Judicial endorsement that Black Lives Matter sends an important message to all. Whilst our British judges might never be expected to deliver as hard hitting and politicised a judgment as that handed down by the wonderful US District Judge, Carlton W. Reeves, this August in Jamison v McClendon – which for this blogger comes top of the list of the most powerful first 20 lines of any court’s judgment this millennium – the recent decision from the Court of Appeal in Dyer nevertheless sends a clear signal that the racial background of a person who dies after contact with the police can matter when open justice is in issue.
Specifically, the appellate court has determined that when the Coroners Rules require a coroner to consider the test of ‘expediently’ this is to equated with ‘appropriately’ and should include considerations of the wider interests of justice. For one of the three Lord Justices of Appeal a relevant factor in considering those wider interests can be that the person whose death is being inquired into was a black man who died in the custody of the police.
Background
The Assistant Coroner had allowed applications for anonymity and screening by numerous police witnesses at an inquest. Those from whom the witnesses would be screened included members of the deceased’s family who were designated as Interested Persons (IPs) as well as the wider public. The family successfully judicially reviewed the Coroner’s decision on screening from the family (see our earlier blog here). The police organisations appealed that decision of the High Court.
The inquest (in very short summary) concerned a 43-year-old black man who had been found unresponsive following an overdose at home. He was taken to hospital. As a result of his alleged violent conduct in hospital he was taken to a police station. At the police station it is said that he was restrained and officers struck him. He was taken back to hospital and died shortly thereafter.
The basis of the applications for anonymity and screening related to the potential threat from the deceased’s brother (Q), who was not one of the family group of IPs in the inquest. The reasons given for screening from the family included that Q may pressurise those family members who saw the police witnesses to identify those officers to him. If the family IPs could not see the witnesses this risk would be obviated. On applying Coroners Rules r.18 the Coroner had decided that permitting screens would improve the officers’ evidence by minimising their fears of identification by Q.
The test for screening of witnesses
The Coroners (Inquests) Rules 2013 at r.18 provide:
(1) A coroner may direct that a witness may give evidence at an inquest hearing from behind a screen.
(2) A direction may not be given under paragraph (1) unless the coroner determines that giving evidence in the way proposed would be likely to improve the quality of the evidence given by the witness or allow the inquest to proceed more expediently…
The starting point is that there is a presumption of open justice. Rule 18(1) provides for the Coroner’s discretion and 18(2) provides the two threshold conditions, at least one of which needs to be satisfied before a coroner can order screens. The “quality of the evidence” test was reasonably clear. However, the second condition – expedience – was not further defined and had not been considered by the appellate courts.
The Court of Appeal held that ‘expediently’ was not limited to matters of practicality or efficiency, but was equated with ‘appropriately’ and included considerations of the wider interests of justice. Open justice was an important facet of the interests of justice. Any restriction on open justice, including orders for anonymity or screens, required cogent justification.[1]
“Any restriction on open justice required cogent justification”
However, on analysing the coroner’s ruling, Lord Justice Flaux and Lord Justice Lewison considered that the first instance judge had been wrong to conclude that the Coroner had not balanced the interests of open justice when exercising his r.18(1) discretion. Having highlighted the need to impart an overall “benevolence” to the coroner’s decision and not to dissect the decision, the majority held that the Coroner had taken proper account of the principle of open justice and engaged in an appropriate balancing exercise. Accordingly, the Coroner had not erred in law and so the Coroner’s order requiring screening was reinstated.
The importance of race
What is notable about this case however other than the judicial application of public law principles to a coronial decision, are the comments of Lord Justice Males, in his dissenting judgment, regarding the relevance of the race of the deceased to how open justice is to be viewed.
In the High Court the family had argued that there was a particular importance of open justice in this inquest, as it involved a controversial death in police custody of a black man following police restraint. Mrs Justice Jefford appeared to accept that proposition when she said:
“Andrew’s death, therefore, occurred shortly after he had been in police custody and restrained. He was a black man. As Mr Thomas QC submitted there is significant public interest in an inquest into the death of a black man in custody (or, as in this case, shortly after being in custody).”[2]
The extent to which that was part of the Jefford J’s decision making is not clear, but it was stated as one of the central facts in the case so it may be assumed it had some relevance.
