Senior Coroners still smarting from being described as holding “a relatively lower judicial office” by Mr Justice Singh in the Norfolk Coroner v AAIB case last month have now been dealt a second blow by Cranston J when he made it very clear that not only are Senior Coroners, as a category, not among those able to see sensitive material related to issues of national security, but that the Secretary of State can rely upon the assertion of a general policy not to provide Coroners with such material and so does not have to provide any evidence that disclosure to the particular Coroner will in itself result in a real risk of serious harm to national security.
When Alexander Perepilichnyy, a Russian national, died suddenly in November 2012, while jogging near his home in Surrey, the circumstances aroused suspicion in some as to whether he had been unlawfully killed by agents of the Russian state due to his alleged role in helping to uncover a major fraud.
During the course of his investigation into Mr Perepilichnyy’s death, the Senior Coroner had issued requests for evidence directed at the Security Service and the Secret Intelligence Service.
In an “unprecedented” application the Secretary of State applied to the High Court for an order permitting the non-disclosure of documents to the Senior Coroner in the inquest proceedings on the ground that such disclosure would damage the public interest.
The Secretary of State had refused to allow the Senior Coroner, who did not have developed vetting (‘DV’) security clearance, to view the original material. Although the Senior Coroner accepted that there was material which he was not able to review because of its sensitivity; he had appointed DV security cleared counsel who the government agreed could view the information and provide an anodyne gist to him. The confidential gist was prepared at a level of generality to enable the Senior Coroner to consider the material with his counsel. The Secretary of State then made a PII application in respect of the gist, but the Coroner considered that the submissions made on he behalf in relation to the application were inadequate, as they were not supported by evidence. The Senior Coroner informed the Secretary of State that he required a PII application by way of a Ministerial certificate; a Ministerial certificate was duly provided however rather than being limited to the gist it covered the entirety of the material which meant that the Senior Coroner was unable to see it, consequently he was unable to determine the PII claim.
The Senior Coroner accepted that he could not now determine whether the PII claim was properly made because he needed to see the disputed material in order to conduct the balancing exercise required. The question for the High Court was whether that Court should exercise its jurisdiction to consider the Secretary of State’s PII application in the circumstances.
All agreed that there is nothing in the CJA 2009 to require all PII applications in the context of an inquest to be decided by the Coroner. The Senior Coroner also accepted that the High Court had the jurisdiction to review the PII certificate, but he argued that the issue of PII should have been able to be dealt with by him during the course of the inquest. The Senior Coroner submitted that it was not sufficient for the Secretary of State to rely on the assertion of a general policy not to provide Coroners with such material. Neither the precise nature of the policy of disclosing sensitive security and intelligence material to senior judicial office holders alone, nor its justification, were set out anywhere. The Senior Coroner’s position was that there was no argument or demonstration on the government’s part that there was a real risk of serious harm to the public interest were Senior Coroners to have access to such material. Furthermore, the Senior Coroner asserted that the Secretary of State must go further than some general policy and demonstrate to the requisite evidential standard that disclosure to the particular Coroner in question would result in a real risk of serious harm to national security.
Cranston J did not agree. He found that the policy of refusing Coroners access to sensitive material, unless they are High Court or Circuit judges, was appropriate, lawful and “unassailable”; it would be invidious for the Secretary of State to prepare a damage assessment based on anything to do with an individual Coroner.
The judge also felt it was wrong to characterise the policy as the government interfering with the judiciary: rather, it was a pragmatic response to the very real practical problems when courts handle security and intelligence material.
The effect of the judge’s conclusion was that the Senior Coroner’s position was untenable: if he could not have sight of relevant, sensitive material he could not conduct a full and fair inquest. The Chief Coroner would therefore have to replace the Senior Coroner with a nominated judge who could view the sensitive material and continue the inquest.
The management and disclosure of confidential security services material has been a growing issue in recent high profile inquests and can cause real difficulties for the principle of open justice at inquests. Judge coroners have heard a number of ex parte applications for immunity on public interest grounds, such as Sir Robert Owen in the Litvinenko inquest and Lady Justice Hallett when sitting as an Assistant Deputy Coroner in the inquests following the 7/7 bombings.
Statute prevents disclosure to Coroners of intercept material obtained under the Regulation of Investigatory Powers Act 2000 (‘RIPA’) because they are not considered “a relevant judge” nor is an inquest a “statutory inquiry” under the RIPA provisions. The government has, as a matter of policy, adopted the distinctions in RIPA as the basis for disclosing sensitive material to judicial office holders: it can be disclosed to High Court and Circuit judges but not to others such as Senior Coroners.
