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Neutral Citation Number: [2002] EWHC 2392 Admin                                   CO/1273/2002

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

Strand

London WC2

Thursday, 31st October 2002

B E F O R E:

LORD JUSTICE KENNEDY

MR JUSTICE PITCHERS

­ ­ ­ ­ ­ ­ ­

COMMISSIONER OF POLICE FOR THE METROPOLIS

(CLAIMANT)

­

v­

HER MAJESTY'S CORONER

(DEFENDANT)

Computer­Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

Mr S Freeland QC & Mr J Beer (instructed by Legal Services, Metropolitan Police) appeared on behalf of the Claimant

Mr I Burnett QC (instructed by Southwark Internal Services) appeared on behalf of the Defendant

Mr J Goudie QC & Mr J Coppel appeared on behalf of Mr George Francis as an interested party

Mr C Collins appeared in person as an interested party

J U D G M E N T

(As approved by the Court)

Crown copyright©

Thursday, 31st October 2002

1. MR JUSTICE PITCHERS: This is an application pursuant to section 13 of the Coroners Act 1988 for an order quashing the inquisitions in respect of 13 deceased persons taken before Her Majesty's Coroner for Inner London South District between 21st April and 13th May 1981 and an order directing the holding of a new inquest. The application requires and has received the consent of the Attorney­General.

2. The background is this. At about 5.40 am on 18th January 1981 there was a terrible fire at 439 New Cross Road, London SE14. It started in the ground floor front room and spread very rapidly through the building. There was a party taking place at the house to celebrate the 18th birthdays of two young women, one of them the daughter of the householder. Upstairs there was a large number of people enjoying themselves at that party.

3. The rapid spread of the fire and the absence of any means of escape for many of those present, other than jumping from an upstairs window, had appalling consequences. Despite the prompt arrival of the emergency services, ten young people were found dead in the upstairs rooms, three more died later in hospital, two from injuries received in the jump from an upstairs window. Their ages ranged from 24 years old to not yet 15 and included one of those whose birthday it was.

4. Although his family are not directly concerned with these proceedings, it should be recorded that two and a half years later the fire claimed what all accept was its fourteenth victim when one of the young men present on 18th ;January 1981, who had been completely traumatised by the events of that night and the loss of friends that he had suffered, took his own life.

5. In addition to these deaths, a number of other people received serious injury.

6. The inquest took place between 21st April and 13th April 1981, that is it started twelve weeks after the fire. Considering the complexity of the inquiry and the importance of the issues to be examined, that was a very short timescale. The police had been investigating throughout this period but the officer in charge of the inquiry said this to the Coroner in the course of the inquest:

"This enquiry is not finished. As under any other circumstances I don't think that an Inquest would have been held at this early stage, it would have generally been six to eight months."

7. The complexity of the inquiry is obvious. There are now, we are told, about 8,000 pages of evidence from about 750 witnesses. The issues were also of exceptional importance. First, of course, to the families and friends who had lost those whom they loved. They were entitled to the full extent that the system allowed to find out what had caused this dreadful fire. There were issues that went wider than that. As well as various forms of accidental ignition, one of the matters that had to be examined and, if humanly possible, proved or disproved, was the awful possibility that this might have been deliberate arson motivated by racial hatred. Thus, desirable as speed of resolution is in any judicial proceedings, this was not a case for a hasty inquiry.

8. The various possible causes of the fire were examined during the inquest. No definitive explanation could be given. Open verdicts were recorded. In 1982 application was made to this court for judicial review, certainly once and possibly twice, seeking a new inquest. The grounds of that application were a series of criticisms of the way in which the then Coroner conducted the inquest, in particular in relation to his summing­up. That application failed.

9. After the inquest the police inquiry remained open. The families of those who had died, drawn together by the tragedy that had befallen all of them and driven on by the conviction that more could and should have been done to discover the causes of the events that led to the death of their family members, formed the New Cross Fire Parents Committee. They have over the years continued to press, in a proper and dignified way, for the police fully to re­open the inquiry, and latterly for a new inquest to consider the new material that has come to light. They are represented as interested parties here today as is another parent, Mr Charles Collins, who shares their aims although he is not a member of their group.

10. In the years up to 8th August 1994 police enquiries occasionally took place if some new lead appeared. However, there was no full reinvestigation. On that date many of the exhibits and documents were destroyed.

