Judicial Review of a decision by HM Coroner for Greater Belfast, refusing to call two military witnesses at an inquest into the death of three men, shot dead by security forces at Whiterock Road, Belfast in 1990.

KERE2186

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

 

QUEENS BENCH DIVISION (CROWN SIDE)

 

________

 

IN THE MATTER OF AN APPLICATION BY ANN BRADLEY

FOR JUDICIAL REVIEW

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KERR J

The applicant Ann Bradley, is the next of kin of John Joseph McNeill deceased. He and two other men were shot dead by soldiers outside a bookmaker’s premises at the junction of Whiterock Road and Falls Road, Belfast on 13 January 1990. The circumstances of the shooting have been reviewed by Carswell LJ in a judgment on an earlier judicial review application and need not be rehearsed by me. An inquest into the deaths of the deceased and the two other men opened on 19 April 1993. It was adjourned shortly afterwards to allow the Ministry of Defence to challenge the decision of Her Majesty’s Coroner for Greater Belfast, Mr J L Leckey not to allow military witnesses to be screened while giving evidence. That Judicial Review application was heard by McCollum J who decided that the Coroner had erred in refusing the application to have the witnesses give evidence from behind screens. An appeal by the next of kin against the decision of McCollum J was dismissed by the Court of Appeal.

The inquest resumed on 14 October 1994. It was completed in the late evening of 20 October 1994. Thereafter a judicial review challenge was made by the next of kin of the deceased and in the judgment referred to above, Carswell LJ made an order of certiorian quashing the inquisition because of the lateness of the hour at which the jury was required to return a verdict and because of other irregularities in the conduct of the inquest.

On 3 May 1995 the Coroner notified the legal representatives of the Ministry of Defence and the next of kin that he proposed to open a new inquest on 7 September 1995. He forwarded to each of the legal representatives a list of the witnesses whom he had decided to call to give evidence. This list did not include the names of two witnesses who had given evidence at the earlier inquest. These were military witnesses and they had been referred to at the earlier inquest as soldiers C and G. They had been members of a special unit of the armed forces and it appears that they gave evidence at the earlier inquest to the effect that they and five other soldiers from the same unit had been travelling on the day of the shooting in the West Belfast area in four cars on “familiarization training”. In one of these cars were soldiers A and B. They were the soldiers who had fired the fatal shots and by virtue of Rule 9(2) of the Coroners (Practice and Procedure) Rules (NI) 1963 (as amended) neither was a compellable witness.

In correspondence from the next of kin’s solicitors in late August and early September 1995 the Coroner’s decision not to call witnesses C and G to give evidence was queried and challenged. The Coroner convened a special hearing to allow parties to make submissions on whether soldiers C and G should be called. In a written ruling given on 9 October 1995 the Coroner confirmed his earlier decision not to summon soldiers C and G as witnesses. He referred to a passage from the judgment of Carswell LJ to the following effect:-

“The Lord Chief Justice set out at some length in his judgment in Re Ministry of Defence’s Application(1994, unreported), the earlier proceedings in respect of this inquest to which I have referred, the approach which the Coroner should take to the function of inquiring into the issue of how a deceased person came to his death. It deals fully with the proper breadth of such an inquiry, and I commend it to all Coroners for detailed study. I consider that if the Coroner in this case had absorbed and effectively applied the principles which the court there expressed many of the difficulties which have arisen could have been avoided.”

 

Having recorded that he considered that this statement was a criticism of the breadth of the inquiry which he had undertaken, the Coroner continued:

“It is against that background and influenced by the remarks of Carswell LJ that I made the decision not to call soldiers C and G. Neither was an eye witness and neither could give a first hand account of what had happened. The fact that both belonged to the same special unit of the armed forces as soldiers A and B was not sufficient to justify my calling them as witnesses even though they were on a training exercise with them at the material time. 

