Monday 17 November 2014
COURT OF APPEAL SUGGESTS APPROACH TO DEAL WITH LEGACY CASES
Summary of Judgment
The Court of Appeal today delivered its reasons for upholding a High Court Judge’s decision to quash the verdict of the jury in the inquest into the death of Patrick Pearse Jordan and to order a new inquest before a new Coroner. The Court also commented on the absence of a satisfactory coronial system to deal with legacy cases and suggested an approach to deal with these cases.
The inquest into the death of Pearse Jordan took place before the Coroner, Mr Sherrard, sitting with a jury between 24 September and 26 October 2012. The jury was unable to reach a unanimous verdict and only answered a number of the questions posed by the Coroner. It failed to reach agreement on a number of key aspects including whether or not reasonable force was used. Pearse Jordan’s father, Hugh Jordan (“Mr Jordan”) brought three applications for judicial review challenging a number of aspects on the inquest and on 31 January 2014 Mr Justice Stephens quashed the verdict.
Mr Jordan, the Chief Constable and the Coroner appealed the following issues:
· Disclosure and deployment of material – the Chief Constable appealed Mr Justice Stephens’ (“the trial judge”) decision that Mr Jordan had a legitimate expectation that all material provided to the Coroner would also be provided to the family, whether relevant or not, subject to Public Interest Immunity (“PII”);
· Coroner’s questions and directions – Mr Jordan submitted that the Coroner’s questions failed to direct the jury to the issues in contention and that his direction fell short of the required standard and that he misdirected the jury. The trial judge dismissed the application in respect of these matters. Mr Jordan appealed those decisions;
· Risk of bias – Mr Jordan submitted that there was a real risk of bias and that the Coroner had not put in place sufficient safeguards to diminish that risk and to make it desirable to have a jury in this inquest. The jury was not able to reach a unanimous verdict on any of the contentious matters but the Coroner accepted this outcome as a verdict. The trial judge found that such an outcome did not constitute a verdict. The Coroner appealed on both issues.
Mr Jordan contended that parts of the Stalker/Sampson reports ought to have been disclosed in this inquest and the Coroner should have permitted the use of part of those reports during the course of the inquest in relation to issues of credibility and also as similar fact evidence in respect of Officers M and V who were involved in incidents that led to three deaths in 1982 and the death of Pearse Jordan. The police contended that the Stalker/Sampson reports were not relevant but made them available to the Coroner in un-redacted form so he could reach his own view. The Coroner considered the reports and decided they were not relevant but held that the statements of Officers M and V were relevant to their credibility. The trial judge considered that the Coroner’s decision was solely about relevance and concluded he erred in determining that the material was not relevant and consequently had failed to consider whether it could be deployed.
The Lord Chief Justice, delivering the judgment of the Court of Appeal, said the Court was satisfied that the decision of the Coroner in relation to the Stalker/Sampson reports was a determination based on relevance. He noted that there were parts of the reports which touched on the credibility of M and V and in the Court’s view were plainly potentially relevant in determining the scope of the inquest. The Court rejected a submission that it was for the Coroner to determine the scope of the inquest before considering the question of disclosure of documents:
“The starting point is to identify all potentially relevant information. Such information, suitably redacted if necessary, should be made available to all of the parties concerned in the inquest in order to assist in establishing relevance and thereafter determining scope. Because [the Coroner] did not recognise the relevance or potential relevance of the documents in question [he] did not get to the next stage of determining the scope of the inquest which, the parties agreed, remained undefined.”
The Court of Appeal agreed that the trial judge was correct to conclude that the material generated by the Police Ombudsman in its investigation into the death of Neil McConville on 29 April 2003 was potentially relevant in respect to an officer AA and should have been disclosed (AA was part of the group co-ordinating a joint police/Army surveillance operation at the time of Pearse Jordan’s death and the Silver Commander responsible for the planning of the operation which resulted in the death in 2003). The Lord Chief Justice said the Court of Appeal was satisfied that the failures in disclosure in relation to the Stalker/Sampson reports were sufficient to have justified a decision to direct a fresh inquest. The Court of Appeal directed that the verdict be quashed and the matter remitted to a different Coroner at the end of the first day of the oral hearing.
