KERE2186
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEENS BENCH DIVISION (CROWN SIDE)
________
IN THE MATTER OF AN APPLICATION BY ANN BRADLEY
FOR JUDICIAL REVIEW
________
KERR J
The applicant Ann Bradley, is the next of kin of John Joseph McNeill deceased.
He and two other men were shot dead by soldiers outside a bookmaker's premises
at the junction of Whiterock Road and Falls Road, Belfast on 13 January 1990.
The circumstances of the shooting have been reviewed by Carswell LJ in a
judgment on an earlier judicial review application and need not be rehearsed by
me. An inquest into the deaths of the deceased and the two other men opened on
19 April 1993. It was adjourned shortly afterwards to allow the Ministry of
Defence to challenge the decision of Her Majesty's Coroner for Greater Belfast,
Mr J L Leckey not to allow military witnesses to be screened while giving
evidence. That Judicial Review application was heard by McCollum J who decided
that the Coroner had erred in refusing the application to have the witnesses
give evidence from behind screens. An appeal by the next of kin against the
decision of McCollum J was dismissed by the Court of Appeal.
The inquest resumed on 14 October 1994. It was completed in the late evening of
20 October 1994. Thereafter a judicial review challenge was made by the next of
kin of the deceased and in the judgment referred to above, Carswell LJ made an
order of certiorian quashing the inquisition because of the lateness of the hour
at which the jury was required to return a verdict and because of other
irregularities in the conduct of the inquest.
On 3 May 1995 the Coroner notified the legal representatives of the Ministry of
Defence and the next of kin that he proposed to open a new inquest on 7
September 1995. He forwarded to each of the legal representatives a list of the
witnesses whom he had decided to call to give evidence. This list did not
include the names of two witnesses who had given evidence at the earlier
inquest. These were military witnesses and they had been referred to at the
earlier inquest as soldiers C and G. They had been members of a special unit of
the armed forces and it appears that they gave evidence at the earlier inquest
to the effect that they and five other soldiers from the same unit had been
travelling on the day of the shooting in the West Belfast area in four cars on
"familiarization training". In one of these cars were soldiers A and B. They
were the soldiers who had fired the fatal shots and by virtue of Rule 9(2) of
the Coroners (Practice and Procedure) Rules (NI) 1963 (as amended) neither was a
compellable witness.
In correspondence from the next of kin's solicitors in late August and early
September 1995 the Coroner's decision not to call witnesses C and G to give
evidence was queried and challenged. The Coroner convened a special hearing to
allow parties to make submissions on whether soldiers C and G should be called.
In a written ruling given on 9 October 1995 the Coroner confirmed his earlier
decision not to summon soldiers C and G as witnesses. He referred to a passage
from the judgment of Carswell LJ to the following effect:-
"The Lord Chief Justice set out at some length in his judgment in Re Ministry
of Defence's Application (1994, unreported), the earlier proceedings in
respect of this inquest to which I have referred, the approach which the Coroner
should take to the function of inquiring into the issue of how a deceased person
came to his death. It deals fully with the proper breadth of such an inquiry,
and I commend it to all Coroners for detailed study. I consider that if the
Coroner in this case had absorbed and effectively applied the principles which
the court there expressed many of the difficulties which have arisen could have
been avoided."
Having recorded that he considered that this statement was a criticism of the
breadth of the inquiry which he had undertaken, the Coroner continued:
"It is against that background and influenced by the remarks of Carswell LJ that
I made the decision not to call soldiers C and G. Neither was an eye witness and
neither could give a first hand account of what had happened. The fact that both
belonged to the same special unit of the armed forces as soldiers A and B was
not sufficient to justify my calling them as witnesses even though they were on
a training exercise with them at the material time.
I asked myself whether I would have called them if they had been ordinary
civilians who had been in the general area and were similarly restricted as to
the evidence they could give. The conclusion I arrived at was that if they were
the only witnesses I would call them on the basis that some evidence was better
than none, but otherwise I would not. It is the case that on occasions I am
obliged to hold inquests where there is an absence of any direct evidence. So
far as this incident is concerned I have available a wide range of witnesses
including a number of eye witnesses, others who were in very close proximity to
the shooting, police officers who arrived at the scene within moments of the
shooting, police officers who were involved with crowd control and scene
preservation, ambulance personnel and a doctor who attended at the scene, scenes
of crime officers and forensic scientists who were at the scene and the police
officers concerned with the investigation."