 

I asked myself whether I would have called them if they had been ordinary civilians who had been in the general area and were similarly restricted as to the evidence they could give. The conclusion I arrived at was that if they were the only witnesses I would call them on the basis that some evidence was better than none, but otherwise I would not. It is the case that on occasions I am obliged to hold inquests where there is an absence of any direct evidence. So far as this incident is concerned I have available a wide range of witnesses including a number of eye witnesses, others who were in very close proximity to the shooting, police officers who arrived at the scene within moments of the shooting, police officers who were involved with crowd control and scene preservation, ambulance personnel and a doctor who attended at the scene, scenes of crime officers and forensic scientists who were at the scene and the police officers concerned with the investigation.”

On 8 November 1995 the applicant obtained leave to challenge the decision of the Coroner and the hearing of the substantive application took place on 21 March 1996. In presenting the case for the applicant Mr Treacy relied mainly on a helpful skeleton argument in which a number of specific criticisms of the Coroner’s decision were made. Without, I hope, unduly condensing these they may be summarised as follows:-

  1. The Coroner wrongly construed Carswell LJ’s judgment as a criticism of the breadth of the inquiry conducted at the first inquest. Properly understood, Carswell LJ’s judgment was critical of the manner in which the inquest was conducted not of its scope. 
  2. The Court of Appeal, in dealing with the Ministry of Defence application for judicial review, did not overtly or by implication criticise the Coroner on his decision to call soldiers C and G. 
  3. In deciding whether to call C and G as witnesses on this occasion the Coroner ought to have taken into account that he had previously considered them to be relevant witnesses. The state of the law was unchanged between his decision to call them as witnesses and the time at which he concluded that they should not give evidence. If they were relevant and necessary witnesses on previous occasions they should now be so regarded. 
  4. The Coroner failed to acknowledge or appreciate the relevance of the evidence which these witnesses could give. 
  5. The Coroner had misunderstood and misapplied the decision of the Court of Appeal in England in R v HM Coroner for Western District of East Sussex ex parte Homber, Roberts and Manners (1994) 158 J.P. 357. The Coroner wrongly considered the effect of this decision to be that his discretion as to which witnesses should be called was restricted to choosing from those who had relevant or necessary evidence to give as to the primary cause(s) of the death of the deceased. In any event, Mr Treacy argued, the witnesses could give relevant evidence as to the primary causes of the deceased’s death. 
  6. The Coroner failed to have regard to the view of the then Secretary of State for Defence as expressed by him in a public interest immunity certificate that the interests of justice required the evidence of soldiers C and G to be made available to the inquest. 
  7. The Coroner failed to have sufficient regard to his public duty to ensure that the circumstances of the deceased’s death were “clearly, fairly and fearlessly investigated” (per Sir Thomas Bingham MR in R v HM Coroner for North Humberside and Scunthorpe ex parte Jamieson (1994) 3 All ER 972). This duty, it was argued, must be viewed against the background of the vital role of the inquest in allaying the concerns of the public about the circumstances in which the deceased were killed. 

    Before examining these arguments it is important to recall the source of the Coroner’s power to call and examine witnesses before the inquest. It derives from section 17(1) of the Coroners Act (NI) 1959 which provides:-

    “Where a Coroner proceeds to hold an Inquest … he may issue a summons for any witness whom he thinks necessary … for the purpose of giving evidence relative to [the] dead body …”

     

    The duty of the Coroner to fix the limits on the scope of the inquest in order to decide on the relevance of and the need for potential witnesses’ evidence has been emphasised by the Master of the Rolls in the Jamieson case but it is clear from this and a number of other authorities that the decision on the scope of the inquiry must be guided by a clear understanding of the purpose and function of the inquest. Rules 15 and 16 of the Coroners (Practice and Procedure) Rules (NI) 1963 (as amended) specify the matters on which inquiry should be made by an inquest. They provide:-

    “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 Acts (NI) 1863-1956 to be registered concerning the death.

     

    16. Neither the Coroner nor the jury shall express any opinion on questions of criminal or civil liability or on any matters other than those referred to in the last foregoing rule.”

