McKerr v Armagh Coroner

JurisdictionEngland & Wales
JudgeLord Keith of Kinkel,Lord Templeman,Lord Ackner,Lord Goff of Chieveley,Lord Jauncey of Tullichettle
Judgment Date08 March 1990
Judgment citation (vLex)[1990] UKHL J0308-2
CourtHouse of Lords
In Re McK (Northern Ireland)

[1990] UKHL J0308-2

Lord Keith of Kinkel

Lord Templeman

Lord Ackner

Lord Goff of Chieveley

Lord Jauncey of Tullichettle

House of Lords

Lord Keith of Kinkel

My Lords,

1

I have had the opportunity of considering in draft the speech to be delivered by my noble and learned friend Lord Goff of Chieveley. I agree with it, and for the reasons he gives would allow this appeal.

Lord Templeman

My Lords,

2

For the reasons to be given by my noble and learned friend, Lord Goff of Chieveley, I would allow this appeal.

Lord Ackner

My Lords,

3

I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Goff of Chieveley, I agree with it and for the reasons which he gives, I too would allow this appeal.

Lord Goff of Chieveley

My Lords,

4

The question which arises for decision on this appeal is whether paragraphs (2) and (3) of rule 9 of the Coroners (Practice and Procedure) Rules (Northern Ireland) 1963 (S.R. & O. (N.I.) 1963 No. 199) made by the Ministry of Home Affairs, after consultation with the Lord Chief Justice, in purported exercise of powers conferred upon the Ministry by section 36(1)( b) of the Coroners Act (Northern Ireland) 1959, were ultra vires the Ministry, on the ground that paragraphs (2) and (3) did not regulate "practice and procedure" at or in connection with inquests and post-mortem examinations as required by section 36(1) ( b). Rule 9 provides:

"(1) No witness at an inquest shall be obliged to answer any question tending to incriminate himself, and, where it appears to the coroner that a witness has been asked such a question, the coroner shall inform the witness that he may refuse to answer. (2) Where a person is suspected of causing the death, or has been charged or is likely to be charged with an offence relating to the death, he shall not be compelled to give evidence at the inquest. (3) Where a person mentioned in paragraph (2) offers to give evidence the coroner shall inform him that he is not obliged to do so, and that such evidence may be subject to cross-examination."

5

The conclusion of the Court of Appeal, was that, whereas paragraph (1) of rule 9 merely restates a rule of substantive law relating to the privilege of a witness against self-incrimination, paragraphs (2) and (3) purport to modify the substantive law relating to the compellability of witnesses and as such go beyond matters of practice or procedure. Such modification could only, the respondent contends, have been made by statute, not under a rule-making power limited to regulating practice and procedure.

6

The matter has arisen in the following way. An inquest was opened on 14 November 1988 at Craigavon Courthouse before Her Majesty's Coroner for Armagh, Mr. J. H. S. Elliott, and a jury. The inquest was into the deaths of three men — Eugene Toman, John Frederick Burns and James Gervaise McKerr — the undisputed cause of whose deaths was that they were killed by shots fired by members of the Royal Ulster Constabulary in County Armagh on 11 November 1982. The respondent, Eleanor McKerr, is the widow of James Gervaise McKerr. In the course of the shooting which caused the deaths, shots were fired by three members of the Royal Ulster Constabulary, who have been referred to as A, B and C. A, B and C had been charged with, tried for and acquitted of the murder of Eugene Toman before the opening of the inquest on 14 November 1988.

7

The coroner held a preliminary meeting on 27 October 1988. That meeting was attended by legal representatives of the interested parties, including Mr. Finucane, a solicitor acting for the respondent. At the meeting, the coroner told those present that he had been informed that A, B and C (who had been notified of the inquest) did not, as persons suspected of causing the deaths of the deceased and having been charged with an offence relating to one of those deaths, wish to give evidence at the inquest. At the opening of the inquest itself, the coroner, in the course of his opening address, informed the jury (as he had previously informed the legal representatives of interested parties) that he proposed to admit in evidence and put before them written statements which had been made by A, B and C relating to the circumstances in which the deceased were shot, although he told them that the weight of such statements might not be as great as that of sworn evidence given by A, B and C in person at the inquest. Objection was made on behalf of the respondent to the admission by the coroner of the written statements of A, B and C in evidence. She then sought to challenge the coroner's decision on this point by way of judicial review in the High Court, her principal argument being that paragraphs (2) and (3) of rule 9 were ultra vires, and that accordingly A, B and C were witnesses who could and should be compelled to attend the inquest and to give evidence.

