Assistant Deputy Coroner of Inner West London v Paul & Anor, R. (On the application of)

At an inquest, a coroner may admit hearsay evidence at common law. However, Rule 37 of the Coroners Rules 1984 is a complete code governing the admission of documentary evidence by the document alone. A document outside Rule 37 cannot simply be read to the jury under a residual common-law power. Its contents may still be proved by oral evidence from a witness who need not be the maker. The phrase “unlikely to be disputed” concerns whether an interested person accepts the documentary evidence, not whether it is likely to be challenged orally because witnesses will not attend. The court cannot cure the omission of a former saving provision by judicially creating a new test.

The appeal concerned inquests into the deaths of Diana, Princess of Wales and Dodi Al Fayed. The Assistant Deputy Coroner ruled that statements from witnesses outside the jurisdiction could be read to the jury without calling a witness, relying on the common-law power to admit hearsay and treating Rule 37 of the Coroners Rules 1984 as inapplicable.

The family of the driver, Henri Paul, and the Ritz Hotel Limited sought judicial review. The Divisional Court granted the application and set aside the ruling, holding that the statements could not be read to the jury without calling witnesses. The central issue on appeal was whether Rule 37 was a complete code governing the direct admission of documentary evidence, or whether the coroner could bypass it by relying on common law.

Appeal dismissed. Lord Justice Waller gave the judgment, with Lord Justice Latham and Lord Justice Dyson agreeing.

1. At common law a coroner may admit hearsay evidence. The appeal concerned the method by which documentary hearsay could be put before the jury, not its admissibility in principle. The contents of statements could therefore be proved by oral evidence from a witness, who need not be the maker. The fact that the hearsay had been reduced to writing did not make it inadmissible.
2. Rule 37 of the Coroners Rules 1984 was intended to be a complete code for putting documentary evidence before the jury by the document alone. The common-law power could not be used to avoid the rule. This was consistent with McKerr v Armagh Coroner [1990] 1 WLR 649, and with the approach in R v Southwark Coroner ex part Hicks [1987] 1 WLR 1624.
3. In Rule 37(1), documentary evidence is “unlikely to be disputed” where an interested person does not accept it and wishes to dispute it. The phrase could not be reinterpreted as meaning unlikely to be challenged orally because witnesses would not attend. It was therefore unnecessary to decide the wider meaning of “unable” in Rule 37(2).
4. The former Rule 28 of the 1953 Rules had permitted documentary evidence where there was good and sufficient reason for the maker not to attend. The later rule deliberately confined the discretion to uncontroversial evidence, although the draftsman had omitted a saving provision. Correcting that omission or choosing a substitute test would amount to legislating, which was not the court’s function.
5. The reasoning of the House of Lords in Regina v HM Attorney General for Northern Ireland ex parte Devine [1992] 1 WLR 262 supported the distinction between oral proof of hearsay and admission of a document alone. Its purposive construction of the different Northern Ireland rule did not justify bypassing Rule 37.

• Court of Appeal (Civil Division) dismissed the appeal on 26 November 2007, with reasons handed down on 28 November 2007.
• Queen’s Bench Division, Administrative Court in [2007] EWHC 2721 (Admin) granted judicial review and set aside the Assistant Deputy Coroner’s ruling that the statements could be read without calling witnesses.