QUEEN'S BENCH DIVISION
(sitting in Birmingham)
Strand, London, WC2A 2LL
B e f o r e :
THE HON MRS JUSTICE CARR
| THE QUEEN (on the application of JULIE HAMBLETON & OTHERS)
|- and -
|CORONER FOR THE BIRMINGHAM INQUESTS (1974)
|(1) MICHAEL REILLY on behalf of DESMOND AND EUGENE REILLY
(2) WEST MIDLANDS POLICE
(3) BRIAN DAVIS on behalf of JANE DAVIS
Peter Skelton QC and Matthew Hill (instructed by Fieldfisher LLP) for the Defendant
Hearing dates: 6 and 7 December 2017
Crown Copyright ©
Lord Justice Simon:
1. Duty to investigate certain deaths -
(1) A senior coroner who is made aware that the body of a deceased person is within that coroner's area must as soon as is practicable conduct an investigation into the person's death if subsection (2) applies.
(2) This subsection applies if the coroner has reason to suspect that -
(a) the deceased died a violent or unnatural death;
(b) the cause of death is unknown; or
(c) the deceased died while in custody or otherwise in state detention.
5. Matters to be ascertained
(1) The purpose of an investigation under this Part into a person's death is to ascertain -
(a) who the deceased was;
(b) how, when and where the deceased came by his or her death;
(c) the particulars (if any) required by the 1953 Act to be registered concerning the death.
(2) Where necessary in order to avoid a breach of any Convention rights (within the meaning of the Human Rights Act 1998 … the purpose mentioned in subsection (1)(b) is to be read as including the purpose of ascertaining in what circumstances the deceased came by his or her death.
(3) Neither the senior coroner conducting an investigation under this Part into a person's death nor the jury (if there is one) may express any opinion on any matter other than -
(a) the questions mentioned in subsection (1)(a) and (b) (read with subsection (2) where applicable);
(b) the particulars mentioned in subsection (1)(c).
10. Determinations and findings to be made -
(1) After hearing the evidence at an inquest into a death, the senior coroner (if there is no jury) or the jury (if there is one) must -
(a) make a determination as to the questions mentioned in section 5(1)(a) and (b) (read with section 5(2) where applicable), and
(b) if particulars are required by the 1953 Act to be registered concerning the death, make a finding as to those particulars.
(2) A determination under subsection (1)(a) may not be framed in such a way as to appear to determine any question of -
(a) criminal liability of the part of a named person, or
(b) civil liability.
(5) In the case of an investigation resumed under this paragraph, a determination under section 10(1)(a) may not be inconsistent with the outcome of:
(a) the proceedings in respect of the charge (or each charge) by reason of which the investigation was suspended;
(b) any proceedings that, by reason of subparagraph (2), had to be concluded before the investigation could be resumed.
Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
The Coroner's Ruling on Scope
(1) Forewarning: whether West Midlands Police ('WMP') or other state agency had prior knowledge that a bomb attack would take place in Birmingham on or around 21 November 1974, and whether further steps could or should have been taken to prevent the bombings;
(2) Agent/Informant: whether WMP or any other state agency were engaged in concealing the actions of agents or informants who were responsible for the bombings, or whether there was other state involvement or collusion to enable the Birmingham Bombings to take place;
(3) Emergency Response: the response of the emergency services to the bombings, its adequacy or otherwise, and whether any failings caused or contributed to the deaths that resulted from the bombings;
(4) The Perpetrator Issue: the identities of those who planned, planted, procured and authorised the bombs used on 21 November 1974.
In considering the exercise of my discretion on the question of scope I have therefore taken into account both the distinction between the roles of inquests and criminal proceedings and the statutory prohibitions in section 10(2) and paragraph 8(5) of Schedule 1. I have also looked at the particular circumstances of the instant case. Having done so, I conclude that the perpetrator issue should not be within scope in this case.
