Neutral Citation No: [2025] NICA 25
Judgment: approved by the court for handing down (subject to editorial corrections)* |
Ref: KEE12746
ICOS No: 22/84383/A01
Delivered: 13/05/2025 |
IN HIS MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND
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ON APPEAL FROM THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
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KING'S BENCH DIVISION
(JUDICIAL REVIEW)
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IN THE MATTER OF AN APPLICATION BY WILLIAM THOMPSON
FOR JUDICIAL REVIEW
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Karen Quinlivan KC and Andrew Moriarty (instructed by Madden and Finucane, Solicitors) for the Applicant
Ian Skelt KC and Laura McMahon KC (instructed by the Coroners Service for Northern Ireland) for the Respondent
Donal Lunny KC and Andrew McGuinness (instructed by the Crown Solicitor's Office) for the notice party, the Ministry of Defence
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Before: Keegan LCJ, Horner LJ and Colton J
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KEEGAN LCJ (delivering the judgment of the court)
Introduction
[1] This is an appeal from the judgment of Mr Justice Scoffield ("the judge") delivered on 8 November 2024, wherein he found that the coroner in this case, Her Honour Judge Crawford ("the coroner") had acted unlawfully in failing to reconsider anonymity before concluding the inquest but that relief would not be granted due to her indication of what the outcome would have been, namely maintenance of anonymity for Soldier D.
Relevant background
[2] This is comprehensively set out by the judge and so we will not repeat it save for the following brief summary. Soldier D is one of several former soldiers who were called to give evidence during the inquest into Kathleen Thompson's death, on the basis that they had information which was either potentially or directly relevant to her death.
[3] Soldier D's identity was anonymised by the former coroner with conduct of the inquest, Coroner McGurgan. He made a provisional ruling on 6 October 2017, followed by a final ruling on 19 October 2017.
[4] The coroner held that while the risk assessment to Soldier D's life was deemed as low in both Great Britain and Northern Ireland, this risk assessment could increase to a moderate level threat should he give evidence without anonymity and screening procedures in place. On that basis, the coroner concluded that the operational duty to protect life under Article 2 was engaged and anonymity remained throughout the proceedings.
The inquest and ensuing events
[5] The evidence in the inquest concluded on 23 June 2021. The coroner handed down a summary of her findings in open court on 29 June 2022. She indicated that her "full decision" would be circulated within days; and that on that occasion she was simply summarising her key findings. These were that Soldier D, on the balance of probabilities, shot the appellant's mother in circumstances which were not justified.
[6] Thereafter, it was agreed among the parties that they would make written submissions as to the issue of possible referral of Soldier D to the Director of Public Prosecutions ("DPP") for consideration for prosecution and that, subsequently, the coroner would determine how to proceed in relation to that. The transcript of the hearing on 29 June 2022 also records that on this occasion the coroner said:
"Having concluded my summary findings, I would like to extend my thanks to the Coroner's Office and to all of the legal representatives and to express my sympathy to the Thompson family."
[7] The inquest verdict and findings are contained in a full written decision and was provided by email nine days later, before 9:00am on the morning of Friday 8 July 2022. On the same date, 8 July, after the coroner's full written ruling had been shared, the applicant's legal representatives requested that she reconsider and rescind Soldier D's anonymity and also that she refer Soldier D to the DPP pursuant to section 35(3) of the Justice (Northern Ireland) Act 2002 ("the 2002 Act") in light of her findings.
[8] On 9 September 2022, the Crown Solicitors Office acting on behalf of the Ministry of Defence ("MoD") provided a response to these requests. It opposed both the reopening of the issue of anonymity and the referral of Soldier D to the DPP. In relation to the former, it contended that the coroner had become functus officio on 29 June.
[9] On 28 September 2022, the applicant issued the application for leave to apply for judicial review proceedings (purportedly on a protective basis in case time for the purposes of Rules of the Court of Judicature Order 53, rule 4(1) ran from the date of 29 June). Shortly afterwards, on 5 October 2022, the coroner sent a letter to all of the inquest participants indicating that she intended to pass on her findings to the DPP pursuant to section 35(3) of the 2022 Act.
