Copyright Notice, Limited Permissions, and Disclaimers
RE AN APPLICATION BY MCKERR FOR JUDICIAL REVIEW
High Court of Justice of Northern Ireland
Queen’s Bench Division (Crown Side)
2 June 1992
CARSWELL J: The matter before me is an application for leave to apply for judicial review of certain decisions of HM Coroner given by him during the course of the hearing of an inquest into the deaths of Gervaise McKerr, Eugene Toman and Sean Burns.
The applicant complains about three rulings made by the coroner on matters in dispute during the course of the hearing to date. The statement of the applicant’s case dated 29 May 1992 seeks three declarations:
“(i) a declaration that examining counsel on behalf of the next of kin is entitled to see the memory refreshing document referred to by Witness D;
(ii) a declaration that examining counsel on behalf of the next of kin is entitled to have placed before the jury previous inconsistent statements made by Witness D made during interviews with CID;
(iii) a declaration that the legal representatives of the next of kin are entitled to a copy of the list of jurors.”
I have previously held in my judgment in Re McKerr (No 1) (1988, unreported) at pages 4-5 that judicial review in principle covers all preliminary and interlocutory decisions made by a coroner in connection with or in the course of his official duty. I do not resile from that view, but I would deprecate the unnecessary fragmentation of inquests by constant applications to the High Court during their currency, and I consider that such applications should be confined to matters for which there is a substantial and urgent need that they should be settled before the matter goes further. It seems to me more than a little questionable whether any of the present matters partakes of this nature, and if I had not formed the view which I have of their substance I should have had to give serious consideration to the issue whether in the exercise of my discretion I should refuse relief,
Two of the matters before me are rulings on documents, and the third is a complaint that a list of the jurors called to serve at the inquest has not been furnished to the solicitors for the next of kin. I preface my remarks by saying, first, that a coroner is not bound by the strict rules of evidence applicable in litigation, as was reaffirmed in the House of Lords by Lord Goff in Devine v Attorney General for Northern Ireland  1 All ER 609, 613f. None of the rules of practice or procedure in the Coroner’s Rules restricts his power on this topic, therefore the coroner is entitled to rule as he thinks fit on the admission of evidence or the furnishing of documents, subject only perhaps to attack on the ground that any such ruling was unreasonable in the Wednesbury sense.
Secondly, I would observe that the function of an inquest is to ascertain how, when and where the deceased persons came by their deaths. It is the coroner’s duty, and certainly within his powers, to confine the parties’ representatives to such issues and to refuse to permit them indefinite freedom to follow up matters which do not in his judgment advance that end. It is the coroner’s inquest, and his inquisitorial function, as the House of Lords reminded us in McKerr v Armagh Coroner  1 All ER 865, and it is for him and not for the persons represented to decide what evidence should be presented and what issues may be pursued.
Against that background I shall turn to the issues in the application.
Counsel for the applicant complains that he has not been given sight of a document which a witness consulted before giving evidence in order to refresh his memory, but which he did not have with him in the witness box, nor apparently was it in court. Mr Treacy for the next of kin appears to have applied to the Coroner to order production of this document; according to Mr Madden’s grounding affidavit it is a statement made by Witness D, who was giving evidence and from which he refreshed his memory before coming into court, and the next of kin have reason to believe that its contents are at variance in significant respects from his evidence given at the inquest.
What exactly the Coroner ruled is not entirely clear from the transcript of passages of discussion furnished to me, and it is averred in Mr Madden’s affidavit that he modified his ruling, having originally held that in no circumstances can counsel require a witness to hand over for inspection a document from which he has refreshed his memory. I do not have the transcript of the passage in which he gave his original ruling, but in the light of what he said in the passage reported from 11.10 am onwards on 28 May 1992 it does appear doubtful whether he went so far, and what he did hold may have been unclear or misunderstood.
It does however become clear when one comes to the passage commencing at 3.45pm on 28 May, and I quote the relevant passage as follows:
“I take the view that if the Constable had said yes, here it is and produces it from his pocket that you then would be entitled to inspect it, but where it is not with him or on his person I then am in a position of having to order someone else perhaps in the court to produce the document and I have no power, in my view, to order the representatives of the custodians of that document to produce it in those circumstances.”
It does seem to me clear that the coroner is there saying two things:
1 If the witness had the memory-refreshing document on his person and produced it in the witness box, counsel would be entitled to inspect it.
2 If he did not have it with him, having previously used it to refresh his memory, then the coroner cannot order him to produce it.
He certainly is not there saying that counsel cannot see a memory-refreshing document, which is in the witness’s possession in the witness box. Nor is he saying that counsel has no right to see a memory refreshing document if it is not present in court. What he is saying is that he cannot compel its production.
So stated, the ruling of the coroner is in my opinion perfectly in accordance with accepted principles, and cannot be assailed, even if he were subject to the ordinary rules of evidence. The document in question is in like case with any other document of which a witness has knowledge but which he does not have with him in court. Counsel who has cross—examined him will not uncommonly ask if he can produce it after an interval, and this is frequently done. But if he chooses not to do so, I know of no principle whereby he may be compelled to do so, and counsel has no means of requiring production of that document merely because the witness has acknowledged its existence. The fact that it has been consulted by the witness in order to refresh his memory does not give the document any special status.
I accordingly consider that the applicant does not have any arguable case in support of the proposition that the coroner was wrong in refusing to order production of the document, even if the ordinary rules of evidence were to apply.
It is a matter for the discretion of the coroner to decide what document should be placed before the jury. It is his inquisition and he is entitled to determine what documents they shall see, and to restrict their number, either because their relevance may in his view be slight or because they may become overloaded with documentation. It is not for this court to direct him how to carry out this function. In my judgment no arguable case has been advanced to show that the Coroner was unreasonable in that decision.
It is the coroner’s obligation to select the jury in accordance with the statutory provisions. He has no obligation to satisfy any persons represented before him that he has done so. It follows that he has no obligation to give them the material upon which they might wish to attempt to challenge his empanelling of a jury and to seek to show that it was not done in accordance with the provisions of Section 18 of the Coroners Act (Northern Ireland) 1959. No facts have been put before me which might tend to show that he may have failed to empanel the jury correctly. In the absence of any such material I do not consider that there is an arguable ground to interfere, It is a matter entirely for the coroner whether he decides to give the representatives for the next of kin the information which they seek, and I specifically refrain from expressing any opinion upon the way in which he should approach this.
I accordingly am of opinion that no arguable case has been shown for leave to apply for judicial review on any of the points put before the court. As I indicated in argument, I am not offering any view on the way in which the inquest has been conducted or the coroner has dealt with the evidence, nor do I wish in any way to direct him how to carry out his function. I have been concerned solely with the legal issue of whether he has made any errors of law or has acted in a manner in which his decision might be the subject of judicial review, In my opinion no arguable ground has been established for judicial review of any of the coroner’s rulings, and I accordingly refuse leave to apply.
Leave to apply for judicial review refused.
Last modified: Monday, 09-Aug-2004 08:53:05 BST by: Malcolm Bishop