Neutral Citation no. [1999] 1893

Ref:    

COGC2756

 

 

 

Judgment: approved by the Court for handing down

Delivered:

18/02/99

(subject to editorial corrections)

 

 

 

 

                   IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

 

                                   QUEEN'S BENCH DIVISION (CROWN SIDE)

 

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               IN THE MATTER OF AN APPLICATION BY GAIL MULLAN AND

                                    SARAH MULLAN FOR JUDICIAL REVIEW

 

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COGHLIN J

            The applicants in these proceedings are the next of kin of John Patrick Mullan, deceased, who was tragically killed when he was struck by a motor vehicle driven by Sinead McDonnell on the Newry By-pass in the early hours of the morning of 12 July 1997.  An inquest into the circumstances of the death of John Patrick Mullan ("the deceased") was held by Her Majesty's Coroner for the District of South Down, Mr J Daniel Thompson ("the Coroner") on 29 June 1998 and the applicants seek judicial review of a number of the decisions taken by the Coroner in relation to the conduct of the said inquest.

            I propose to deal separately with each of the issues raised by the applicants but, before doing so, I remind myself of some of the relevant general principles.  The difficulties faced by coroners in Northern Ireland have been widely recognised and in Re Ministry of Defence's application [1994] NI Reports 279 MacDermott LJ commenced his judgment, at page 315 by observing:

                        "As I listened to the arguments in this appeal I became increasingly aware of the many difficulties and problems facing those who seek to discharge the duties of coroner in this jurisdiction."

            After commending a study of the Court of Appeal judgment in Re Minstry of Defence's application Carswell LJ, as he then was, in Re Bradley and another's application [1995] NI 192 went on to set out a number of propositions at page 203/4:

 

                        "Since the judgment in Re Ministry of Defence's application reviews the previous case law thoroughly, it is not necessary for me to repeat the process in this judgment.  I shall confine myself to stating in summary form the propositions there laid down which are material to the issues the subject of argument in this application.

 

                        1.         A coroner's inquest is an inquisitorial process, a fact‑finding process and not a method of apportioning guilt.  In this respect it is quite unlike a trial (see R v South London Coroner ex parte Thompson (1982) 126 SJ 625 at 626 per Lord Lane CJ). 

 

                        2.         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 (see R v HM Coroner for Western District of East Sussex ex parte Homberg (1994) 158 JP 357 at 369 per Simon Browne 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 (see Re Ministry of Defence's application at page 307). 

 

                        3.         Although the Brodrick Report (see the Report of the Committee on Death Certification and Coroners (1971) Cmnd 4810) page 160, para 14.19(ii)) stated that one of the purposes of an inquest is to `allay rumours or suspicions', this purpose should be confined to allaying rumours or suspicions about the means by which the deceased came by his death, not about the broad circumstances in which he came by his death (see Re Ministry of Defence's application at page 314).

 

                        4.         It is a highly desirable objective of the coroner's jurisdiction that the proceedings should be summary and speedy (see R v HM Coroner for Western District of East Sussex ex parte Homberg (1994) 158 JP 357 at 373 per Simon Browne LJ)."

 

            To these observations I would respectfully add the words of Sir Thomas Bingham MR, as he then was, in R v North Humberside Coroner ex parte Jameson [1994] 3 All England Reports 972 at 991 where he observed that:

                        "It is the duty of the coroner as the public official responsible for the conduct of inquests, whether he is sitting with a jury or without, to ensure that the relevant facts are fully, fairly and fearlessly investigated.  He is bound to recognise the acute public concern rightly aroused where deaths occur in custody.  He must ensure that the relevant facts are exposed to public scrutiny, particularly if there is evidence of foul play, abuse or inhumanity.  He fails in his duty if his investigation is superficial, slipshod or perfunctory.  But the responsibility is his.  He must set the balance of the inquiry.  He must rule on the procedure to be followed.  His decisions, like those of any other judicial officer, must be respected unless and until they are varied or overruled.'