[10] As to the question of Soldier D's anonymity, the coroner invited submissions in relation to this and, in particular, whether she was functus officio in light of the ruling of the Court of Appeal in Re McDonnell's Application [2015] NICA 72 specifically para [25]:
"The 1963 Rules provide detailed procedures for the conduct of inquests between Rules 2 and 23. Rule 4 provides that every inquest shall be opened, adjourned and closed in a formal manner. The importance of this lies in the fact that once the inquest is closed the coroner no longer has power to take any steps in relation to the conduct of the inquest. To do so would offend the rule that he has become functus officio. That includes any steps in relation to questions of anonymity and screening which he had to deal with in the course of the inquest." [emphasis added]
[11] Independently, and without knowledge of the coroner's correspondence of the preceding day, a Case Management Directions Order was issued in these proceedings on 6 October 2022 indicating, inter alia, that:
"it would be of assistance to the Court if the Coroner could address the question of whether she considers herself to be functus officio and the substance of the anonymity issue which has been raised (or how it should be dealt with)."
[12] On 26 October 2022, the coroner ruled on the application which had been made to her. She concluded that she was functus officio and, thus, not in a position to reconsider the application to rescind the anonymity which had been granted to Soldier D because, at the time when she delivered her written findings and closed the inquest on 8 July 2022, none of the parties had by then raised the issue of anonymity. In light of the court's invitation to assist on this issue, however, the coroner went on to explain that, had she not been functus officio, she would not have removed the anonymity which had been granted. She provided her reasons for that.
The decision at first instance
[13] The sole question before the High Court was whether the coroner had acted unlawfully by failing to reconsider the issue of anonymity granted to Soldier D in the course of the inquest, after he had been found to be responsible for the death of Kathleen Thompson in circumstances where the force used was not justified.
[14] The judge identified that the primary issue in the case was whether the coroner erred in failing to consider the anonymity issue before closing the inquest, once she was aware of her findings against him. At para [32], he made a finding that the coroner had erred in law by failing to reconsider Soldier D's anonymity after having made clear findings about the unlawful use of force.
[15] The judge went on to find that anonymity orders ought to be revisited and reviewed throughout the process of an inquest. Applied to the current case, the judge found that the main factor which represented a change in circumstance was the coroner's findings that Soldier D had used unjustified force which resulted in Kathleen Thompson's death. As a matter of common sense, the judge found that any reconsideration of an article 2 grounded anonymity order was likely to remain in force, given that the risk to Soldier D's life would be more likely to increase following a finding like that in the present case.
[16] The next question posed by the judge was to the effect whether it was too late when the request for reconsideration was made. As to this the judge found that the coroner was correct to consider herself functus officio at the time when she was requested to review the anonymity.
[17] The judge declined to grant relief, despite finding that the coroner erred by failing to reconsider the anonymity order. The reasons provided for this were twofold: while the court could quash the closure of the inquest and remit the anonymity issue back to the coroner for reconsideration, this would serve no purpose given that the coroner had clearly stated how she would have approached the matter, and there were no identifiable errors within that decision.
Relevant statutory provisions
[18] In Northern Ireland the primary statute governing the exercise of coronial functions remains the Coroners Act (Northern Ireland) 1959 ("the 1959 Act"). Section 36 of the 1959 Act provides for the making of rules to regulate the practice or procedure at, or in connection with, inquests. It provides (insofar as material) that:
"Rules under this section may:
...
(b) regulate the practice and procedure at or in connection with inquests and, in particular (without prejudice to the generality of the foregoing provisions), such rules may contain provisions—
(i) as to the procedure at inquests held with a jury;
(ii) as to the procedure at inquests held without a jury; ..."
[19] The relevant rules are the Coroners (Practice and Procedure) Rules (Northern Ireland) 1963 (SR 1963/199), as amended ("the 1963 Rules"). Detailed provision in relation to the conduct of inquests is set out in rules 3 to 23.
[20] Rule 4 provides that:
"Every inquest shall be opened, adjourned and closed in a formal manner."
[21] Rule 5 also refers to the general rule that:
"Every inquest shall be held in public: Provided that the coroner may direct that the public be excluded from an inquest or any part of an inquest if he considers that it would be in the interest of national security so to do."
[22] Rule 11 also underscores the requirements in relation to the listing of an adjourned inquest:
"Where a coroner has fixed a date, hour and place for the holding of an adjourned inquest, he may, at any time before the date so fixed, alter the date, hour or place fixed and shall then give notice of the alteration to the members of the jury (if any), the witnesses, and any other person appearing in person or represented at the inquest."
