Bennett v A & Anor, Officers & Ors

This is an appeal from a decision of Mr Justice Mitting in judicial review proceedings brought by two police officers, the respondents to this appeal. The two officers, who for present purposes can be referred to as Officer A and Officer B, are sergeants in the Metropolitan Police Service. By their claim they sought to challenge a decision of Her Majesty’s Coroner for Inner South London ( hereafter the coroner ) refusing to grant them anonymity when giving evidence at an inquest to be held by her into the death of Derek Bennett. The appellant in this appeal is the family of Derek Bennett which together with the Commissioner of Police of the Metropolis were interested parties to the claim. The coroner, the defendant in the proceedings, has taken no part in the proceedings before the judge or in this court. The appeal concerns the relationship between the court’s requirement for its proceedings to be open and in public and the right of a witness to be protected by the cloak of anonymity when he has genuine fears for his safety.

Derek Bennett died on 16 July 2001 as a result of gunshot wounds. He was shot by Officer A. At the time Officer A was accompanied by Officer B. In late July 2001 an inquest was opened and adjourned pending a police inquiry. In March 2003 the CPS decided that no prosecution should be brought against any person. Accordingly steps were taken to re-open the inquest. On 22 December 2003 an application was made to the coroner, Mrs Lynch, for an order granting anonymity to Officer A and Officer B. The basis of the application was that the two officers feared for their own safety and for that of their families. It is alleged that their fears are based on reasonable grounds and that there is no compelling justification for them being named. By her decision dated 5 January 2004 the coroner refused to grant the applications for anonymity. Her reasons are set out in a written ruling running to nine pages. It is this decision which was the subject of the judicial review. Mr Justice Mitting held that the respondents’ rights to life under Article 2 of the European Convention on Human Rights were engaged and that the only reasonable decision open to the coroner was to protect the anonymity of the officers. Accordingly he quashed her decision and directed her to grant anonymity to the respondents, including the use of screens when they are giving evidence at the inquest.

The family appeal the decision of the judge on a number of different grounds. The issues in the appeal are in essence what is the correct test for determining whether a witness’ Article 2 rights are engaged on an application for anonymity; and whether on the facts of this case the respondents’ Article 2 rights were engaged. It is the appellant’s case that the coroner correctly directed herself on the law applicable to applications for anonymity of witnesses; and that her findings of fact are unassailable. It is submitted that the judge was wrong to interfere with her decision. In addition, a subsidiary issue arises on the question of whether or not the judge was entitled to have substituted his own decision for that of the coroner rather than remitting the matter for her to decide in the light of his rulings.

At the hearing of the application the coroner received evidence in the form of witness statements from a member of the family of the deceased and a number of police officers. In addition she was shown risk assessments made contemporaneously by a police officer, DS Homer. She set out her findings of facts with what the judge described as “admirable clarity”. In summary the her findings of fact are based on conversations between a local police officer, PC Sacre and a member of the Management Committee of the local Rastafarian Temple in St Agnes Place in Kennington referred to throughout as Mr C. Mr C appears to have been a friend of the deceased. The coroner noted that in May 2003 two loaded firearms and a quantity of cannabis were found in the Temple during a police search. A member of the Management Committee was also alleged to have been an occupant of a vehicle in which a revolver was found. Further she found that the Temple had been the venue for a number of stabbings and shootings thought to have been drug-related. Mr C told PC Sacre of threats to the police officers involved in the shooting, the subject of the inquest, in terms which indicated that they and their families would be at risk if the inquest failed to return the correct verdict. The implication being that the correct verdict would be a verdict of unlawful killing.

The coroner also referred to the risk assessments made by DS Homer. She records DS Homer as assessing the risk in November 2003 as low but one which would increase at the start of the inquest. She records that officer as commenting that the threats were of a general nature and that he did not change his opinion once he became aware of the identity of Mr C. In paragraph 29 of her reasons the coroner stated that the officer was of the opinion that most people would await the outcome of the Inquest before deciding upon any course of action, legal or otherwise.

