Howard's Application
| Jurisdiction | Northern Ireland |
| Judgment Date | 06 December 2011 |
| Date | 06 December 2011 |
| Court | High Court (Northern Ireland) |
High Court, Northern Ireland, Queen's Bench Division; TRE8382
Treacy J
K Quinlivan QC and D Hutton (instructed by Madden & Finucane) for the applicant; F O'Donoghue QC and F Doherty (instructed by the Coroners Service for Northern Ireland) for the respondent; H Toner QC and I McAteer (instructed by Desmond J Doherty & co) for the family
Whether a coroner's decision to hold an inquest had been irrational where there was no body and where a suspect had been acquitted of murder in a criminal trial.
The applicant had been tried in 2005 for the murder of a child, A, who had disappeared in 1994 but whose body had not been found. At the trial one of the issues explored by the defence was the possibility that A was still alive at the material time. In November 2007 the coroner opened an inquest into A's death. In February 2009 the applicant's solicitors raised objection to the holding of the inquest, contending that it was unnecessary following the criminal trial. Protracted correspondence ensued in which the coroner explained that only an inquest would offer A's family a full exploration of the facts and circumstances surrounding A's disappearance and death, and that this was a sufficient reason for the exercise of his discretion to hold an inquest nothwithstanding the availability of an alternative avenue for registering the presumed death of A, under the Presumption of Death Act (NI) 2009.
In May 2011 the applicant sought judicial review of the coroner's decision to hold an inquest, contending that it was irrational in light of the fact that there had been a criminal trial and that there were alternative avenues for registering the death of A.
Introduction
[1] This applicant is a convicted child murderer. The background to the present case is that he was originally arrested and interviewed in relation to the suspected murder of Arlene Arkinson in September 1994. This young girl disappeared without trace on 13 August 1994 and has never been seen since. She is now widely assumed to be dead, though no official finding to that effect has ever been made by any lawfully constituted authority. The applicant was one of the last people to be seen with Arlene before her disappearance. Upon questioning he denied all allegations and was subsequently released without charge.
[2] In 2002 the applicant was tried and convicted for the murder of a different young girl, Hannah Williams, in England. Following his detention for that murder he was re-arrested and tried in relation to the suspected murder of Arlene Arkinson in 1994. At this trial the jury was told nothing about the character of the applicant. They therefore knew nothing about his previous conviction for the murder of Hannah Williams. Nor did they know that at the time Arlene disappeared, he was on bail for the rape and buggery of another child, or that he was subsequently convicted of unlawful carnal knowledge in that case. At the trial in relation to Arlene's murder, the applicant chose not to give evidence on his own behalf. Since Arlene's body was never found, one of the issues explored by his defence was the possibility that she was alive at the material time. Indeed in the Order 53 Statement in the present case the applicant again sought to rely on the claim that there exists a substantial body of evidence undermining the view that Arlene is dead.
[3] In 2005 the applicant was acquitted of the murder of Arlene Arkinson. His defence was conducted entirely within the law, his acquittal stands, and the position remains that he is not guilty of that murder. Juries in criminal trials do not give reasons for their verdicts, so no explanation exists about what, if anything, the jury believed happened to Arlene Arkinson after her disappearance.
[4] In November 2007 (over two years after the conclusion of the trial) the coroner ordered and opened an inquest into the death of Arlene Arkinson. In May 2011 the applicant sought to challenge that decision by bringing the present proceedings. In essence the grounds of the challenge are that the coroner's decision to hold an inquest was irrational particularly in light of the fact that there had been a criminal trial and that there are in existence alternative avenues for registering the death of Arlene
Arkinson which, it was argued, preclude the need for an inquest.
Background
[5] Section 16 of the Coroners Act (NI) 1959 ("the Coroners Act") provides:
"Inquest where body cannot be found
Where a coroner is satisfied that the death of any person has occurred within the district for which he is appointed but, either from the nature of the event causing the death or for some other reason, neither the body nor any part thereof can be found or recovered, he may proceed to hold an inquest."
[6] On 28 November 2007 the coroner wrote to the applicant's solicitors announcing that he would hold an inquest into the death of Arlene Arkinson pursuant to his powers under s16 of the Coroners Act and that their client Robert Howard would be a witness. I have not been enlightened by the parties as to what occurred between the conclusion of the trial in 2005 and the opening of the inquest in 2007. In any event, the letter announcing the coroner's decision was sent in November 2007 and it also informed the applicant's solicitors, Madden & Finucane, that they would be advised of the hearing arrangements later. By letter dated 29 February 2008 Madden & Finucane replied to the coroner confirming that they had instructions to represent the applicant at the inquest hearing. This important letter was not exhibited in the judicial review papers and no satisfactory explanation has been furnished for its omission. Nor does it appear in the analysis of the relevant correspondence in the applicant's skeleton argument. It was only handed in to the court by Ms Quinlivan QC during questioning from the Bench at the hearing. Importantly, this letter raised no objection whatsoever to the decision to hold and open the inquest.
[7] The general purpose of an inquest is set out in r15 of the Coroners (Practice and Procedure) Rules (Northern Ireland) 1963 ("the Coroners Rules") - in the following terms:
"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 (Northern Ireland) Order 1976 to be registered concerning his death."
Generally therefore, inquests are concerned to establish only how, when and where a deceased person died. In the present case, however, the inquest would also be required to address the anterior question of whether Arlene is in fact dead, as well as the r15 questions.
[8] Having notified the coroner in February 2008 that they did hold instructions to represent the applicant at the inquest, it was not until February 2009 (ie a year later) that the applicant's solicitors first raised any concerns about this inquest. In that letter they stated:
"… I would be grateful if you could advise why, in view of the fact that there was a public and thorough examination of the facts at the criminal trial, it is considered necessary, or in the public interest, to hold an inquest in this case. With the exception of the reopening of the inquest into the deaths of Messrs McKerr, Toman, Burns and others I am unaware of any other inquests in this jurisdiction which followed a criminal trial."
[9] On 1 April 2009 the coroner, perhaps unwisely, engaged with the belated inquisition by correspondence. In his reply the coroner unilaterally raised the question of his jurisdiction to hold an inquest when a body had not been found. This letter, so far as relevant states:
"While you are correct that it is unusual for an inquest to be held where a criminal trial has taken place in relation to the same death I must consider every case reported to me individually and on its own merits. Unlike previous cases where a decision had been taken not to hold an inquest, in this case, as you are...
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