On 8 November 1995 the applicant obtained leave to challenge the decision of the
Coroner and the hearing of the substantive application took place on 21 March
1996. In presenting the case for the applicant Mr Treacy relied mainly on a
helpful skeleton argument in which a number of specific criticisms of the
Coroner's decision were made. Without, I hope, unduly condensing these they may
be summarised as follows:-
- The Coroner wrongly construed Carswell LJ's judgment
as a criticism of the breadth of the inquiry conducted at the first inquest.
Properly understood, Carswell LJ's judgment was critical of the manner in which
the inquest was conducted not of its scope.
- The Court of Appeal, in dealing with the Ministry of
Defence application for judicial review, did not overtly or by implication
criticise the Coroner on his decision to call soldiers C and G.
- In deciding whether to call C and G as witnesses on
this occasion the Coroner ought to have taken into account that he had
previously considered them to be relevant witnesses. The state of the law was
unchanged between his decision to call them as witnesses and the time at which
he concluded that they should not give evidence. If they were relevant and
necessary witnesses on previous occasions they should now be so regarded.
- The Coroner failed to acknowledge or appreciate the
relevance of the evidence which these witnesses could give.
- The Coroner had misunderstood and misapplied the
decision of the Court of Appeal in England in R v HM Coroner for Western
District of East Sussex ex parte Homber, Roberts and Manners (1994) 158 J.P.
357. The Coroner wrongly considered the effect of this decision to be that his
discretion as to which witnesses should be called was restricted to choosing
from those who had relevant or necessary evidence to give as to the primary
cause(s) of the death of the deceased. In any event, Mr Treacy argued, the
witnesses could give relevant evidence as to the primary causes of the
deceased's death.
- The Coroner failed to have regard to the view of the
then Secretary of State for Defence as expressed by him in a public interest
immunity certificate that the interests of justice required the evidence of
soldiers C and G to be made available to the inquest.
- The Coroner failed to have sufficient regard to his
public duty to ensure that the circumstances of the deceased's death were
"clearly, fairly and fearlessly investigated" (per Sir Thomas Bingham MR in R
v HM Coroner for North Humberside and Scunthorpe ex parte Jamieson (1994) 3
All ER 972). This duty, it was argued, must be viewed against the background of
the vital role of the inquest in allaying the concerns of the public about the
circumstances in which the deceased were killed.
Before examining these arguments it is important to recall the source of the
Coroner's power to call and examine witnesses before the inquest. It derives
from section 17(1) of the Coroners Act (NI) 1959 which provides:-
"Where a Coroner proceeds to hold an Inquest ... he may issue a summons for any
witness whom he thinks necessary ... for the purpose of giving evidence relative
to [the] dead body ..."
The duty of the Coroner to fix the limits on the scope of the inquest in order
to decide on the relevance of and the need for potential witnesses' evidence has
been emphasised by the Master of the Rolls in the Jamieson case but it is
clear from this and a number of other authorities that the decision on the scope
of the inquiry must be guided by a clear understanding of the purpose and
function of the inquest. Rules 15 and 16 of the Coroners (Practice and
Procedure) Rules (NI) 1963 (as amended) specify the matters on which inquiry
should be made by an inquest. They provide:-
"15. The proceedings and evidence at 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 Acts (NI) 1863-1956 to be registered concerning the death.
16. Neither the Coroner nor the jury shall express any opinion on questions of
criminal or civil liability or on any matters other than those referred to in
the last foregoing rule."
