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

At a coroner’s inquest, hearsay remains admissible at common law, but Rule 37 of the Coroners Rules 1984 regulates the procedure for admitting hearsay contained in documentary form. Where Rule 37 applies, a document cannot be read directly to the jury without a witness. The rule applies to documentary evidence generally, not merely evidence that is unlikely to be disputed. A witness overseas who is willing and physically able to attend, but cannot be compelled and will not attend, is not thereby unable to give oral evidence within a reasonable period for the purposes of Rule 37(2). Such documentary hearsay must therefore be introduced through a witness. The coroner retains discretion to limit examination of that witness to proof of the statement and relevant circumstances of its creation.

The claimants, the parents of Henri Paul and the Ritz Hotel Limited, were interested persons in the inquests into the deaths of Diana, Princess of Wales and Dodi Al Fayed. A number of overseas witnesses, including paparazzi witnesses, would not attend and could not be compelled to do so.

The Assistant Deputy Coroner ruled that he could admit documentary hearsay directly at common law by reading the documents to the jury, without calling a witness. The judicial review challenge concerned the interaction between that common-law power and Rule 37 of the Coroners Rules 1984, and in particular whether Rule 37 applied to disputed documents and whether overseas witnesses who were unwilling but not compellable were unable to give evidence within a reasonable period.

1. Permission and relief. Permission to apply for judicial review was granted. The Coroner’s decision was set aside to the extent that it held that the statements could be read to the jury without calling a witness.
2. Common-law position and Rule 37. Hearsay evidence is admissible at a coroner’s inquest because the inquest is an inquisitorial fact-finding process and is not bound by the strict rules of evidence applicable in litigation. However, the rule-making power could prescribe the procedure for admitting documentary hearsay. Rule 37 therefore regulates the manner in which documentary hearsay is directly admitted and cannot operate in parallel with an unrestricted common-law power to place such documents before the jury.
3. Scope of the rule. Rule 37 applies to all documentary evidence. The phrase “unlikely to be disputed” refers to evidence which an interested person does not accept and wishes to dispute. A witness’s unwillingness to attend does not make the evidence undisputed. The rule cannot be construed as regulating only uncontroversial documents while leaving controversial documents outside its scope.
4. Rule 37(2). “Unable to give oral evidence within a reasonable period” includes appropriate cases such as sickness or legal restraint by the authorities of an overseas state. It does not include a witness overseas who is free to come, but is unwilling to attend and cannot be compelled. The court could not rewrite the poorly drafted rule to cure that omission.
5. Practical consequence. The disputed statements could not be admitted under Rule 37 by simply reading them to the jury. They had to be introduced through a witness. The witness could read the statement and could be examined, but the Coroner had a substantial discretion to confine questioning to proof of the statement and relevant matters concerning how it was taken.

The application challenged the Assistant Deputy Coroner’s ruling of 7 November 2007. The Administrative Court granted judicial review and set aside the ruling only insofar as it permitted the statements to be read to the jury without a witness.