Analysis: High Court upholds 7/7 secrecy ruling

1 December 2010 by Richard Mumford

On 30 November 2010 the High Court handed down its written ruling upholding the 7/7 inquests Coroner’s decision that there were to be no ‘closed’ hearings at the inquests. An analysis of the Coroner’s decision can be found here. The High Court had previously given its decision, with an indication that reasons were to follow.

The Divisional Court of the High Court, composed of two colleagues of the Coroner (Dame Heather Hallett) in the Court of Appeal, robustly rejected the Home Secretary’s application for a review of the decision. In short, both judges concurred with Hallett LJ’s decision that the Coroners Rules did not provide a power to hear evidence in sessions from which ‘interested persons’ (including families of the 7/7 victims) could be excluded.

It was held that the power under rule 17 to exclude members of the ‘public’ could not be taken to mean ‘any person’ but was intended to apply only to those members of the general public who were not ‘interested persons’ for the purposes of the inquest. This narrow interpretation of the power to exclude was supported by the fact that other parts of the Coroners Rules granted interested persons certain rights (such as to question witnesses and examine documents) which were not made subject to any limitation on grounds of national security.

Maurice Kay LJ, giving the main judgment, places some emphasis on the fact that attempts to legislate for a special procedure to be adopted in inquests involving national security had either been rejected by Parliament or relevant provisions were not yet in force; he concludes:

What all this demonstrates is that the construction sought to be placed on rule 17 by Mr Eadie is, in effect, an attempt to pre-empt legislation which is either not yet in force or has been rejected in the recent past by Parliament. If these are steps which Parliament is not yet prepared to take, I am fortified in my unwillingness to adopt what would be a forced construction of rule 17.”

Stanley Burnton LJ, in a terse (5 paragraph) judgment, concurred with this conclusion, describing the Home Secretary’s secondary argument that there existed an implied power to hold closed hearings, even in the absence of provision in the rules as “hopeless” on the basis that “Rule 17 prescribes the power of the Coroner in such circumstances. Where there is express provision there cannot be an implied provision applicable in the same circumstances.”

Maurice Kay LJ also refers to the difficult passage in the Coroner’s ruling (highlighted in my previous post) stating that she does not “intend to make findings averse to the Security Service which I know to be false”; he seems to give what may be called a ‘favourable construction’ to that sentence when he observes:

The Coroner is well aware that, in reaching and reasoning her eventual conclusions, she will have to disregard all undisclosed PII material. That is implicit in an earlier passage in her ruling and from a later passage coming after her ruling on another issue which is not the subject of an appeal. It follows that I do not think that in the final sentence to which I have referred she was anticipating the possibility of rejecting a finding based on open material because it would fly in the face of the undisclosed, PII material. That would be wrong. She would be bound to base her decision on the open material or, perhaps, to decline to make a decision at all on the issue in question. As to that and its possible consequences, it would be inappropriate for us to say more.”

One wonders whether this ‘shot across the bows’ will have a real effect in the present case. No doubt the Security Services will be anxious that the assurance offered to them has been, in effect, ruled unlawful. It may indeed weigh in the balance in determining whether the matter is one on which the Supreme Court should be asked to rule.

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