Updated | On 3 November the judge acting as coroner for the 7/7 inquests ruled that she does not have the power to hold secret hearings to hear evidence which, if made public, would pose a threat to national security. Dame Heather Hallett also ruled that although she, as a Court of Appeal Judge, could look at ‘intercept evidence’ governed by the Regulation of Investigatory Powers Act 2000 (“RIPA”), such material could not form part of the evidence at the inquests.
The fundamental problem faced by Hallett LJ, linking the two parts of her ruling, was what to do about intelligence material , the revelation of which “in unredacted form would threaten national security” but which might have a bearing on her findings at the inquests. The problem can be traced back to Hallett LJ’s earlier ruling concerning the issues to be determined at the inquest, in particular the requirement for:
an investigation into [the bombers’] background, what was known about them and what decisions were taken in relation to them, in so far as it relates to what happened on 7th July 2005 and in so far as I am satisfied it is consistent with the interests of national security … my current intention is that my investigation of these issues should cover both the background of the four men and also the conduct of, and the alleged failings in, the investigations conducted by MI5 and the Police relating to MSK and Tanweer prior to their deaths”.
Whilst there was broad agreement amongst the families that the “preventability” question was a proper matter for the coroner to inquire upon, there were different views even amongst the families on how the coroner should treat intelligence material when seeking to answer that question. The reason is perhaps that each of the available approaches had its pros and cons. If the coroner were to conduct closed hearings, excluding the families and their lawyers, they would be denied the opportunity to see for themselves the reasoning behind the police and intelligence services’ decision-making processes but would at least have the assurance that the coroner herself, as an independent and respected judge, had examined such material on their behalf. On the other hand, if there were to be no closed hearings, the families would have just as much ability to test the evidence as anyone else plus it might incentivise the holders of allegedly sensitive material to make as much of it as possible available in a redacted or summary form; the counter-argument would be that there might remain relevant material which the coroner had been unable to take into account in reaching her findings, which might have served to either support or undermine the authorities’ position in the open proceedings.
In answer to this unenviable dilemma, Hallett LJ may be said to have tried to have her cake and eat it. Whilst finding that the Coroners Rules provide no basis for closed hearings and that the inherent jurisdiction to control the procedure of the inquest could not and should not be used to create such a mechanism (drawing in part on the Court of Appeal’s decision in Al-Rawi concerning open justice in civil proceedings), she also noted that she will have looked at much of the material in question when determining whether it was so secret as to be exempt from public disclosure in the first place. Thus, she felt able to offer the following assurances to those in the ‘intelligence community’:
I do not intend to endanger the lives of anyone. I do not intend to allow questions which might do so. I do not intend to allow questions which I know to be based on a false premise or which I know to be misleading. There may be times when the parties will simply have to accept my ruling without demur. I may have to forbid certain questions. I may have to rephrase them. Finally, I wish to emphasise I do not intend to make findings adverse to the Security Services which I know to be false.”
There may be those (perhaps amongst the representatives of the families) who would criticise this passage as giving the lie to the idea that a judge can and does put inadmissible evidence out of his or her mind when considering the conduct of the hearing and the evidence before the court. Indeed, one might say that to control questioning is to have the effect of controlling what evidence is before the court and to do so on the basis not of admissible evidence but on the basis of what has been read in private is an impermissible approach. To ask the families or their representatives to accept such rulings “without demur” may be to ask too much. Further, to undertake not to make findings adverse to the Security Services where these are known to be false only on the basis of material which is not in evidence and which interested persons such as the families have not had the opportunity to test (not even through the use of government-approved Special Advocates, itself a process not without difficulty) may be difficult for some to swallow.
On the other hand, it is difficult to see what approach could be taken which would serve the interest of the families in a full and impartial investigation of the means by which their loved ones came by their deaths while at the same time avoiding the risk of unjustified criticism of those in the service of the state carrying out an immensely difficult task under unimaginable pressure. Hallett LJ’s ruling has a strong element of pragmatism in an effort to deliver the maximum from the inquest process as efficiently as possible so that the families in particular can carry on with their lives as best they are able.
From a human rights perspective, it is particularly interesting that Hallett LJ’s analysis of the provisions of the Coroners Rules turned in part on what she termed the “absolute rights” of interested persons, such as family members, to participate in the inquest process. The paradox may be that in upholding the inviolability of those rights, the inquisitorial power of the coroner’s inquest may itself be diminished. There is also something of an irony in the fact that the new Coroners and Justice Act 2009 does provide for closed hearings before a Senior Coroner but that the relevant sections are yet to be put into force.
Hallett LJ has given the families and other interested persons seven days in which to decide whether to challenge her ruling(s) by way of judicial review; in the meantime the evidence continues.
Update, 9 November 2010 – According to the BBC, the government is challenge the ruling by way of judicial review.
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