The aspect of the inquest function as defined in this provision which has given
rise to most controversy is the requirement that it be ascertained how the
deceased came by his death. It is now well settled, however, that the word "how"
in this context connotes "by what means" rather than "in what broad
circumstances". Carswell LJ put it thus in his judgment in the earlier judicial
review application:-
"The jury are to find `how the deceased came by his death'. The word `how' means
`by what means' rather than `in what broad circumstances'. The inquiry must
focus on matters directly causative of death: R v HM Coroner for Western
District of East Sussex ex parte Homber (1994) 158 J.P 357, 369, per Simon
Brown LJ. It should not embark on a wider inquiry relating to the background
circumstances of the death: it is not its function to provide the answers to all
the questions related to the death which the next of kin may wish to raise:
Re Ministry of Defence's Application at page 40."
In light of this and other authoritative statements as to the scope of the
inquiry into how the deceased came by his death it is clear that, in approaching
the question of which witnesses are "necessary" under section 17 of the 1959
Act, the Coroner must have in mind the limited scope of the inquiry on which the
jury may embark. To select witnesses who could only give evidence as to the
broad circumstances in which the deceased died but not as to the means by which
he died would be an abuse of the Coroner's powers in view of the current state
of the law, as it has been unambiguously expressed in the authorities referred
to by Carswell LJ and by the Court of Appeal in Re Ministry of Defence's
Application.
Against that background I turn to consider separately but briefly each of
Mr Treacy's submissions, in the order set out above.
- The misconstruction of Carswell LJ's judgment
It should be observed, firstly, that, even if the Coroner misconstrued the
passage from Carswell LJ's judgment which he cited in his ruling, this would not
affect his duty to consider again which witnesses were necessary for the new
inquest. I consider that the Coroner was required to give fresh consideration to
this question whether or not he was prompted to do so by anything which Carswell
LJ had said. Even if he was wrong in his opinion that Carswell LJ had implicitly
criticised him because of the breadth of the inquiry he had undertaken, if the
Coroner was correct in his view that these witnesses were not necessary, then
his decision not to call them must stand.
In any event it appears to me that the Coroner was clearly right to conclude
that this passage of the judgment was pertinent to the breadth of the inquiry on
the question of how the deceased came by his death. Although the basis on which
Carswell LJ quashed the Coroner's decision was not directly related to the scope
of the inquiry into the circumstances in which the deceased died it is clear
that Carswell LJ considered that the Coroner had allowed - indeed invited - the
jury to review areas such as possible criminal or civil liability which were not
within their province - see in particular page 17 of the judgment. This view
warranted (and, arguably, required) the Coroner's fresh consideration of how the
ambit of the jury's review of the circumstances of the deceased's death should
be defined. I consider that the Coroner was perfectly entitled to undertake such
fresh consideration.
- The absence of any criticism by the Court of
Appeal of the Coroner's decision to call soldiers C and G
I can deal with this argument shortly. The issues before the Court of Appeal did
not concern, either directly or indirectly, the decision to call these
witnesses. The lack of mention of this matter in any of the judgments of the
Court of Appeal cannot be construed as an endorsement of the decision to call
them. In any event, the lack of criticism, even if conscious and deliberate,
could not taken as an affirmation that the only course available to the
Coroner was to call these witnesses.
- The failure of the Coroner to have regard to his
previous decision to call the witnesses.
In advancing this argument Mr Treacy focused on the statement by the Coroner in
his written ruling that in his approach to the question of whether C and G
should be called as witnesses he had ignored the decisions he had made on
previous occasions. Mr Treacy argued that, since the law had not changed since
the Coroner's earlier decision to call soldiers C and G, he should not only not
have ignored that previous decision but should have abided by it. But that
argument begs the question whether the Coroner was correct in his earlier
decision. Implicit in his ruling of 9 October 1995 is the Coroner's
acknowledgment that that decision was wrong. Since, as he was obliged to do, the
Coroner was considering the matter afresh, I am of the opinion that he was right
to ignore his previous ruling.
- The Coroner's failure to appreciate the relevance
of the witnesses' evidence
Mr Treacy submitted that the Coroner had either ignored or failed to understand
the obvious relevance of soldiers C and G's evidence. They were part of the same
undercover unit as A and B. Soldier C had driven past the scene of the killings
seconds after they had occurred. Both soldiers had received radio communications
from soldiers A and B informing them that a contact was about to be made. If
these witnesses were not called there would, in effect, be no military witnesses
since A and B were not compellable.