Mr Jordan had contended that he had a legitimate expectation that he would have access to the entirety of the documentation provided by police to the Coroner. The trial judge concluded that a letter and an affidavit from the police and the Crown Solicitor’s Office in 2000 and 2998 respectively gave rise to a legitimate expectation that included the disclosure by police to the next of kin in the future of all documents subsequently provided to the Coroner subject to PII redaction. The Chief Constable appealed against that part of the judgment. The Lord Chief Justice stated that a claim to legitimate expectation can only be based upon a promise which is “clear, unambiguous and devoid of relevant qualification” or a course of conduct which has the same effect. He said the trial judge had been wrong to conclude that the letter and affidavit gave a promise which was prospective as well as retrospective and that they only related to the documents disclosed at the time they were written.
THE JURY QUESTIONS
The Coroner’s questions to the jury
At the conclusion of the inquest the Coroner posed six questions to the jury to assist them reach a verdict. The jury was only able to answer questions 1, 2(a) and 3. Unanimous findings were recorded for questions 2(b)-(g) and the Coroner took questions 4, 5 and 6 away from the jury’s deliberation. The Coroner then accepted the verdict of the jury. Mr Jordan argued that the questions compromised the jury’s ability to effectively scrutinise the planning and control of the operation and the action of the Sergeant who shot Pearse Jordan. The trial judge did not consider that the questions pointed the jury to a particular result and rejected the challenge to the form of the questions. He considered, however, that it was irrational for the Coroner to accept the jury verdict as it had not arrived at a result as to how the deceased died.
The Court of Appeal concluded that the trial judge was correct to reject the challenge to the Coroner’s questions. It said that had the jury been able to answer the questions raised a full and meaningful verdict would have been provided. It did not consider that read fairly the questions pointed the jury in a particular direction. The Lord Chief Justice said that it will be for the Coroner conducting the fresh inquest to formulate appropriate issues to be decided in the light of the evidence emerging in that inquest and if the inquest is conducted without a jury there will be no need to formulate jury questions as such. If the Coroner is sitting without a jury he/she will have to address the question of the best way to formulate the overall verdict in light of all the issues raised on the evidence adduced.
The Court of Appeal considered that in the context of the inquest as conducted by Mr Sherrard, the format and sequencing of the questions proposed by counsel for Mr Jordan had advantages as compared to the open ended and looser questions set out by the Coroner. The Lord Chief Justice said that these questions focussed on the nature and purpose of the police operation; the issue of the necessity to fire, to fire to kill and to use the weapon on automatic; whether the police officer actually believed it was necessary to defend himself or his colleagues and whether that belief was reasonably held and the force used was necessary; and the planning and control of the operation:
“The posing to the jury of short and focussed questions specifically addressed to the issues raised in the course of the inquest might well have assisted the jury in its task of addressing in a logical sequence each of the issues raised in the court of the evidence. The questions to the jury if so formulated might have reduced the risk of the jury being unable to reach agreement on particular matters because the use of broad open-ended questions widened the scope for jurors to fail to reach a consensus on how to formulate and express the answer sought.”
The Coroner’s directions to the jury
The Lord Chief Justice said it was not necessary for the Court of Appeal to reach a final conclusion on the question of whether the Coroner’s directions to the jury failed to adequately explain the law and failed to properly direct the jury on the importance of the RUC Code and its terms and conditions as it was upholding the decision to quash the verdict. He stated that any new Coroner coming fresh to the inquest will have to determine the outcome of the inquest in the light of the evidence in that inquest:
“Nevertheless we accept the next of kin’s contention that the directions failed to remind the jury sufficiently and clearly about the meaning and significance of the RUC Code on the use of lethal force. The manner in which the Coroner directed the jury had the potential to mislead the jury into believing that it was open to the jury to accept that [Sergeant A’s] training and experience may have led to his acting in the way in which he did in the light of the threats he believed he confronted.”
The Lord Chief Justice noted that the true issue was whether, in light of the higher standard of care demanded of a trained and experienced police officer and in light of the requirements demanded by the Code before a decision to use lethal force was made, Sergeant A was acting properly in self-defence when he shot dead the deceased. He said that the Coroner’s directions to the jury may not have brought these matters sufficiently to the attention of the jury.
The jury and the verdict
The Coroner contended at the appeal that the trial judge was wrong to conclude that there is inevitably a real risk of a perverse verdict in legacy inquests and that the inquest ought not to have been conducted with a jury. The trial judge found that in circumstances where unanimity was required, if there is a real risk of a perverse conclusion or of bias on behalf of a single juror, then there can be no other outcome to the balancing exercise but that the inquest should be conducted without a jury. He referred to the test of apparent bias in which the question is “whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”.