[23] Rule 22 also contains the following requirements which follow the hearing of an inquest:
"22.—(1) After hearing the evidence the coroner, or, where the inquest is held by a coroner with a jury, the jury, after hearing the summing up of the coroner shall give a verdict in writing, which verdict shall, so far as such particulars have been proved, be confined to a statement of who the deceased was, and how, when and where he died.
(2) When it is proved that the deceased took his own life the verdict shall be that the deceased died by his own act, and where in the course of the proceedings it appears from the evidence that at the time the deceased died by his own act the balance of his mind was disturbed, the words 'whilst the balance of his mind was disturbed' may be added as part of the verdict."
[24] Rule 23(1) further provides that any verdict given in pursuance of Rule 22 shall be recorded in the form set out in the Third Schedule.
[25] Section 35(3) of the 2002 Act, which concerns referral to the DPP is in the following terms:
"Where the circumstances of any death which has been, or is being, investigated by a coroner appear to the coroner to disclose that an offence may have been committed against the law of Northern Ireland or the law of any other country or territory, the coroner must as soon as practicable send to the Director a written report of the circumstances." [our emphasis]
Grounds of appeal
[26] This appeal distills into three core issues as follows:
(i) The judge erred in finding that the coroner was functus officio for the purpose of reviewing whether the grant of anonymity should remain in place.
(ii) Whether, even if functus officio, the coroner could review anonymity in the same way that the coroner can decide upon a referral to the DPP post an inquest being closed.
(iii) In the alternative, whether the judge erred by refusing to remit the anonymity decision back to the coroner for reconsideration in light of the court's judgment.
[27] At hearing, Ms Quinlivan did not suggest that we revisit the decision in Re McDonnell's Application [2015] NICA 72, in any respect as she maintained that this case was distinguishable on the facts. We agree with this approach. In McDonnell, no individual was identified as personally responsible for any wrongdoing. The Court of Appeal, therefore, found that there was no trigger which would lead to a review of anonymity. Para [30] of McDonnell only contemplates such a review when there has been some material change in circumstances affecting the question of anonymity. Then, it found that a coroner has an obligation to reconsider.
Our analysis of the issues
[28] Rule 4 of the 1963 Rules states that, "Every inquest shall be opened, adjourned and closed in a formal manner." In McDonnell, Morgan LCJ interpreted rule 4 at para [25] as meaning that:
"...once the inquest is closed, the coroner no longer has power to take any steps in relation to the conduct of the inquest...This includes any steps in relation to questions of anonymity and screening which he had to deal with in the course of the inquest."
[29] Scoffield J noted that this finding is clear and binding on the High Court. Moreover, he noted that it is consistent with the principle of legal certainty that a coroner should not be required to deal with "repeated, periodic requests to rescind anonymity granted in the course of a concluded inquest."
[30] The application of anonymity for a witness is not addressed in the rules but is part of the common law powers of a coroner to conduct proceedings as he or she sees fit. A coroner's limited discretion to depart from the principle of open justice was outlined by the Divisional Court in England and Wales in the case of R (Secretary of State for the Home Department) v Assistant Deputy Coroner for Inner West London [2010] EWHC 3098 (Admin). In this case, the court emphasised at para [36] the importance of holding legal proceedings in public, "unless there is good reason for them not to be."
[31] However, it is a common occurrence in legacy inquests in Northern Ireland that protective measures are granted to witnesses, because of ongoing risks or threats to serving or former members of security forces. The obligation to do so derives from their Convention rights. Nevertheless, such a clear derogation from the principle of open justice has meant that authorities have found the issue of anonymity must be kept under review. In general, the issue may need to be reconsidered in two situations:
(i) There is a material change of circumstances which merits a re-balancing of the competing interests at play; and/or
(ii) The coroner is requested to reconsider by either the witness, or one of the properly interested persons ("PIPs") in the proceedings on the basis that there is a change in circumstances or new information.
These principles are derived from two notable cases, Re McDonnell and Re Officer C and others [2012] NICA 47.
[32] The above is but a brief synopsis of the coronial context in which this appeal arises. For present purposes, this is sufficient as the specific issue under consideration is a procedural one as to when the coroner became functus officio and how this impacted on the coroner's powers.
[33] The judge rejected the argument advanced by the MoD that the inquest closed when the coroner made her oral findings. He found that the inquest was closed on 8 July 2022. He also held that the coroner was unable to reconsider the anonymity issue thereafter. We agree with the judge that it was clear the coroner considered the inquest closed once she delivered her final written ruling on 8 July 2022.
