Birmingham Pub Bombings – Coroner’s Decision on Scope Only Reviewable on Public Law Grounds
In July 2017, the Coroner for the inquests into the 1974 Birmingham Pub Bombings, which famously resulted in the convictions and then successful appeals of the Birmingham Six, ruled that the identities of those who planned, procured and authorised the bombings was not within the scope of the inquests. Over a year later, in Coroner for the Birmingham Inquest (1974) v Julie Hambleton and others [2018] EWCA Civ 2081, the Court of Appeal has upheld that decision and reversed the decision of the High Court.
In the High Court in January, it was found that the Coroner had not asked himself the correct question, which was whether the factual identity of the bombers was sufficiently closely connected to the deaths to form part of the circumstances of the death (and so fall within the ‘how?’ question as enhanced by Article 2). The High Court stated that decisions on scope were a judgment, rather than the exercise of a discretion, and could therefore be reviewed if wrong, albeit with a degree of respect for the views of a coroner. That was arguably a substantial alteration to what most had previously assumed to be an exercise of discretion reviewable only on public law grounds. The High Court did however reject the argument that Article 2 required further investigation into the identity of the bombers, and remitted the question on scope to the Coroner with guidance on the applicable principles and factors to take into account.
The Court of Appeal has now upheld the Coroner’s original decision as correct, finding that the High Court had made a false dichotomy between judgment and discretion, and reasserting the orthodoxy that a decision on scope can only be reviewed on public law grounds, namely where irrational, based on an error of law, or flawed by procedural impropriety. A coroner has a broad discretion as to the scope of the Inquest.
The Court of Appeal did not agree with the High Court’s analysis of the correct question:
“The Coroner was correct to consider the question of scope in the context of providing evidence to enable the jury to answer four statutory questions. The scope of an inquest is not determined by looking at the broad circumstances of what occurred and requiring all matters touching those circumstances to be explored.” (At para. [51]).
The Court of Appeal approved of the Coroner’s reasoning, which took into account the following factors:
(i) The logistical limits of an Inquest taking place 43 years after the deaths in question;
(ii) The fact that the jury would be prohibited from naming bombers in their verdict;
(iii) A desire not to take on a ‘proxy criminal trial’;
(iv) The fact that substantial police investigations had taken place without successfully identifying the bombers, investigations which fulfilled the state’s Article 2 duties;
(v) That the Coroner’s team did not have the resources of an independent police force.
Apart from the substantial impact on the scope of an inquest which holds great importance for many people, this is an important ruling for practitioners from a strong Court of Appeal on the principles that apply to an appeal on a decision as to scope. Appellants will need to be able to identify an error of law, or have a very strong case on the merits, to successfully review a decision. As always, it is important to get submissions right at first instance. After that an appeal will often be an uphill struggle.
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