Both Mrs Loughran (on behalf of the Coroner) and Mr Weatherup QC (on behalf of
the Ministry of Defence) accepted that both witnesses could give evidence which
was relevant to the means by which the deceased died. Mr Treacy portrayed this
as a very important concession. Since the relevance of their evidence had been
acknowledged, he argued that the case for calling them as witnesses was
irresistible. But the acid test for qualification as a witness at an inquest is
not simply the relevance of the evidence of the potential witness. As I have
already observed, section 17 of the 1959 Act empowers a Coroner to call
witnesses whom he thinks necessary. He is not obliged to call every
witness who can give relevant evidence, however marginal or peripheral it may
be. His duty is to consider the body of evidence available to deal with the
question of by what means the deceased came by his death and to select from that
such material as will adequately expose that issue before the jury.
In this case, as the Coroner pointed out, there is available a wide range of
witnesses who observed the actual shooting or who arrived at the scene shortly
afterwards. If C and G were the only witnesses who could give evidence as to the
means by which the deceased died, the Coroner has said that he would have called
them. This is a tacit acknowledgement of the relevance of their evidence. He
concluded, however, that, in view of the availability of other witnesses, their
attendance was not necessary. It is not for me to say whether I would have
reached the same conclusion. It would only be open to this court to quash the
Coroner's decision on this ground, if his decision was so perverse as to be
insupportable ie Wednesbury unreasonable. There is no warrant for so
concluding and I must reject Mr Treacy's submissions on this point, therefore.
- The Coroner's misapplication of ex parte Homber &
ors
It was submitted on behalf of the applicant that the Coroner was not restricted
in his choice of witnesses to those who could give evidence on primary causes of
the deceased's death. In was wrong to construe the decision in ex parte
Homber as authority for the proposition that only those who could give
evidence on primary causes of death should be called as witnesses. It was
suggested that the Coroner's use of the expressions "primary causes" and
"secondary causes" was not justified and deflected him from the full and proper
exploitation of his powers under Section 17 of the 1959 Act which allowed him to
call any witness whom he considered necessary.
In my opinion, however, the Coroner's powers under Section 17 must not be viewed
in isolation from the provisions which deal with the nature of the inquest he is
to conduct. In other words, the necessity of calling a particular witness must
be judged according to the issue which is to be determined. Thus, if a witness
cannot give evidence as to the means by which the deceased died and can only
testify as to the broad circumstances which led to his death, he cannot be
deemed a necessary witness because of the restriction which has been placed on
the meaning of "how" in Rule 15 of the 1963 Rules.
I believe, however, that there is some force in Mr Treacy's criticism of the
Coroner's use of "primary and secondary" causes to signify the distinction
between evidence which relates to the means by which a person died and the broad
circumstances of his death. It is quite conceivable that an event leading to the
death of a deceased might properly be regarded as a secondary cause but may
nevertheless be directly relevant to the means by which he died. I do not
consider that Simon Brown LJ, in using the expression "secondary causes" in his
judgment in ex parte Homber was suggesting that inquiry into secondary
causes of death should never be undertaken. Indeed it is clear from his comments
on the decision in R v Poplar Coroner ex parte Thomas [1933] QB 610 that
he considered that inquiry into secondary causes may, on occasion, be not only
legitimate but required. At page 370 of his judgment, he said:-
"... essentially [ex parte Thomas] decides no more than that a broad
common sense view must be taken when deciding the bald question whether a death
is unnatural so as to determine whether to hold an inquest. Whereas, however,
for that purpose one shuts one's mind to all but the dominant cause of death,
once an inquest is held, the duty to inquire into how the deceased came by his
death requires one then to take a broader view and investigate not merely the
dominant cause but also (in Jervis's language) any `acts or omissions which are
directly responsible for the death'."
In this case the Coroner appears to have treated "primary and secondary causes"
as synonyms for "by what means" and "the broad circumstances". I believe that
this was incorrect. I also believe that he was wrong to relegate the evidence of
Soldiers C and G to the "secondary cause" category. The admissible and relevant
evidence which they could give surely relates to the actual shooting itself
which must be regarded as the primary cause.
