Coroner for the Birmingham Inquests v Hambleton & Ors

A coroner has a broad discretion to determine the scope of an inquest. The coroner must decide what investigation is necessary, desirable and proportionate to answer the statutory questions. A reviewing court may intervene only for a public law error, including irrationality or a material error of law.

The scope is not fixed by requiring investigation of every matter connected with the circumstances of death. Article 2 does not ordinarily require an inquest to identify perpetrators following unsuccessful criminal investigations. It distinguishes the procedural duty concerning possible state responsibility from the substantive duty to maintain effective criminal-law enforcement.

Inquests were resumed into the deaths of 21 people unlawfully killed in the 1974 Birmingham pub bombings. The Coroner decided not to conduct a distinct investigation into the identities of those who planned, planted, procured or authorised the bombs. He considered that such an investigation would resemble a proxy criminal trial, could not produce a permissible jury determination, and would be impracticable after extensive unsuccessful police inquiries.

The Divisional Court quashed that decision. It held that the Coroner had not asked whether the perpetrators' identities were sufficiently closely connected to the deaths to form part of their circumstances. It remitted the issue but refused both a mandatory order requiring its inclusion and an article 2 declaration.

The Coroner appealed. The families sought permission to cross-appeal. The central question was whether the exclusion of the Perpetrator Issue was unlawful.

1. Appeal allowed. The Coroner had lawfully excluded the Perpetrator Issue from the scope of the resumed inquests. His ruling of 3 July 2017 was restored. The respondents' application for permission to cross-appeal was refused.
2. A coronial investigation is an inquisitorial process for which the coroner is responsible. Its statutory purpose under sections 5 and 10 of the Coroners and Justice Act 2009 is to answer who the deceased was and how, when and where the deceased came by death. Where article 2 requires it, the inquiry extends to the circumstances in which death occurred.
3. A scope ruling records the coroner's assessment of what investigation is necessary, desirable and proportionate to discharge those functions. These are not hard-edged questions. Decisions concerning scope, witnesses and the breadth of evidence are matters for the coroner. The supervisory court may interfere only for a recognised public law failing, including irrationality, a material error of law, or a decision which prevents performance of the statutory function. The Divisional Court's distinction between judgment and discretion was false and did not free it from the ordinary limits of judicial review.
4. The Divisional Court had formulated the wrong question. Section 5 does not require every factual matter sufficiently connected with the broad circumstances of a death to be investigated. Scope must instead be directed towards obtaining evidence needed to answer the statutory questions. Even an article 2 inquest need not explore broader circumstances untouched by the procedural obligation concerning possible state responsibility.
5. There is no universal rule that an inquest into a suspected homicide must independently investigate the perpetrator's identity. Evidence may properly implicate known individuals, particularly where lethal force or missed opportunities by state agents are examined. That differs from requiring an inquest to repeat extensive criminal investigations which failed to identify anyone for prosecution. Here the identity of the bombers was not a central issue which the jury could determine consistently with section 10(2) and paragraph 8(5) of Schedule 1.
6. Article 2 distinguishes the procedural obligation to investigate a death for which the state may bear responsibility from the substantive obligation to maintain effective criminal-law enforcement. Police ordinarily investigate suspected homicides. Failed inquiries do not themselves require an inquest to assume that function. The extensive police investigations and prosecutorial consideration had satisfied the general obligation in this case.

1. Court of Appeal (Civil Division): By [2018] EWCA Civ 2081, allowed the Coroner's appeal, restored his ruling of 3 July 2017 and refused permission to cross-appeal.
2. High Court, Queen's Bench Division, Divisional Court: Quashed the Coroner's decision and remitted the scope question for reconsideration. It refused a mandatory order requiring investigation of the Perpetrator Issue and refused a declaration under article 2 and section 6(1) of the Human Rights Act 1998. No neutral citation is stated in the judgment.