11. In 1997, following an approach by the parents committee, the inquiry was fully re­opened. It is common ground among the various parties that thereafter the inquiry was pursued with vigour and substantial police resources committed to it. It is the fruits of that new inquiry that provide the foundation of the application before us.

12. Before considering the new material which has been produced, it is convenient to consider the circumstances when, as a matter of law, a new inquest can be ordered.

13. The relevant provision is section 13 of the Coroners Act 1988, which reads as follows:

"13(1) This section applies where, on an application by or under the authority of the Attorney­General, the High Court is satisfied as respects a coroner ('the coroner concerned') either ­

(a) that he refuses or neglects to hold an inquest which ought to be held; or

(b) where an inquest has been held by him, that (whether by reason of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts or evidence or otherwise) it is necessary or desirable in the interests of justice that another inquest should be held.

(2) The High Court may ­

(a) order an inquest or, as the case may be, another inquest to be held into the death either ­

(i) by the coroner concerned; or

(ii) by the coroner for another district in the same administrative area;

(b) order the coroner concerned to pay such costs of and incidental to the application as to the court may appear just; and

(c) where an inquest has been held, quash the inquisition on that inquest."

14. I turn now to the new material.

15. The new evidence falls into three categories which I will outline and explain briefly why it would have been relevant had it been available at the inquest in 1981. I will not set out the new evidence in detail, still less express any view as to its cogency. Both of those tasks will be carried out at any new inquest. I should add that the interested parties have been made fully aware of its contents.

16. Firstly, the seat of the fire. It has always been agreed that the fire started in the downstairs lounge. Exactly where in the lounge and how the fire started has always been at the heart of the inquiry. Two questions examined extensively at the inquest were whether there was a fight downstairs just before the fire started and whether someone had thrown something into the house which caused the fire. It should be stressed that the possibility of a fight is now discounted by most and the possibility of an object being thrown through the window is now rejected totally by almost everyone connected with the case, whether investigators or interested parties. It was, of course, this last possibility that gave rise to the question of this being a racially motivated arson attack.

17. Scientific evidence as to where the fire started in the room and how it spread was also of great importance in the inquest. A close examination of the scene was carried out by a team of experts led by Dr Pugh. In summary, he found no accidental cause for the fire. He recovered traces of a flammable liquid in the floor coverings in the centre of the room. One of the components of that liquid was toluene. He could not link it to any liquids found on the premises. He concluded that the fire had started on the carpet in the middle of the room, that it had been started by a naked flame igniting an area of carpet which had been soaked in a flammable liquid, and that ignition had taken place between 5.40 and 5.45 am.

18. Dr Pugh's view as to the seat of the fire seemed to support the theory of deliberate ignition. It also moved the focus from some of the eye witness evidence which spoke of an armchair catching fire.

19. One of the scientific team assisting Dr Pugh in 1981 was Mr Munday. He has, at the invitation of the police in the new inquiry, re­examined the scientific evidence. He has been able to do that against the background of the new information gathered by the police in their new inquiry (in particular some evidence that I will come to shortly) and also of advances in scientific knowledge about the cause and spread of house fires. He has concluded that the fire originated in the armchair. He concludes that the armchair was ignited by direct contact with a naked flame such as that from a match or cigarette lighter. He says that he cannot rule out an accidentally dropped lit match, but he considers it much more likely that the flame was deliberately applied to the backrest. He is broadly supported in his conclusions by another expert instructed by the police.

20. This theory of the fire starting in the armchair is consistent with some of the eye witness evidence. It was not examined in any detail at the original inquest but would figure in an important way in any new inquest. The refocusing on the armchair has led the police to interview new witnesses and re­interview existing witnesses who can give evidence bearing on the question of how the armchair caught fire.

21. Secondly, the liquid on the carpet. As I have set out above, the existence of a flammable liquid on the carpet was an important factor in leading Dr Pugh to his conclusions in 1981. At the inquest there was no explanation for it. However, after the inquest a witness came forward to say that she and the daughter of the house whose birthday it was had two days before the fire spilt some nail varnish on the carpet and had tried to clean it up with some kind of cleaning fluid. The importance of this evidence is not that it was in any way a cause of the fire, nor that any blame whatsoever should attach to them, but it would provide an innocent explanation for the presence of flammable liquid on the carpet. At the inquest there was no such explanation available.

