R v Bedfordshire Coroner ex parte Local Sunday Newspapers Ltd

After the fatal shooting of a Mr Fitzgerald by armed police officers in Bedfordshire, an inquest was held by Mr David Morris as coroner at the Luton and Bedford Coroner's Court. In March 1998 he received a letter from the assistant chief constable, who was the investigating officer inquiring into the incident. He wrote inter alia as follows:

"This is a sensitive inquiry and you may be aware that [the deceased's] family are firmly of the opinion that [the officer, who in fact fired the fatal shot and who has been called for the purpose of this hearing officer B] did not consider all the options prior to discharging his firearm. They hold him responsible for an unnecessary death."

Then after certain discussions about the nature of the deceased's family, he continued:

"It would be helpful if the identity of [officer B] could be protected on this occasion. I am writing, therefore, to seek your consent for anonymity of the Bedfordshire officers whilst giving evidence at the forthcoming inquest."

The Coroner made a provisional decision that the four officers involved in the shooting should not be identified, and they were called A, B, C and D, of whom, as I have indicated, B actually fired the fatal shot. On 28 July 1998 at a preliminary hearing, to which all interested parties including the press were invited, the Coroner ruled that the four officers should remain anonymous and that they should not be identified by the media.

The Coroner, in the affidavit which he has sworn for the purpose of this hearing, describes the position as follows:

"Various applications were made either in advance or at this preliminary hearing and each was considered on its merits after extensive legal argument. The question of anonymity of particular police officers was again considered in the light of further representations made by the Bedfordshire Police Federation and others … [Counsel], on behalf of the family, objected to any anonymity in the interests of transparency. Whilst affording advance disclosure of all relevant witness statements including (subject to legal representations) those of the police officers actively involved in the fatal shooting and whose conduct might be called into question, I did not accept that it automatically followed that the individual officers of necessity had to be identified by name. In directing that the four armed response officers should remain anonymous, I accepted that there was a genuine concern particularly on the part of 'Officer B' that he and his family could be exposed to verbal and physical abuse if his name were to be disclosed having regard to where he lived in the immediate vicinity of the locus in quo. Also from my local knowledge, I had reason to believe that previous threats and abuse had been directed against 'Officer B' and his family by members of his local community following another incident not involving a shooting where he had been acting in accordance with his police duties. All Counsel and representatives accepted that I had the authority to make such a direction and none objected to my applying local knowledge in addition to publicly expressed reasons when making such a direction.

In deciding to confirm the interim decision on anonymity in respect of the four police officers of the armed response unit including 'Officer B' I do not consider that I had made a 'blanket' decision on anonymity, as I did not consider it necessary to continue the anonymity in respect of the Senior Police Officer [I interpolate to say that in fact no application for such anonymity on his part had been made] and the Tactical Firearms Officer whose names were subsequently released. I made clear to all those present, including the press, that it was open to anyone to make a fresh application, if further information or circumstances warranted it or there were new legal cases concerning anonymity. I did make clear that the deadline for making any further applications would be 17th November 1998. This was on the basis that the adjourned inquest had been listed for 4th November 1998."

Between July and November it became clear that after the investigation by the Thames Valley police was completed no criminal case was to be brought against any officers arising out of the shooting and indeed no criminal prosecution or civil action has been brought.

After further submissions, including a letter to the Coroner's office dated 19 November 1998 from Messrs Russell Jones & Walker acting on behalf of officers A to D, which was produced only in the course of this hearing, a further decision to the effect that A, B, C and D should remain anonymous was made on the commencement of the inquest on 24 November 1998. The reasons were given in writing by the Coroner and those reasons included the following paragraph: "The predominant reasons for granting anonymity for the particular officers beyond my own local knowledge and experience are —

a)Bedfordshire police is a small force with a handful only of armed response officers. The naming of officers 'A', 'C' and 'D' would be likely to identify by default officer B

b)All four officers have expressed fear if their names are made public in this context the privacy and safety of both themselves and their families could be at risk. Some officers live near to the locus in quo

c)Whilst there may be no threat emanating from the deceased's family there are serious and violent criminals living and operating within the locality and identification of members of the armed response team would not be either in the interest of those individuals or in the public interest."

The Coroner and his jury considered the matter over four days and the killing was found to be lawful. This verdict has not been challenged and, as I have indicated, no civil or criminal proceedings have been brought against officer B or any other officers.

The applicant in these proceedings, Local Sunday Newspapers Limited, who are proprietors and publishers of "Bedfordshire on Sunday", a weekly newspaper circulating in the Bedford area, wished to challenge that order. They contacted the Coroner who replied in co-operative vein, by a fax dated 4 December 1998, as follows:

"1. I gave a direction in open Court on 20.7.98 [it now turns our he meant 28 July 1998].

2. I gave further direction in open Court on 24.12.98 [in fact November 1998] at commencement of the inquest—exactly as the written direction.

3. I have been advised I have the power—no party has yet applied for a Judicial Review on the point.

4. You may have a right to apply to the High Court yourselves to have this order revoked …"

After some delay this application for judicial review was issued just before the three months' maximum time limit to challenge the final decision of the Coroner of 24 November 1998 expired, namely on 17 February 1999. What was sought was that the court should quash that decision and make a declaration effectively that the Coroner was not entitled in law to grant an order for anonymity. The matter came on by way of application for permission in front of Mr Justice Jowitt on 26 April 1999 when the issue of delay was raised.

As a result of the recent House of Lords' decision in

ex parte A, reported in The Times 26 March 1999, if permission is granted then that resolves any issue of delay which cannot thereafter be raised on the substantive hearing. If I may so, very sensibly, because the issue of delay in this case was likely to be of some significance, Mr Justice Jowitt did not resolve the position summarily but, equally, because of the significance of the issues apart from delay in the case, he was not prepared to consider refusing permission. So what he did was not grant permission but equally not refuse it and adjourned the application for permission to come on at the full hearing of a substantive application at which the issue of delay could itself also be resolved.

In the event, when the matter came in front of me, the issue of delay had been resolved by the decision of the applicant not to pursue its application to quash the Coroner's decision but simply to pursue the relief of a declaration. That means that in no circumstances will the actual order made in this case be affected, which could have had the consequence of the belated identification of these officers in the press. But the issue, of course, was left for me to decide and to be argued, as it has been, as to whether or not the decision was a proper decision for the purpose of general guidance.

In the light of that concession by the applicant no issue was then pursued on delay by the respondents before me, who have included counsel appearing for the Coroner, for the Chief Constable of Bedfordshire and for the officers themselves.

The question, therefore, for my decision is whether the Coroner was entitled in law to make the decision he did for anonymity. It is not disputed that if he was entitled to make an order for the anonymity of...