England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		20 May 2010

1. LORD JUSTICE ELIAS: This is an application made under the authority of the Attorney General for an order pursuant to Section 13 of the Coroner's Act 1998, in which the following substantive relief is sought. First, that the inquisition in respect of Jeremiah Joseph Duggan taken before Dr WFG Dolman, one of her Majesty's coroner's of for the northern district of Greater London on 8 November 2003, be quashed; and second, that another inquest be held by the coroner for another district in the same administrative area. Section 13 is as follows:

"(1) This section applies where on an application by or under the authority of the Attorney General, the High Court is satisfied with respect to the coroner concerned either (a) that he refuses or neglects to hold an inquest which ought to be held, or (b) where an inquest has been held by him that (whether by reason of rejection of evidence, irregularity of proceedings, insufficiency of inquiry the discovery of new facts or evidence or otherwise) it is necessary or desirable in the interests of justice that another inquest should be held."

"(2) The High Court may (a) order an inquest or, as the case may be, another inquest to he held into the death, either (i) by the coroner concerned, or (ii) by the coroner for another district in the same administrative area ... (c) where an inquest has been held, quash the inquisition on that inquest."

2. In this case the Attorney General has leant her authority by way of fiat issued on 17 January 2010. The question, therefore, which we have to determine is whether it is necessary or desirable in the interests of justice that another inquest should now be held.
3. The facts
4. The claimant is the mother of the deceased, Jeremiah Duggan, who died on 27 March 2003. He was found dead on the B455 road leading into Wiesbaden, Hesse in Germany. Jeremiah was a 22 year old student of the Sorbonne in Paris. In the days leading up to his death, he had been attending a conference in Wiesbaden organised by the LaRouche movement. That is a cult-like organisation which is alleged to be fascist and anti-semitic and is headed by Lyndon LaRouche, a convicted fraudster. Jeremiah apparently believed that he was attending a conference concerning the problems in Iraq.
5. In the early hours in the morning of Jeremiah's death, he made a series of telephone calls to his mother, Mrs Duggan, and his girlfriend, Maya Villaneuve. The content of these calls makes harrowing reading. They indicate that Jeremiah was in serious trouble and required help in escaping from the organisation, which he referred to as Nouvelle Solidarite, the name of an anti-semitic journal published by the organisation.
6. Investigations were carried out by the German police who concluded that Jeremiah's death was suicide by means of a traffic accident. They believed that he had run into the road and had been hit by two cars. No post mortem examination was carried out by the German authorities, and the German public prosecutions' office halted proceedings into Jeremiah's death on the grounds that the drivers allegedly involved had stated that Jeremiah had jumped out of the cars, and therefore there was no evidence of any third party involvement in his death.
7. On 31 March 2003, Jeremiah's body arrived in the United Kingdom. A non-forensic post mortem examination was carried out by Dr David Shove, a pathologist, on 4 April 2003. An inquest into the death of Jeremiah was opened on 8 April 2003 by Mr William Dolman, one of her Majesty's coroners for the northern district of Greater London, and it was adjourned to 6 and 7 November. The evidence available to the coroner included evidence from the following witnesses; Erica Duggan, Maya Villaneuve and Detective Inspector Jane Cowell. There were a number of reports: the German police report; a report of Robert Hawthorne, who was an accident investigator; the post mortem report of Dr Shove; and a toxicology report from Dr Susan Patterson.
8. At the conclusion of the inquest, Dr Dolman delivered a narrative verdict in which he stated this:

"Jeremiah Joseph Duggan received fatal head injuries when he ran into the road in Wiesbaden and was hit by two private motor cars. What other fact do we know that I must add? I really must add that he had earlier been in a state of terror. It is a word not commonly used in a coroner's court, but no other word would reflect his state of mind at the time."

9. The Duggan family were unhappy with the inquest and, in particular, with the fact that the post mortem had not established how Jeremiah's injuries were sustained. Nor did the family consider that it sufficiently explained the cause of death. They continued to investigate Jeremiah's death, and they engaged a series of experts to assist them. As a result of these further investigations, they now wish to rely on fresh evidence which they submit contradicts, or at least casts serious doubt upon, the assumptions of the German police, and the German prosecution public service, and indeed Dr Dolman, the coroner, that Jeremiah had run into the road with suicidal intent or in a state of terror and been hit by two cars. They consider it raises a real issue as to whether he was hit at all by either of those vehicles.
10. The relevant evidence on which they rely is as follows. First, there is a report from forensic photographer Mr Paul Canning, formerly of the Metropolitan Police. He has produced two reports dated 22 December 2005 and 4 December 2006. In the first report, he analysed a series of photographs taken by Herr Jogen Berg, the German accident examiner, police officer Dittig, and another unknown photographer. The second report is an addendum to the first, and was produced following a statement secured by Mrs Duggan from Herr Berg that the cars involved in the accident had been moved before he took the pictures and before he had arrived at the scene. Mr Canning, in the first report, was struck by the lack of any biological traces on either of the cars that purportedly hit Jeremiah, which would indicate that neither in fact had collided with him. He went on to reach this conclusion:

