R (on the application of Julie Hambleton & Ors) (Claimants) v Coroner for the Birmingham Inquests (1974) (Defendant) & (1) Michael Reilly (On behalf of Desmond and Eugene Reilly) (2) West Midlands Police (3) Brian Davis (On behalf of Jane Davis) (Interested Parties 2018)
The Administrative Court – Simon LJ and Carr J sitting – ruled that although inquests must not become proxy criminal trials, there may be instances where the identity of those involved in violent deaths may properly be within the scope of an inquest. The judgment gives important guidance on the factors relevant to a coroner’s determination of the scope of inquests where criminal investigations have failed to identify the culprits. The state’s positive obligation under ECHR article 2, however, does not require an inquest to investigate the identity of the persons responsible.
On 21 November 1974 explosions took place in two public houses in Birmingham City Centre, the ‘Mulberry Bush’ and the ‘Tavern in the Town’: 21 people were killed and 220 injured. The Provisional IRA is believed to have caused the bombings. Inquests were opened in late 1974 but were adjourned in 1975 pending criminal proceedings against “the Birmingham Six“. In 1991 the Birmingham Six were released after their third appeal resulted in the quashing of their convictions (see R v McIlkenny, Hill, Power, Walker, Hunter and Callaghan  EWCA Crim 2 – Lloyd, Mustill and Farquharson LJ)
After considerable campaigning by the families of the dead and injured, on 1 June 2016 the Senior Coroner in Birmingham ruled that the inquests should be resumed (after initially being opened in 1974) under the Coroners and Justice Act 2009. Sir Peter Thornton QC (‘the Coroner’) was appointed by the Lord Chief Justice as the coroner to conduct the inquests. He ruled that ECHR art 2 applied to them.
Submissions as to the scope of the resumed inquests were made between 23 February and 29 June 2017. On 3 July 2017 the Coroner ruled, inter-alia, that investigation into the identity of the suspected perpetrators would not be dealt with as part of the inquest. This ruling was challenged by way of judicial review; in short the Claimants submitted that:
- the coroner had failed to address the question under section 5 (1) (b) and section 5 (2) of the 2009 Act of whether the factual issue of the identity of the bombers was sufficiently closely connected to the death to form part of the ‘circumstances’ of the deaths – the ‘perpetrator issue’; and
- the decision not to investigate who was responsible for the bombings was incompatible with the state’s obligations under ECHR art.2.
Of note (and concern) the families were finally granted legal aid for involvement in the inquests in mid-2017; however, the writer understands that they were refused legal aid for this judicial review.
Relevant statutory provisions
There are two provisions of law worth citing at this point for a full understanding; they are sections 5 and 10 of the Coroners and Justice Act 2009:
Section 5 of the 2009 Act provides, under the heading ‘Purpose of Investigation’:
- Matters to be ascertained
(1) The purpose of an investigation under this Part into a person’s death is to ascertain
(a) who the deceased was;
(b) how, when and where the deceased came by his or her death;
(c) the particulars (if any) required by the 1953 Act to be registered concerning the death.
(2) Where necessary in order to avoid a breach of any Convention rights (within the meaning of the Human Rights Act 1998 … 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.
(3) 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 –
(a) the questions mentioned in subsection (1)(a) and (b) (read with subsection (2) where applicable);
(b) the particulars mentioned in subsection (1)(c).
Section 10 of the 2009 Act provides under the heading ‘Outcome of investigation’:
- Determinations and findings to be made –
(2) A determination under subsection (1)(a) may not be framed in such a way as to appear to determine any question of –
(a) criminal liability of the part of a named person, or
(b) civil liability.
Judgment of the Court
In respect of the Claimant’s two grounds of challenge, the Court found as follows:
- Perpetrator issue. Whilst it decided to quash the coroner’s decision and remit it to him in order that he can make a decision in light of the judgment, it refused to make any mandatory order to include the perpetrator issue.
The Court set out useful guidance on relevant factors that may bear on a coroner’s decision on the scope of inquests (paras 35 (1) – (8) and 36), which are as follows:
- The prohibition at s.10 (2) of the 2009 Act for a jury to make a determination which is framed in a way that determines any question of criminal liability of a named person, and the fact that the primary responsibility for detecting and prosecuting individuals for crimes rests with the police are not reasons alone for excluding the identification of the perpetrators from the scope of the inquests. However the ‘implicit inhibition’ (para 35 (1) in s.5 (3) and ‘explicit prohibition’ in s.10 (2) delineate the proper ambit of an inquest on the one hand and the role of police investigations/prosecutions in criminal trials on the other.
- It would be inconsistent with the principle of finality in legal proceedings that it be open to the jury to consider whether one or more of the Birmingham Six were the perpetrators of the explosions.
- Although inquests should not become proxy criminal trials, there may be inquests in which the identity of those involved in violent deaths may properly be within scope. The Claimant’s counsel provided, which appears to have been accepted by the Court, the example of armed police officer(s) shooting a suspect.
- Issues such as difficulty in recollecting events after a long passage of time and the potential unreliability of hearsay evidence might go to the reasonableness and proportionality of the potential scope of the inquest (and proportionality is a material consideration).
- The size and complexity of an investigation into criminal liability, 43 years after the incident, in circumstances where police investigations had failed to identify the perpetrators, was relevant but not an overwhelming factor and was subject to change if new information came to light. Indeed the fact that significant police resources had been deployed without leading to the identification of the perpetrators is a potentially relevant factor in deciding where the line is to be drawn.
- Importantly, it disagreed 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 statutory regime would circumscribe certain aspects of an enquiry into potential perpetrators but section 10 (2) applies to the conclusion not the investigation. It found that a jury can plainly explore facts bearing on criminal and civil liability.
2. Article 2 ECHR
The Claimants argued that the decision not to investigate who was responsible for the bombings was incompatible with the state’s procedural obligation under article 2 of the ECHR. As the inquests were to be compliant in this regard, and in the absence of any other mechanism by which the investigative obligation would be discharged, it was contended that the coroner had no discretion to decline to perform the obligation. The Court noted that West Midland Police (‘WMP’), an interested party in these proceedings, failed in their original investigation which had resulted in a gross miscarriage of justice. Indeed the Claimants submitted that WMP are unable to carry out their role since they would be investigating themselves.
The Defendant argued in turn that the article 2 obligation had been satisfied by the previous criminal investigations that have taken place over the course of the last forty-three years. It argued that the state’s response falls to be assessed in the round, and to identify and prosecute the perpetrators but only in so far as this is reasonable, lawful and practical.
The Court found that the domestic and ECHR authorities do not suggest that the state’s positive, procedural obligations under article 2 require an inquest to investigate the identities of the persons responsible for the bombings (Jordan v United Kingdom (24746/94) (2003) 37E.H.R..R.2 applied, and R (on the application of Amin (Imtiaz) v Secretary of State for the Home Department (2003) UKHL 51 followed) and that in fact it was the role of the police who, in this instance, continue to investigate this issue ‘in so far as they are able to do so’. It therefore refused to make a declaration that the coroner’s decision was contrary to article 2 as it stated that there was no immutable rule that the failure of a police investigation to identify the perpetrator of a homicide required an inquest to take on that role.
Daniel Lemberger Cooper