8

This submission was rejected by Carswell J. He said:

"In my opinion one has to look at the phrase 'practice and procedure' in the context in which it is found. Section 36 of the Act of 1959 was enacted to enable the rule-making body to frame rules which would govern the whole of the conduct of coroners' proceedings, in connection with inquests, post-mortem examinations, exhumations and burials. It was in my view designed to cover and capable of covering all procedural matters which might arise in the course of an inquest. The conferment of immunity from having to give evidence at all can properly be regarded as a matter coming within the practice or procedure of the coroner's court, being one which is part of the proceedings of the cause within the court and arising in the course of the hearing. It therefore may be distinguished from a rule which purports to grant an elevated status of evidential privilege or immunity to certain documents. It seems to me that it is part of the procedure in the coroner's court, notwithstanding the fact that it may not apply in any other court. It does not enlarge the ambit of privilege against self-incrimination, which is dealt with by rule 9(1). It was argued that the effect of paragraph (2) was to enlarge that privilege for the persons coming within the paragraph, for if it is valid they do not have to give evidence at all, and so they are given a privilege against answering any questions at all. If this be so, it is nevertheless something which only occurs within the proceedings held in a coroner's court, and I consider that rule 9(2) and (3) are within the powers conferred by section 36 of the Act of 1959"

9

Accordingly, he declined to set aside the coroner's decision to admit in evidence the written statements of A, B and C. His decision was, however, reversed by the Court of Appeal. In a unanimous judgment delivered by Sir Brian Hutton L.C.J., the court referred to the

"clear and well established principle of law that, with a few specific and limited exceptions, every person is a competent witness and that, again with a few specific and limited exceptions, every competent witness is a compellable witness."

10

In their opinion, paragraphs (2) and (3) of rule 9 constituted a major departure from the general law relating to the compellability of witnesses, which applied to coroners' courts as to other courts. In so doing, the two paragraphs purported to change substantive law, and did not merely regulate practice or procedure. Accordingly, the two paragraphs were ultra vires the rule-making authority. The court further held that the two paragraphs were ultra vires as being inconsistent with section 17(1) of the Act of 1959. (I shall refer in due course to the terms of that subsection.) Against that decision the appellant now appeals to your Lordships' House, by leave of this House.

11

In Northern Ireland, the law relating to coroners is the subject of the Act of 1959, which is expressed to be an Act to amend and consolidate the law relating to coroners. The coroner's inquest into death provides, inevitably, the principal subject matter of the Act, which also deals briefly with the coroner's inquest on treasure trove. Section 11(1) provides that a coroner who is informed that there is within his district the body of a deceased person, and that there is reason to believe that he has died in certain specific circumstances, shall make such investigation as may be required to enable him to determine whether or not an inquest is necessary. Section 13 provides that a coroner within whose district (a) a dead body is found or (b) an unexpected or unexplained death, or a death in suspicious circumstances or in certain other specified circumstances, occurs may hold an inquest either with a jury, or (except in certain specified circumstances where a jury is required) without a jury. Section 14 provides that, in certain circumstances, the Attorney-General may direct a coroner to conduct an inquest.

12

A coroner's inquest provides an example of inquisitorial procedure. In Reg. v. South London Coroner, Ex parte Thompson, (unreported), 8 July 1982, Lord Lane C.J. stressed this fact in the following passage:

"Once again it should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish the facts. It is an inquisitorial process, a process of investigation quite unlike a trial where the prosecutor accuses and the accused defends, the judge holding the balance or the ring, whichever metaphor one chooses to use."

13

It follows that witnesses at an inquest are not called by interested parties. It is for the coroner to decide which witnesses are to be summoned to give evidence....

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