Jordan (AP) (Appellant) v. Lord Chancellor and another (Respondents) (Northern Ireland) McCaughey (AP) (Appellant) v. Chief Constable of the Police Service Northern Ireland) (Respondent) (Northern Ireland)
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Jordan (AP) (Appellant) v. Lord Chancellor and another (Respondents) (Northern Ireland)
McCaughey (AP) (Appellant) v. Chief Constable of the Police Service Northern Ireland (Respondent) (Northern Ireland)
 UKHL 14
LORD BINGHAM OF CORNHILL
The legislation and the rules
The jury were then to set out their conclusion as to the death, and again examples were given, among them
Other examples were given.
Section 25(1) recognised and regulated the power of a coroner's inquisition to charge a person with murder, manslaughter or infanticide. Sections 26 and 27 conferred wide rule-making powers on the Lord Chancellor.
These rules were supplemented by rules 32-34:
Rule 42 provided that the forms set out in the Third Schedule to the Rules, "with such modifications as circumstances may require, may be used for the purposes for which they are expressed to be applicable". Form 18 in the Third Schedule contained a form of inquisition. The name of the deceased was to be given. The injury or disease causing death was to be identified, attention being focused (in the case of a death from natural causes, industrial disease, want of attention at birth, chronic alcoholism or addiction to drugs) on the immediate cause of death and the morbid conditions (if any) giving rise to the immediate cause of death. In the case of injury, details were to be given of the time place and circumstances at or in which the injury was sustained. The conclusion of the jury or the coroner was to be stated. In the case of a death from natural causes, industrial disease etc a number of forms of verdict were suggested. In any other case except murder, manslaughter, infanticide or stillbirth, one of the following forms was suggested: "CD killed himself [whilst the balance of his mind was disturbed]"; "CD died as the result of an accident/misadventure"; "The killing of CD was justifiable or excusable". Provision was made for an open verdict. Attention was drawn, in the case of murder, manslaughter or infanticide, to the Rules set out in the Indictable Offices (Coroners) Rules 1927.
Section 8, the subject of the disclosure issue in Mr McCaughey's appeal, imposed a duty on the police:
On receiving information under section 7 or section 8, the coroner must (section 11) instruct a constable to take possession of the body and "make such investigation as may be required to enable him to determine whether or not an inquest is necessary".
This section was amended by article 12 of the Criminal Justice (Northern Ireland) Order 1980 by deleting paragraphs (a) and (d). Section 23 required the coroner, after the inquest, to send to the appropriate registrar of deaths a certificate giving the particulars required to be registered concerning the death, the findings with regard to those particulars and the cause of death.
Section 36 gave power to the Ministry of Home Affairs, now the Lord Chancellor, to make rules governing inquests and to prescribe forms of verdict for use at inquests.
In response to the Jordan judgment, rule 9 was amended by the Coroners (Practice and Procedure) (Amendment) Rules (Northern Ireland) 2002 (SI 2002/37) to read
In 1980 the last eleven words of para (1) were replaced by "the matters specified in rule 15", the only effect of which was to include reference to the registration particulars. Rule 23(1) of the 1963 Rules provided:
Rule 23(2) reproduced in identical language rule 34 of the 1953 Rules. It was replaced in 1980 by a sub-rule providing:
Rule 43 of the 1984 Rules reproduces rule 23(2) of the 1963 Rules as amended by substitution of a new paragraph in 1980. Rule 60 provides that the forms set out in Schedule 4, with such modifications as circumstances may require may be used for the purposes for which they are expressed to be applicable. Schedule 4 includes a model form of inquisition in form 22. This is closely modelled on form 18 scheduled to the 1953 Rules (including, as one possible conclusion, "CD was killed lawfully") and is similar in effect to form 22 scheduled to the 1963 Rules before that rule was amended in 1980. But it includes one sentence not found in any previous version of the form in Northern Ireland or England and Wales:
This verdict has been used in cases such as R v Director of Public Prosecutions, Ex p Manning  QB 330.