Before the Judge, criticism was made of paragraph 29 of the coroner’s reasons. It was contended on behalf of the respondents that she had understated and so misrepresented the risk assessment on which the paragraph was based. The judge accepted this criticism. He pointed out that the risk assessment contained the following opinion:

The coroner was invited by both the appellant and the respondents to apply a threefold test when reaching her decision. The test involved three questions. They were first whether the respondents feared for their own safety and for that of their families. Secondly whether their fears were justified on an objective basis. Thirdly, whether there was no compelling justification for naming them. She concluded that the respondents did have genuine fears for their own safety and for that of their families. Her conclusion on the second issue was as follows:

These conclusions necessarily involved the coroner in a finding that the respondents’ Article 2 rights were not engaged. In view of that conclusion there was no need for her to conduct the balancing exercise required by the third question.

The judge criticised the coroner for applying an over-precise definition of the threshold of risk involved in the second test. On the basis her finding of facts, he made his own assessment of what objectively they demonstrated. He said:

On this basis he held that the respondents’ Article 2 rights were engaged. Further he said that the coroner ought to have considered the second and third questions together. He then went on to consider the matter himself. His conclusions were:

Accordingly the judge quashed the decision of the coroner and directed her to grant Officers A and B anonymity for the hearing of the inquest

The appellant’s notice of appeal specifies five grounds. However, before us Mr Kamlish QC, leading counsel for the appellant, advanced just two of those grounds. They were first that the judge on the facts as found by the coroner was wrong to conclude that her decision was one, which no reasonable coroner could make. Essentially, his submission on this ground was that the coroner’s finding that there was no reasonable chance or serious possibility of harm to the respondents and/or their families was one which she was entitled to make. He submitted that her findings of fact on the evidence before her and her conclusions were entirely justified.

In order to make good this ground Mr Kamlish QC referred in some detail to the witness statements, which were before the coroner and the other documentary evidence consisting of information reports and risk assessments. By reference to these documents he submitted that the objective evidence of risk was confined to hearsay evidence provided by PC Sacre and Superintendent Tillyer of conversations with Mr C. He referred to inconsistencies in respect of the threats made by Mr C and the fact that on one occasion those threats were withdrawn. He invited us to conclude that the only evidence before the coroner of threats came from Mr C, an unreliable witness, and of whom PC Sacre and Superintendent Tillyer had said that they did not believe that he would personally take the law into his own hands or deliberately encourage others to take retributive action on his behalf. Mr Kamlish QC submitted that on this basis the coroner was entitled to conclude, as she did, that the threats were vague and emotional and that they were directed at the police generally. In short, his submission was that the decision of the coroner cannot be categorised as irrational or perverse.

The second ground relied on by Mr Kamlish QC concerned the second element of the threefold test. Mr Kamlish QC pointed out that before the coroner it was agreed that the test involved a decision on whether or not there was objective evidence to show that the fears of the Respondent established a serious or real possibility of danger to life. The phrase “serious possibility” was taken from a passage in the judgment of Burton J in R v Bedfordshire Coroner ex parte Local Sunday Newspapers Ltd 164 JP 283. Mr Kamlish QC submitted that this was the test adopted by the coroner and that she was right to do so.

Mr Millar QC, leading counsel for the respondents, submitted that the judge was entitled to hold as he did, that the coroner’s decision was irrational. He submitted that the coroner had been guilty of either ignoring or failing to attach sufficient weight to the opinions of PC Sacre and Superintendent Tillyer. He submitted that if she had given proper weight to their opinions she would have inevitably concluded that the respondents’ fears were supported by objective evidence.

On the issue of what was the correct test to define the threshold on which Article 2 was engaged, his submission was that the test was simply one of reasonable grounds viewed objectively for the respondents’ fears.

There is no dispute about the test to be applied on judicial review of a decision such as the one the subject of this appeal. It is the one adopted by Sir Thomas Bingham MR in R v Ministry of Defence ex parte Smith [1996]QB 517, @ 54. It was based on submissions by counsel in that case and was in these terms:

Lord Woolf also made observations about the role of the Court of Appeal in such cases. He said (p1871):

In this case, it is clear from his judgment that no criticism can be made of the judge in respect of his approach to reviewing the decision of the coroner.