22. Thirdly, the absent witnesses. An unrelated point. A major part of the police inquiry was naturally to ascertain who was in the house at the relevant time. With two exceptions, those named have been interviewed and have described what they can of the events of the night. However, there are two individuals who have been consistently named by other witnesses who have, since the inquest, equally consistently denied being at the house. It must be stressed that there is no evidence whatsoever connecting them with the start of the fire, nor as having any ill feeling towards the occupants, but the question of whether they were there or not was not examined at the inquest.

23. For my part, I would not regard this part of the new material alone as justifying a new inquest, but if such a course is justified on other grounds this issue can be determined as well. One of those individuals now lives outside the jurisdiction and could not be compelled to give evidence at a new inquest.

24. Turning now to the central question, should there be a new inquest? Returning to section 13, and extracting the relevant words from subsection (1)(b), it is clear that, in the present case, the question is whether because of a insufficiency of inquiry in the first inquest, the discovery of new facts or evidence or otherwise, it is necessary or desirable in the interests of justice to hold another inquest.

25. Before turning to my answer to that question, it should be emphasised that all parties to these proceedings are agreed that, in the absence of an inquiry, there should be a new inquest. The Metropolitan Police are the applicants. They are supported by the interested parties, the New Cross Fire Parents Committee and Mr Charles Collins. They are supported by the present Coroner (subject to a practical concern that she has). I should add that she was appointed long after the original inquest, the Coroner in 1981 has long since retired.

26. Two grounds are advanced by the claimant in support of the application. First, that there was an insufficiency of inquiry at the first inquest and, secondly, that new facts or evidence have been discovered. It can undoubtedly be argued that the comment by the police officer leading the inquiry in 1981 that the inquiry was not finished and that he would normally need up to eight months is, in itself, enough to demonstrate that there was an insufficiency of inquiry. However, it is unnecessary for us to make such a finding because the second ground is so clearly made out. The new scientific evidence and the consequent refocusing of the inquiry on a different seat of the fire is an important discovery of new evidence not only in itself, but because of the light it throws on the various theories that have been advanced in the case.

27. What of the interests of justice? This is an easy question to answer. There is, of course, a substantial and legitimate public interest that the fullest possible inquiry be carried out into these terrible events and, if that was not done before, it should be done now. There is also justice to the families. Mr George Francis, Chair of the Parents Committee, expressed it in this way in his statement made on their behalf:

"To this day the Parents Committee remain a very cohesive and tight­ knit group with a shared common purpose of receiving a proper explanation for the deaths of our children. Whilst I do not say that a new inquest will extinguish the losses we have suffered, clearly they will always remain with us, a new inquest will, I think, lighten the load which we bear and help us in putting our children to rest. I am hopeful that we can receive a proper explanation as to the causes of their deaths. This will allow the families to progress from the state of limbo that has been with us since the tragic and distressing events in 1981."

28. The system cannot promise the families that, by means of a new inquest, they will find the full truth of what happened to those who were taken from them; what it can and must promise is that every effort will be made to do so. Justice requires that, to make good that promise, a new inquest should take place.

29. What I have said so far would be enough to dispose of the application, however, in deference to the Coroner, I should deal with two further related points.

30. The Coroner has the following concerns. As I have said, she fully supports the need for a new inquiry. However, she questions whether an inquest is the best way of carrying this out. Her concerns are practical. The resources required for such an inquest will be very substantial indeed. This is not simply in terms of money, though the cost will be very great. She has limited secretarial and administrative support. She has a very limited budget for deputies. She has no power to appoint counsel to help her, as would be the case with a formal inquiry. She estimates that, including reading and preparation time, the inquest could take up to six months. During this time work of the Coroner for her area will not stop. During that time many, many inquests will have to be held and the administrative work will continue.

31. All of the above considerations led the Coroner to invite the relevant Government Minister, in fact the Deputy Prime Minister, to set up an inquiry under section 33(1) of the Fire Services Act 1947. She was supported in that application by the interested parties, for whom an inquiry would be the preferred option. She was not supported in that application by the police, who continued to favour a new inquest. The Deputy Prime Minister declined to set up such an inquiry.

