The third inquest into the death of Pearse Jordan: when “don’t know” is the only available answer
28 November 2018
In the latest in the protracted investigation into the death of Pearse Jordan, the Northern Ireland Court of Appeal has upheld the verdict of a Coroner who found himself unable to decide all the relevant facts – Re Theresa Jordan  NICA 34. The case raises issues around the appropriate burden and standard of proof in inquests, particularly after a significant passage of time.
On 25 November 1992, Patrick Pearse Jordan was shot and killed at Falls Road, Belfast, by an officer of the Royal Ulster Constabulary, referred to in proceedings as “Sergeant A.” Mr Jordan was unarmed and was shot in the back. Three inquests have subsequently been held into his death.
The first, which started in 1995, was beset by evidential problems and delays. The family eventually appealed to the European Court of Human Rights, which found that the UK had failed to comply with its procedural obligations under Article 2 ECHR (Jordan v UK (2003) 37 EHRR 2). The Court held that, in cases involving agents of the State, Article 2 requires an investigation that is
capable of leading to a determination of whether the force used was justified in the circumstances and to the identification and punishment of those responsible (paragraph 107).
The second inquest, held in 2012 before a jury, was quashed, in part because of difficulties in getting the jury to reach a verdict. The Court of Appeal, with “limited enthusiasm”, remitted the case to another coroner (Re Hugh Jordan  NICA 76). Criticising the “unsatisfactory” state of coronial law in Northern Ireland, the Court suggested that the 50 or so “legacy cases” arising out of the Troubles might be more effectively dealt with outside of the coronial system, for example through a public inquiry (paragraphs 118 to 125).
The third inquest, the subject of the present appeal, was heard in early 2016 over 16 days by Horner J. This time the Coroner sat without a jury. The question for the Coroner, in the light of the decision of the Strasbourg Court, was whether Mr Jordan’s killing was “justified in the circumstances.”
A key factual issue was whether Mr Jordan had turned towards Sergeant A before he was shot. The Coroner found that if he had so turned, then Sergeant A would have feared for his life and those of his fellow officers and the killing would have been justified. However, on this crucial issue, the Coroner found himself unable to reach a determination either way.
A particular problem was the difficulty in relying on sworn testimony 25 years after the events. The version of events given by the police was “scientifically possible, although objectively…unlikely.” The Coroner was equally unpersuaded by the version of events put forward by the deceased’s next of kin.
The Coroner expressed himself as being “profoundly unsure as to what happened” and concluded that
it is now impossible with the passage of time to say with any certainty what happened on that fateful afternoon.
On that basis the Coroner found that the State had failed to discharge the burden on it of proving that the killing was lawful.
The Court of Appeal’s decision
Applying for judicial review, Mr Jordan’s family argued that the Coroner had abdicated his responsibility to arrive at a verdict on the central issues in the inquest. They also claimed that he had misapplied the burden and standard of proof and had failed to take into account or attach sufficient weight to evidence which should have led to a conclusion that the killing was not justified.
The Court of Appeal upheld the Coroner’s verdict. After reviewing the case law in the civil and criminal context, and whilst recognising the distinct features of an inquest, it found that a Coroner may be entitled to resort to the burden of proof in appropriate cases (paragraph 110). The Coroner had done so not to decide facts but rather to establish a consequence, namely that the police had failed to provide a satisfactory and convincing explanation for the use of fatal force (paragraph 111).
The statutory obligation on a Coroner includes a duty to consider whether a particular fact has or has not been proved on the balance of probabilities. This, however, is not a “binary” choice as to whether one of two possibilities probably occurred, but includes a third possible outcome in which the Coroner states that he is undecided as to whether it did or did not occur. The Coroner had reached his conclusion applying the correct standard of proof and his evaluation of the evidence could not criticised (paragraph 145).
The Pearse Jordan case, perhaps more than any other, demonstrates the difficulties that arise where the coronial system in Northern Ireland is required to consider cases years after the event. The Stormont House Agreement includes a commitment to improve the way the legacy inquest function is conducted in Northern Ireland, but its implementation has been delayed for political reasons.
The Northern Ireland Court of Appeal’s finding that a Coroner may find himself undecided on a particular fact, is potentially of broader application. Note however that the legislation in Northern Ireland differs to that in England and Wales, in that it includes an express requirement to decide particulars in so far as they “have been proved” (see s31 of the Coroners Act (Northern Ireland) 1959).