At last the judiciary has come forward with a creative approach to dealing with the past. A debate should begin urgently on how to adopt it in the Hart talks and beyond. The Lord Chef Justice sir Declan Morgan has suggested that legacy cases should be taken out of the inquest system” to be dealt with in “a time-bound inquiry“. It would be similar to the powers and procedures of the Historical Abuses Inquiry . He made his suggestions when giving a Court of Appeal decision on rival appeals in the case of the fatal shooting of Pearse Jordan on the Falls Road in 1992, one of number of so –called “shoot to kill” cases outstanding against the security forces. In the Appeal decision itself Morgan CJ said: 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: The inquiry would need facilities for independent investigation and powers of compulsion in respect of witnesses and documents,” he said. Sensitive information would be blacked out but enough information would be provided for legal teams to mount an effective challenge… The procedures for any oral evidence would need careful consideration,” he said.
This maybe a hint that witness immunity would have to be granted even if it fell short of the full amnesty that the British government and the political parties oppose.
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 (public interest immunity) 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.”
Amen to that. It remains to be seen whether such as inquiry might cover cases beyond the scope of coroner’s inquests and act as tribunal for all disputed cases referred to it by other courts, the Police Ombudsman and a revived process of historical inquiry. Hart talks please note. Reaction from the DPP and Attorney General is eagerly awaited.