     

    The aspect of the inquest function as defined in this provision which has given rise to most controversy is the requirement that it be ascertained how the deceased came by his death. It is now well settled, however, that the word “how” in this context connotes “by what means” rather than “in what broad circumstances”. Carswell LJ put it thus in his judgment in the earlier judicial review application:-

    “The jury are to find `how the deceased came by his death’. The word `how’ means `by what means’ rather than `in what broad circumstances’. The inquiry must focus on matters directly causative of death: R v HM Coroner for Western District of East Sussex ex parte Homber (1994) 158 J.P 357, 369, per Simon Brown LJ. It should not embark on a wider inquiry relating to the background circumstances of the death: it is not its function to provide the answers to all the questions related to the death which the next of kin may wish to raise: Re Ministry of Defence’s Application at page 40.”

     

    In light of this and other authoritative statements as to the scope of the inquiry into how the deceased came by his death it is clear that, in approaching the question of which witnesses are “necessary” under section 17 of the 1959 Act, the Coroner must have in mind the limited scope of the inquiry on which the jury may embark. To select witnesses who could only give evidence as to the broad circumstances in which the deceased died but not as to the means by which he died would be an abuse of the Coroner’s powers in view of the current state of the law, as it has been unambiguously expressed in the authorities referred to by Carswell LJ and by the Court of Appeal in Re Ministry of Defence’s Application.

    Against that background I turn to consider separately but briefly each of Mr Treacy’s submissions, in the order set out above.

  8. The misconstruction of Carswell LJ’s judgment 

    It should be observed, firstly, that, even if the Coroner misconstrued the passage from Carswell LJ’s judgment which he cited in his ruling, this would not affect his duty to consider again which witnesses were necessary for the new inquest. I consider that the Coroner was required to give fresh consideration to this question whether or not he was prompted to do so by anything which Carswell LJ had said. Even if he was wrong in his opinion that Carswell LJ had implicitly criticised him because of the breadth of the inquiry he had undertaken, if the Coroner was correct in his view that these witnesses were not necessary, then his decision not to call them must stand.

    In any event it appears to me that the Coroner was clearly right to conclude that this passage of the judgment was pertinent to the breadth of the inquiry on the question of how the deceased came by his death. Although the basis on which Carswell LJ quashed the Coroner’s decision was not directly related to the scope of the inquiry into the circumstances in which the deceased died it is clear that Carswell LJ considered that the Coroner had allowed – indeed invited – the jury to review areas such as possible criminal or civil liability which were not within their province – see in particular page 17 of the judgment. This view warranted (and, arguably, required) the Coroner’s fresh consideration of how the ambit of the jury’s review of the circumstances of the deceased’s death should be defined. I consider that the Coroner was perfectly entitled to undertake such fresh consideration.

  9. The absence of any criticism by the Court of Appeal of the Coroner’s decision to call soldiers C and G 

     

    I can deal with this argument shortly. The issues before the Court of Appeal did not concern, either directly or indirectly, the decision to call these witnesses. The lack of mention of this matter in any of the judgments of the Court of Appeal cannot be construed as an endorsement of the decision to call them. In any event, the lack of criticism, even if conscious and deliberate, could not taken as an affirmation that the only course available to the Coroner was to call these witnesses.

  10. The failure of the Coroner to have regard to his previous decision to call the witnesses. 

     

    In advancing this argument Mr Treacy focused on the statement by the Coroner in his written ruling that in his approach to the question of whether C and G should be called as witnesses he had ignored the decisions he had made on previous occasions. Mr Treacy argued that, since the law had not changed since the Coroner’s earlier decision to call soldiers C and G, he should not only not have ignored that previous decision but should have abided by it. But that argument begs the question whether the Coroner was correct in his earlier decision. Implicit in his ruling of 9 October 1995 is the Coroner’s acknowledgment that that decision was wrong. Since, as he was obliged to do, the Coroner was considering the matter afresh, I am of the opinion that he was right to ignore his previous ruling.

  11. The Coroner’s failure to appreciate the relevance of the witnesses’ evidence 

    Mr Treacy submitted that the Coroner had either ignored or failed to understand the obvious relevance of soldiers C and G’s evidence. They were part of the same undercover unit as A and B. Soldier C had driven past the scene of the killings seconds after they had occurred. Both soldiers had received radio communications from soldiers A and B informing them that a contact was about to be made. If these witnesses were not called there would, in effect, be no military witnesses since A and B were not compellable.

