Hemsworth's Application
| Jurisdiction | Northern Ireland |
| Judgment Date | 09 March 2009 |
| Date | 09 March 2009 |
| Court | Queen's Bench Division (Northern Ireland) |
[2009] NIQB 33
High Court, Northern Ireland, WEAH4888
Weatherup J
Mr McDonald QC and Ms Quinlivan for the applicant; Mr Hanna QC and Ms Elliott for the respondent.
The appropriate test for determining whether an issue required investigation at an inquest; whether the coroner should recuse himself because of an appearance of bias.
In July 1997 the deceased was seriously assaulted; he alleged that police officers were responsible, which was denied. On 1 January 1998 the deceased died as the result of a stroke which had been caused or contributed to by the assault. The coroner directed the police to investigate the events of the evening on which the deceased had sustained the injuries; the report concluded that the involvement of the police in an incident with the deceased was "debateable" and that the allegation of assault by police officers was "questionable". The applicant, the deceased's widow, sought to have the police officers who had been identified as having been present at or near the location where the deceased had suffered the injuries called to give evidence at the inquest. The coroner refused the application as there was insufficient evidence, and no independent evidence, of police involvement in the assault.
The applicant sought the coroner's recusal on the ground of apparent bias, on the bases that he had accepted the police report into the allegation of assault and had not made an independent decision on the available evidence, and that he had predetermined a relevant issue in the inquest, namely the alleged involvement of police officers in the assault of the deceased. The coroner refused to recuse himself. His rulings as to the calling of the police officers and his recusal were challenged in judicial review proceedings.
1. This is an application for judicial review of three decisions made by the coroner in relation to the inquest to be undertaken in respect of the death of John Hemsworth, late husband of the applicant, on 1 January 1998. The three decisions are, first of all, the refusal of the coroner to call as witnesses at the inquest any police officers who have been identified as members of two landrover patrols that were present at or near the location where the deceased sustained injuries relevant to the death. The second decision concerns the refusal of the coroner to recuse himself from the inquest as a result of having allegedly predetermined the issue of the relevance of the evidence of the police officers. The third decision concerns the refusal of the coroner to conduct the inquest in accordance with the principles of the decision of the House of Lords in Jordan v Lord ChancellorWLR[2007] 2 WLR 754, [2007] Inquest Law Reports 44. Mr McDonald QC and Ms Quinlivan appeared for the applicant and Mr Hanna QC and Ms Elliott appeared for the respondent. The Chief Constable was a notice party, but was not represented on the hearing of the application for judicial review.
2. The background, as appears in the affidavit sworn on behalf of the applicant, indicates that the deceased
died on 1 January 1998 as the result of a stroke brought about by a blood clot. It now appears that certain events occurring in the early hours of 7 July 1997, when the deceased was assaulted, caused or contributed to his death six months later. In July 1997, the deceased attended the offices of his solicitor and instructed a member of the firm to issue proceedings against the Chief Constable for assault and battery. His instructions were that on 6 July 1997 he had been walking down Malcolmson Street, Belfast when a number of persons were chased down the street by police officers; the police officers then turned on the deceased, who was struck on the face with a truncheon and fell to the ground; he was kicked on his left side and on his back and struck by the police with batons. The police have denied any involvement in the events that led to the injuries sustained by the deceased.
3. The state pathologist carried out an autopsy on 3 January 1998 and stated that it was not possible to connect the death with the injury sustained in July 1997. Accordingly, the coroner registered the death of the deceased on 30 April 1998 as due to natural causes. The family of the deceased were not content with that outcome and they commissioned a report from a Professor Pounder of the University of Dundee, who on 4 August 1999 reported that it was highly likely that the injuries sustained by the deceased were the sole direct underlying cause of the death of the deceased. The applicant's solicitors forwarded the report to the coroner and invited him to hold an inquest. However, because he had already registered the death, the coroner did not have power to hold an inquest unless ordered to do so by the Attorney General. On 20 January 2000 the applicant's solicitors wrote to the Attorney General asking that he exercise his power under s14 of the Coroners Act (Northern Ireland) 1959 to direct the coroner to hold an inquest. On 2 February 2000 the Attorney General ordered the coroner to hold an inquest into the death of the deceased.
4. The coroner commenced an investigation into the death of the deceased. In relation to the injuries, the coroner obtained the opinion of another pathologist, a Professor Whitwell, and she expressed the view that despite the time delay between the injuries and the death it was likely that the death was linked in terms of causation to the assault that had occurred in July 1997. In relation to the events of the evening on which the deceased sustained the injuries, the coroner required the police to investigate the events of 7 July 1997. This led to a police report completed by Detective Chief Inspector Stewart on 11 April 2001.
5. After the police report had been received by the coroner there was a preliminary hearing of the inquest in February 2003. At that time the coroner took the position that there was no evidence that the deceased was struck by police officers. There was correspondence between the applicant's solicitors and the coroner and by letter of 12 August 2003 the coroner stated that there would not appear to be any independent evidence that the deceased was struck by the police. There was a further preliminary hearing on 2 September 2003 where, further to the application of the applicant, the coroner refused to recuse himself. At a preliminary hearing on 20 December 2004 a list of proposed witnesses to be called to the inquest was produced on behalf of the applicant. The list contained the names of the police officers identified in the police report as having been at the location identified by the deceased on the evening he was assaulted.
6. Proceedings in the inquest went into abeyance as appeals got under way in relation to the cases of Jordan and McCaughey &GrewWLRIQLR. The decision of the House of Lords was delivered in March 2007: [2007] 2 WLR 754, [2007] Inquest Law Reports 44. A further preliminary hearing took place on 4 March 2008 when the coroner indicated his preliminary view that he did not intend to call the police witnesses. There were then exchanges of correspondence between the applicant's solicitor and the coroner. Finally, by a letter of 14 November 2008 the coroner stated his decisions not to require the attendance of the police witnesses and not to recuse himself from conducting the inquest.
7. The police report summarised the evidence that emerged from the police investigation. First of all, the applicant, who lived in Conway Square, Belfast, reported to police what she claimed she had been told by her husband almost immediately after he had been injured. She was separated from the deceased but she reported that he had come to her house between 1.00am and 1.15am on 7 July 1997. She believed that his route from a GAA club had taken him along the Falls Road, Springfield Road and Malcolmson Street. When the deceased arrived at her house she was in bed and the deceased said to her "The peelers have beat me". He could not speak properly because his jaw appeared to be broken. He told her that the incident had occurred at the corner of Malcolmson Street and Waterford Street and that he then made his way to her house in Conway Square. He stayed for a short time and then left to go to the Casualty Department at the Royal Victoria Hospital. The applicant also reported that the deceased had told her that after the assault he had been stopped again by police at Dunville Park and that these police had said they were mates of those who had beaten him earlier and that he claimed that he had been verbally abused by the police at that location.
8. The police also interviewed Michael Hemsworth, the father of the deceased, who went to the Royal Victoria Hospital in the early hours of the morning of 7 July. The records show that the deceased arrived at the hospital at 2.20am. The father obviously arrived
some time later and when he went to the hospital the deceased told him that he had been involved in an incident with the police and that this had occurred at the bollards in Malcolmson Street. The...
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