Coroner for the Birmingham Inquests v Hambleton & Ors

The coroner has a broad statutory discretion to determine the scope of an inquest and to decide which topics and evidence are necessary to enable the jury to answer the statutory questions in section 5 and 10 of the Coroners and Justice Act 2009. That discretion is subject to public law review (notably Wednesbury unreasonableness and material errors of law) and does not mean that article 2 of the Convention automatically requires an inquest to investigate the identity of perpetrators; whether the perpetrator issue is within scope depends on its connection to the statutory questions and practical, proportionality and fairness considerations.

The Senior Coroner reopened the 1974 Birmingham pub-bombing inquests and proposed four topic-areas of inquiry, including the “Perpetrator Issue” (the identity of those who planned, planted, procured and authorised the bombs). The Divisional Court quashed the coroner’s ruling excluding the Perpetrator Issue and remitted the matter, holding the coroner should consider whether the identity question was sufficiently closely connected to the deaths. The coroner appealed. The Court of Appeal restored the coroner’s ruling, holding the coroner had lawfully exercised his discretion to exclude a discrete inquiry into perpetrators and that article 2 did not in this case mandate inclusion of the Perpetrator Issue.

1. Overall disposition: The appeal is allowed and the coroner's ruling of 3 July 2017 is restored. The respondents' application for permission to cross-appeal is refused. (See paras 63.)
2. Scope and statutory framework: The purpose of an inquest is to ascertain who the deceased was and how, when and where the deceased came by death, read (where necessary for Convention compliance) in the expanded sense adopted in Middleton so as to include relevant circumstances (see discussion of Coroners and Justice Act 2009 ss.1,5 and 10 and Schedule 1 para.8(5)). The coroner correctly focused on providing evidence necessary to enable the jury to answer those statutory questions rather than investigating every matter touching the broader circumstances of the deaths (paras 11–18; 46–56).
3. Coroner's discretion and standard of review: A coroner has a broad discretion to set the bounds of inquiry and decide scope; decisions on which evidence to call and which issues to investigate are ordinarily matters for the coroner and are subject to judicial review on public law grounds (e.g. irrationality, material error of law, Wednesbury unreasonableness) rather than appellate substitution merely because a court might have decided differently. The Court of Appeal rejected the High Court’s dichotomy framing the decision as one of pure judgment rather than discretion (paras 21, 48–51).
4. Application to the Perpetrator Issue: The coroner lawfully concluded that a distinct investigation directed to identifying perpetrators was not necessary to enable the jury to answer the statutory questions in this case. Statutory prohibitions (section 10(2)) against verdicts appearing to determine criminal liability, the embargo in Schedule 1 para.8(5) as to inconsistency with antecedent criminal proceedings, the practical difficulties after 43 years, and the history of multiple police investigations and prosecutorial assessment were relevant and permissibly informed the coroner’s decision (paras 24–31; 52–56; 61–62).
5. Article 2 (ECHR): Article 2’s procedural obligation does not automatically require inquests to investigate who perpetrated killings; the procedural obligation concerns an effective public investigation where the state may have been implicated and remains principally satisfied by appropriate criminal investigations and prosecutorial review. In this case the Court of Appeal agreed with the coroner that article 2 did not dictate inclusion of the Perpetrator Issue (paras 30, 59–61).
6. Practical and proportionality considerations: The court recognised that fairness, proportionality, practical feasibility, the reliability of long-delayed or press-sourced evidence, and the prior deployment of significant investigative resources are relevant factors to be weighed by the coroner in determining scope (paras 35–40; 53–55).
7. Orders: The coroner’s ruling is restored; the respondents’ cross-appeal permission refused. (Operative words at para 63.)

• High Court (Divisional Court): Simon LJ and Carr J quashed the Coroner's decision and remitted the matter to the Coroner to remake his scope decision; refused mandatory order and declaration under article 2 (Divisional Court judgment quashing the ruling dated 26 January 2018) (as summarised at para 2 of this judgment).
• Court of Appeal (Civil Division): Restored the Coroner's ruling (this judgment) (26 September 2018).