"In my opinion, the photographs taken on the B45 junction with Berlinstrasse do not adequately support the theory that Jeremiah Duggan ran against the Peugeot and was subsequently run over by the Golf. The images show an inaccurate, confusing picture of events. I do not believe that is how Jerry came to meet his premature and alleged unlawful death. I believe that it is possible that Jerry lost his life elsewhere, and was subsequently placed at the scene."

11. He supported this by a number of significant observations, including the following:

"I have never photographed a vehicle that has hit a person at speed and caused their death, without there being some obvious signs of the body and vehicle have made contact."

12. He also added this:

"Both vehicles showed the same light brown coloured sandy substance that is seen on Jerry's jeans and embedded in the treads of his training shoes, yet there is no sign of the sandy substance on the road. It looks as though Jerry went through a significant quantity of wet sand."

13. In his second report he concluded that the fact that the vehicles had been moved of itself raised questions about the legitimacy of the investigation that had been carried out by the German authorities, as there was no longer any integrity in the scene.
14. The second report is from Alan John Bayle, a forensic scene examiner. The report is dated 3 September 2005. He is an independent forensic scientist of 30 years experience, again being formerly a member of the Metropolitan Police. He examined the photographs of the scene of the accident, and the photographs of Jeremiah's body. His conclusion was that he firmly believed that the incident was staged managed, and that Mr Duggan had met his death somewhere else, and that the body had been dumped in the road. Again in support of that conclusion he made a number of observations, including the fact that the Volkswagen car showed no evidence of having hit Mr Duggan; there were no fibres, hairs, blood or skin or any other evidence that kind to prove that the car was involved in the accident. The Peugeot car had considerable damage, and the windscreen had been hit with an instrument, possibly a crowbar or something similar, and again there was no evidence of any fibres, hair, blood or skin on the broken glass. He could find no evidence to show that the vehicles had ever come into contact with Mr Duggan, and there appeared to be no tyre marks on Mr Duggan or on his clothing.
15. There is the third report from another forensic examine, a Mr Merston, also ex-Metropolitan Police. He visited the scene of Jeremiah's death in addition to viewing the photographs, and he says this:

"Based on my years of experience in attending thousands of crime scenes as a forensic scene examiner, it is my opinion that the evidence at the scene points towards Jeremiah's death being extremely suspicious and not a road traffic accident. It is also my view that the damage to the Peugeot car has been deliberately caused. The alleged damage to the Volkswagen car, light lens missing, and pieces of lens hanging down, together with the total lack of physical evidence from Jeremiah on the vehicle and vica versa is ... inconsistent with that vehicle having been involved in the alleged accident."

16. The fourth report is from Herr Manfred Tuve, a forensic scientist and engineer from Germany, dated 19 September 2005. His report is based on photographs of the incident and notes and sketches of the positions at the scene prepared by the German police accident investigator, Herr Berg. Herr Tuve also examined the notes taken by the German police, and pointed to the lack of any traces of head injuries on the Peugeot car. In addition, he made the following observation:

"On the Peugeot, on the Golf, and on the clothing of the deceased, and in particular the shoes, there are mud coloured contaminations and adhesions. These do not correspond to the normal grey black street dust ... it is necessary here to at least point to the possibility that all three objects which had been discussed here may at some time prior to the described events have been at some alternative location."

17. A fifth report is from a German doctor of medicine, Dr Bernd Kopetz, who carried out a preliminary medical examination of the injuries in the light of eyewitness description of the incident. The report produced on 15 November 2005 says this:

"The damage to the vehicle, and in particular the damage to the upper part of the front passenger door, evidences a massive collision of material deformation, in such damage as corresponding injuries to the body of the person must be expected. No such injuries exist."