[34] There are several reasons which support this finding which can be gleaned from the papers and the transcript of hearing before the coroner on 29 June 2022. The oral delivery of the coroner's core findings before the end of High Court term included an indication that a written ruling would follow without further hearing, which is consistent with this being the final step in proceedings at which point the inquest would be closed. The coroner's comments that she would not see lawyers involved in the inquest again would have made the position clear to the professional lawyers involved. Thereafter, the coroner's written ruling which includes the inquest verdict was a final formal step which closed the inquest.
[35] At the court's request the parties submitted a note on the position in relation to the closing of an in inquest in England and Wales. The rules in England and Wales do not provide for the "closing" of an inquest. Section 10 of the Coroners and Justice Act 2009 sets out what is to occur at the end of an inquest. The coroner is required to make a record of the "findings" regarding the particulars required by the Births and Deaths Registration Act 1953 and determinations regarding the four statutory questions under section 5(1)(a) and (b) (who the deceased was, how, when and where they came by their death) as well as the cause of their death.
[36] The Chief Coroner's Guidance for Coroners on the Bench (updated 1 January 2025) refers to functus officio in Chapter 15 as follows:
"13. On the signing of the ROI [Record of Inquest] the inquest and investigation are formally concluded, and the coroner becomes functus officio."
[37] Of interest in relation to the arguments about the implications of the power to make a report in this case, paragraph 13 concludes:
"The coroner may still exercise their power under Paragraph 7 of Schedule 5 of the 2009 Act to make a report to prevent future deaths, but as their investigation has now concluded they have no power to hear any further evidence."
[38] In a subsequent disputed note, submitted after notice of judgment was given, Ms Quinlivan sought to argue that there was some material contrast between the two jurisdictions in that the use of the word formal in the 1963 Rules meant that a court could not infer that an inquest had been closed where a coroner had not expressly stated, "I close this inquest." This is a new argument raised after the appeal. But in any event, we are not attracted to it.
[39] The requirement in our rules is simply for a formal step to be taken to close the inquest. The text Coroners Law and Practice in Northern Ireland by Leckey and Greer refers at para 7-39 to the fact that "every inquest must be opened, adjourned and closed in a formal manner. There is no prescribed form and practice varies."
[40] Furthermore, the coroner was well aware of her obligations given her written ruling which contains the inquest verdict. It has never been suggested that she failed to comply with any of the requirements set out in the rules. She also referred to the obligations imposed by article 2 of the European Convention on Human Rights with which no issue is taken. In the introductory paragraphs 3 and 4 of her ruling she refers to the requirements under the rules under the heading "The law relating to the holding of inquests" as follows:
"3. The inquest was heard by me sitting as a coroner without a jury. Having had regard to section 18 of the Coroners Act (Northern Ireland) 1959 and without objection from the parties, it was decided not to summon a jury. Coroners (Practice and Procedure) Rules (Northern Ireland) 1963.
4.All inquests are limited to answering the questions mandated in Rules 15, 16 and 22(1) of the Coroners (Practice and Procedure) Rules (Northern Ireland) 1963 which provide as follows:
'15. The proceedings and evidence of an inquest shall be directed solely to ascertaining the following matters, namely:
(a) Who the deceased was;
(b) How, when and where the deceased came by his death;
(c) The particulars for the time being required by the Births and Deaths Registration (Northern Ireland) Order 1976 to be registered concerning the death.
16. Neither the coroner nor the jury shall express any opinion on questions of civil or criminal liability or on any matter other than those referred to in the last foregoing rule provided that nothing in this rule shall preclude the coroner or the jury from making a recommendation designed to prevent the recurrence of the fatalities similar to that in respect of which the inquest is being held.'
22.(1) After hearing the evidence the coroner, or, where the inquest is held by a coroner with a jury, the jury, after hearing the summing up of the coroner shall give a verdict in writing, which verdict shall, so far as such particulars have been proved, be confined to a statement of who the deceased was, and how, when and where he died."
[41] The approach taken by this coroner which has not been challenged by judicial review accords with the practice and procedure which has been adopted in Northern Ireland in legacy inquests heard by a coroner acting without a jury. It provides the formality required to satisfy the rules and is sufficiently clear so that all those engaged with an inquest know that it is closed. So far as we are aware it has not been challenged in any other case despite the many legacy inquests that have been heard in this jurisdiction.