Practical solutions have previously been reached in coronial inquiries when the need to consider this type of sensitive material has been or is likely to be involved. In many cases the need to consider security information will be obvious and the sensitive material may be so core to the inquiry that the issue is best dealt with by appointing a judge to sit as the Coroner at the very outset of the investigation; either by the Chief Coroner using his powers of nomination under schedule 10 CJA 2009 or by appointment as an Assistant Coroner.
In other cases the need for a judge Coroner may only become apparent as the inquest draws closer or once the time comes for the PII material to actually be considered. For pragmatic reasons the earlier stages of investigation, including the important liaison with bereaved families, may be better dealt with by the local Senior Coroner. One recent example came during the investigation preceding the 2014-2015 In Amenas Inquests which followed the terrorist killings of a number of British hostages in Algeria. The Senior Coroner for West Sussex, who originally had conduct of the inquests, recognised that the inquests’ scope would touch upon whether the UK authorities had any relevant intelligence material before the attack. Initially the Senior Coroner retained conduct of the inquests, but she also appointed a senior Old Bailey judge, HHJ Hilliard (then the Common Serjeant of London and now the Recorder of London), as an Assistant Coroner for West Sussex. Initially the Assistant Coroner’s role was only to deal with the PII application and view any sensitive material with the assistance of DV cleared counsel. The Senior Coroner retained responsibility for all other aspects of the investigation. However, after consideration of the material it was determined that the Coroner conducting the inquest should be aware of the content of the sensitive material and so this hybrid approach was abandoned and the conduct of the entire inquest was handed to HHJ Hilliard. When the Foreign Secretary issued a PII certificate, ‘Assistant Coroner Hilliard’ was then able to see all the material and determine the PII application. Hence issues of disclosure and PII were able to be considered within the inquest process without requiring the involvement of the High Court.
‘The 7/7 fix’
That a presiding judge Coroner has seen the sensitive material means that even though it cannot be placed in the public domain or shared with the interested persons the judge Coroner is still able to ensure the disclosure decision is kept under review, and that lines of questioning based on false premises or that are misleading, given the closed material, are halted. Importantly the judge Coroner can also implement what has been termed by some ‘the 7/7 fix’, named after the approach proposed and employed by Lady Justice Hallett in the inquests arising from the 7 July London bombings. The judge Coroner can make factual findings only on the basis of the open material provided to all the interested persons. If the undisclosed material flies in the face of any open evidence then the judge Coroner will decline to make any finding about it. Of course this ‘7/7 fix’ can only be proper so long as the non-disclosed material does not go to a core fact or matter which must be determined to fulfil the coroner’s statutory duties under s.5 and s.10 CJA 2009.
The Chief Coroner’s advice
In December 2014, the Chief Coroner issued all coroners with advice regarding the “Duty to Notify Chief Coroner in Certain Cases”. In that “advice” the Chief Coroner “requests” that in cases involving terrorism abroad or agents of a foreign state, when RIPA material or other sensitive material may be in play, the Senior Coroner should discuss the case with the Chief Coroner at an early stage so that any potential need for the investigation and inquest to be conducted by a ‘relevant judge’ can be identified as soon as possible. The advice states that:
“The Chief Coroner does not want to take interesting cases away from coroners, but there are some cases which, under the law as it stands, may require a judge to conduct the investigation. Otherwise the process of investigation by the coroner may be incomplete.”
In further advice issued in September 2016 the Chief Coroner set out the procedure to be followed where the case was not obviously one for a nominated judge from the outset. The Senior Coroner is advised to consider instructing DV counsel, who may review sensitive material without being under the obligation to disclose such material to the Senior Coroner. The DV counsel will then conduct a review for relevance, without informing the Senior Coroner of the nature or content of the material. If some material is identified as relevant or potentially relevant, DV counsel will inform the Coroner and seek to obtain disclosure in a redacted or summarised (gisted) form. If the material can be gisted, the Senior Coroner is to decide whether it can be disclosed after submissions from the relevant parties. If not, DV counsel will advise the Senior Coroner that a High Court or Circuit judge should take over the investigation and inquest.
Cranston J considered this guidance to be “lawful and sensible, reflecting best practice as it has developed over the years.” Interestingly there was no suggestion from Cranston J nor in the Chief Coroner’s published advice of the another potential solution where the sensitive material does not fall under RIPA – that is for the Coroner him or herself to go through the DV security clearance process, so that the government and security forces might then, perhaps, be satisfied that the Coroner could be trusted.