“He-Who-Must-Not-Be-Named”: Disentangling the Scope of an Inquest

Coroner for the Birmingham Inquests (1974) v. Hambleton & Ors. [2018] EWCA Civ 2081

On the evening of 21 November 1974 two successive explosions tore through two busy city centre pubs in the heart of Birmingham. The bombings, thought to be perpetrated by the IRA, resulted in the largest UK mainland peacetime loss of life to terrorism in its time: 21 innocent people were killed and 220 more were injured.

The inquests were opened but adjourned pending a criminal investigation. The following year, six men were convicted and sentenced to life imprisonment. The miscarriage of justice involving the West Midlands Police that led to the release of ‘the Birmingham Six’ by the Court of Appeal in 1991 is now notorious. Despite the subsequent police investigations no further convictions have followed and the perpetrators of these atrocities remain unidentified and unpunished.

Who then was responsible for the deaths of the 21 victims? How did they come to die in these circumstances? Could their deaths have been prevented? The answers as to what happened for over 44 years ago remain hidden in a metaphorical ‘chamber of secrets’.

The key question is what is the scope of the inquest? Although inquests must not become proxy criminal trials, is the identity of those involved in violent deaths properly within the scope of an inquest?

Whilst some of the obstacles beyond the trapdoor will be navigated in the forthcoming inquests, following the recent decision of the Court of Appeal it now seems that the door that might lead to the final secret, the naming of the evil-doers, is not to be unlocked.

A Chamber of Secrets full of unanswered questions

The Justice-4-21 campaign, led by Julie Hambleton, sister of the youngest victim, Maxine Hambleton, has been pushing hard at the chamber door to uncover the truth, seeking ‘justice and accountability’ for what happened on that fateful night.

After successfully achieving the re-opening of the long adjourned inquests in June 2016, the question of their scope has needed to be considered: specifically whether the factual issue of the identity of the bombers was sufficiently closely connected to the death to form part of the ‘circumstances’ of the deaths[1] and whether an investigation as to who was responsible for the bombings was required to discharge the state’s obligations under Article 2 ECHR.

The inquest scope as set by the Coroner

The issue of scope has been the subject of legal arguments over two years and several pre-inquest review hearings before HHJ Peter Thornton QC (the former Chief Coroner, who has been appointed to hear these cases). In determining scope the Coroner reiterated the four familiar statutory questions which must be answered: the identity of the deceased, how, when and where they came by their deaths. ‘How’ means ‘by what means’, but in an “Article 2 Investigation” such as this one, where there may have been failure by the state to fulfil its positive obligations to protect life, then s5(2) CJA 2009 also requires ‘how’ to be interpreted as including an inquiry into the broader circumstances in which the deceased came by his or her death.

By July 2017 the Coroner had ruled that three controversial issues did, or might, fall within the scope of the inquests:

  1. Forewarning: whether West Midlands Police or any other state agency had prior knowledge that an attack would take place, and whether further steps could or should have been taken to prevent the bombings was clearly within scope;
  2. Agent/Informant: pending further inquiries, a final decision was deferred on whether it was in scope to consider whether the police or another state agency had concealed the actions of agents or informants, or whether state involvement or collusion enabled the bombings to take place;
  3. Emergency Response: if credible evidence emerged that failings in the emergency response caused or contributed to a death, then further investigation of this issue would be within scope, although  an “over-arching” investigation into the adequacy of the response would not be undertaken.

However on a fourth key issue: the identities of those who planned, planted, procured and authorised the bombs, the Coroner held this was not in scope and that even the enhanced Article 2 ECHR duty did not require an inquiry into the identity of the perpetrators of the bombings (“the perpetrator issue”).

“I must state firmly and clearly at the outset that the inquests must (a) comply with the law, both statute and case law, (b) focus upon the four statutory questions of who died, how, when and where they came by their death (section 5 and 10 of the Coroners and Justice Act 2009), and (c) be realistic about the availability of relevant evidence 43 years on.”[2]

The Judicial Review: “We won’t say what you should do, but you can name “You-Know-Who” if you want to”

The families challenged the Coroner’s ruling on the perpetrator issue by way of judicial review, seeking a quashing order and a declaration that the decision was incompatible with Art.2, on the basis that in the absence of exploring who were the perpetrators the inquests would not be able to answer the question “how and in what circumstances the deceased came by their deaths”.

On 26 January 2018 Simon LJ and Carr J quashed the decision of the Coroner[3]. In their view the right question had not been posed when defining scope. There is of course a statutory ban on naming the perpetrator of a crime in an inquest conclusion[4], but the Court held that the Coroner’s judgment as to scope should not be confined by what can be formally recorded in the final record of inquest.  The correct question for the Coroner to address was: “…whether the factual issue of the identity of the bombers (and those that assisted them) was sufficiently closely connected to the deaths to form part of the circumstances of the death”.

The decision on scope was “not straightforward”

Deciding that the former Chief Coroner has got it wrong is a brave step for any Muggle, even those sitting in the Divisional Court. With wizardly judicial understatement, the court recognised “that the decision on scope was not straightforward” they pointed out that the Coroner had not answered their question, but declined to make the decision themselves.

