examine."
iv) The Rules set out in greater detail the practice and procedure that is necessary.
v) Those who have a right to examine witnesses at the inquest are specified in Rule 20 (2) and have been referred to as "properly interested persons"; Rule 20(1) sets out their right to examine witnesses:"(1) Without prejudice to any enactment with regard to the examination of witnesses at inquest, any person who satisfies the coroner that he is within paragraph (2) shall be entitled to examine any witness at an inquest either in person or by an authorised advocate as defined by section 119(1) of the Courts and Legal Services Act 1990."Rule 21 provides that the coroner examines the witnesses first and the witness is examined last by his own representative if he has one.
vi) The right to examine is an important one: see R v HM Coroner at Hammersmith ex p Peach  1 QB 211 at 219 (where the Lord Chief Justice referred to the importance of cross examination), to R v Southwark Coroner ex p Hicks  1 WLR 1624 at 1629 (where Croom Johnson LJ referred to the fairness of being able to examine a witness).
vii) This right is the more important in an inquest as the properly interested persons who can examine witnesses have no right to address the jury. Rule 40 provides:"No person shall be allowed to address the coroner or the jury as to the facts."
viii) Rule 22 provides for the privilege against self-incrimination. There are also the various rules dealing with adjournments and notices. Rule 36 then provides for the matters that are to be ascertained at the inquest. Rule 38 provides for exhibits to be marked and Rule 39 imposes an obligation on the coroner to take notes of the evidence.It is clear therefore that the rules are not a comprehensive procedural code and much is left to the discretion of the coroner.
Conclusion as to the way in which the coroner can admit the evidence in issue.
(i) The power outside Rule 37
"The function of rule 17, which was first introduced in the Rules of 1953, is to regulate the circumstances in which a coroner in Northern Ireland may simply admit a document in evidence, without requiring the maker of the document to attend the inquest and give oral evidence. If the document is admitted as such in evidence under the rules, the contents of the document can no doubt be treated as evidence in the same way as the evidence of the maker of the document given orally to the like effect would have been so treated. In the absence of rule 17 there would, so far as I am aware, have been nothing to restrict the power of the coroner (who in the conduct of an inquisition has historically not been bound by the strict rules of evidence applicable in litigation; see Rex v. Divine, Ex parte Walton  2 K.B. 29, 36 per Talbot J.) to admit a document in evidence in this way. It was for this reason that, in McKerr v. Armagh Coroner  1 W.L.R. 649, 657 – 658, I referred to rule 17 (as substituted by amendment in 1980) as an example of a rule of practice or procedure which restricts the power of a coroner, and described the rule as one which defines the power of a coroner to admit documentary evidence.
But, in agreement with both Carswell J and the Court of Appeal, I cannot see that rule 17 has the effect of excluding evidence which may otherwise be admissible, even if it is in documentary form. In particular, I cannot see that the rule excludes the power of a coroner to admit hearsay evidence otherwise proved simply because such evidence has been reduced to documentary form."
i) Croom-Johnson LJ in R v Southwark Coroner ex p Hicks  1 WLR 1624 at 1629 observed that the admission of documentary evidence was controlled by Rule 37 and that the use of and reference to documents was narrowly circumscribed.
ii) Sullivan J in R (Bentley) v HM Coroner for Avon  EWHC Admin 170 observed at paragraph 86 that the right to examine witnesses would be rendered nugatory if witnesses with relevant information were not called to give evidence; that was the reason for the very circumscribed power to admit documentary evidence in the face of an objection from an interested party.
iii) In R (Sutovic) v HM Coroner for North London  EWHC 1095 (Admin), Moses LJ referred at paragraph 37 of his judgment to the importance of the procedures in Rule 37; Rule 37(3) required a public announcement and it would be meaningless if an objection could be overruled merely because witnesses were not present at the inquest at the time the objection was made.
In none of these cases did the issue before us arise directly. However, the observations are helpful pointers to the fact that if Rule 37 applies it must be followed. What is of more importance are the speeches of Lord Goff.
Does the evidence in issue fall within the scope of Rule 37?
Is there power under Rule 37(2) to admit the documentary evidence in issue?
(iv) Conclusion on the power
(v) The calling of a witness so that the statements can be admitted
1.1. LORD JUSTICE THOMAS: We made available, not as early this morning as had anticipated but I hope this morning, a copy in draft of the judgment. There are now copies available of the judgment, but it is still subject to correction. We thought it easier for everyone concerned to have our judgment in writing, rather than for me to read it out and keep everyone here for a very long time.
