Coroner for the Birmingham Inquests (1974) v Julie Hambleton and Others
| Jurisdiction | England & Wales |
| Judge | The Lord Burnett of Maldon CJ,Lady Justice Hallett,Lord Justice McCombe |
| Judgment Date | 26 September 2018 |
| Neutral Citation | [2018] EWCA Civ 2081 |
| Docket Number | Case No: C1/2018/0311 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 September 2018 |
and
[2018] EWCA Civ 2081
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE RT HON The Lord Burnett of Maldon
THE RT HON Lady Justice Hallett
(VICE-PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION))
and
THE RT HON Lord Justice McCombe
Case No: C1/2018/0311
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE,
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
Lord Justice Simon and Mrs Justice Carr
CO/4092/2017
Royal Courts of Justice
Strand, London, WC2A 2LL
Peter Skelton QC, Matthew HillandGideon Barth (instructed by Fieldfisher LLP) for the Appellant
Hugh Southey QC and Adam Straw (instructed by KRW Law) for the Respondents
Jeremy Johnson QC and Robert Cohen (instructed by West Midlands Police) for the Interested Party
Hearing date: 17 July 2018
Judgment Approved by the court for handing down (subject to editorial corrections)
The Lord Burnett of Maldon CJ, Lady Justice Hallettand
Introduction and Procedural History
After more than four decades since the events in question, the Senior Coroner for Birmingham acceded to an application to reopen the inquests into the deaths of those murdered on 21 November 1974 in Birmingham when bombs exploded in two crowded public houses. The application was made on behalf of family members of some of those of died. His Honour Sir Peter Thornton QC, the former Chief Coroner (“the Coroner”), has been appointed to conduct the inquests. The issue in this appeal is whether his decision not to explore what has been dubbed the “Perpetrator Issue”, that is to call evidence directed to identifying those who planned, planted, procured and authorised the bombs used on 21 November 1974, was lawful.
On 26 January 2018 the Divisional Court of the Queen's Bench Division of the High Court (Simon LJ and Carr J) quashed the decision of the Coroner. The High Court concluded that the Coroner had not posed the right question in reaching his decision. They identified the right question as:
“…whether the factual issue of the identity of the bombers (and those that assisted them) was sufficiently closely connected to the deaths to form part of the circumstances of the death”.
They considered that his conclusion did not answer that question; and also that “some (but not all) of the reasons he gave did not support that conclusion”. The High Court quashed the decision and remitted the matter to the Coroner to remake the decision in the light of the judgment. However, the court refused to make a mandatory order requiring the Coroner to include the Perpetrator Issue within the scope of the inquest. That conclusion reflected the court's view that there was not only one permissible answer to the question they had posed. Moreover, the High Court refused to make a declaration that the Coroner's decision had been contrary to article 2 of the European Convention of Human Rights and Fundamental Freedoms (“the Convention”) and, accordingly, contrary to section 6(1) of the Human Rights Act 1998, on the basis that the Convention required the issue to be explored at the inquests.
The Coroner appeals with permission of Irwin LJ. By a Respondents' Notice, the Respondents apply for permission to appeal from those parts of the order of the High Court refusing the mandatory order and declaration to which we have just referred. The Chief Constable of West Midlands Police is an interested party in these proceedings and has supported the position of the Coroner.
The inquests into the deaths of the 21 people killed in the bombings (“the deceased”) had been opened in late 1974 but they were adjourned in 1975, pursuant to section 20 of the Coroners (Amendment) Act 1926. That was because criminal proceedings for murder against six defendants (who became known as “the Birmingham Six”) had been commenced.
On 15 August 1975, in the Crown Court at Lancaster, after a trial before Bridge J and a jury, those defendants were convicted on 21 counts of murder. In those circumstances, there was then no suggestion that the inquests should resume. After a number of appellate proceedings in the Criminal Division of this Court, on 27 March 1991, the appeals of the Birmingham Six against conviction were allowed and their convictions were quashed: R v McIlkenny & others [1992] 2 All ER 417. The grounds upon which the convictions were quashed were that scientific evidence relied upon by the prosecution was in doubt and that, in the absence of any explanation, police witnesses were at least guilty of deceiving the court: 431j to 432a.
The application for the inquests to be resumed was made in the course of 2015 to the Senior Coroner of Birmingham, Louise Hunt. Three arguments were advanced to support the proposition that the inquests should be resumed:
(a) there was evidence that the state had advance warning of the bombings and failed to take all reasonable steps to avoid loss of life and injury;
(b) the West Midlands Police had engaged in a cover-up to protect the identity of an informer;
(c) the emergency response to the bombings was seriously inadequate.
In her ruling on 1 June 2016, the Birmingham Coroner rejected the suggestion that there was any evidence of a cover-up and also that there could be any question that the response of the emergency services had any bearing on the deaths. She made clear that it was only in respect of the advance notice issue that she considered that there were grounds to reopen the inquests.
Pre-inquest review hearings were held before the present Coroner, the Appellant, on four occasions between November 2016 and June 2017. The Coroner agreed with what was common ground amongst all the interested persons before him that he was not restricted, in setting the scope of the inquests, by the conclusions of the Senior Coroner in directing their resumption. But part of the historical context was that extensive police inquiries had failed to produce evidence capable of supporting any new prosecution and the Director of Public Prosecutions had confirmed that position. At the second pre-inquest review hearing, on 23 February 2017, the Coroner had ruled that the inquests should proceed on the basis that an investigative duty under article 2 of the ECHR was engaged. That was because the issue of advance warning engaged the question of state responsibility for what occurred, albeit in a secondary way. In the ruling with which we are concerned the Coroner identified four potential issues within the scope of the inquests, including the Perpetrator Issue. They were:
“1. Forewarning – whether West Midlands Police (WMP) or other state agency had prior knowledge that a bomb attack would take place on or around 21 November 1974, and whether further steps could or should have been taken to prevent the bombings that did occur.
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 bombings on 21 November 1974 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.”
The Coroner decided that the Forewarning Issue would be “in scope”. That necessarily followed from the decision to reopen the inquests. On the Agent/Informant Issue, he stated that he had directed further inquiries to be made and deferred a final decision. As for Emergency Response, to summarise only, he held that an “over-arching” investigation into the adequacy of the response would not be undertaken. Evidence in relation to each deceased individually would be considered and if credible evidence emerged that failings in the emergency response caused or contributed to a death, then further investigation would follow, and evidence might be adduced. In this way, it can be seen that the Coroner was willing to consider issues which had not underpinned the decision to order the resumption of the inquests.
Before considering the Coroner's decision to exclude the Perpetrator Issue from scope, we turn to the underlying statutory provisions which establish the purposes and boundaries of a coronial investigation.
The Legislation
Section 1 of the Coroners and Justice Act 2009 (“the 2009 Act”) imposes a duty upon coroners to investigate certain deaths; it provides as follows:
“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 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.”
12. The “Purpose of the Investigation” is then set out in section 5 in these terms:
“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...
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