Instead the judgment set out seven “preliminary points” as guidance for the Coroner to consider in re-making his own decision. Whilst also warning that in their view a Coroner’s decision on scope may be challenged on the basis that he/she had made a judgment and that could be wrong, and so was of a different quality an exercise of discretion that might only be challenged on ordinary public law grounds (a distinction that may as well have been explained in parseltongue for the sense it made to this Muggle). The Coroner then appealed.

The Court of Appeal: No, he is called ‘He-Who-Must-Not-Be-Named’ for good reason

The Wizamgot assembled an impressive list of ‘heavyweights’ to consider the appeal including the Lord Chief Justice, Lord Burnett of Maldon, Lady Justice Hallett (Vice-President of the Court of Appeal, Criminal Division) and Lord Justice McCombe.

After defining “scope” of an inquest as “representing a coroner’s view about what is necessary, desirable and proportionate by way of investigation to enable the statutory functions to be discharged” and noting that the Coroner has a broad discretion as to the nature and extent of the inquiry, the Coroner’s appeal was allowed. The Court of Appeal went on to emphasise that:

  • A court exercising supervisory jurisdiction can interfere with such a decision only if it is infected with a public law failing and is subject to the constraints of judicial review even if it considers that the coroner was “wrong”[5].
  • The dichotomy between judgment and discretion does not assist in determining whether the Coroner erred in law in deciding not to investigate the Perpetrator Issue. It is a false dichotomy with no support in authority.
  • An inquest is a fact-finding exercise not a method of apportioning guilt[6]
  • The Coroner was correct to consider the question of scope in the context of providing evidence to enable the jury to answer the four statutory questions.
  • The scope of an inquest is not determined by looking at the broad circumstances of what occurred and requiring all matters touching those circumstances to be explored.
  • The central reason why the High Court quashed the decision of the Coroner was because it considered that he failed to ask himself a question which does not arise from the purposes of an inquest identified in section 5 of the 2009 Act.
  • There is a difference between the Art.2 procedural obligation to investigate deaths for which the state may bear responsibility, and the substantive obligation on the state to have in place an effective system for enforcing the law.
  • It is the police who investigate suspected homicides and is ‘the effective system’. There is no legal duty on a Coroner to undertake a further investigation simply because the police inquiries have failed to deliver a suspect for trial.
  • The decision to refuse to explore the perpetrator issue was not unlawful, the Coroner was refusing to explore a decision that the jury was prohibited from answering by s10 CJA 2009.

Can He-Who-Must-Not-Be Named ever be named?

Clearly Parliament has forbidden naming the perpetrator of homicide on the final record of inquest. That an inquest must not make a determination regarding someone’s guilt is unsurprising when so many of the protections aimed at making the criminal justice system fair are wholly unavailable within the inquisitorial setting of an inquest.

Where then does this decision leave other inquests?

The Court of Appeal accepted that in some cases it may be appropriate for an inquest to hear evidence about the identity of the person(s) responsible for a homicide. This is not a black and white issue which applies in every inquest.

Often the identity of the person responsible for a death is known: they may even be an interested person in the inquest, such as after homicides by psychiatric patients. In many cases where there have been missed opportunities to prevent a death, the conduct of known individuals, as well as the systems in which they operated will be under close scrutiny and potential corporate manslaughter may even be an issue. In other cases relevant information that might reveal the commission of a potential homicide offence, and/or its perpetrator, will be explored during the inquest evidence and lead to Coroner to suspend the process and refer the matter to the DPP. None of that exploration is unlawful.

But the contextual background of the Birmingham case was that that multiple police investigations and a comprehensive recent report had been unable to answer the question of who was criminally responsible. Where the inquest follows a comprehensive police investigation which has been unable to identify those responsible, it is not the role of the inquest to in effect conduct a fresh criminal investigation.

The scope of every inquest must be defined with reference to s.5(1) & (2) the court will inevitably be constrained by s5(3) and 10(2) of the 2009 Act which require that no-one may express any opinion on any matter other than those statutory questions, and that determination may not be framed in such a way as to appear to determine any question of criminal liability on the part of a named person.

At the resumed inquests, what will be the “the central issues”?

In the Birmingham bombings the answers to the three statutory questions (who died, when and where) are known. It is also beyond question that all 21 victims were unlawfully killed. The identity of those responsible for the bombings is now not to be explored.

As we approach the 44th anniversary of the bombing, He-Who-Must-Not-Be-Named may continues to lurk in the inquest shadows. The media however, is not constrained by Court’s taboo, in 2017 an account from a named man said to involve in the bombings was published and in a documentary aired on mainstream British TV on 1 October 2018[7], just 5 days after the Court of Appeal decision, the alleged prime suspects were also named.



[1] under section 5 (1) (b) and section 5 (2) Coroners and Justice Act 2009 (‘CJA 2009’)

[2] ruling here

[3] decision here

[4] Section 10(2) of the 2009 Act stipulates that a Coroner’s or jury’s determination at an inquest may not be framed in such a way as to appear to determine any question of criminal liability on the part of a named person.

[5] R v Inner West London Coroner, ex p. Dallagio [1994] 4 All ER 139; R (Mack) v HM Coroner for Birmingham and Solihull [2011] EWCA Civ 712 §9

[6] McDonnell v HM Assistant Coroner for West London [2016] EWHC 3078 §28

[7] see 2017 report here and 2018 broadcast here


Nageena Khalique QC joined the team representing the families of the victims of the Birmingham Pub Bombings in 2016.