1.2. What we have concluded is that the Coroner cannot adduce, because of the drafting of the Rules, the evidence without calling a witness. However, as we have made very clear in our judgment, the questions that can be asked of the witness are matters within the discretion of the Coroner in the way we have set out.
1.3. We therefore have decided that, on the very limited point on which we disagree and reach a different view to the Coroner, the decision he reached has to be varied to that extent.
1.4. MR DE LA MARE: My Lord, obviously Mr Weekes and I will provide any editorial corrections as soon as we can. Mr Weekes --
1.5. LORD JUSTICE THOMAS: There are copies for everyone here, but I will stress there may be errors of typing or other factual errors which we will put right. But we were told you needed this with great urgency.
1.6. MR DE LA MARE: He will obviously be particularly keen to point out the extra "E" in his name.
1.7. LORD JUSTICE THOMAS: I am sure there are errors of that kind.
1.8. MR DE LA MARE: As for the issue of costs, my Lord, I appear, as you know, on behalf of the Ritz and I understand from Mr Weekes that his client's position is the same as mine, we do observe that there are two unusual features at play here. First of all, this is the second time on which my client has had to come to court to seek relief from this court as a direct function of the inadequacies that your Lordship has described in the coronial system.
1.9. LORD JUSTICE THOMAS: No. The coronial system may be very sound. We have been very specific in our criticism of the Rules.
1.10. MR DE LA MARE: In relation to the Coronial Rules.
1.11. LORD JUSTICE THOMAS: I do not want this to be seen as any criticism whatsoever of the Coroner. He has been placed in a totally impossible position. It is the Rules that are at fault and nothing else.
1.12. MR DE LA MARE: Indeed so, my Lord, and I did not seek in any way to suggest anything else. When I said "the coronial system", I was referring very much impersonally when I did so. It is your Lordships' conclusion at paragraph 68 that the system is unfit for modern society that I had in mind.
1.13. LORD JUSTICE THOMAS: That is not our conclusion, that is Parliament's conclusion.
1.14. MR DE LA MARE: Of course it is an exceptional course to seek costs against a Coroner. The one and only feature that might motivate such an application was that, quite exceptionally in this case as I understand it, the Coroner's funds are being met themselves from Central Funds, directly from the Lord Chancellor as opposed to the system of local funding.
1.15. But notwithstanding this feature and notwithstanding the fact that this is the second time we have come to this court, we do not seek our costs and we invite the court to make no order as to costs.
1.16. MR HOUGH: My Lord, I obviously concur on the part of the Coroner in that respect.
1.17. My Lord, may I make a few remarks for all those present. As your Lordships recognise, the Coroner was placed in an extremely difficult position, both by the non-attendance of the paparazzi and by the state of the Coroners Rules. I will not make any further comment on that. He was, as your Lordships recognised, only trying to get relevant evidence before the jury in a comprehensible form, by means of a fair and expeditious procedure. He was not here to make or break law.
1.18. My Lords, we also should say that we appreciate the guidance given by the court in paragraph 61 and following of the judgment, and in particular the indication of the court that the purpose of calling witnesses to prove statements in the way envisaged is narrowly to prove the statements, and may occasionally be for the purpose of asking the witness about the form of the examination, and that your Lordships do not anticipate by your Lordships' judgment that witnesses will be asked to comment on the veracity of accounts and matters where they know nothing of the underlying accounts. Certainly we appreciate that guidance.
1.19. That said, because of the great speed with which the court has produced its judgment, which is a matter for which we are enormously grateful, we do have to make an application for permission to appeal, protectively while my client considers the judgment and its ramifications.
1.20. I will not detain the court by repeating the arguments which were put to the court. They are rehearsed in detail and basically the three arguments are, first of all, whether statements can be admitted through common law hearsay, effectively circumventing Rule 37; secondly, the construction of Rule 37 and its ambit, whether it refers only to uncontentious documents or to all documents; and thirdly, the construction of Rule 37(2) and its interrelation with Rule 37(1) and the other subrules. I will not reiterate the submissions that were made, but they essentially form the grounds of any application to appeal.
1.21. The other matter which we should mention in making the application for leave is that this case, as your Lordships will have appreciated, is significant in that it affects these inquests, which are a matter of some public concern and of some size and, secondly, that it inevitably affects inquests into deaths overseas generally.