 

Again, the same learned judge, this time in R v Inner West London Coroner ex parte Dallaglio [1994] 4 All England Reports 139 said, at page 164, after referring to Jameson's case:

                        "The court did not, however, rule that the investigation into the means by which the deceased came by his death should be limited to the last link in the chain of causation.  That would not be consistent with the court's conclusion in R v North Humberside and Scunthorpe Coroner, ex parte Jameson [1994] 3 All England Reports 972 at 991, [1994] 3 WLR 82 at 101 (para 14) which emphasised the need for full, fair and fearless investigation and the exposure of relevant facts to public scrutiny, and it would defeat the purpose of holding inquests at all if the inquiry were to be circumscribed in the manner suggested.  It is for the coroner conducting an inquest to decide, on the facts of a given case, at what point the chain of causation becomes too remote to form a proper part of this investigation.  That question, potentially a very difficult question, is for him."

            Turning now to the issues specifically raised by the applicants in these proceedings:

 

 

1.         The complaint that the Coroner wrongfully refused to summons witnesses to the inquest

            Section 17 of the Coroners Act (Northern Ireland) 1959 provides that, 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 for the purpose of giving evidence.  In the course of giving judgment in in Re Bradley's application (unreported) NI High Court 29 August 1996, Kerr J expressed the opinion that, in approaching the question as to which witnesses are "necessary" under Section 17 of the 1959 Act, a Coroner should have in mind the limited scope of the inquiry upon which he is to embark.  He further stated his view that 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.  Since the test is that of necessity, the Coroner is not obliged to call every witness who can give relevant evidence, however marginal or peripheral, and 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 such material such witnesses as will adequately expose that issue.

            In this case, prior to the holding of the inquest, correspondence took place between the solicitors acting on behalf of the next of kin and the Coroner with regard to the identity of the witnesses who should be called to give evidence at the inquest.  I shall deal with this correspondence in greater detail at a subsequent point in this judgment. 

            On 23 June 1998 the applicants' solicitors wrote to the Coroner requesting the attendance of Daire McDonnell, Kevin Barry Rafferty, John Frederick Williams, Terence Oliver McCumiskey and certain police officers referred to in the statement of Sinead McDonnell to whom she had reported the accident and who may have taken any details of the accident from Ms McDonnell.  Ms McDonnell had been the driver of the vehicle which had come into collision with the deceased and, in a statement to the police, made almost three weeks after the accident, she maintained that two men had attempted to wave down her vehicle "in an exaggerated and wild manner", and when she slowed down and steered carefully to the left to avoid them, one of them threw himself at the car in an attempt to stop the vehicle causing her to be terrified that she was being hijacked.  It appears that the incident did take place in an area in which there had been a high incidence of hijacking and car burning in the previous few days.  Daire McDonnell was travelling as a front seat passenger in the vehicle driven by his sister and he also described "a boy with his two hands up coming to the front driver's wing of the car" and diving at the vehicle.  He told the police that he was also persuaded that the vehicle was about to be hijacked and he told his sister to drive on to the police station rather than lose the vehicle.  Daire McDonnell had been attending a wedding party at the Carrickdale Hotel earlier in the evening. 

            Terence McCumiskey made a statement to the police in which he stated that both he and the deceased had been drinking alcohol throughout 11 July and described how they had eventually left a club with the intention of hitching a lift home.  At that stage he told the police that:

 

                        "I was drunk I'm sure John was as well because he had been drinking all day."

 

He gave a rather vague description of the accident and described how he had moved the deceased's body off the road.  He confirmed that he was not at all sure of the various events included in his statement and finished by stating:

                        "I was drunk I don't even know which direction we were walking."

            John Williams was a relief taxi driver and came upon the deceased and Mr McCumiskey after the accident.  Kevin Barry Rafferty was also a taxi driver who appears to have observed the deceased and Mr McCumiskey prior to the accident.  He was unable to give a description of the two men but said that one was in the centre of the road waving with both arms above his head while the other was at the side of the road flagging his vehicle down.  He told the police that neither man was wearing a mask and that he himself was not concerned that he was about to be hijacked.  Mr Rafferty's passenger observed that both men appeared to have had "a brave drop of drink" and when they made an attempt to enter the vehicle Mr Rafferty drove on slowly in the direction of Bessbrook.

