Gribben, Re Judicial Review

Factual and Procedural Background

This opinion concerns an application for leave to apply for judicial review of decisions made by the Coroner and jury following an inquest completed on 2nd May 2012. The inquest investigated the deaths of two individuals who were shot by members of a specialist military unit in controversial circumstances on 9th October 1990. The proceedings have a lengthy history involving multiple legal actions, including notable decisions by the House of Lords and the Supreme Court. The application arises from disputes about the scope of the inquest, particularly regarding disclosure and examination of military witnesses' involvement in other lethal force incidents in Northern Ireland. The inquest process included issues about disclosure of evidence, questioning of witnesses, jury conduct, and the framing of jury questions, all in the context of allegations relating to a possible "shoot to kill" policy.

Legal Issues Presented

1. Whether the Coroner erred in refusing to disclose information about military witnesses' involvement in other lethal force incidents to the next of kin.
2. Whether the Coroner improperly limited questioning of military witnesses about other lethal force incidents.
3. Whether the Coroner’s editing of soldiers’ statements to remove references to other lethal force incidents was lawful.
4. Whether the Coroner failed to secure the attendance of a key military witness (Soldier A) to give evidence regarding a specific lethal force incident (the Bradley incident).
5. Whether the jury questions and directions complied with Article 2 of the European Convention on Human Rights, particularly concerning the justification and necessity of the use of lethal force.
6. Whether the Coroner misdirected the jury on the legal standards applicable to the use of force by trained military personnel.
7. Whether the Coroner’s handling of jury conduct issues, including refusal to discharge a juror, was appropriate.
8. Whether the Coroner’s closing remarks to the jury adequately addressed evidential and legal issues, including allegations of a planned ambush and the significance of other incidents.
9. Whether the use of an anonymous and unanimous jury in the context of controversial lethal force incidents involving state agents complies with Article 2 rights.

Arguments of the Parties

Applicant's Arguments

• The Coroner unlawfully withheld disclosure of information about military witnesses’ involvement in other lethal force incidents, which was relevant to the inquest’s scope and the "shoot to kill" policy issue.
• The Coroner prevented proper questioning of military witnesses about their involvement in other incidents and edited statements to exclude relevant references.
• The Coroner failed to ensure Soldier A’s attendance to give evidence on the Bradley incident despite a High Court ruling requiring reconsideration.
• The jury questions failed to address critical issues relating to the use of lethal force, including unexplained shootings and movements of soldiers during the incident.
• The Coroner misdirected the jury by not applying the "absolute necessity" standard or properly addressing the higher standard of care for trained military personnel.
• The Coroner inadequately responded to a jury question regarding shooting into a corpse, potentially undermining findings on excessive force.
• The Coroner erred in refusing to discharge a juror who was inattentive and hostile, compromising the fairness of the inquest.
• The Coroner’s closing remarks were flawed, including improper admission of evidence, misleading directions about alternative theories, and inadequate treatment of disputed incidents.
• The use of an anonymous and unanimous jury in such a controversial context fails to ensure an independent and impartial tribunal, violating Article 2 rights.

Respondent's Arguments

• The Coroner was best placed to determine the scope of the inquest and properly managed disclosure and ongoing review of relevance.
• Disclosure of information about other incidents was limited to what was necessary and relevant, with one incident (the Bradley incident) disclosed as potentially relevant.
• Efforts were made to secure Soldier A’s attendance, but his non-attendance was due to personal circumstances and concerns about prejudice; further adjournments would have jeopardised the inquest.
• The jury received sufficient information about the Bradley incident through statements and expert depositions.
• The Coroner’s directions complied with domestic legal standards and Article 2 requirements; the lack of explicit "absolute necessity" language did not undermine the fact-finding process.
• The Coroner properly addressed jury questions, leaving room for the jury to consider relevant issues beyond the moment of death.
• The Coroner reasonably refused to discharge the juror based on evidence and his direct knowledge of the inquest proceedings.
• The Coroner’s closing remarks fairly summarized evidence and addressed alternative theories without limiting the jury to polar opposites.
• The anonymous jury system has been upheld as compatible with fair hearing requirements in criminal contexts, and no challenge to its use in this inquest was made before verdict.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed examination of each ground raised by the applicant. It acknowledged the complex procedural history and the sensitive nature of the inquest, emphasizing the inquisitorial character of inquests as distinct from criminal trials. The court recognized that adequate disclosure to the families regarding other lethal force incidents involving military witnesses was necessary to allow informed representations on the scope of the inquest, particularly concerning the alleged "shoot to kill" policy. However, the court found the applicant's delay in raising these issues until the eve of the inquest was unjustified and that the Coroner had maintained an ongoing review of relevance during the inquest, providing a secondary safeguard.

Regarding Soldier A’s attendance to give evidence on the Bradley incident, the court found an arguable case that the Coroner should have taken further steps to secure his presence, given the importance of his evidence to the central issue. Leave to apply for judicial review was granted on this ground.

The court rejected challenges to the jury questions and directions, concluding that the Coroner’s framing was adequate to address the issues, including the reasonableness and necessity of the use of force, compliance with military guidance ("yellow card"), and the overall narrative of events. It held that domestic legal standards applied were compliant with Article 2, even if the term "absolute necessity" was not explicitly used.

In relation to jury conduct, the court found no error in the Coroner’s refusal to discharge an allegedly inattentive and hostile juror, noting the Coroner’s direct oversight and judgment on the matter.

The court also dismissed complaints about the Coroner's closing remarks, finding no arguable basis for judicial review in the handling of evidential matters or directions concerning alternative theories of the incident.

Finally, the court declined to grant leave on the ground challenging the use of an anonymous and unanimous jury, noting that the issue was not raised before the Coroner and that existing authority supported the compatibility of anonymous juries with fair hearing rights, at least in criminal contexts.

Holding and Implications

The court GRANTED LEAVE to apply for judicial review solely on the ground concerning the Coroner's handling of Soldier A’s non-attendance to give evidence on the Bradley incident, recognizing this as a matter requiring further examination.

Leave was REFUSED on all other grounds, including disclosure issues, jury questions and directions, jury conduct, closing remarks, and the use of anonymous juries.

The decision directly affects the parties by allowing limited further judicial scrutiny on the issue of Soldier A’s attendance but does not establish new precedent or broadly alter inquest procedures. The ruling underscores the importance of timely engagement with disclosure issues and confirms the Coroner’s broad discretion in managing the scope of inquests and jury directions within the framework of Article 2 compliance.