BPB74 JR (1) Hearing 06 12 2017 – 07 12 2017
Once again the relatives of ten of the victims of the Birmingham Pub Bombings 1974 assembled in Court 602 of the Civil Justice Centre in Bull Street on Wednesday.
Another work day for them; another work day for the legal profession.
On this occasion the atmosphere was tangibly different to prior occasions in this building and elsewhere at hearings in Solihull and Birmingham.
This time the lawyers were in wigs and gowns. This time there were two senior High Court Judges, Lord Justice Simon and Mrs Justice Carr DBE.
The inequality of arms present in this venue of justice was obvious – the Coroner represented by a Silk and Junior and a solicitor and paralegals (surrounded by courier box files as if constructing a small fortress); an errant wig box. The families represented by a lone junior counsel and two of the persistent KRW team from Belfast, on this occasion reliant upon private funding to represent those behind them – the Claimants. A sandwich box to contain their barrister’s wig and tabs.
However, during this two day hearing it was clear that the arguments being made by ‘the Claimants’ – the Hambleton and other families – were compelling as laid out succinctly by Mr Straw for the Claimants.
But as in similar proceedings of this nature – when the decision of public authority is being challenged – in this case the Ruling on Scope to exclude the perpetrator issue (who directed, made, planted, detonated the bombs and their associates) – the victims can vanish into a quagmire of legal argument.
It was intense and the oxygen slight: there were interactions between the bench and Mr Straw, in which he calmly held his own time and again. His point was that the duty of a coroner, when a coroner has ruled that an inquest should be conducted in accordance with the human rights standards demand when Article 2 of the ECHR has been breached or violated (in short when the state is implicated in failing to protect life), should ask the question how someone died – and that question of how should include an investigation of all the surrounding the circumstances of the death including who caused the death.
Mr Straw made it clear that an inquest is not a criminal trial – an inquest cannot punish – but that an inquest under Article 2 can lead to a prosecution. And he gave examples and emphasised that time and money should not be a reason for a coroner not to investigate the issue of perpetrators – who bombed Birmingham? And that it was in the public interest to do to allay further rumour and suspicion.
At the end of Day 1 there was another turn of events as the heavens opened over Birmingham. In addition to Paddy Hill, it was reported that both Billy Power and Hugh Callaghan now supported the inquest.
At the start of Day 2, counsel for the Coroner commenced his ‘defence’ of the decision of the Coroner – the Defendant – not to rule in scope the perpetrator issue. Mr Skelton QC was treated with the same degree of questioning by the Bench as to his learned colleague Mr Straw. Mr Skelton maintained that the Coroner had asked himself the right question within the spirit of the Common Law and the letter of statute and correctly decided that he had discretion to rule out of scope the perpetrator issue. He maintained the efficiency of police investigations to date (which was met with a sharp intake of breath from the families in court) and that aspects of the investigations remained ‘live’ (the informant and the foreknowledge issues) and that WMP were still investigating – discharging their duty under Article 2.
Mr Skelton asked why the families had not taken legal proceedings against either the WMP or the government as opposed to requesting a resumption of the original inquest. Mr Skelton proposed whether the inquest was in fact the appropriate form to answer the questions demanded by the families.
Mr Skelton warned that to include the perpetrator would be unfair to the Birmingham Six and other individuals within the public domain suspected or being associated with or responsible for the bombings. Mr Skelton warned that to embark on an investigation of the perpetrator would be invidious for the coroner and be both impractical and resource intensive and would not provide the answers the families demanded.
Mr Straw was allowed the last words. As he slowly rose to his feet (his rights hand characteristically holding the back of his gown) he simply said that the question of how a victim met their death must include the perpetrators and that is what both Common Law and statute allowed and what Article 2 demanded and which would satisfy both the rights of the families of the victims and the public interest and which could not be fettered by issue of fairness, practicality or resources.
As the Bench commented the Coroner has discretion but whether that discretion equates with decision-making and the exercise of judgment is the point – if the latter, then that exercise of discretion in a decision making function on such a core issue in an inquest, can be reviewed by the Court.
On the matter of resources the irony is that this judicial review taken by the families was paid for by them following a refusal of legal aid; that the points of law argued if accepted by the Bench could change the way complex inquests are conducted in this jurisdiction; that the cost of the Defendant’s defence of the challenge is paid for from public funds. And that if the Coroner had asked himself the right question – that ‘how’ must include ‘who’ did it when the police had systematically failed – then this could have been avoided.
Lord Justice Simon admitted that the two days had been dedicated to detailed legal argument but that he and Mrs Justice Carr DBE were aware of the importance of the issue to those in the Court. They reserved their judgment to the New Year.