Thompson’s Application for Judicial Review: Considering when a coroner becomes functus officio and when to reconsider anonymity orders
Thompson’s Application for Judicial Review provides clarity on when a coroner becomes functus officio and that a grant of anonymity cannot be reviewed after the conclusion of an inquest.
Background
This was a legacy inquest into the death of Kathleen Thompson who died as a result of two bullets being fired into her garden in 1971.
Soldier D was called to give evidence at the inquest. His identity was anonymised. It was held that the operational duty to protect life under Article 2 was engaged and anonymity remained throughout proceedings.
On 23 June 2021 the coroner gave a summary of her findings in open court but indicated her ‘full decision’ would be circulated within days. She concluded that Soldier D, on the balance of probabilities, shot Ms Thompson in circumstances which were not justified.
A written decision was handed down 9 days after the hearing on 8 July 2021. That day the applicant’s legal representatives requested the coroner reconsidered the grant of anonymity alongside referring Soldier D to the Director of Public Prosecutions (‘DPP’).
The applicant issued an application for leave to apply for judicial review proceedings on 28 September 2022. Shortly thereafter, on 5 October 2022, the coroner sent a letter to all parties of the inquest indicating she had intended to pass on the findings to the DPP. In addressing anonymity, she invited submissions in relation to whether she was functus officio.
A separate case management order, in the judicial review proceedings, was sent on 6 October 2022 asking for the coroner’s correspondence on this issue.
On the 26 October 2022 the coroner concluded she was functus officio and not in a position to reconsider the application to rescind anonymity. She went on to add that had she not been functus officio, she would not have removed the anonymity and provided her reasoning.
First Instance
Mr Justice Scofield made a finding that the coroner had erred in law by failing to reconsider Soldier D’s anonymity after having made clear findings about the unlawful use of force.
Mr Justice Scofield went on to state that anonymity orders ought to be revisited and reviewed throughout the process of the inquest. The main factor in this case was the change in circumstances when the coroner found Soldier D had used unjustified force which resulted in Ms Thompson’s death.
Ultimately Mr Justice Scofield found any reconsideration of an Article 2 granted anonymity order would remain given the risk to Soldier D’s life would increase following the findings made.
However, Mr Justice Scofield found that the coroner was correct to find herself functus officio at the time the request to reconsider anonymity was made.
Mr Justice Scofield did not grant relief as it would serve no purpose given the coroner had clearly stated how she would have approached the matter of anonymity.
Appeal
The grounds of appeal where as follows:
- Whether the judge had erred in finding she was functus officio for the purpose of reviewing whether a grant of anonymity should remain?
- Whether, even if functus officio, the coroner could review the anonymity in the same way she could make a referral to the DPP?
- Alternatively, whether the judge erred in refusing to remit the anonymity decision back to the coroner for reconsideration in light of the court’s judgement?
The Court of Appeal noted that Rule 4 of the Coroners (Practice and Procedure) Rules (Northern Ireland 1963 (SR 1963/199) as amended (‘the 1963 rules’) set out ‘every inquest shall be opened, adjourned and closed in a formal manner’.
The Court of Appeal considered at Re McDonnell’s Application [2015] NICA 72 at [25] which interpreted rule 4 as meaning ‘…once the inquest is closed the coroner no longer has power to take any steps in relation to the conduct of the inquest. To do so would offend the rule that he has become functus officio. That includes any steps in relation to questions of anonymity and screening which he had to deal with in the course of the inquest’.
The Court of Appeal found the inquest was concluded once the coroner delivered the final written ruling on 8 July 2022.
They drew a comparison with the rules in England and Wales, namely the Coroners and Justice Act 2009 (‘the 2009 Act’). In the 2009 Act there is no provision which sets out how to ‘close’ an inquest. Rather section 10 of the 2009 Act sets out what occurs at the end of an inquest, namely the coroner makes a record of inquest.
The Chief Coroner’s Guidance on the Bench Chapter 15 expands upon this stating at §13 ‘On signing the ROI [Record of Inquest] the inquest and investigation are formally concluded, and the coroner becomes functus officio. The coroner may still exercise their power under Paragraph 7 of Schedule 5 of the 2009 Act to make a report to prevent future deaths, but as their investigation has now concluded and they have no power to hear any further evidence’.
The court rejected the submission the inquest remained open by virtue of the coroner deciding whether to make a referral to the DPP. The Court of Appeal agreed with Mr Justice Scofield that the DPP was a separate obligation distinct from the coroner’s investigation and could arise after the inquest was concluded.
The Court of Appeal held the application of anonymity for a witness was part of the coroner’s common law powers in conducting proceedings.
In summarising the relevant case law, the Court of Appeal noted two situations in which anonymity may need to be reconsidered:
- Where there was a material change of circumstances which merited a re-balancing of the competing interests at play; and/or
- The coroner is requested to by either the witness, or a properly interested person (‘PIP’) on the basis that there is a change in circumstances or new information.
The Court of Appeal agreed with Mr Justice Scofield in that there was a collective failure to not resolve anonymity at an appropriate time before conclusion of the inquest. The Court of Appeal held that there should have been an adjournment following the findings to allow any representations on anonymity.
As to the final ground of appeal, the Court of Appeal accepted Mr Justice Scofield’s common-sense approach. In particular, that there was no utility in quashing the inquest and remitting the matter back to the coroner as the coroner would have maintained the grant of anonymity. The Court of Appeal saw no identifiable issues with the coroner’s reasoning.
The Court of Appeal concluded four key points in order to avoid similar issues arising in future inquests:
- For avoidance of any doubt a coroner should state an inquest is being opened, adjourned and closed. This should ideally be in open court.
- It was best practice to give advance warning of the coroner’s intention to close the inquest to PIPs.
- PIPs should seek to identify any ancillary issues as soon as possible after findings are promulgated.
- A coroner, after making a critical finding of behaviour of an individual with anonymity, should consider whether this necessitates reopening the issue of the grant of anonymity and seek submissions to that affect.
The appeal was dismissed.
Comment
Albeit this is a Northern Irish Court of Appeal case, it clearly reflects the position of the law in the 2009 Act and indeed was considered as part of the reasoning.
The judgment provides clarity on when an inquest is concluded, and the coroner becomes functus officio.
For coroners in Northern Ireland and England and Wales alike, it serves as a useful reminder of their duties in respect of anonymity irrespective of applications made by the interested persons. It highlights the need to review anonymity in situations where a critical finding being made which materially changes the circumstances.
It also serves as a reminder to interested persons to ensure they raise ancillary issues, such as anonymity, prior to conclusion of an inquest.
The full judgment can be found here.
Sophie Watson is a member of the Inquests and Inquiries Team at Parklane Plowden Chambers and regularly acts on behalf of Interested Persons at Inquests. Sophie’s full profile can be accessed here.