Section 18(2) of the Coroners Act (NI) 1959 confers on the Coroner a wide discretion to summon a jury if it appears to him that it is desirable to do so. The Lord Chief Justice said that in reaching his/her decision the Coroner will include considerations of public interest, the value of the public participating in the administration of justice particularly in the vexed historical context of Northern Ireland, the complexity of the issues, the probable length of the hearing, the amount of documentation involved and the nature of the investigation to be determined. He noted that the participation of the public in trials constitutes a long recognised asset in the administration of justice but added that it would be idle to ignore the problems both of jury intimidation and perverse verdicts in Northern Ireland:
“Hence a Coroner, in exercising his discretion under section 18(2) must, having considered the facts of the case, ask himself if there is a real possibility that a jury will be biased. It is only by carrying out such a two stage exercise that he can be assured that the inquest process will be capable of conducting an objective and impartial investigation into the death as required by Article 2 of the [ECHR].”
The Lord Chief Justice said that in this case the Coroner clearly recognised that there was a real risk of a perverse verdict and took steps to address that risk. He noted, however, that having taken those steps it is imperative that the Coroner then stand back and ask himself whether or not he considers that those steps have removed such a risk to a fanciful or remote level. The Lord Chief Justice said that reduction of the risk per se is insufficient unless it achieves this level of reduction and that without such an exercise it cannot be desirable to summon a jury in circumstances where a real risk of jury bias remains.
The Court of Appeal was not persuaded that in this inquest the Coroner did direct his mind to the risk of jury bias which might lead for example to a disagreement or a hung jury notwithstanding the steps he had taken:
“The need for such an approach was particularly compelling in this inquest where there already has been a lengthy delay in the 22 years since the death occurred and in the circumstances which now cry out for a speedy but fairly conducted investigation. It is in these circumstances of prolonged delay that the possibility of a safety net of a rehearing in the event of a hung jury is inadequate and will not afford the timely resolution that this investigation demands.”
The Lord Chief Justice said the Court of Appeal did not intend to fetter the discretion of a Coroner in the fresh inquest which is to take place or indeed any of the future legacy inquests: “Decisions under section 18(2) must be made independently by a Coroner on a fact sensitive basis in each instance.” To provide assistance, the Court of Appeal suggested a number of factors which Coroners may want to take into account when deciding whether to hold such an inquest with a jury.
The factual background and the role of the Coroner
The trial judge concluded that the jury had not reached a unanimous verdict as to “how” the deceased came to his death or to agree any fact in relation to whether the force used was or was not justified. The Lord Chief Justice said that the obligation under Article 2 ECHR requires there should be some form of effective official investigation when individuals have been killed as a result of the use of force. The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. The form of investigation that will achieve those purposes may vary in different circumstances however that investigation must be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances and to the identification and punishment of those responsible. The Lord Chief Justice said that this is not an obligation of result, but of means:
“The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye witness testimony, forensic evidence and where appropriate, an autopsy which provides a complete and accurate record of injury and the objective analysis of clinical findings, including the cause of death.”
The Lord Chief Justice said that in order to meet the procedural requirement of Article 2 an inquest ought ordinarily to culminate in an expression, however brief, of the jury’s conclusions on the disputed factual issues at the heart of the case. He commented that in some cases short verdicts in the traditional form will enable the jury to express their conclusion on the central issue canvassed at the inquest. In other cases such a short form will not be satisfactory and it is for the Coroner, in the exercise of his discretion, to decide how best, in the particular case, to elicit the jury’s conclusion on the central issue or issues. He said that in such cases, as is the instant case, it is open to the parties appearing or represented at the inquest to make submissions to the Coroner on the means of eliciting the jury’s factual conclusions and any questions to be put albeit the choice is that of the Coroner at the end of the day.
The Lord Chief Justice said that in considering whether or not a jury has failed to agree upon a verdict the Coroner ought ordinarily to determine whether or not the outcome of their deliberation has culminated in an expression, however brief, on the disputed factual issues at the heart of the case. If they have not, the Coroner must then address himself to the obligation to consider whether or not, in the exercise of his discretion, he should discharge the jury and summon another jury to consider the matter afresh. In such circumstances the inquest shall proceed in all respects as if the proceedings which terminated in the disagreement had not taken place. The Lord Chief Justice continued that if a second or third jury were similarly to fail to express a conclusion on the disputed factual issues at the heart of the case after further exhaustive investigation, the Coroner might properly come to the conclusion that whilst the process had been capable of producing the means to bring about a verdict, on this occasion it simply was not possible to obtain a result beyond the extent to which the jury had gone and that any further inquest would simply lead to the same conclusion. In this instance the Coroner might sensibly conclude that any further inquest would simply lead to the same conclusion and accept the determinations of the jury as a verdict as far as it had gone however limited that might be. The Lord Chief Justice said that equally there might be circumstances where there was such a paucity of objective evidence that no jury could conceivably come to a determination on the disputed factual issues at the heart of the case. Their verdict should be accepted by the Coroner as a valid verdict as no purpose would be achieved by attempting the impossible at a further inquest.