The family made similar submissions In the Court of Appeal, reflected in the following paragraphs of the decision:
”…because this case concerned the death of a black man in custody, there was a belief that the system was weighted against them and there could be a cover-up.”
“A principal purpose of open justice was to restore public confidence and there was always a high public interest in open justice in any case where someone was killed at the hands of police officers, particularly the death of a black man, of which there were a disproportionate number globally. There was a legitimate interest in knowing whether race played any part in this death.” [3]
The Chief Constable’s response was that there is a strong public interest in a full and transparent investigation into the death of any person in custody, regardless of their race. The public interest in open justice, including the need to hold state agents to account, is the same for every person and so this particular deceased’s race cannot provide a stronger case for the family to be permitted to watch the police witnesses give evidence than if the deceased had been white.[4]
But that response rather miscast the family’s submission. As Males LJ went on to say:
“It is of course correct that the strength of the public interest in a full and transparent investigation into the death of a person in custody does not vary according to the deceased’s race. … But I would accept that the death of a black man in police custody gives rise to particularly acute concerns. …There is no doubt that black communities have in general less confidence in the police than other sections of the community, and that on occasion distrust and lack of confidence have led to racial tensions and conflicts. For present purposes what matters is not whether the perception is well-founded, but rather the fact that it exists.”[5]
In these circumstances it is entirely understandable that the family of Andrew Hall should wish not only to hear, but also to see the police witnesses when they explain why they believed it was necessary to restrain him with the use of force, including the striking of a number of blows, and to see those witnesses when they react to the case which seems likely to be put to them, that the force used was excessive and unlawful.
All this amounts, in my judgment, to a powerful case that the application of the open justice principle in the circumstances of the present inquest requires that they should be able to do so. If they are not permitted to see the police witnesses, there is a real risk that the inquest may not achieve all of the purposes which open justice is intended to promote. … a compelling justification will be required to sustain the coroner’s order that the witnesses be screened from the family’s view. (emphasis added)
Males LJ considered that the coroner’s ruling was flawed in part because it did not treat the need for open justice, in a case concerning the death of a black man in police custody, as a factor to which substantial weight had to be given as a matter of law. He felt that a powerful justification was needed to override this factor.
Comment
Males LJ does not here appear to be saying that a person’s race per se, as a stand-alone concept, should make any difference to the considerations of open justice; but, that concerns similar to those that underpin the BLM movement are a matter of real public importance; and so, given that the deceased in question was black, his race then becomes particularly relevant within that societal context to the particular need for open justice.
Although a minority judgment, this approach gives rise to interesting arguments:
- Does a heightened public interest impact on parts of the inquest process other than transparency? Transparency is just one of several fundamental aspects of the ECHR Article 2 investigative duty. Why should this public interest not impact on other aspects?
- Does this heightened public interest apply to other situations involving scrutiny of public officials?
- In agreeing with the basis of the particular concerns around the deaths of black men where police are involved, Males LJ accepted the description of the matter as a global issue. Can global issues be the basis of assessing the public interest at a national level?
- Are the Courts in a position to simply take judicial notice of wider societal issues or is at least some evidence required to justify those becoming part of a decision?
The message of the BLM movement is a matter of immensely important public interest for all those who support equality, respect and decency in our society. Males LJ’s dissenting remarks may well be adopted in future as the grounding for arguments similar to those deployed in this appeal. This blogger waits with interest to see if Males LJ’s position on how race can indeed be relevant to the public interest is now taken further by our judiciary in other cases.
Footnotes
[1] see §87-89
[2] see §6 of the first instance decision
[3] see §82-83
[4] see §124
[5] see §125
Ian Skelt QC of Serjeants’ Inn Chambers acted in the Appeal on behalf of the West Yorkshire Police.