18. A sixth report is from a Dr Ivica Milosavljevic, who is a forensic pathologist. He produced a report dated 15 March 2007, and amongst his conclusions was the following observation:

"Dr Shove has established an abundant quantity of fresh blood in all respiration tracts and stomach and extensive bruising of the lungs. Again this indicates a direct expiration of blood in both lungs to the level of alveoli, and is most probably the consequence from the hurt blood vessels around the fracture of bones at the base of the skull and bones of the face. It also indicates the fact that the death was not instant, which should be expected from a head injury due to overrunning."

19. (I assume that "overrunning" means "being run over".)
20. He said:

"The injury of the head did not arise at once, but by multiple action of some other mechanical force."

21. In addition to these conclusions, the coroner's pathologist, Dr Shove, although he did not give evidence at the inquest, apparently in subsequent discussions with Mrs Duggan, has stated that in his view Jeremiah was not killed in a road traffic accident. He wanted to refer to his report to justify this finding. He was asked to make a written statement to this effect, but it is alleged that he said that he would sign nothing unless directed by the coroner to do so.
22. Initially, when requested to authorise this application, the Attorney General declined to do so. There was an application for grant of permission for judicial review to challenge that refusal. Permission was granted and the Attorney then lent her authority before the substantive judicial review hearing was considered.
23. She was provided with two translated statements prior to her reconsideration, one from a Maria Karpowski, dated 10 October 2009, and another a police interview from a Miss Ursula Caberta, dated 11 January 2010. In the police interview, Miss Caberta refers to her contact with a Mrs Meyer, the mother of Nils Meyer, who is another LaRouche member, who some suspect at least may have been involved in some way in this death. Miss Caberta said that Mrs Meyer had told her that Nils Meyer had told his mother:

"We have hunted him down ... it is right that he is dead. He is a traitor and a spy."

24. Miss Caberta says that this conversation was reiterated on a number of occasions. To some extent, that conversation is arguably corroborated by Maria Karpowski who records that Jeremiah Duggan was suspected to have been a spy, and that it was therefore in her view possible that he might have been hunted by LaRouche members.
25. As I have indicated, the Attorney General has granted her fiat, and her Majesty's coroner for the northern district has indicated that if a fresh inquest were ordered, then he would be ready and willing to conduct that inquest if required. The coroner is not, however, represented before us in the court today.
26. As I have said, the relevant question we have to determine is whether it is necessary or desirable in the interests of justice that the current inquest should be quashed and another one ordered. In determining whether or not to make that order, the court must focus on the possibility that if there is a further inquest, the outcome might be different. In R (Sutovic) v HM Coroner for Northern District of Greater London [2006] EWHC 1095 (Admin) Moses LJ, reviewing the relevant authorities, said this (paragraph 54):

"Notwithstanding the width of the statutory words, its exercise by courts shows that factors of central importance are an assessment of the possibility (as opposed to the probability) of a different verdict, the number of shortcomings in an original inquest, and the need to investigate the matters raised by new evidence which had not been investigated in the original inquest."

27. He also restated at paragraph 55 a principle to the effect that a new inquest may be ordered even if there is a high probability that the verdict would be the same. Moreover, it is claimed that in considering whether it is necessary or desirable in the interests of justice, the court must consider whether the new evidence is such that if no fresh inquest were ordered, there is a real risk that justice will not have been done and be seen to be done: see, for example, Re Rapier [1988] 1 QB 26.
28. In our judgment, it is sufficient to say in this case that we are wholly satisfied that the fresh evidence here could alter the verdict, and in any event, it is very much in the interests of justice that it should be carefully considered and analysed in a fresh inquest. It raises potentially issues about causation, and whether the death did result from Jeremiah being hit by a car at all. It puts in issue the question of whether or not there may have been foul play. It is necessary that this fresh inquest is called, if for no other reason that it should seek to allay suspicions which have been naturally raised by all the evidence which has now been produced to the court. I must emphasise, of course, that we are not saying what the outcome of that inquest will be, merely that it is in the interests of justice that we should quash the current inquest, and that we should order a fresh one.
29. We think it is desirable that the inquest should not be held by the same coroner. I am told, at any event, he no longer sits in the same district. That is not a criticism of him. I should say that Mrs Duggan has raised complaints about the way in which the original inquest was heard. She is aggrieved that it was not adjourned so that further information and evidence could be obtained. We have not felt it right or necessary to go into that matter. The coroner is not represented, and we have been satisfied on the fresh evidence that the original inquest should be quashed and that a new one should be held. Accordingly, we make orders to that effect. We make no order as to costs.
30. MR HYAM: My Lord, I am very grateful.
31. LORD JUSTICE ELIAS: I am very grateful to you for a very careful and helpful analysis of all this material. Thank you.