England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/07/2016

Mr Justice Irwin :

Introduction

1. Henry Hicks died on 19 December 2014 when his Moped collided with a stationary car in Wheelwright Street, Islington. He had been reported as failing to stop by police, and two unmarked police cars were in following at the time.
2. At the time of this application for judicial review, the Inquest into the death of Henry Hicks was in train, before the Senior Coroner for Inner North London, Ms M E Hassell. The challenge was to a Ruling of the Coroner on Monday 13 June, with the effect that Hicks family members (and the public and members of the press) would be excluded from the hearing room during the evidence of the four police officers who were in the two police cars at the time of the death. The Coroner had ordered that the family, the public and media representatives could listen to this evidence in a second room, by means of an audio link.
3. The proceedings were issued on Thursday 16 June, and the papers came to me that afternoon. I gave various directions that day, and a "rolled-up" application, for permission and for judicial review, was heard the following afternoon.
4. On the afternoon of 17 June, the Court granted permission to apply but dismissed the application for judicial review. I now give my reasons for that Order.
5. Before turning to the detail of the case, I repeat the remarks made by Gross LJ at the hearing. Whatever the circumstances, the loss of the life of an 18 year old is very sad. The Court recognises the great impact of that loss on the Claimants and on the wider family of Henry Hicks.

The Facts

6. It is common ground that Henry Hicks had been the focus of great attention by the police in Islington. He had been stopped 89 times between October 2011 and December 2014. He had no convictions.
7. On the day in question Henry Hicks was seen riding a 300cc Vespa Super Moped. The moped was stolen and had number plates registered to a different machine. The officers in vehicle 1 saw him, and the suspicion arose that he might be in possession of controlled drug with intent to supply. The two unmarked vehicles pursued the moped. The moped and cars travelled at speed. We were told that the Moped struck the offside of a stationary minicab in Wheelwright Street, and that the rider lost control and fell. It is suggested Mr Hicks then struck the front of an oncoming vehicle and was himself struck by the Moped, causing catastrophic brain injuries and death. Clearly, the conclusion as to facts and any resultant verdict are for the Inquest jury, and not for us. However, to the extent I have set it out, the story shows why the evidence of the four police officers is important. The family blame the police in general, and the four officers in particular, for the death.
8. From very shortly after the death, hostility to the police officers in question was widely expressed on social media. I do not intend to set out the content, although quite extensive material has been placed before this Court. There were widespread expressions of hostility, expressed in strong language, often obscene and graphic. A number of the messages contained threats, again often graphic. One example will be sufficient:

"You know what you've done, you'll get what's coming to you, police are killers, murdering scum … Don't think you're not gonna get what's coming to you after you've killed Hicksy, you'll see mug. The guns are going to come out on the estate."

9. Much of the traffic on social media involved Mr Hicks's sister Claudia and his father Mr David Hicks. There are from each expressions of great hostility and anger, expressed with particular force by Claudia Hicks. Neither Claudia nor David Hicks issue direct threats, but there are vehement expressions of wish that the officers will suffer pain and loss. There is no indication in the exchanges that the family reject or disapprove of the threats of others, although at one time the point is made that they may not help as to the conduct of the Inquest.
10. Whilst much of this material is likely to have been venting of feelings, rather than the expression of genuine threat, the volume and tone of the threatening material was and is, in my view, sufficient to give rise to a real apprehension of threat to the four officers concerned, if they were to be identified.

Proceedings before the Coroner

11. On 15 June 2015, the Metropolitan Police Commissioner made an application for anonymity for the four officers A to D. At that stage, the officers had not been joined as Interested Persons and were not separately represented. The Commissioner did not base his application on the material I have described, which was not then placed before the Coroner.
12. The Coroner had before her a risk assessment of T/DCI Cheadle of 5 June 2015, assessing the risk of significant harm to the officers as "probable". The risk included a risk to life and "the highest risk band" applied.
13. The Coroner also had a witness statement of Detective Superintendent Ryan, reviewing police intelligence since the death of Henry Hicks. Threats had been made on different occasions by six individuals. Named officers had been threatened. Two arrests had been made as a consequence of relevant threats. Further threats to the officers had been relayed from the London Probation Service and British Transport Police. Two of the four officers had taken time off work through stress. The two officers remaining at work were no longer able to work in Islington borough.
14. The application was based on the Coroner's power under Rules 11 and 18 of the Coroners (Inquests) Rules 2013 ["the Rules"]. Rule 11 defines the circumstances (not arising here) in which the public may be excluded from an inquest hearing, and otherwise stipulates that an inquest hearing must be in public. Rule 18 empowers a Coroner to direct that a witness at an inquest may give evidence from behind a screen. The relevant parts of the Rule read:

"Evidence given from behind a screen

18.