(1) Although a jury may conclude that the deceased was unlawfully killed it may not say by whom. The identity of the perpetrator is a matter for the police and the prosecuting authority (§76).
(2) The verdict of the jury may not be inconsistent with the outcome of the proceedings in respect of which the Inquests were suspended, see paragraph 8(5) Schedule 1 to the 2009 Act. It followed that the Inquest verdicts could not be inconsistent with the acquittals of the Birmingham Six (§§84-85).
(3) To permit the perpetrators to be within the scope would be seen to be taking on the role of 'a proxy criminal trial', which, if it identified the perpetrators, would contravene the prohibition in s.10(2)(a) and, in the case of the Birmingham Six, the additional prohibition in paragraph 8(5) of Schedule 1 (§§87-8). It would also offend against the statement of principle set out in the judgment of Sir Thomas Bingham MR in R v. HM Coroner for North Humberside and Scunthorpe, Ex p. Jamieson  QB 1 at 24(5):
… the verdict may not appear to determine any question of criminal liability on the part of a named person.
(4) It would not be fair or logical for named individuals, whether the Birmingham Six or others, to be paraded through the evidence in the hope that they might be identified as perpetrators (§88).
(5) There would be practical difficulties: the sheer size and complexity of any investigation into the criminal responsibility of individuals 43 years after the event, in circumstances where years of police investigations, enquiries and reviews had yielded no clear result. The approach would inevitably be piecemeal and incomplete, relying primarily on books and the press in which various individuals had been named (§89).
(6) The inquest process, without the resources of a police force, was incapable of carrying out the task (§89).
(7) Such an investigation would be disproportionate to answering the four statutory questions: who the deceased were, how, when and where they came by their death (§89).
(8) The jury would not be able to say that an individual was involved in the planning, planting, procuring or authorizing of the bombing without breaching the statutory prohibitions (§90).
(9) The article 2 procedural duty does not require the state to investigate who perpetrated the bombings in circumstances where the state, through police investigations has already undertaken extensive investigations into the crimes (§91).
The first and second grounds of challenge
It is for the coroner conducting an inquest to decide, on the facts of a given case, at what point the chain of causation becomes too remote to form a proper part of his investigation.
The coroner must decide how widely the inquiry should range to elicit facts pertinent to the circumstances of the death and responsibility for it. This may be a difficult decision, and the enquiry may … range more widely than the verdict or findings.
Conclusions on grounds 1 and 2
(1) The fact that the jury is precluded by s.10(2)(b) from making a determination which is framed in a way that determines any question of criminal liability of a named person, and the fact that the primary responsibility for detecting and prosecuting individuals for crimes vests with the police and prosecuting authority, are not (at least without more) reasons for excluding the identification of perpetrators from the scope of the Inquests. However, the implicit inhibition in s.5(3) and the explicit prohibition in s.10(2)(a) highlight the difference between the proper ambit of an inquest on the one hand, and the role of police investigations and prosecutions in criminal trials on the other.
(2) Mr Straw argued that it should be open to the jury to consider whether one or more of the Birmingham Six were the perpetrators of the Birmingham bombings, while maintaining that this would not be inconsistent with the outcome of the proceedings in respect of which the Inquests were suspended, see paragraph 8(5) of Schedule 1 to the 2009 Act. We see considerable difficulties with this submission both in terms of the statutory provisions and in terms of fairness (with which we deal below). It seems to us that it would be wholly inconsistent with the principle of finality in legal proceedings that those who have been acquitted of a homicide offence should then be the subject of a full enquiry as to whether they were in fact guilty, provided that no findings were in fact made.
(3) To some extent we have dealt with the Coroner's concern that to permit the identity of the perpetrators to be within the scope of the Inquests might be seen to be taking on the role of 'a proxy criminal trial' which might result in a contravention of the prohibition in s.10(2)(a) and in the case of the Birmingham Six, the additional prohibition in paragraph 8(5). We accept Mr Straw's submission that the prohibition in s.10(2)(a) is confined to determinations of the questions in s.5(1) and (2). Although inquests should not become proxy criminal trials without the protections afforded to defendants, there may be inquests in which the identity of those involved in violent deaths may properly be within the scope of the inquest. Mr Straw gave the example of armed response police officers shooting a suspect.