            The applicants' solicitors wrote a further letter to the Coroner on 25 June 1998 expressing in detail the reasons why they believed that the witnesses, whom they had identified, ought to be called to give evidence and the Coroner replied on 26 June 1998.  The Coroner rejected the applicants' request giving specific reasons in the following terms:

 

                        "Daire McDonnell's account adds nothing to Sinead McDonnell's evidence. 

 

                        By his own account, Terence Oliver McCumiskey was drunk.

                        Kevin Barry Rafferty cannot identify the men on the by‑pass.

 

                        There is no evidence that John Frederick Williams witnessed the death. 

 

                        I am not persuaded that the police officers referred to and their notes shall further my inquiry."

            By way of general observation, the Coroner also referred to the judgment in  Re Ministry of Defence's application and expressed himself to be satisfied that the lines of enquiry which the solicitors wished to pursue related to the broader circumstances of the death whereas he was required to focus on matters "directly causative of the death".

            As the authorities cited above confirm, the Coroner has the responsibility of ensuring that the relevant facts are fully investigated and it is his duty to set the bounds of the inquiry.  Section 17 of the 1959 Act affords him a discretion with regard to the summoning of witnesses, but this is a discretion which he must exercise subject to the statutory provisions and in accordance with Wednesbury principles.  His decisions must be reasonable, in the sense that he should not take into account factors which should not be taken into account nor leave out factors to which he ought to have regard, and his decision must not be irrational. 

            In his letter of 26 June 1998 the Coroner stated that his reason for not calling Terence Oliver McCumiskey was that he was drunk.  This accords with the admission which the witness himself made in his police statement, but it seems clear from the rest of this statement that, despite his drunken condition, Mr McCumiskey would have been able to give relevant evidence, perhaps the most important aspect of which was that he and the deceased were attempting to hitch a lift rather than engage in hijacking vehicles.  Consequently, I do not consider that the fact that McCumiskey was drunk was a reason for not considering him to be a necessary witness and, in my view, the Coroner erred in disqualifying him on this basis.  Similarly, I do not accept that the fact that Kevin Barry Rafferty could not identify the men on the by-pass would have disqualified him from being a necessary witness since his statement to the police gave rise to a reasonable inference that the men whom he observed were McCumiskey and the deceased.  The fact that John Frederick Williams did not witness the death would not, of itself, disqualify him from being a necessary witness if, for example, the location at which the deceased's body was found was a relevant issue.  Accordingly, I consider that the refusal of the Coroner to call Terence Oliver McCumiskey, Kevin Barry Rafferty and John Frederick Williams as witnesses, for the reasons which he gave in his letter of 26 June 1998 were Wednesbury unreasonable. 

            The final paragraph of the Coroner's letter of 26 June 1998 seems to be directed to the lines of enquiry which the applicants' solicitors indicated they wished to pursue at the inquest during the earlier correspondence.  The Coroner appears to have come to the view, from a consideration of the statements alone, that no cross-examination of the witnesses concerned could be carried out which would not exceed the proper boundaries of his inquiry as defined by the relevant authorities.  It may well be that the Coroner had good reason to be apprehensive about the lines of enquiry which the applicants' solicitors had indicated they wished to pursue, particularly in relation to the police officers and their notebooks, but it seems to me that, in justifying such a decision, having heard any relevant submissions on behalf of the next of kin, the Coroner would require to be completely satisfied that no relevant and legitimate cross-examination could take place.  Unless he was so satisfied, I should have thought that a more reasonable approach might have been to call the witnesses considered to be necessary, but to so conduct the hearing as to prohibit any cross-examination contravening the principles so clearly set out in the authorities with which he is familiar.  As those authorities confirm, this is pre-eminently a matter for the Coroner and in view of my rulings in relation to his specific reasons I make no further observations on this point.