(1) A coroner may direct that a witness may give evidence at an inquest hearing from behind a screen.

(2) A direction may not be given under paragraph (1) unless the coroner determines that giving evidence in the way proposed would be likely to improve the quality of the evidence given by the witness or allow the inquest to proceed more expediently.

(3) In making that determination, the coroner must consider all the circumstances of the case, including in particular—

(a) any views expressed by the witness or an interested person;

(b) whether it would be in the interests of justice or national security to allow evidence to be given from behind a screen; and

(c) whether giving evidence from behind a screen would impede the effectiveness of the questioning of the witness by an interested person or a representative of the interested person."

15. The Application cited the real and immediate risk to the lives (Article 2, ECHR) or of serious harm (Article 3, ECHR) of the officers, and relied on the observation of Lord Carswell in In Re Officer L and Others [2007] 1 WLR 2135, at paragraph 20 and 21. The submission was that the risks objectively justified anonymity and the use of screens. Further, it was unfair and wrong that witnesses should be avoidably subjected to fears arising from giving evidence, particularly if giving rise to an adverse impact on their health.
16. The Coroner granted the application and ordered that:

"The four police officers discussed at the PIR are afforded anonymity and will be referred to and addressed as:

Officer A driver of vehicle 1

Officer B operator of vehicle 1

Officer C driver of vehicle 2

Officer D operator of vehicle 2

At inquest, their faces and any identifying features will be visible only to HM Coroner (HMC), the jury, advocates for the interested persons (IPs) and the immediate family of the deceased. No person shall identify them."

17. In the intervening period between that Order and the scheduled hearing of the Inquest on 13 June 2016, there were a number of developments in the case. The four officers had been referred to the Independent Police Complaints Commission (IPCC). The IPCC conducted an investigation, and concluded that disciplinary proceedings should be brought against the four. The Coroner sought to make arrangements for the hearing in a courtroom with arrangements for screening witnesses, her preferred location being the Royal Courts of Justice. However, those attempts did not bear fruit, and at a Pre Inquest Review on 24 May, she directed that the hearing was to take place at St Pancras Coroner's Court. Although the four were joined as Interested Persons and were represented at the hearing on 24 May, counsel was recently instructed and the four had not yet received any papers in the Inquest.
18. The proposed arrangements were that the proceedings would be relayed by live audio feed to an overflow room in a building near to the Coroner's Court. St Pancras Coroner's Court itself is not able to screen witnesses. The four officers would be seen by those present in the principal courtroom. The Coroner went on to direct that, during the evidence of the four officer witnesses, only the Coroner herself, the jury, coroner's officers, the legal teams "and the immediate family of Henry Hicks" would be present in court.
19. In May 2016 a decision was made by the Crown Prosecution Service that there would be no criminal prosecution of the four officers.
20. The files of evidence and schedules of unused material were received by those representing the four officers on 27 May. On 8 June the solicitors for the four raised with the Commissioner's legal representative the question whether the internet material had been deployed before the Coroner. On Friday 10 June 2016, the MPS Solicitors confirmed that the internet material had not been seen by the Coroner. Later that day, counsel for the four officers supplied the material to the Coroner and the other Interested Persons, and indicated the officers would apply for a direction that the family should not be permitted to see their faces.
21. It was following that sequence that on the morning of Monday 13 June, the first listed day of the Inquest, the application was made. It was opposed by leading counsel for the family. Mr Saunders for the four officers sought a hearing in camera and the Coroner permitted such a hearing, in the absence of counsel for the family. Before this occurred, Mr Rhodes QC made representations in opposition to any arrangement preventing the family from seeing the witnesses.
22. After considering the matter, the Coroner agreed to vary her previous Order. She focussed on whether the variation was necessary to give effect to the anonymity order she had made in June 2015. She gave her conclusions as follows:

"I shall not rehearse all of the submissions made to me this morning, save to say that in essence, the Facebook and other social media postings that have been made have come to light apparently. These were not, the Metropolitan Police Service's legal team was not aware of these before and certainly they were not before, not put before me. And in addition, I have been told and I accept that the officers would be easily recognisable … were they to be viewed in Court by family members. I have found this a very difficult decision to make.

In June 2015, I made the order that witness anonymity should be granted. I see no reason to go behind that now. However, what I have to decide is whether this variation is needed in order to give effect to that order.