    Both Mrs Loughran (on behalf of the Coroner) and Mr Weatherup QC (on behalf of the Ministry of Defence) accepted that both witnesses could give evidence which was relevant to the means by which the deceased died. Mr Treacy portrayed this as a very important concession. Since the relevance of their evidence had been acknowledged, he argued that the case for calling them as witnesses was irresistible. But the acid test for qualification as a witness at an inquest is not simply the relevance of the evidence of the potential witness. As I have already observed, section 17 of the 1959 Act empowers a Coroner to call witnesses whom he thinks necessary. He is not obliged to call every witness who can give relevant evidence, however marginal or peripheral it may be. His duty is to consider the body of evidence available to deal with the question of by what means the deceased came by his death and to select from that such material as will adequately expose that issue before the jury.

    In this case, as the Coroner pointed out, there is available a wide range of witnesses who observed the actual shooting or who arrived at the scene shortly afterwards. If C and G were the only witnesses who could give evidence as to the means by which the deceased died, the Coroner has said that he would have called them. This is a tacit acknowledgement of the relevance of their evidence. He concluded, however, that, in view of the availability of other witnesses, their attendance was not necessary. It is not for me to say whether I would have reached the same conclusion. It would only be open to this court to quash the Coroner’s decision on this ground, if his decision was so perverse as to be insupportable ie Wednesburyunreasonable. There is no warrant for so concluding and I must reject Mr Treacy’s submissions on this point, therefore.

  12. The Coroner’s misapplication of ex parte Homber & ors 

    It was submitted on behalf of the applicant that the Coroner was not restricted in his choice of witnesses to those who could give evidence on primary causes of the deceased’s death. In was wrong to construe the decision in ex parte Homberas authority for the proposition that only those who could give evidence on primary causes of death should be called as witnesses. It was suggested that the Coroner’s use of the expressions “primary causes” and “secondary causes” was not justified and deflected him from the full and proper exploitation of his powers under Section 17 of the 1959 Act which allowed him to call any witness whom he considered necessary.

    In my opinion, however, the Coroner’s powers under Section 17 must not be viewed in isolation from the provisions which deal with the nature of the inquest he is to conduct. In other words, the necessity of calling a particular witness must be judged according to the issue which is to be determined. Thus, if a witness cannot give evidence as to the means by which the deceased died and can only testify as to the broad circumstances which led to his death, he cannot be deemed a necessary witness because of the restriction which has been placed on the meaning of “how” in Rule 15 of the 1963 Rules.

    I believe, however, that there is some force in Mr Treacy’s criticism of the Coroner’s use of “primary and secondary” causes to signify the distinction between evidence which relates to the means by which a person died and the broad circumstances of his death. It is quite conceivable that an event leading to the death of a deceased might properly be regarded as a secondary cause but may nevertheless be directly relevant to the means by which he died. I do not consider that Simon Brown LJ, in using the expression “secondary causes” in his judgment in ex parte Homber was suggesting that inquiry into secondary causes of death should never be undertaken. Indeed it is clear from his comments on the decision in R v Poplar Coroner ex parte Thomas [1933] QB 610 that he considered that inquiry into secondary causes may, on occasion, be not only legitimate but required. At page 370 of his judgment, he said:-

     

    “… essentially [ex parte Thomas] decides no more than that a broad common sense view must be taken when deciding the bald question whether a death is unnatural so as to determine whether to hold an inquest. Whereas, however, for that purpose one shuts one’s mind to all but the dominant cause of death, once an inquest is held, the duty to inquire into how the deceased came by his death requires one then to take a broader view and investigate not merely the dominant cause but also (in Jervis’s language) any `acts or omissions which are directly responsible for the death’.”

    In this case the Coroner appears to have treated “primary and secondary causes” as synonyms for “by what means” and “the broad circumstances”. I believe that this was incorrect. I also believe that he was wrong to relegate the evidence of Soldiers C and G to the “secondary cause” category. The admissible and relevant evidence which they could give surely relates to the actual shooting itself which must be regarded as the primary cause.