2.         The Coroner's decision to admit evidence by way of written statement

            At the hearing of the inquest on 29 June 1998, the Coroner called Sergeant Kerr of the RUC, who was the investigating police officer in relation to the accident, and Constable McAteer of the Photography Branch of the RUC.  Despite the objections of counsel, instructed on behalf of the next of kin, the Coroner then introduced into evidence written statements made by Terence Oliver McCumiskey, Sinead McDonnell, Constable Gordon Barr, Stuart Rowland, an ambulance driver, Michael McCann FRCS, Charles David Grimes, Constable Johnston and William John McKee in accordance with Rule 17 of the Coroners (Practice and Procedure) Rules (NI) 1963.

            Rule 17(1) of the 1963 Rules permits a Coroner to admit a document in evidence at an inquest if he considers that the attendance of the maker of the document is unnecessary and the document is produced from a source considered reliable by the Coroner.  Rule 17(2) provides that, if such a document is admitted in evidence, the inquest may, at the discretion of the Coroner, be adjourned to enable the maker of the document to give oral evidence if the coroner or any properly interested person reasonably so desires.  It is the applicants' case that in deciding to dispense with the personal attendance of these witnesses as being "unnecessary", the Coroner was Wednesbury unreasonable.

            During the course of the hearing Ms Quinlivan, on behalf of the next of kin, conceded that the Coroner could not be criticised for admitting the statement of Sinead McDonnell and not requiring her personal attendance since, as the driver of the vehicle, she could not be compelled to give evidence (Rule 9(2) of the 1963 Rules: Devine and Breslin v Attorney-General for Northern Ireland (1992) 1 All England Reports 609).

            According to the record of the inquest proceedings compiled by the applicants' solicitor, Ms Quinlivan applied to the Coroner under Rule 17(2) for the inquest to be adjourned so as to enable the makers of the documents to give oral evidence immediately after the Coroner's announcement that he proposed to admit the written statements and before those statements had been read.  The record indicates that the Coroner rejected Ms Quinlivan's application because "... in his view questions which would be asked of them (the witnesses) would be for the purpose only of an inquiry into the broader circumstances of the deceased's death".  I think that this response on the part of the Coroner may well have been influenced by the fact that the submission was made immediately subsequent to his announcement and encompassed all of the statements without any reference to their specific content.  I think that there may well be substance in the submission of Mr Maguire, who appeared on behalf of the Coroner, that individual consideration of the contents of each statement might well have resulted in a more rational and analytical approach.

            In my view, it is clear that a number of the statements admitted by the Coroner in accordance with Rule 17 were purely formal in nature and these include the certification of death by Mr McCann FRCS, the identification of the body of the deceased by Charles Grimes and the identification of the body of the deceased to the pathologist by Detective Constable McKee.  No submission to the contrary was advanced by Ms Quinlivan during the course of these proceedings.  Ms Quinlivan submitted that the statements of Stuart Rowland, the ambulance driver and Constable Johnston, who examined the vehicle concerned, could not be regarded as formal but I have to say that, at least in the course of her submissions before me, I was not impressed that their statements or cross-examination would be likely to be material to the relevant issues.  I have already expressed the view that the Coroner's refusal to call Terence Oliver McCumiskey as a witness was Wednesbury unreasonable and I infer that the same flaw was likely to have come into play in relation to his decision not to require his personal attendance but to put in evidence his written statement.

 

 

3.         The Coroner's refusal to provide the representatives of the next of kin with copies of the statements admitted in accordance with Rule 17

            After the initial debate between Ms Quinlivan and the Coroner as to whether written statements should be admitted in evidence in accordance with Section 17, which, as I have already noted, appears to have taken place before the content of most of the statements was revealed to the next of kin, it appears that the statements were then read into evidence by the RUC inspector.  According to Mr Small's record of the proceedings, during the reading of the statements counsel for the next of kin asked the Coroner if copies of the statements could be made available as they were being read.  It appears that the Coroner refused to comply with this request and, when he was asked if the statements could be read more slowly, so as to allow the taking of a detailed note, he directed the inspector to read the statements at normal speed and advised the next of kin that they could obtain copies of the documents if they applied to the Coroner or to the court office in writing at the conclusion of the inquest.  At paragraph 15 of his first affidavit the Coroner has set out a "combination of reasons" for declining to direct that the relevant statements should be read at dictation speed and it is his view that no unfairness accrued to the next of kin in a consequence of this decision.

