Coroner not required to investigate identities of Birmingham bombers
2 October 2018
Coroner for the Birmingham Inquests v Hambleton & Ors  EWCA Civ 2081 (26 September 2018)
At an inquest, the Coroner must investigate four things: the identity of the deceased and how, when and where they came by their death. Ordinarily, the question ‘how the deceased came by their death’ means ‘by what means’ they came by their death (R v. North Humberside Coroner, ex parte Jamieson  QB 1).
However, in some cases, an enhanced investigative duty arises. When the death under investigation may have involved a failure by the state to fulfil its positive obligations under Article 2 of the ECHR, the interpretation of ‘how’ must be expanded to include an inquiry into the ‘circumstances in which the deceased came by his or her death’.
Coroner for the Birmingham Inquests (1974) v. Hambleton & Ors.  EWCA Civ 2081 involved such an inquest. The central question for the Court of Appeal (composed of a panel including the Lord Chief Justice and the Vice-President of the Criminal Division of the Court) was whether, as part of his investigation into the deaths of the 21 victims of the 1974 Birmingham bombings, the Coroner was required to call evidence directed at identifying those responsible for the bombings. The Court of Appeal decided that, in this case, the Coroner was not so obliged.
On the evening of the 21st of November 1974, bombs exploded in two Birmingham city centre pubs. The bombings, which are thought to have been perpetrated by the IRA, caused the death of 21 people. They injured a further 220.
This atrocity and its aftermath cast long shadows over the criminal justice system of England and Wales. The criminal investigation into the bombing led to the conviction of six men. These men – known as the Birmingham Six – served nearly seventeen years in prison before the Court of Appeal quashed their convictions in 1991. Since then, no one has been brought to trial or arrested in relation to this matter, despite the bombings being the subject of an extensive criminal investigation.
Inquests into the 21 deaths were opened after the bombings in 1974. However, these were adjourned pending the criminal proceedings, which ended with the Birmingham Six’s successful appeal in 1991. At that time, the inquests were not resumed but in 2016 it was announced that they would be reopened. The former Chief Coroner, Sir Peter Thornton QC, was appointed to conduct these inquests.
Pre-inquest hearings were held between November 2016 and June 2017 in order to define the scope of the proceedings and to decide what evidence should be called. There was evidence suggesting that the authorities may have had advanced warning of the bombings upon which they failed to act. The Coroner, therefore, ruled that the inquests were subject to the enhanced investigative duty under Article 2.
In July 2017, the Coroner ruled that the enhanced Article 2 duty did not require an inquiry to into the identity of the perpetrators of the bombings.
The High Court Proceedings
The Coroner’s ruling caused significant upset to the families of the bombing victims. They argued that, if the perpetrator issue were not explored, it would be impossible properly to determine ‘how the deceased came by their deaths’. They brought judicial review proceedings, seeking an order quashing the Coroner’s decision, an order compelling him to include this issue within the scope of the inquests and a declaration that decision was contrary to Article 2 of the ECHR.
The High Court ruled that the Coroner’s decision was not contrary to Article 2 and refused to grant the mandatory order sought. However, the Court did quash the Coroner’s decision.
The Court considered that setting the scope of an inquest involves an exercise of judgment on the part of the Coroner rather than one of discretion. Such judgment should not be confined by what can be recorded in the verdict, though that may be relevant. Because it is an exercise of judgment rather than discretion, a Coroner’s decision on an inquest’s scope may be challenged on the basis that it is wrong, not just on the public law grounds that it is irrational or disproportionate. Yet, when considering questions of the scope of an inquest, the court should still show appropriate curial deference to the Coroner’s judgment due to of his or her expertise in this area.
Based on this reasoning, the High Court held that the Coroner did not ask himself the correct question when deciding to exclude the perpetrator issue from the scope of the inquests. Rather, he should have asked:
… whether the factual issue of the identity of the bombers (and those that assisted them) was sufficiently closely connected to the deaths to form a part of the circumstances of death.
The Coroner’s decision was quashed, and the matter was remitted for reconsideration. The Coroner appealed.
The Court of Appeal
In allowing the appeal, the Court of Appeal emphasised that it is for the Coroner to set the scope of an inquest. A Coroner’s decisions in this regard can only be challenged on the traditional judicial review grounds. Thus, the High Court should only exercise its supervisory jurisdiction when such a decision:
… can be demonstrated to disable [the Coroner] from performing his statutory functions, when the decision is one which no reasonable coroner could have come to on the basis of the information available, involves a material error of law or on a number of other well-established public law failings. 
The Court rejected as, ‘false in these circumstances,’ the dichotomy drawn by the High Court between judgment and discretion. It stated that
the Court is not liberated from the ordinary constraints of judicial review on the basis that it considers that the Coroner was “wrong”.’ 
The Coroner was held to enjoy a broad discretion in his powers to set the scope of an inquest. Accordingly, the Court of Appeal rejected the High Court’s formulation of the question that the Coroner should have asked himself and held that the Coroner was correct to consider the question of scope in the context of providing evidence to enable the jury to answer the four statutory questions.
The Court also noted – as did the Coroner in his original ruling – that whether the perpetrator issue must be investigated at an inquest is not a black and white question to which the answer is universally the same in every inquest. The Coroner’s decision in this case was taken against the background of a comprehensive police investigation that was unable satisfactorily to identify the perpetrators and the existence of a recent report into the issue. The Coroner was correct to take these circumstances into account.
The Court referred to the four statutory questions and the enhanced investigatory obligation under Article 2 in terms of the ‘central issues’ in the resumed inquests. The identity of the bombers was said not to be a central issue. The Court considered that the Coroner’s definition of the scope of an inquest and his ruling on the perpetrator issue were correct. The original ruling was restored, and the Court refused the Respondents’ application for permission to cross-appeal.
This judgment lays out at least 2 important points in relation to the extent of a Coroner’s powers to set the scope of an Article 2 inquest where the perpetrator issue arises.
First, whether the scope of an inquest should include an investigation into the identity of those responsible for the deaths is a question that must be answered in light of the circumstances of each case. In this case, the identity of those responsible for the bombings was not a central issue in the inquests. For this reason, the Coroner was not required to investigate that matter.
Secondly, in setting the scope of an inquest, the Coroner is exercising a public law discretion. As such, those decisions may not be challenged simply on the basis that they are considered ‘wrong.’ They may only be impugned on the more demanding traditional grounds of judicial review.
Darragh Coffey is a pupil barrister at One Crown Office Row.