Subsection (3) requires a jury to be summoned where, among other things, the death occurred in prison or at the hands of the police. This is a simpler provision than section 13(2) of the 1926 Act or section 18 of the 1959 Act. Section 11(5) of the Act, in line with section 4(3) of the 1887 Act, rule 26 of the 1953 Rules, section 31(1) of the 1959 Act, rule 15 of the 1963 Rules and rule 36(1) of the 1984 Rules, provides:
It was understood that rules 15 and 16 followed from recommendations of the Brodrick Committee on Death Certification and Coroners (Cmnd 4810) (see para 70) and reference was made to some domestic authority, attributing to the Court of Appeal in Jamieson a statement made by the Court of Appeal in Northern Ireland in Re Ministry of Defence's Application. In considering the scope of the inquest, the Court in its judgment noted that the inquest in McCann had been held to satisfy the state's procedural obligation under article 2 (para 125) but pointed to differences between the McCann inquest and inquests held in Northern Ireland (para 126). The first difference (para 127) related to the non-compellability of suspects. The Court then continued (paras 128-130):
The Court accordingly concluded (para 142) that "the inquest procedure did not allow any verdict or findings which could play an effective role in securing a prosecution in respect of any criminal offence which may have been disclosed". On this and other grounds Mr Jordan's complaint was upheld.
The Committee then considered whether the regime for holding inquests established by the 1988 Act and the 1984 Rules, as hitherto understood and followed in England and Wales, met the requirements of the Convention. It approved Jamieson as an accurate summary of existing law (para 28), and concluded that the article 2 investigative obligation might in some cases be discharged by criminal proceedings (para 30) and in others by a short form of verdict as in McCann (para 31). But the Committee accepted that in other cases a strict Jamieson approach would not meet the Convention requirement (para 31) and held the conclusion to be inescapable (para 32) "that there are some cases in which the current regime for conducting inquests in England and Wales, as hitherto understood and followed, does not meet the requirements of the Convention". It therefore turned to consider the third question, whether that regime could be revised so as to meet the requirements of the Convention, and if so, how. It concluded (paras 34-38) that the regime could be revised by invoking section 3 of the Human Rights Act 1998 but that the scheme enacted by Parliament should be respected save to the extent that a change of interpretation was required to avoid a breach of the Convention. To that end, "how" in section 11(5)(b)(ii) of the 1988 Act and rule 36(1)(b) of the 1984 Rules should where necessary be interpreted as meaning not simply "by what means" but "by what means and in what circumstances". It was recognised (para 36) that there need not be a change of approach in all cases. It was also pointed out (para 37) that the subsection and the rule did not preclude conclusions of fact as opposed to expressions of opinion and that there could be no objection to a judgmental conclusion of a factual nature, directly relating to the circumstances of the death or (para 45) to a narrative verdict or a verdict given in answer to a coroner's questions.
Mr Jordan's applications
Mr Jordan's appeal: the issues
Mr McCaughey's application
LORD RODGER OF EARLSFERRY
BARONESS HALE OF RICHMOND
LORD BROWN OF EATON-UNDER-HEYWOOD
If it is consistent with the English and Welsh prohibition on appearing "to determine any question of . civil liability" to reach a verdict of unlawful (or lawful) killing, I do not see why such a verdict should be inconsistent with the prohibition in rule 16 of the Coroners (Practice and Procedure) Rules (Northern Ireland) 1963 which reads:
The language of rule 15 reflects the language of section 31(1) of the governing statute, the Coroners Act (Northern Ireland) 1959, providing for a coroner's jury to give a verdict setting forth "so far as such particulars have been proved to them, who the deceased person was and how, when and where he came to his death". The equivalent English and Welsh statutory provision, using in this respect identical terms, is section 11(5) of the Coroners Act 1988.
The point was also accepted by my noble and learned friend, Lord Bingham, in R v Coroner for North Humberside and Scunthorpe, Ex p Jamieson  QB 1, 24, paragraph (5):