[42] What then is the significance of a potential DPP referral? As to this issue, the judge rejected the applicant's submission that the inquest remained open by virtue of the fact that the coroner had not decided whether to make a referral to the DPP under section 35(3) of the 2002 Act.
[43] The judge determined that the DPP referral is a separate obligation to those which are relevant in the course of an inquest. We agree. This is a distinct obligation which is separate from the coroner's investigation and can in the terms of the statute clearly arise after the inquest has concluded. By contrast as Mr Lunny KC persuasively argued to us the anonymity which attaches to a witness is part of the coroner's investigation and not a separate administrative task that the coroner has power to revisit after the inquest has closed. This position accords with what the Court of Appeal has previously said in McDonnell.
[44] However, that is not the end of the matter. As the judge noted at para [31] of his judgment, a finding of unlawful conduct against a specific individual "may" require a coroner to conduct a further balancing exercise of the article 2 interests to determine whether anonymity is justified in a particular case. In this case, given the finding made, the judge concluded that the coroner ought to have done so of her own motion prior to closing the inquest. He also noted that once her oral findings were clear, the PIPs, "could and should have indicated to the coroner that the issue of Soldier D's anonymity would be the subject of a request that it be reconsidered."
[45] The above finding was based on the previously stated principle in the case of McDonnell where the Court of Appeal held:
"[34] Where there has been a finding of unlawful conduct on the part of an individual contributing to a death, we recognise that it may be necessary to conduct such a balancing exercise even where the Article 2 threshold in relation to that individual has been met."
[46] We agree with the judge's assessment on this. Unfortunately, there has been a collective failure here to resolve this issue at the appropriate time. It was not raised by any counsel when the findings were delivered. However, the coroner, having made the findings she did regarding Soldier D, should have adjourned the inquest briefly and allowed any representations to be made in writing to her on the anonymity issue. We do not think that oral submissions were necessary, as Ms Quinlivan accepted, although they may be appropriate in another case.
[47] The failing we have identified must be viewed in light of the coroner's ruling after the commencement of the judicial review that in the event her functions had not been discharged, she would have determined that it was appropriate to maintain the anonymity which had previously been granted. In summary, the coroner determined that her findings that Soldier D had used unlawful force to kill Mrs Thompson would not have reduced the threat to his life and rather would have increased it. The coroner made this decision with access to papers filed by the parties in the proceedings which included submissions which dealt with anonymity issues.
[48] The only potential gap was that the coroner did not have an up-to-date threat assessment. Having considered this issue we can see that it may have been better to update the evidence. However, against that there was unlikely to be any change. This omission is not fatal to the coroner's conclusion that anonymity should remain. A further relevant factor in the overall analysis flows from the fact that the coroner decided to refer Soldier D for consideration for prosecution. Should he be prosecuted, the coroner's removal of anonymity would render nugatory any application by Soldier D in the criminal court for anonymity in the course of those proceedings. The judge noted that Soldier D would also likely be required to return to Northern Ireland, where there is a higher threat than in Great Britain.
[49] Therefore, we agree with the judge's common-sense approach that there was no utility in quashing the closure of the inquest and remitting the matter back to the coroner. The question of relief in any judicial review is a matter of discretion for the judge. We see no valid reason why we would interfere with the judge's exercise of discretion in this case.
Conclusion
[50] We commend the judge for the practical and purposeful approach he took to this case which we endorse. We approve of the guidance he gave to coroners for inquests in the future set out at para [47] of his judgment. This we condense into four key points as follows:
· For the avoidance of any doubt a coroner should state clearly that the inquest is being opened, adjourned and closed. This should ideally be in open court but may be done in writing where appropriate.
· It is best practice to give advance warning of the coroner's intention to close the inquest to PIPs.
· PIPs should seek to identify any ancillary issues as soon as possible after findings are promulgated.
· A coroner, after making a finding which is critical of the behaviour of an individual with anonymity, should consider whether this necessitates reopening the issue of the grant of anonymity and should seek submissions from the PIPs to that effect.
[51] If this guidance is followed, the issue that has arisen in this appeal should not arise again. Coroners will be aware that they should review anonymity before they close an inquest and then formally close an inquest.
[52] Accordingly, for the reasons we have given, we dismiss the appeal on all grounds and affirm the decision of Scoffield J.