I do not consider, however, that these errors materially affected the Coroner's
decision. As I have already said he tacitly acknowledged the potential relevance
of their evidence but decided not to call the witnesses because of the wealth of
other more pertinent and directly relevant evidence. That decision and the
reasoning which underlies it are unimpeachable. I am not prepared to quash his
decision on this account, therefore.
- The Coroner's failure to have regard to the
Secretary of State's view that the interests of justice required the evidence of
C & G to be given.
I can deal with this argument briefly. It is the Coroner's exclusive duty to
decide which witnesses are necessary. He should not be swayed or influenced by
the views of others except insofar as they affect his own conviction. He was,
therefore, in my view, perfectly entitled to disregard the statement in the
public interest immunity certificate, unsupported as it was by any reasoning. It
is to be remembered that this public interest immunity certificate was issued
after the Coroner had intimated his intention to call Soldiers C & G. The
statement that it was in the interests of justice to call Soldiers C & G may
properly be regarded as an acceptance by the Secretary of State of that decision
rather than any assertion that the interests of justice demanded that they give
evidence.
- The failure of the Coroner to have sufficient
regard to the need to investigate the circumstances of the deceased's death,
clearly, fairly and fearlessly.
In advancing this argument, Mr Treacy relied strongly on comments of McCollum J
in his judgment on the Ministry of Defence's application for judicial review. At
page 19 of his judgment, the learned judge said:-
"Moreover it may well be thought that the circumstances of the shooting of a
civilian or civilians by a member or members of the security forces are a matter
of such fundamental public interest and concern that they should be resolved in
such a way as to satisfy the public that it is being informed of the full truth
of the incident."
And at page 22:-
"As I have already indicated, the shooting and killing by members of the
security forces of civilians, whether suspected of involvement or not in crime
or terrorism, is a matter which gives rise to the greatest possible public
interest and concern.
It is particularly important in relation to deaths occurring in this kind of
circumstance that the public should be able to be satisfied that the inquest
proceedings have been conducted with complete openness and disclosure of all
relevant facts and that rumours and apprehensions are led to rest.
...
The more clandestine the atmosphere surrounding the investigation of the
consequences of such operations the more grounds are provided for doubts about
the propriety of the manner in which they are conducted.
In the case under consideration there is no suggestion that the deceased young
men were engaged in terrorist activity.
The whole community is entitled to know all the facts which show why they met
such violent and arbitrary deaths."
Mr Treacy argued that if Soldiers C & G were not called there would be no
opportunity to investigate the reasons which lay behind the decision of
Soldiers A and B to open fire. The pressing concerns already expressed about
these deaths would not be allayed but would increase. One of the essential
purposes on grounds of public interest in holding an inquest identified by the
Broderick Committee in 1971 (ie to allay rumours or suspicions) would be
frustrated, therefore. Of this purpose, however, Hutton LCJ said at page 51 of
his judgment in the Ministry of Defence's application:-
"I ... consider that the judgments of Simon Brown LJ [in ex parte Homber and
others] and Sir Thomas Bingham MR [in ex parte Jamison] make it clear
that when the Broderick Committee stated that one of the purposes of an inquest
is `to allay rumours or suspicions' this purpose should be confined to allaying
rumours and suspicions about how the deceased came by his death and not to
allaying rumours and suspicions about the broad circumstances in which the
deceased came by his death."
It is also clear that the full, fair and fearless investigation advocated by the
Master of the Rolls in ex parte Jamison was to be conducted into the
relevant facts ie the facts which touched on the means by which the deceased
died rather than the broad circumstances which led to his death.
There may well be public concern about the motivation of the soldiers in opening
fire; one can readily understand the wish of the next of kin to have that issue
thoroughly and publicly explored. By no standard, however, could such an issue
be described as coming within the realm of inquiry into the means by which the
deceased came by his death. I do not consider therefore that the arguments
advanced on this point are well founded. The application must be dismissed.
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEENS BENCH DIVISION (CROWN SIDE)
________
IN THE MATTER OF AN APPLICATION BY ANN BRADLEY
FOR JUDICIAL REVIEW
________
JUDGMENT
OF
KERR J