            However, in dealing with this topic, it appears that neither Ms Quinlivan nor the Coroner had regard to the provisions of Rule 38(1) of the 1963 Rules.  Rule 38(1) provides that:

 

                        "A coroner may, on application and without charge, permit any person who, in the opinion of the coroner, is a properly interested person to inspect any report of a post-mortem examination, or any notes of evidence or any document put in evidence at any inquest."

This provision was considered by Kelly LJ in in Re Breslin's application [1987] NI 1 when he observed, at page 4:

 

                        "Rule 38(1) gives the coroner certain powers in respect of documents relevant to the hearing and which are put in evidence.  He is given the discretion to allow a properly interested person, without charge, to inspect any documents put in evidence.  No doubt inspection would, as in general certain circumstances, include the right to take a copy of the document ...  In my opinion Rule 38(1) clearly contemplates that applications under it for inspection of documents put in evidence will be made during the course of the hearing of the inquest and to the coroner only."

            Carswell J, as he then was, concurred with this view in the course of giving judgment in in Re Devine and Breslin [1988] 14 NIJB 10 at page 30.  In my view the existence of such a statutory discretion to permit copies of the statements to be furnished was clearly a factor which ought to have been taken into account and, in such circumstances, I must regard the Coroner's refusal as Wednesbury unreasonable.  It goes without saying that the Coroner was entitled to expect the legal representatives to draw to his attention any provisions or authorities that were relevant to applications which he was required to determine. 

4.         Breaches of the principles of natural justice

            These were said to be constituted by:

            (a)        The failure of the Coroner to properly hear submissions as to why certain witnesses should attend to give oral evidence

                        The Coroner dealt with this argument at paragraphs 8 and 9 of his affidavit in which he maintained that he offered counsel an opportunity to address any "further arguments" to him at the start of the inquest but that he subsequently intervened and indicated that he did not require the pre-correspondence to be rehearsed but only wished to hear whether there were any additional representations or argument.  Page 2 of the attendance record compiled by Mr Small records that Ms Quinlivan specifically asked the Coroner for an opportunity to address him upon the reasons for declining to call witnesses set out in his letter of 26 June, but that he responded by stating that he was not prepared to allow a re-examination of all those matters raised in correspondence.  The letter of 26 June 1998 was the last exchange in the pre-inquest correspondence and it seems to me that Ms Quinlivan ought to have been given an opportunity to address the Coroner upon both the specific and general reasons set out in that letter.  It appears that she was not given an opportunity to do so, and in such circumstances, I think that there was a breach of the rules of natural justice.

            (b)        The Coroner's refusal to hear submissions as to why the witnesses whose evidence was admitted by way of written statement in accordance with Rule 17 ought to have attended in person

                        Mr Small's record of the hearing confirms that Ms Quinlivan did address the Coroner for the purpose of seeking an adjournment in accordance with the provisions of Rule 17(2) of the 1962 Rules.  It appears that the Coroner, having heard the submission, decided not to adjourn the inquest in order to enable the makers of the document to attend to give oral evidence because, in his view, the object of this submission was to enquire "into the broader circumstances of the death and investigate issues outside the remit of the inquest".  In such circumstances, I reject the case made by the applicants that the Coroner refused to hear relevant submissions.

            (c)        The Coroner's refusal to allow access to copies of the written statements and his refusal to direct that such statements be read at dictation speed

                        I have already dealt with this point above in the context of the failure to have regard to Rule 38(1). 

