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.
DISCLOSURE
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.
Legitimate Expectation
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.
Conclusions
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.”
DISPOSAL
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.”