1.22. LORD JUSTICE THOMAS: It should not because, as we said at the end of our judgment, there is absolutely no reason why the Rules cannot be amended very quickly.
1.23. MR HOUGH: My Lord, unless Parliament takes that hint --
1.24. LORD JUSTICE THOMAS: It is not Parliament, it is the rule-making authority.
1.25. MR HOUGH: The Minister takes the hint.
1.26. LORD JUSTICE THOMAS: That is why we have been very clear about that, and we thought we ought to be clear about it, because, in view of the concerns expressed by you and the Commissioner of Police, that this will affect a whole lot of things, the answer to it is that it is very easy to solve this problem by drafting a rule. There are loads of models everywhere. As you know, there is the Civil Evidence Act Rules, the hearsay rules. It is very easy to cure this problem and it could be done very rapidly. There is nothing you can do about the current inquest, but there is no reason why any future inquest could not be dealt with very quickly.
1.27. MR HOUGH: All I would say is that pending cure --
1.28. LORD JUSTICE THOMAS: It will obviously.
1.29. MR HOUGH: -- this will affect overseas inquests generally.
1.30. LORD JUSTICE THOMAS: Do you have any observations?
1.31. MR DE LA MARE: Simply that my learned friend should try and persuade the Court of Appeal. You have given a very clear judgment and it is a matter for the Court of Appeal. (The Bench conferred)
1.32. LORD JUSTICE THOMAS: We will say "yes", for the simple reason that to have a permission application to the court will just take up more time. Therefore the simplest course for us to say is "yes".
1.33. MR HOUGH: That is an eminently practical reason, my Lord.
1.34. LORD JUSTICE THOMAS: What we would add is, obviously we do appreciate, we had hoped we would be able to get it to you earlier this morning but we could not. It was just very difficult.
1.35. MR HOUGH: As we have said, we are all grateful for the speed with which the court sat.
1.36. LORD JUSTICE THOMAS: I was not going to read this to you. It would not have been helpful to anyone. It is much better you have it in print.
1.37. MR HOUGH: Thank you.
1.38. LORD JUSTICE THOMAS: Thank you all very much, and if you could thank your leaders as well for the great assistance they gave us. I will fill in the form which says "yes".
1.39. Now the only other thing we would be grateful for is, the issue of corrections. There may be errors in it, spelling, factual, (we hope not) and in the quotations. Could you let the clerk to Mr Justice Aikens have any corrections, say, within the next 24 hours. Is that unreasonable? I know you are in the middle of doing something else, but I wanted to try and help you as well by getting it to you quickly, even if it had typographical errors.
1.40. MR HOUGH: My Lord, I am told by my instructing solicitor that there is one matter which needs to be corrected throughout. It is that the interested persons in the Inquest are referred to as "interested parties" as I understand.
1.41. MR JUSTICE AIKENS: That is easy.
1.42. MR HOUGH: That is very easy to correct with modern technology. If we could have the appropriate e-mail address, then Mr de la Mare and I will liaise and e-mail a copy.
1.43. LORD JUSTICE THOMAS: Would you be kind enough? because obviously normally we would never have released this, but I think it is fairer to the press that they have it. This is a particularly narrow point of statutory construction, but we thought it better to make the judgment available. Normally we would not have done so, but it is better they have what is, we hope, something that is not subject to errors of fact other than these typographical errors, and that is why we have done it this way.
1.44. MR HOUGH: All I noticed for my own part were a few typographical errors.
1.45. MR JUSTICE AIKENS: If it could be one consolidated list, that would obviously help enormously as well.
1.46. MR HOUGH: It will be.
1.47. MR JUSTICE AIKENS: Lord Justice Thomas's clerk will give you my clerk's e-mail address, so that you can e-mail them to her within the next 24 or 36 hours.
1.48. LORD JUSTICE THOMAS: The only thing I would say to you is if the Coroner does decide to appeal, obviously the sooner that even a piece of paper is lodged, then the mechanism can start. Otherwise, unless you start it very rapidly, you will find that more time goes. But that is entirely for you - the Coroner will know as well as I what needs doing and the reasons for doing it urgently.
1.49. MR HOUGH: I will take advice from my client on that, my Lord.
1.50. LORD JUSTICE THOMAS: Can I give you that back. Thank you.