            In the circumstances, I am satisfied that proper grounds exist to grant certiorari in respect of some of the Coroner's decisions.  But certiorari is a discretionary remedy and Mr Maguire, on behalf of the Coroner, submitted that there were a number of reasons why I should not exercise my discretion in favour of the next of kin.  These were as follows:

1.         Failure on the part of the applicants to make full and frank disclosure in their affidavits

            Paragraph 4 of the grounding affidavit sworn by the applicants' solicitor creates the clear impression that the issue of compelling witnesses to give oral evidence was first raised by his letter of 23 June 1998 and neither paragraphs 4 or 5 of the same affidavit refer to or exhibit the letter from the Coroner of 24 June 1998.  In fact, it is clear from the Coroner's affidavit that this matter had been raised with the Coroner in the course of a telephone conversation with the solicitor on 20 May 1998 when the Coroner informed him of the witnesses he proposed to summons under Section 17 of the 1959 Act and requested that the solicitor should furnish details of any other witnesses he required together with written reasons as to why they should be compelled to attend.  The solicitor's affidavit also omits to refer specifically to the telephone conversation with the Coroner on 23 June 1998 and to the letter from the Coroner of 24 June which referred to both telephone calls.

            By way of explanation for these omissions, Ms Quinlivan informed me, during the course of the hearing, that the Coroner's letter of 24 June 1998 was "not on the file" and that, according to the solicitor, the telephone call of 20 May 1998 was of a "very brief nature" and not something which was "at the top of his mind".  She emphasised that there had been no deliberate attempt on the part of the solicitors to suppress information, pointing out that all the material facts would have been within the knowledge of the Coroner and that the Coroner had been represented at the application for leave. 

            While I am quite prepared to accept that the omissions in the solicitor's affidavit were not deliberate, I am also satisfied that both the Coroner and the next of kin were entitled to expect a much higher standard of service from a professional firm.  In the circumstances I would not be disposed to withhold a remedy upon this ground.

2.         Delay

            The inquest took place on 29 June 1998 and, on 2 July 1998, an application was made for legal aid supported by the opinion of counsel. Legal aid was refused and the applicants' solicitors appealed against its refusal on 30 July 1998.  A legal aid appeal hearing took place on 11 September 1998 when legal aid was granted.  The application for leave for judicial review was lodged on 21 September 1998. 

            As Kerr J observed in Re McCabe's application [1994] NIJB 27:

 

                        "It has been repeatedly emphasised in applications for judicial review that the requirement to make applications promptly is crucial.  Order 53 Rule 4 of the Rules of the Supreme Court (Northern Ireland) 1980 requires an application to be made promptly and, in any event, within three months from the date of the decision under challenge unless there is good reason for extending the period.  In a series of decisions, Carswell LJ has sought to disabuse advisers of applicants of the idea that three months are in any event available within which to make an application.  I take this opportunity to reiterate and reinforce that message.  The requirement to make a prompt application must be observed unless there is good reason; a failure to observe it will defeat an application unless good reason is demonstrated."

            Difficulties in applying for legal aid have been the subject of discussion in relation to the issue of delay in applying for judicial review and, in at least one case, it has been said that "delay in obtaining legal aid is not normally a good reason" (R v Metropolitan Borough of Sandwell ex parte Cashmore (1993) 25 HLR 544).  However, in R v Stratford-on-Avon District Council ex parte Jackson [1985] 1 WLR 1319 Ackner LJ observed at 1324a:

 

                        "We agree with Forbes J that it is a perfectly legitimate excuse for delay to be able to say that the delay is entirely due to the fact that it takes a certain time for a certificate to be obtained from the legal aid authorities and that, despite all proper endeavours by an applicant and those advising her to obtain a legal aid certificate with the utmost urgency, there has been some difficulty about obtaining it through no fault at all of the applicant."

            Taking into account these remarks together with the fact that, despite the delay arising from the legal aid application, the application for leave does appear to have been made just within three months period, I would not be prepared to exercise my discretion to refuse a remedy upon this ground.