The Court of Appeal concluded that the Coroner misdirected himself and did not address the crucial issue of whether or not the jury had agreed upon a verdict which represented an expression on the disputed factual issues at the heart of the case. The Lord Chief Justice said the fact that the jury had made some findings did not mean necessarily that a verdict had been brought within the terms of the legislation and case law. He commented that the court cannot be certain what the Coroner’s conclusion would have been had he directed himself to the appropriate principles once he had heard the conclusions of the jury but it was at least conceivable that he would have been driven to conclude that the jury had not satisfied the principle whereupon he would then have had to address his mind to the decision as to whether he would discharge the jury and instruct another given the failure of the jury to bring in a verdict or hold a further inquest without a jury:
“It seems clear the Coroner did not adopt this approach. Accordingly we are not satisfied that this jury has complied with its obligation ... to bring in a verdict or that the Coroner has complied with his obligations.”
The Court of Appeal concluded that the matter should be remitted to a different Coroner. The Lord Chief Justice said that the Court did so with limited enthusiasm. He referred to comments made by the Court of Appeal in 2009 and 2012 adding:
“Despite the unsatisfactory nature of the present coronial system no material step has been taken to address this lamentable state of affairs and there is no realistic prospect of the present Assembly legislating to resolve this situation before the expiry of its present mandate in May 2016. In those circumstances it may well be close to 2020 before appropriate legislation which reflects the impact of the EHCR is put in place.”
The Lord Chief Justice went on to state that the absence of a satisfactory coronial system adversely affects the work of the Coroner’s Service particularly in the conduct of inquest. He said it is impossible for the Coroner to conduct his/her inquisitorial role to establish the truth, identify wrongdoing and learn lessons for the future without having coroners’ officers to assist with the investigation, powers to take statements and secure documents and appropriate procedural rules to govern public hearings. He referred to the group of historical inquests involving 78 deaths dating from 1971 to 2005 and noted that the absence of adequate powers and procedures have resulted in the inquests becoming an adversarial battleground instead of a Coronial led inquiry. In the case of Pearse Jordan alone there have been 24 judicial reviews, 14 appeals to the Court of Appeal, 2 hearings in the House of Lords and one hearing before the European Court of Human Rights:
“The issues in dispute have included questions of scope, relevance and disclosure of materials. If the existing legacy inquests are to be brought to a conclusion under the present system someone could easily be hearing some of these cases in 2040.”
The Lord Chief Justice stated that it is not the function of the Court of Appeal to determine how the UK should honour its Article 2 investigatory obligations in these legacy cases but that it seems inevitable that the requirement of reasonable expedition will continue to be breached unless there is a new approach:
“There are models within this jurisdiction, such as the Historical Institutional Abuse Inquiry, which might provide the basis for an effective solution. It would be possible to have all the legacy cases taken out of the inquest system and all of them considered in a time bound inquiry. Past experience suggests the need for a chair with senior judicial experience. The inquiry would need facilities for independent investigation and powers of compulsion in respect of witnesses and documents. PII would have to be addressed by redaction and gisting so that the families would have a proper opportunity to comment on the evidence and be involved to the appropriate extent. The procedures for any oral evidence would need careful consideration. Common themes might be identified. It seems to us that all of this could be achieved in a Convention compliant manner.
“Although we recognise that it is for the Executive and the Legislature to find a solution to this issue it is abundantly clear that the present arrangements are not working. Unless a solution is achieved we will continue to incur considerable public expense in legal challenges and claims for compensation such as those arising in this case and the subject of further hearing. We hope that these observations are of assistance to those charged with finding a solution.”
NOTES TO EDITORS
1. This summary should be read together with the judgment and should not be read in isolation. Nothing said in this summary adds to or amends the judgment. The full judgment will be available on the Court Service website (www.courtsni.gov.uk).
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