32. The Coroner's concerns about the resource implications of a new inquest are, in my judgment, well­founded even though her solution was not. Nothing would be worse than a second inquest which failed to accomplish all it could because of lack of resources. The full investigative powers of the Metropolitan Police have been and will continue to be available to her, but that will not solve her other difficulties. This court has no power to provide the Coroner with the necessary administrative resources, and all I can do is stress how essential it is that the means must be provided to achieve the ends that everyone regards as so important.

33. There is one matter in respect of which this court can provide assistance. That is in respect of the appointment and deployment of deputy coroners.

34. The circumstances in which a deputy or assistant deputy coroner appointed under section 6 of the 1988 Act may act are set out in section 7, " Functions of deputy coroners":

"(1) A deputy coroner may act for his coroner in the following cases but no others, namely

(a) during the illness of the coroner;

(b) during the coroner's absence for any lawful or reasonable cause; or

(c) at an inquest for the holding of which the coroner is disqualified.”

Subparagraph (3) sets out parallel provisions for the appointment of assistant deputy coroners. Subparagraph (4):

"In relation to an inquest or act which he is authorised to hold or to do, a deputy or assistant deputy shall ­

(a) have the same jurisdiction and powers;

(b) be subject to the same obligations, liabilities and disqualifications; and

(c) generally be subject to the provisions of this Act and the law relating to coroners in the same manner, as if he were the coroner."

35. There is a perceived problem in the words of section 7(1)(b), which speaks of the coroner's "absence for any lawful or reasonable cause". This has been interpreted by some as meaning that a deputy may only act when the corner is physically absent from his or her duties, for example on holiday. For example, in their recent consultation paper the Committee currently carrying out a fundamental review of the coroner's service says this:

"On a strict interpretation of the law, deputy and assistant coroners should not undertake coronial duties except when the coroner is absent from the jurisdiction."

36. I see no need to give this section such a restricted meaning unless compelled to do so by statute or decisions of the courts. It is true that the most obvious meaning of the word "absence" is physical absence. However, the section is, in my judgment, perfectly capable of bearing the meaning of "lawful absence from performance of his normal duties", for example because of the carrying out of other coronial work. Such an interpretation is consistent with the objectives of the statute, which must include the just and expeditious disposal of the work of the coroner. I can think of no circumstances in which this interpretation would lead to a decision contrary to the objectives of the statute.

37. It is worth noting that although these words appear in the modern statute, they are very ancient in origin. Section 1 of the Coroners Act 1843 had the proviso that "no such deputy shall act for any coroner as aforesaid except during the illness of the said coroner or during his absence from any lawful or reasonable cause". Those words have survived unchanged to become section 7(1)(a) and (b) of the 1988 Act.

38. In my judgment, section 7 of the Act allows the coroner to appoint a deputy while she is undertaking the new inquest if the burdens of that inquest will prevent her carrying out her other duties. The deputy may, in the words of the section, "act for the coroner". This, in my judgment, includes out of court duties, what has been referred to as "box work".

39. For the reasons above, I would quash the inquisitions on the inquest concluded on 13th May 1981 and order that another inquest into the deaths be held by the coroner concerned.

40. LORD JUSTICE KENNEDY: I agree.

41. I should make it clear that the interpretation my Lord has put upon the wording of section 7 of the 1988 Act is an important aspect of the decision in this case because it was made clear to us by counsel acting on behalf of the Coroner that if that were not to be the interpretation which the court was able to adopt, he, for his part, could take quite a different stance in relation to whether there should be a fresh inquest, and I, for my part, would not have thought that the desirability of the fresh inquest would be nearly so plain if we had not been able to make that interpretation.

42. MR FREELAND: My Lord, we are all agreed that there should be no order as to costs.

43. LORD JUSTICE KENNEDY: No order as to costs.

44. MR BURNETT: My Lord, there is just one matter that might I raise. At page 9 of the written judgment, paragraph 22, my Lord, Pitchers J, in the last sentence records that the Coroner in 1981 has since died. I am happy that Dr Davis is still alive.

45. MR JUSTICE PITCHERS: I must have got that from the papers somewhere.

46. MR BURNETT: My Lord, it was in fact in one of the police documents, so it is understandable.

47. MR COLLINS: Yes, my Lord, I am very, very glad that that point has been cleared up because I would assume that he died as well, because we will have to subpoena him to the inquest to ask some questions around the act.

48. LORD JUSTICE KENNEDY: That is a matter for another day.

49. MR COLLINS: Yes.

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