(4) As already indicated, issues of fairness and proportionality will be relevant. We recognise that fairness in the process may involve fairness to those who have a profound and abiding interest as relatives of the deceased as well as to those who may be implicated in a homicide. Mr Straw submitted that the coronial process can ensure fairness: the right to be treated as an interested party under s.47(2)(f) of the 2009 Act, the privilege against self-incrimination and the criminal standard of proof required for a conclusion of unlawful killing, see for example R (Anderson) v. HM Coroner for North London  EWHC 2720 at  (Admin). In our view, these points do not entirely answer the question of fairness. The law does not recognise any time limits for the prosecution of defendants. However, it recognises the difficulties that witnesses may have in accurately recollecting events after a long passage of time; as it does the potential unreliability of hearsay and double-hearsay evidence from 'confidential sources' described in books and the press, whose provenance and reliability may be very difficult, if not impossible, to establish and which cannot easily be tested. Such considerations may go to the reasonableness and proportionality of the potential scope of an inquest.
(5) We have already dealt with some of the practical difficulties. In our view the size and complexity of an investigation into the criminal responsibility of individuals, 43 years after the event, in circumstances where police investigations and reviews have failed to identify the perpetrators, is a relevant factor. However, it is not an overwhelming factor and the position may change if new information comes forward.
(6) Mr Straw submitted that the availability of coronial resources was an irrelevant factor where there had been failure by the State to bring the perpetrators of mass murder to justice. As a statement of abstract principle, we agree. If the identity of the perpetrators is properly regarded as being within the scope of the Inquest, then we would not expect limitations on financial resources to inhibit the inquiry. However, the fact that significant police resources have been deployed without leading to the identification of the perpetrators is a potentially relevant factor in deciding where the line is to be drawn.
(7) Although we have approached it in a different way to the Coroner, it is our view that proportionality is a material consideration.
(8) We do not agree that the jury would be unable to identify an individual involved in the planning, planting, procuring or authorizing of the bombing without breaching the statutory prohibitions. The statutory regime would circumscribe certain aspects of an enquiry into potential perpetrators but s.10(2) applies to the conclusion not the investigation. A jury can plainly explore facts bearing on criminal and civil liability.
Ground 3: article 2
… the investigation must be capable of leading to … the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish … the person or persons responsible will risk falling foul of this standard. [Emphasis added].
The European Court has repeatedly recognised that there are many different ways in which a state may discharge its procedural obligation to investigate under article 2. In England and Wales an inquest is the means by which the state ordinarily discharges that obligation, save where a criminal prosecution intervenes ... To meet the procedural requirement of article 2 an inquest ought ordinarily to culminate in an expression, however brief, of the jury's conclusion on the disputed factual issues at the heart of the case. [Emphasis added].
Conclusion on ground 3
… the national courts should not under any circumstances be prepared to allow life-endangering offences to go unpunished. This is essential for maintaining public confidence and ensuring adherence to the rule of law and for preventing any appearance of tolerance of, or collusion in, unlawful acts. The Court's task therefore consists in reviewing whether and to what extent the courts, in reaching their conclusion, may be deemed to have submitted the case to the careful scrutiny required by Article 2…, so that the deterrent effect of the judicial system in place and the significance of the role it is required to play in preventing violations to the right to life are not undermined.
(1) An order quashing the Coroner's decision under s.31(1)(a) of the Senior Courts Act 1981;
(2) A mandatory order under s. 31(1)(a) of that Act, requiring the Coroner to include the Perpetrator Issue within scope;
(3) A declaration under s.31(1)(b) of that Act, that the Coroner's decision was contrary to Article 2 and s. 6(1) of the Human Rights Act 1998.