    I do not consider, however, that these errors materially affected the Coroner’s decision. As I have already said he tacitly acknowledged the potential relevance of their evidence but decided not to call the witnesses because of the wealth of other more pertinent and directly relevant evidence. That decision and the reasoning which underlies it are unimpeachable. I am not prepared to quash his decision on this account, therefore.

  13. The Coroner’s failure to have regard to the Secretary of State’s view that the interests of justice required the evidence of C & G to be given. 

     

    I can deal with this argument briefly. It is the Coroner’s exclusive duty to decide which witnesses are necessary. He should not be swayed or influenced by the views of others except insofar as they affect his own conviction. He was, therefore, in my view, perfectly entitled to disregard the statement in the public interest immunity certificate, unsupported as it was by any reasoning. It is to be remembered that this public interest immunity certificate was issued after the Coroner had intimated his intention to call Soldiers C & G. The statement that it was in the interests of justice to call Soldiers C & G may properly be regarded as an acceptance by the Secretary of State of that decision rather than any assertion that the interests of justice demanded that they give evidence.

  14. The failure of the Coroner to have sufficient regard to the need to investigate the circumstances of the deceased’s death, clearly, fairly and fearlessly. 

     

    In advancing this argument, Mr Treacy relied strongly on comments of McCollum J in his judgment on the Ministry of Defence’s application for judicial review. At page 19 of his judgment, the learned judge said:-

     

    “Moreover it may well be thought that the circumstances of the shooting of a civilian or civilians by a member or members of the security forces are a matter of such fundamental public interest and concern that they should be resolved in such a way as to satisfy the public that it is being informed of the full truth of the incident.”

     

    And at page 22:-

     

    “As I have already indicated, the shooting and killing by members of the security forces of civilians, whether suspected of involvement or not in crime or terrorism, is a matter which gives rise to the greatest possible public interest and concern. 

     

    It is particularly important in relation to deaths occurring in this kind of circumstance that the public should be able to be satisfied that the inquest proceedings have been conducted with complete openness and disclosure of all relevant facts and that rumours and apprehensions are led to rest.

     

    …

     

    The more clandestine the atmosphere surrounding the investigation of the consequences of such operations the more grounds are provided for doubts about the propriety of the manner in which they are conducted.

     

    In the case under consideration there is no suggestion that the deceased young men were engaged in terrorist activity.

     

    The whole community is entitled to know all the facts which show why they met such violent and arbitrary deaths.”

    Mr Treacy argued that if Soldiers C & G were not called there would be no opportunity to investigate the reasons which lay behind the decision of Soldiers A and B to open fire. The pressing concerns already expressed about these deaths would not be allayed but would increase. One of the essential purposes on grounds of public interest in holding an inquest identified by the Broderick Committee in 1971 (ie to allay rumours or suspicions) would be frustrated, therefore. Of this purpose, however, Hutton LCJ said at page 51 of his judgment in the Ministry of Defence’s application:-

    “I … consider that the judgments of Simon Brown LJ [in ex parte Homber and others] and Sir Thomas Bingham MR [in ex parte Jamison] make it clear that when the Broderick Committee stated that one of the purposes of an inquest is `to allay rumours or suspicions’ this purpose should be confined to allaying rumours and suspicions about how the deceased came by his death and not to allaying rumours and suspicions about the broad circumstances in which the deceased came by his death.”

    It is also clear that the full, fair and fearless investigation advocated by the Master of the Rolls in ex parte Jamison was to be conducted into the relevant facts ie the facts which touched on the means by which the deceased died rather than the broad circumstances which led to his death.

    There may well be public concern about the motivation of the soldiers in opening fire; one can readily understand the wish of the next of kin to have that issue thoroughly and publicly explored. By no standard, however, could such an issue be described as coming within the realm of inquiry into the means by which the deceased came by his death. I do not consider therefore that the arguments advanced on this point are well founded. The application must be dismissed.

     

     

    IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

     

    QUEENS BENCH DIVISION (CROWN SIDE)

     

    ________

     

     

     

     

    IN THE MATTER OF AN APPLICATION BY ANN BRADLEY

    FOR JUDICIAL REVIEW

     

    ________

     

     

     

     

     

    JUDGMENT

     

     

     

    OF

     

     

     

     

     

    KERR J