25 November 2020
Court Delivers Judgment On Access To Coroner’s Files
Summary of Judgment
Lord Justice Treacy,
sitting today in the High Court, ruled that a scheme introduced to regulate
access to Coroners’ inquest files held in the Public Records Office was
unlawful where the person seeking access was a “properly interested person”
under the coronial legislation.
William Holden (“the
applicant”) was convicted of the murder of Private Frank Bell on 15 April 1973
and sentenced to death. The death
penalty was commuted to a life sentence.
He was released after serving 17 years following a successful referral
of his case to the Court of Appeal by the Criminal Cases Review Commission. His conviction was quashed on the basis
that the non-disclosure of documents which had been provided to the Court of
Appeal in a confidential annex could have supported an application to exclude
evidence contained in a confession he made at the time. The applicant has subsequently pursued a
claim for compensation as a consequence of the miscarriage of justice and has
issued civil proceedings against the Ministry of Defence and the Chief
Constable of the PSNI.
The applicant’s solicitors
wrote to the Public Records Office of Northern Ireland (“PRONI”) seeking access
to the inquest file in respect of Private Bell to further his compensation
claim and civil proceedings. Given the
allegations which had been made against the applicant he would have been
entitled to status as a “properly interested person” before any inquest in
accordance with the Coroners (Practice and Procedure) Rules (NI) 1963 (“the
1963 Rules”). PRONI replied proposing to
deal with the matter by way of an undertaking binding the signatory to keep the
disclosed documentation in the strictest confidence and prohibiting sharing the
documentation with any third party without the express permission of
The applicant’s solicitors
replied challenging this decision and seeking disclosure of the full inquest
file. Pursuant to this request, the
documentation was disclosed under the Freedom of Information Act 2000 (“FOI
Act”) and Data Protection Act 1998 regimes which meant that it was heavily
redacted. The applicant contented that
he, as a properly interested person within the meaning of the 1963 Rules, would
automatically have had an entitlement to view the inquest file without charge
and, for a small fee, obtain copies of the papers. At the first hearing date, it was contended
by PRONI that the Northern Ireland Courts and Tribunals Service (“NICTS”) had
disapplied Rule 38 of the 1963 Rules to inquest files transferred to PRONI.
The applicant contended
that the impugned undertaking was unlawful and should be so declared and
quashed as it was irrational. He claimed
it explicitly acted to frustrate and undermine the pursuit of legitimate legal
remedies by introducing a prohibition on the use of disclosed documentation in
court cases without the permission of PRONI.
The applicant also submitted that PRONI had failed to take all relevant
considerations into account in particular that Rule 38 of the 1963 Rules
automatically provides him, as a properly interested person, with entitlement
to view and obtain copies of the papers.
He claimed that the depositions which make up an inquest file are
prepared in the knowledge that the information contained in them is likely to
be the subject of oral evidence in a public court and the operative presumption
is that the statements will go into the public domain. The applicant further contended that the
decision of NICTS to disapply Rule 38 of the 1963 Rules to inquest files
transferred to PRONI is ultra vires, that NICTS has no power, or is acting
outwith its powers in determining this.
Finally, the transfer of the inquest file to PRONI for the preservation
of the papers should not operate to obstruct a statutory entitlement to access
the papers and that the approach of NICTS operates to frustrate the intention
of the entitlement.
The Court noted that while
an inquest file is prepared from the file submitted by the police to the
Coroner, the inquest file and the depositions contained therein are the
property of the Coroner. The depositions
are prepared in the knowledge that the information contained in them is likely
to be the subject of oral evidence in the Coroner’s Court and the expectation
of those who make statements to the Coroner, or the police in the course of a
criminal investigation, is that in due course they may be called to give
evidence in a trial or an inquest. The
operative presumption is that the statements will go into the public domain,
through one or other procedure.
PRONI confirmed in
correspondence dated 13 February 2015 that the undertaking is about “giving
effect to the Minister’s [Minister for the Department of Arts, Culture and
Leisure - DCAL] wish that inquest and other relevant records should be
voluntarily made available to those properly interested persons who have a
valid reason for wishing to view or obtain such records.” This was referred to as “the pilot
scheme”. It was conceded by PRONI that
the level of disclosure provided under the undertaking procedure may be greater
than that provided under the FOI Act as there may be a large number of
potential exceptions to disclosure when applying the FOI Act.
In correspondence dated 21
December 2016, the Solicitor to the Attorney General confirmed that the process
launched by the DCAL Minister in January 2015 had been replaced by the Crown
Court Files Privileged Access Rules (NI) 2016 which came into operation on 30
March 2016. The correspondence also
noted that PRONI was still processing requests under the Minister’s pilot
scheme but all new applications were being dealt with under the 2016 Rules.
PRONI argued that the pilot
scheme which contained the undertaking was not an abuse of public power with
regard to the granting of access to public records, but an attempt to enhance
the extent and speed of access to such records.
It submitted that the key considerations which informed the creation and
content of the pilot scheme were a wish to afford earlier and greater access
than might be the case under other legislation and that PRONI had carried out a
consultation on the proposed scheme.
PRONI said the decision to formulate the pilot scheme and the
undertaking was a lawful and proper exercise of its powers and “a pro-active
attempt to provide a solution to a matter of genuine public concern”.
PRONI also contended that
it had acted properly and proportionately on the basis of information available
to it at the time when the redactions were made. The Court noted that there is no statutory
right under the Public Records Act (NI) 1923 for a member of the public to call
for PRONI to make records available; rather it empowers PRONI to make them
NICTS argued that documents
transferred to PRONI are in the custody of DCAL. As such, following deposit with PRONI the
Coroner no longer holds any documents or records that can be furnished by him
under Rule 38 of the 1963 Rules. NICTS
claimed therefore that it was not that Rule 38 was being misapplied but simply
that the Coroner no longer holds any documents to release.
The Court said that the
real mischief in this case is the inability of the applicant to access,
pursuant to Rule 38 of the 1963 Rules, as a properly interest person, the
inquest file of Private Bell. It said
the reason he was not able to do so was that legal advice was received in 2013
that erroneously narrowed the scope of Rule 38:
received in 2013, which is relied upon in the argument of NICTS, narrows the
scope of Rule 38 so that that rule only applies to inquest papers within the
possession and control of the Coroner.
There is, quite simply, no basis for such a narrow reading of Rule
38. Nothing in the 1923 Act governing
PRONI, or anywhere else, calls for such a reading. Rule 38 has never been repealed. The archiving of Rule 38 documents does not
mean the relinquishment of legal control.
The power, and its exercise, under Rule 38 remains vested in “a
The Court concluded that
Rule 38 should be applied to the applicant’s request. It added that the pilot scheme and the
undertaking fettered the presumptive right of a properly interested person to
full access to the inquest file (subject to the Coroner’s full consideration of
matters relevant to disclosure) and it was therefore unlawful to apply that
scheme to the applicant in this case. It
said the lawfulness and the impugned undertaking as it might have applied to
other parties (ie parties who are not properly interested persons) is beyond
the scope of these proceedings.
- This summary should be read together with the judgment
and should not be read in isolation. Nothing said in this summary
adds to or amends the judgment. The full judgment will be
available on the Judiciary NI website (https://judiciaryni.uk).