It does not seem to me to be likely that family, that immediate family members who are in Court will act in a way that will cause Officers A to D physical harm. However, I accept that they may find it irresistible to pass on or communicate in some way with others the identity of those officers.

I don't make this decision lightly. As I have indicated, it has been very much my wish that family members should see the officers concerned. I am very conscious of the power of being in the same room as the person that one holds responsible for a death. And I am very conscious that there is a personal element that is lost … by not being face to face with that person or with those persons.

However, I am extremely concerned about the safety of these officers. And I think that this is necessary in order to give effect to the order that I made in June of last year."

23. The Coroner ruled that the family would be excluded from the main hearing room while the four witnesses gave their evidence. Family members would be able to follow the evidence from the secondary room, listening on the audio link. The Coroner made ancillary directions. She indicated she would permit breaks in the evidence so the family would have ample opportunity to give instructions to their legal team as the police evidence was given. She readjusted the timetable of the Inquest so that the family could attempt a legal challenge to her varied directions, if they saw fit.

These Proceedings

24. Initially, the family sought to challenge the holding of the ex parte hearing by the Coroner. The press as a body were concerned on this issue. The Guardian News and Media were joined and the Media Lawyers Association sought to intervene. However, that ground was withdrawn, and the Guardian and the Median Lawyers Association then no longer sought to take part in the proceedings.
25. The remaining challenge was to the direction that the family of the deceased were to be excluded from the courtroom during the evidence of the four officers.
26. The Claimants emphasise that open justice is fundamental to the common law and has long been regarded as integral to protecting the rights of those involved in court proceedings, see, for example, Al Rawi and Others v Security Service and Others [2012] 1 AC 531, per Lord Dyson at paragraph 11. The principle applies to inquests, just as to other courts of record. The onus of establishing any limitation upon open justice lies upon the party seeking to impose the limit, see In Re Press Association, ex parte Robert Jolleys [2014] 1 CAR 15.
27. In the context of an inquest, the common law principle of open justice is supported by Article 10 of the ECHR and by the freestanding obligation of investigation pursuant to Article 2 of the Convention: see the speech of Lord Bingham in R (Amin) v SSHD [2004] 1 AC 653 at paragraph 31.
28. The importance of public hearings in inquests is emphasised by a number of references in the Rules. The Claimants lay emphasis on Rules 9.3, 10.2 and 11.1, and on the limited bases on which a coroner may restrict access to an inquest pursuant to Rules 11.4, 11.5.
29. In addition to these general points, Ms Gallagher for the Claimants laid stress upon the Coroner's finding that it was unlikely immediate family members "will act in a way that will cause officers A-D physical harm". The Coroner's ruling was expressly not based on any direct risk posed by the family to the officers. The expressed reason that identity or description might be passed on or communicated in some way was an insufficient basis for the interference in the openness of the Inquest. Ms Gallagher submitted that the screening and anonymity interfered with the fundamental principle of open justice and hence any exceptions brought about by such measures must be approached narrowly: see R v Bedfordshire Coroner, ex p Local Sunday Newspapers Ltd [1999] 164 JP 283. The right of bereaved family members to effective participation in an inquest requires that they "must in general be entitled to … be present during oral evidence", see R (Humberstone) v Legal Services Commission [2011] 1 WLR 1460, and Edwards v UK (2002) 35 EHRR 19. Effective participation at such an inquest serves to ensure public accountability of the authorities involved and public scrutiny of their actions, see Ramsahai v Netherlands (2008) 46 EHRR 43.
30. The ability of the Claimants to see officers A, B, C and D give their evidence was said to be central to the Claimants' effective participation in the Inquest. The importance of seeing a crucial witness was emphasised, for example, by Hallett LJ sitting as the Deputy Assistant Coroner during the Inquests into the victims of the bombings on 7 July 2005. The relevant officers were those directly involved in the events leading up to the death. Ms Gallagher submitted that it was vital the Claimants were able to view the officers giving evidence in order to assess their demeanour, body language and credibility in response to questioning, to assess the reaction of the Coroner and the jury to the officers' evidence, and thereby to gain the fullest possible understanding as to how Henry Hicks came by his death.
31. The Claimants made specific complaint about the practicalities of the arrangements at St Pancras. The audio feed often cut out. Evidence was missed. In that way, matters went beyond a straightforward distinction between seeing a witness and hearing a witness.
32. Significantly, the Claimants made it clear that part of their objective in wishing to see the relevant witnesses was indeed to identify them. The matter was put as follows:

"Some family members may have been able to recognise one or more of the officers as having been someone they have seen before and believe to be familiar with Henry Hicks, perhaps as someone who "baited" him. … Without the ability to see the officers these family members lose this opportunity. Questioning by their advocates without instructions does not address the issue…"

