Ketcher's (Linda) and Mitchell's (Carol) Application v One of the Coroners for Northern Ireland
| Jurisdiction | Northern Ireland |
| Judge | McCloskey J |
| Judgment Date | 18 January 2019 |
| Neutral Citation | [2019] NIQB 4 |
| Court | Queen's Bench Division (Northern Ireland) |
| Docket Number | McC10836 |
| Date | 18 January 2019 |
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Neutral Citation No: [2019] NIQB 4
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: McC10836
Delivered: 18/01/2019
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
ON APPEAL FROM THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
IN THE MATTER OF AN APPLICATION BY LINDA KETCHER
AND CAROL MITCHELL
FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
-V-
ONE OF THE CORONERS FOR NORTHERN IRELAND
________
McCLOSKEY J
Introduction
[1] Lance Corporal James Ross and Rifleman Darren Mitchell, serving soldiers in
the Second Battalion of The Rifles and stationed in the Abercorn Barracks in
Ballykinler, County Down, were found dead there on separate dates, 08 December
2012 and 09 February 2013. Linda Ketcher and Carol Mitchell are the bereaved
mothers of the two deceased persons.
[2] One of the Coroners for Northern Ireland is in the process of conducting a
joint inquest into the deaths. A phase marked by preliminary hearings and an
adjourned substantive hearing has been completed. The rearranged public hearings
are scheduled to commence on 04 February 2019, with a time allocation of three
weeks. Both the Applicants and the Ministry of Defence (“the Ministry”) have the
status of soi-disant properly interested parties in the inquest proceedings.
[3] In the inquest proceedings the Applicants, who have been legally represented
at all material times, commissioned a report from a consultant psychiatrist. This
court has been informed that they did so essentially in response to reports prepared
by a different psychiatrist instructed by the Coroner (detailed further infra). Having
received their expert’s report, the Applicants’ lawyers resolved that it would not be
disclosed to the Coroner or any other agency, on the ground that it was protected
from disclosure by litigation privilege. The relevance of the report is not in issue:
there is no dispute that it bears on the issues to be investigated and determined by
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the Coroner. Having received argument the Coroner, by his written ruling dated 24
October 2018, concluded that no form of privilege attaches to the report and ordered
the Applicants to disclose it. The Applicants challenge this ruling before this court.
These Proceedings
[4] The primary remedy pursued by the Applicants is an order of this court
quashing the impugned decision of the Coroner. By its initial order, dated 19
November 2018, this court, without recourse to an oral hearing, assessed the central
pillar of the Applicants’ challenge as being a contention that the Coroner had erred
in law and granted leave to apply for judicial review accordingly. In each of its two
orders to date the court has ruled that the Applicants’ separate contention that the
impugned decision infringes their fair hearing rights under Article 6 ECHR, contrary
to section 6 of the Human Rights Act 1998 (“the 1998 Act”), in the forum of their
(currently stayed) civil proceedings against the Ministry in the jurisdiction of
England and Wales, did not overcome the threshold of arguability. The court ruled
in its second order, dated 30 November 2018:
“The sparse and purely speculative Article 6 ECHR
ground does not overcome the threshold of arguability and
can be raised in a more appropriate future legal forum in
any event.”
At the outset of the substantive hearing the court indicated that if there were further
evidence bearing on the disallowed Article 6 ground it would be prepared to
consider same, together with any renewed application for the grant of leave on this
ground.
[5] The court has made three further preliminary rulings in the compass of the
two aforementioned orders. First, having considered the principles in Re Darley’s
Application [1997] NI 384 and Re Jordan’s Application [2016] NI 107 at [16] – [18] in
particular, and having ascertained that the Coroner and the Ministry are not ad idem
on the main issue of law to be determined, the court ruled that the Coroner is the
appropriate judicial review respondent. The court has further ruled that the Ministry
has the status of interested party and, pursuant thereto, the court has received both
written and oral submissions from this agency. Finally, the court has made a
protective costs order, to which all parties consented, whereby any costs and outlays
recoverable from the Applicants by the Coroner shall not exceed £12,000 including
VAT, while any costs and outlays recoverable by the Applicants from the Coroner
shall not exceed £36,000 including VAT.
[6] The gap which separated the two substantive hearing dates (`8 December
2018 and 07 January 2019) enabled certain further material evidence to be
assembled pursuant to the directions of the court.
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Statutory Framework
[7] The focus is starkly on two new provisions of the Coroners Act (NI) 1959 (“the
1959 Act”) introduced by section 49(2) of and Schedule 11 to the Coroners and Justice
Act 2009 (“the 2009 Act”). The new provisions in question were inserted as
substitutes for section 17 of the 1959 Act, which provided, under the rubric of
“Witnesses to be Summoned”:
“(1) Where a coroner proceeds to hold an inquest,
whether with or without a jury, he may issue a
summons for any witness whom he thinks
necessary to attend such inquest at the time and
place specified in the summons, for the purpose of
giving evidence relative to such dead body and
shall deliver or cause to be delivered all such
summonses to a constable who shall forthwith
proceed to serve the same.
(2) Nothing in this section shall prevent a person who
has not been summoned from giving evidence at
an inquest.”
[8] The two newly inserted provisions of the 1959 Act are:
Section 17A
(1) A coroner who proceeds to hold an inquest may by
notice require a person to attend at a time and place stated
in the notice and—
(a) to give evidence at the inquest,
(b) to produce any documents in the custody or under
the control of the person which relate to a matter
that is relevant to the inquest, or
(c) to produce for inspection, examination or testing
any other thing in the custody or under the control
of the person which relates to a matter that is
relevant to the inquest.
(2) A coroner who is making any investigation to
determine whether or not an inquest is necessary, or who
proceeds to hold an inquest, may by notice require a person,
within such period as the coroner thinks reasonable—
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