Kirsten Mercer summarises and considers the impact of the decision on what was called “The Perpetrator Issue”Park Square Barristers
The Law relating to Scope of Inquests
There is clear legislative guidance setting out the purpose of an investigation into a person’s death; to answer questions of who, how, when and where and, in cases where Article 2 of the ECHR is engaged, to ascertain in what circumstances the deceased came by his death. The legislation also specifically prohibits a determination of criminal liability on the part of a named person.
Section 5 of the Coroners and Justice Act 2009 provides:
- The purpose of an investigation under this Part into a person’s death is to ascertain –
- who the deceased was;
- how, when and where the deceased came by his or her death;
- the particulars (if any) required by the 1953 Act to be registered concerning the death.
The purpose is widened in those cases where Article 2 of the ECHR is engaged:
- Where necessary in order to avoid a breach of any Convention rights…the purpose mentioned in subsection (1)(b) is to be read as including the purpose of ascertaining in what circumstances the deceased came by his or her death.
The purpose of the investigation is strictly limited to answering those questions:
- Neither the senior coroner conducting an investigation under this Part into a person’s death nor the jury (if there is one) may express any opinion on any matter other than –
- the questions mentioned in subsection (1)(a) and (b) (read with subsection (2) where applicable);
- the particulars mentioned in subsection (1)(c)
In making a determination as to those questions section 10 of the Coroners and Justice Act 2009 makes it clear that such determination may not be framed in such a way as to appear to determine any questions of –
- criminal liability on the part of a named person, or
- civil liability.
Further, paragraph 8(5) of Schedule to Coroners and Justice Act 2009 provides:
In the case of an investigation resumed under this paragraph, a determination under section 10 may not be inconsistent with the outcome of:
- the proceedings in respect of the charge (or each charge) by reason of which the investigation was suspended;
- any proceedings that, by reason of subparagraph (2) had to be concluded before the investigation could be resumed.
At around 8.20pm on 21st November 1974 two explosions took place in two public houses in Birmingham City Centre. 21 people were killed and some 220 injured, many of them seriously. The Provisional IRA (‘PIRA’) is generally regarded as having been responsible for it.
Inquests were opened in late 1974, but were adjourned in 1975, pending criminal proceedings in relation to the Birmingham bombings. These criminal proceedings concluded in 1991 when the Birmingham Six were released after a successful appeal against conviction on 21 counts of murder.
The Senior Coroner in Birmingham ruled on 1st June 2016 that the Inquests should be resumed. The Coroner appointed to conduct the Inquests ruled that the Inquests would comply with the procedural requirements of Article 2 of the ECHR. The Coroner made further rulings on the scope of the inquests. On 3rd July 2017 the Coroner ruled that the Inquests had to comply with the law, focus on the 4 statutory questions (who, how, when and where) and be realistic about the availability of evidence 43 years after the event.
The Perpetrator Issue
The Coroner ruled that investigation into the identity of the suspected perpetrators would not be dealt with as part of the inquiry, having taken into account the distinction between the roles of inquests and criminal proceedings and the statutory prohibitions set out above.
That decision was challenged by way of Judicial Review and heard in the High Court before Simon LJ and Carr J.
The Claimants sought:
- An order quashing the Coroner’s decision.
- A mandatory order requiring the Coroner to include the Perpetrator Issue within scope.
- A declaration that the Coroner’s decision was contrary to Article 2 and section 6(1) of the Human Rights Act 1998.
The High Court concluded that the Coroner did not pose the right question on the scope of the Inquest. He should have considered whether the factual identity of the bombers (and those that assisted them) was sufficiently closely connected to the death to form part of the circumstances of the death.
In those circumstances the decision was quashed and the matter remitted to the Coroner so that he can make the decision on the Perpetrator Issue in light of the judgment. The High Court gave the following guidance:
- The fact that the jury is precluded from making a determination which is framed in a way that determines any question of criminal liability of a named individual, and the fact that the primary responsibility for detecting and prosecuting individuals for crime rests with the police and prosecuting authority are not reasons for excluding the identification or perpetrators from the scope of inquests.
- It would be wholly inconsistent with the principle of finality in legal proceedings that those who have been acquitted of a homicide should then be the subject of a full enquiry as to whether they were in fact guilty.
- There may be inquests in which the identity of those involved in violent deaths may properly be within the scope of the inquest.
- Issues of proportionality and fairness will be relevant.
- The size and complexity of an investigation into the criminal responsibility of individuals is a relevant factor, but not an overwhelming factor.
- The Court would not expect financial limitations to inhibit an inquiry, but the fact that significant police resources have been deployed without leading to the identification of perpetrators is a relevant factor in deciding where the line is to be drawn.
- Proportionality is a material consideration.
- Section 10(2) applies to the conclusion, not the investigation. A jury can explore facts bearing on criminal and civil liability. In saying this the Court also said “We do not agree that the jury would be unable to identify an individual involved in the planning, planting, procuring or authorising of the bombing without breaching the statutory prohibitions.”
The Article 2 Issue
The High Court set out the history of the investigations, court proceedings and operation arising from the Birmingham bombings. They concluded that a State may discharge its procedural obligation under article 2 in different ways and provided they are procedurally effective in totality may be shared between authorities, including coronial and criminal authorities.
The Court concluded that the authorities do not lead to the conclusion that the procedural requirement under article 2 requires the Inquests to investigate the identity of the persons responsible for the Birmingham bombings. The Court concluded that is the role of the police, who continue to investigate this issue in so far as they are able to do so.
The High Court quashed the decision which excluded the perpetrator issue, and remitted the case to enable the Coroner to reconsider the issue in light of this judgment. The High Court refused to make a mandatory order including the Perpetrator Issue within scope and refused to declare that the Coroner’s decision was contrary to Article 2.
One view of this judgment is that it appears to give potential for widening the scope of inquests to explore further questions of individuals’ involvement in a death.
It is difficult to reconcile the guidance relating to the identification of an individual with the statutory prohibitions. The High Court concluded:
“We do not agree that the jury would be unable to identify an individual involved in the planning, planting, procuring or authorizing of the bombing without breaching the statutory prohibitions.”
Once such a consideration has been made and an individual identified, it would require careful directions to ensure that any determination was not framed in such a way as to appear to determine any question of criminal liability on the part of a named person or civil liability.
When issues of scope arise in Article 2 compliant inquests the question that parties should be asking the Coroner to consider is whether the issue sought to be within scope “was sufficiently closely connected to the death to form part of the circumstances of the death.”
Whilst the statutory prohibitions remain and the statutory questions will remain the focus it may be that parties will use the guidance in this judgment to try to widen the scope of inquests, particularly in cases where there is a suggestion that there are identifiable individuals who may bear criminal or civil liability for the death.
On 31st January 2018 the Coroner released a press notice stating that he intends to seek permission to appeal the judgment to the Court of Appeal for reconsideration and clarification. He said that he has considered carefully the High Court judgment and considers this to be “a complex matter about the purpose of an inquest and the approach of a coroner to setting the boundaries of his, or her, investigation.”
The pre inquest review which was listed on 22nd February 2018 was vacated.
We await further developments in this case.
Kirsten Mercer undertakes work in the Coroners’ Court and has experience acting as panel counsel for the Government Legal Department at inquests where there has been a death in custody.