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