At the heart of this appeal is the relationship between the requirement for open justice and the right to life under Article 2 of the European Convention on Human Rights. It is, of course, a fundamental principle in English common law that the administration of justice is carried out in public (see Scott v Scott 1913 AC 1417). Rule 17 of the Coroners Rules 1984 ensures that this principle applies to inquests. It states: “every inquest shall be held in public”. There is a proviso that the coroner may direct that the public be excluded from an inquest or any part of it if it is in the interest of national security to do so. The common law also allows for exceptions and permits witnesses in certain circumstances to be anonymous.

Article 2 of the Convention provides:

The importance of the state’s duty under Article 2 to investigate a death in custody was considered by the House of Lords in Amin v Secretary of State for 1 AC 653. the Home Department 2004. In that case Lord Bingham said;

There are two comparatively recent decisions of the Court of Appeal which in my judgment have the most bearing on the issues in this appeal. They are the two decisions on anonymity of soldier witnesses and the venue for hearing evidence arising in the “Bloody Sunday” Inquiry. The first is R v Lord Saville of Newdigate ex parte A 2000 1 WLR 1855 to which I have already referred; and the second R(A) v Lord Saville of Newdigate 2002 1 WLR 1249. In this case they have been conveniently referred to as Saville (1) and Saville (2).

There is no dispute between the parties that on an application such as this the decision-maker should apply a threefold test when deciding whether Article 2 is engaged; and, if so, whether anonymity should be granted. The test is taken from the judgment of Lord Phillips in Saville (2) and is the threefold test applied by the Coroner in this case. Lord Phillips MR stated at page 1262:

The issue in this appeal, as I have already said, is whether the judge was correct in concluding that the coroner applied an over-precise test in relation to the threshold of risk involved in the second test; or whether the judge erred in applying a test which was too broad. Before the coroner the threshold of risk was agreed to be satisfied by a test of “serious possibility”. In this court, Mr Millar QC submitted that the test should be “reasonable grounds”. Mr Kamlish QC contended for the “serious possibility” test.

In Saville (1) it is clear that the first and second of the two tests were not in issue. The court was solely concerned with the third test. Nevertheless it is possible to gain some assistance from the judgment of Lord Woolf MR in respect of the second test. He said (p1877):

This passage in Lord Woolf`s judgment is taken up by Lord Phillips in Saville (2). In Saville (2) the threshold of risk test was in issue. In a passage in his judgment under the heading “Our conclusion on the test” Lord Phillips stated:

The passage in Lord Phillips’ judgment then continues with paragraph 31 in which he sets out the threefold test.

Mr Kamlish QC submitted that the test applied by the coroner was derived from Lord Woolf’s reference to Lord Diplock’s observations in ex parte Fernandez and as explained by Burton J in R v Bedfordshire Coroner ex parte Local Sunday Newspapers Ltd 164 JP 283. Mr Millar QC submitted that Burton J had fallen into error by running the second and third test together.

In my judgment Mr Millar QC’s submissions on this issue are to be preferred. It seems clear from the observations of Lord Woolf and Lord Phillips that a degree of risk described as “real and immediate”, the Osman test, sets the threshold too high. A test based on speculation would clearly set the test too low. Between these two parameters there will be a spectrum of risks of varying seriousness supported by objective evidence of varying degrees of strength. Like Lord Phillips in Saville (2), a decision which in any event binds this court, I do not think it possible or sensible to give any more definitive description than that there must be reasonable grounds which show that the fears of a witness are objectively justified. It will be for a coroner or other decision-maker in each case in which such an application is made to decide whether the evidence is such as to show that the witness’ fears are objectively justified. When it comes to the balancing exercise involved in the third test, obviously, the more serious the risk and the stronger the evidence objectively justifying the fears of the witness, the more likely the balance will favour the grant of anonymity.

The coroner in this case confusingly describes the threshold as a “ reasonable chance or a serious possibility ” ( see para 40 of her decision ); and “ based on reasonable grounds ” ( para 41). However we have been told that it was agreed at the hearing of the application that she should apply the former test. In the circumstances it seems reasonable to assume that that was the test applied by her. Assuming that it was in my judgment the judge correctly described it as too precise.