33. In circumstances where it is not alleged that there was a direct threat from the family to the safety of the officers, the Coroner was in error in concluding there was sufficient risk of a breach of the officers' rights under Articles 2 and/or 3 of the Convention to justify the measures she had ordered.
34. Mr Saunders, for the officers, emphasised the content of the internet material and submitted that the Coroner was fully entitled to conclude that real and immediate risks were established in relation to the officers' rights under Articles 2 and/or 3. The steps ordered by the Coroner were fully justified.
35. Mr Beer QC for the Metropolitan Police Commissioner submitted frankly to us that it was an error for the Metropolitan Police Service not to have placed the available internet material before the Coroner in June 2015. Although the Order of 13 June 2016 was not made on the application of the Commissioner, Mr Beer voiced broad support for the directions made.

Conclusions

36. The importance of investigation into fatal events taking place in public is evident. It is underpinned by the principles of common law and the provisions of the ECHR. I have touched on some of the authority relied on by the Claimants, but no parade of learning is needed to establish the fundamental principle.
37. As the provisions of the Coroner's Rules make clear, there are circumstances where Orders such as those made by the Coroner can be justified. They should only be made where necessary and to the extent necessary.
38. The starting point for considering the approach taken by the Coroner is her Order of June 2015. The Order anonymised these witnesses on the basis of the evidence of threat then before the court. There was and is no challenge to that Order. It was in my judgment a proper step to take as matters then stood, to protect the lives and safety of the four police officers concerned. As the evidence then stood, it was a sufficient protection from a threat which was then more generally stated, as arising within the broader community. However, anonymity – suppression of the identity of the officers – was a critical element in the Order. Anything which breached anonymity would, even at that stage, necessarily have been seen as frustrating the Order.
39. The Coroner was then confronted with the additional material drawn from the internet. She was, of course, much closer to the detail of the process than could be the case in this Court. She was alive to all the nuances and detail. In my view it was not necessary for her to find that the family themselves represented a deliberate and direct threat to the safety of these officers. What she found was that there was a real risk of such a threat arising from others, if the family learned the identity of the officers concerned. There is nothing irrational or unfair in that finding.
40. I therefore conclude that the Coroner's decision to prevent the officers being seen, and potentially identified, was correct. It was appropriate that those four witnesses should be screened from the family.
41. As the parties are aware, the Coroner had wished to make arrangements more favourable to the family than had apparently proved possible. She had sought a hearing room which would enable the family (and the public) to be present with the four witnesses screened. I fully recognise that the closest possible participation by family members consistent with the protection of witnesses is desirable. It is helpful if family members can gain the most immediate impression of the proceedings, can hear the witnesses live and can readily consult with their legal team. It is highly undesirable to exclude family members from the hearing room, and should not be done unless it is absolutely necessary.
42. It was with such considerations in mind that during short adjournments, this Court was able to see that arrangements were made for the relevant parts of the Inquest to take place in the Royal Courts of Justice, with family members present. This was the kind of arrangement the Coroner had wished for all along. In my view her instinct was entirely right. Once these arrangements were made, the other issues fell away.
43. It was for these reasons that I considered the Claimants should have permission to apply for judicial review, but that the application for judicial review should be dismissed.

Lord Justice Gross:

44. I agree entirely with the Judgment of Irwin J and add only the following brief observations.
45. First, the striking timescale set out at [3] – [4] above demonstrates the Court's ability to dispose of matters very speedily indeed when there is a real need for urgency.
46. Secondly, this matter also demonstrates the importance of making flexible and imaginative use of the Court Estate. Plainly, the need here was for a court which could accommodate "special measures", in particular in the form of screens, while not excluding family members from the hearing room. For whatever reason – and no criticism of anyone concerned is intended – such arrangements were not in place until secured in the course of the hearing before us, well beyond the 11^th hour so to speak. The lesson for the future is that early negotiations between a Coroner (or his/her officials) and those responsible for the use of Court buildings are essential and must either be satisfactorily concluded or the problem escalated well in advance of the hearing date. It is important to keep in mind that by no means all such matters either can or should be transferred to the Royal Courts of Justice; there are satisfactory alternatives elsewhere on the Estate, though for present purposes the St Pancras Coroner's Court was not one.
47. Thirdly and by no means for the first time, this matter demonstrates the tension between social media (and the abusive nature of the views all too frequently encountered there, as illustrated at [8] – [10] above) and the importance of open justice. There is nothing to suggest that this problem will diminish and it remains unfinished business for the Justice System.