3.         No useful purpose

            In the event of my coming to the conclusion that there were grounds for issuing certiorari, Mr Maguire submitted that, in any event, I should refuse to grant a remedy since I could be satisfied that there was no real risk of injustice and that nothing would be achieved by re-opening the inquest.  He referred me to the words of Carswell LJ, as he then was, in Re Bradley and another's application [1995] NI 192 when he said, at page 203:

 

                        "It does not follow, of course, that any and every error may cause the court to make such an order, as Robert Goff LJ pointed out in Ex parte Tal (at 83).  If the court will not `attend to mere informalities' or criticise minutely the nature of the procedures, as Talbot J said in R v Devine ex parte Walton (at 37), but would only exercise its statutory power if there is a real risk that justice has not been done, then in my opinion it should be slow to exercise its common law power where a breach of the rules is relied upon as constituting an irregularity unless the same criteria is satisfied.  It may be noted that in Re Rapier (deceased) the court construed the statutory test as being satisfied if there is a real possibility of a different verdict, rejecting the test thitherto accepted of a probability of a different verdict.  Such a test would not appear appropriate in this jurisdiction, since the abolition of the fixed list of possible verdicts.  In addition to the authorities cited in this passage I would also refer to R v Wolverhampton Coroner ex part McCurbin [1990] 2 All England Reports 759 at 767-768, where Woolf LJ expressed a similar view, basing it on the discretionary nature of judicial review."

            I dealt with the exercise of judicial review discretion in cases in which procedural errors have been established in the course of giving judgment in Re Kean's application [1997] NIJB 109 at 116-118 and, in particular, I would emphasise the words of Bingham LJ, as he then was, in R v Chief Constable of the Thames Valley Police ex parte Cotton [1990] IRLR 344 at 353 which I quoted therein.  The main concern of the next of kin in these proceedings appears to have been the perception on the part of the driver of the vehicle that the deceased was a hijacker.  Mr McCumiskey's statement that he and the deceased had simply been hitching a lift home after consuming a substantial quantity of alcohol was admitted in evidence at the inquest and during the hearing Ms Quinlivan did not succeed in persuading me that there was any real practical possibility of resolving this basic conflict although she may seek to convince the Coroner that it should be formally recorded in the findings.  Indeed, I sought reassurance that the next of kin had been properly and effectively advised as to the ramifications of re-opening the inquest.  However, in addition to the cases to which I referred in Re Kean, I also bear in mind the words of Kelly J, as he then was, in R (Smyth) v Coroner for the County of Antrim [1980] NI 123 in which a coroner had omitted to sum up the evidence to the jury and in which the "no benefit" argument was advanced.  I bear in mind that, in this case, the coroner sat without a jury but, nevertheless, I think that the observations of the learned judge at page 125 are relevant.  He there said:

 

                        "The conduct and findings of a coroner's inquest are important to many people.  They are important primarily to the next of kin - indeed in this case, especially so where a sudden unexpected death of an apparently robust healthy boy of 13 occurs.  They are important to all parties who are concerned in any way, innocent or not, remote or otherwise, in the events touching the death of the deceased and from the public point of view, of course, justice must always be done and be seen to be done in any court or tribunal ...  It may well be that another coroner's jury hearing the same evidence assisted by a proper and adequate summing up of it by the coroner, will come to exactly the same verdict but I think the next of kin, at least, are entitled to have their unhappiness tempered by the knowledge that such a verdict was reached by considered and regular enquiry in granting the application.  I do not think therefore that no benefit will accrue to the applicant."

            In the circumstances, although not without some reservation, for the reasons set out above, I do not think that the Coroner's verdict can stand and, accordingly, I propose to make an order of certiorari quashing the inquisition and direct that a fresh inquest should be held by the Coroner in accordance with his directions.


                   IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

 

                                   QUEEN'S BENCH DIVISION (CROWN SIDE)

 

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               IN THE MATTER OF AN APPLICATION BY GAIL MULLAN AND

                                    SARAH MULLAN FOR JUDICIAL REVIEW

 

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                                                                JUDGMENT

 

 

 

                                                                         OF

 

 

 

                                                                 COGHLIN J

 

 

 

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