Mr Kamlish QC`s principal ground of appeal was that the coroner carefully weighed all the evidence and reached a conclusion which was demonstrably correct. Alternatively, it was not such as could be described as irrational or perverse adopting the test in ex parte Smith. As I have already indicated both Mr Kamlish QC and Mr Millar QC carefully analysed the evidence available to the coroner and her conclusions.

I say at once that in my judgment the criticism made by Mr Millar QC of the coroner’s reasoning is justified. In the passage in the coroner’s reasons under the heading “extent to which those fears are objectively justified” the coroner refers almost exclusively to threats from Mr C. She dismisses them as vague and emotional, directed at the police generally. What she does not refer to in that passage is the threat mentioned at the end of Superintendent Tillyer’s statement. Superintendent Tillyer states that although Mr C’s intention may not be to encourage others to seek retribution, emotional outbursts from him at the inquest are likely and these outbursts may cause others to seek retribution out of a false sense of loyalty. In the final sentence of his statement Superintendent Tillyer says “These individuals have access to firearms and I genuinely believe that it is in the interest of the safety of the police officers concerned that they should have anonymity at the inquest”.

PC Sacre in his statement also refers to the threat of criminal elements known to associate with Mr C who are more than capable of carrying out threats to kill and who might take on the killing of a police officer to gain advancement in the community. Mr Kamlish QC points out that Superintendent Tillyer and PC Sacre are brother officers of the two respondents. But the criticism that their opinions are not objective evidence in my judgment is unfounded. The fact that their evidence is to some extent opinion evidence does not render it invalid. Both officers are local officers with first-hand knowledge of the community. Their evidence was not challenged by way of cross-examination or otherwise and in my opinion was evidence for the coroner to take into account.

In addition, although the Coroner, in the section of her reasons setting out the concerns of the two respondents, refers to firearms being recovered from the Temple, the public disorder after the death, the likely hostility at the inquest, and the presence of serious violent criminals in the area, she does not appear to give these factors any real weight when considering whether the fears of the respondents are objectively justified. The evidence of those matters all appears in the various witness statements before her and was not challenged.

Taking the evidence as a whole in my judgment it is such as to provide clear grounds which objectively justify the fears of the respondents. In my view, the coroner in this case cannot have given sufficient weight to all the evidence before her and in particular to the evidence of PC Sacre and Superintendent Tillyer. Had she done so, in my opinion, she would have inevitably concluded that the fears of the two respondents were objectively justified. In these circumstances I agree with the conclusion of the judge that Article 2 was engaged and that no reasonable decision-maker could have concluded that it was not.

Mr Kamlish QC submitted that if the court concluded that the coroner had misdirected herself in law the matter should be remitted to her for a further hearing in the light of our judgments. Although I have concluded that the coroner did misdirect herself in respect of the threshold of risk test in my judgment the misdirection was not such as to require this matter to be remitted to her for a further hearing. Mr Kamlish QC accepted that if we concluded, as I do, that the judge’s conclusions at paragraphs 23 and 24 of his judgment were correct, this would inevitably result in the respondents’ Article 2 rights being engaged. Once Article 2 is engaged in my opinion it is also inevitable that the application of the third test would result in the order made by the judge. Put simply there are no countervailing considerations of sufficient weight to tip the balance in favour of an order for anonymity being refused. It is relevant to note that the respondents will still have to give evidence before a jury. Their evidence will be given by video-link and will be subject to cross-examination. This is not a case where the court is concerned with the trial of a defendant. It is a fact-finding exercise conducted by the coroner and the jury. The appellant’s interest in the proceedings, although very important and significant, is not in the same category as the interest of a defendant in a criminal trial. When the verdict has been reached by the jury the coroner will be able to reconsider the issue of anonymity in the light of the jury’s verdict and further submissions made to her.

For these reasons I would dismiss this appeal.

I agree and would add only this. Although the coroner refers to the three risk assessments carried out by DS Homer on 22 July, 20 November and 18 December 2003, she quotes only from the November one. In fact the December one, in addition to being the most up-to-date, was also the most revealing. It concluded that the risk to the two officers up to the conclusion of the inquest is low because “interested parties such as Mr. C and their associates will await the outcome, before deciding upon a course of action, be that legal or illegal”. DS Homer added:

I agree with both judgments. The appeal is dismissed.