Thompson’s Application for Judicial Review [2025] NICA 25 (Judgment 13 May 2025, here)
Whilst the context of this case concerns the grant of anonymity, it has much wider relevance as it addresses the legal issue of identifying the precise point at which a coroner will become functus officio, such that they can no longer take any steps related to an inquest.
That cut off point is important to know, given the power of a coroner to change previous procedural decisions generally only pertains whilst the inquest is still current[1] and so any review or amendment of an earlier coronial decision must be completed before the inquest is closed.
The specific question that arose in this case was whether a review of a grant of anonymity might be conducted after an inquest had concluded. Spoiler alert: No it can’t. So both counsel and the coroner should be alert to the need to deal with this issue before the inquest ends.
The Background
Because of ongoing risks or threats to serving or former members of security forces it is a common occurrence in legacy inquests in Northern Ireland that protective measures are granted to witnesses.
At Mrs Thompson’s inquest, the issue of granting a soldier anonymity arose. The risk assessment the Coroner considered had deemed the risk to the soldier’s life to be low, but this risk was said to increase to a moderate threat level should he give evidence without both anonymity and screening procedures in place. On that basis, the Coroner concluded that the operational duty to protect the witness’ life under Article 2 was engaged and so anonymity was in place throughout the proceedings.
At the end of the inquest the Coroner handed down a short summary of her findings in open court indicating that her “full decision” would be circulated within days. The Coroner’s summary explained that she had determined that, on the balance of probabilities, the anonymised soldier had shot the appellant’s mother in circumstances which were not justified.
Nine days later a full written decision was provided to interested persons by email. It was only after those full written findings had been received that the applicant’s legal representatives wrote and requested that the Coroner should reconsider and rescind her anonymity decision.
After inviting submissions on the issue, the Coroner determined that she was functus officio and so was not able to consider the application. It was her view that she had closed the inquest at the time when she delivered her full written findings, and by that point none of the parties had raised the issue of continuing anonymity with her. However, seemingly anticipating that a JR claim might follow, the coroner also went on to explain that had she not been functus officio she would have not removed the anonymity which had been granted.
The High Court decision
When a judicial review challenge was brought the first instance judge found that the coroner was correct to consider herself functus officio at the point when she was requested to review the anonymity decision. But he also held that she had acted unlawfully in failing to reconsider anonymity of the soldier before concluding the inquest.
Granting anonymity was contrary to the principle of open justice and as such an anonymity decisions should be kept under review. In the judge’s view anonymity orders ought to be revisited during the process of an inquest if circumstances change. Here the relevant change had been a positive finding of the use of unjustified force by the soldier. However, no relief would be granted due to the Coroner’s indication that had she considered the matter the outcome would have been the maintenance of anonymity. The judge agreed that, as a matter of common sense, any reconsideration of an article 2 grounded anonymity order was likely to remain in force, given that the risk to the soldier’s life would be more likely to increase following the coroner’s finding.
It would therefore be pointless to quash the inquest so that this particular anonymity decision could be reconsidered.
Given this second indication that the ultimate decision would not change if it were remade, one could wonder what might realistically be gained from an appeal. [2] Nevertheless, the Claimant appealed the decision, submitting that the judge was wrong to say the coroner was functus officio for the purpose of reviewing a grant of anonymity, alternatively, even if functus officio, the coroner could still review anonymity. It was therefore argued that the judge erred by refusing to remit the anonymity decision back to the Coroner.
The Court of Appeal’s view
Functus officio
The Court of Appeal noted that under the Northern Irish Coroners (Practice and Procedure) Rules 1963 (‘the 1963 NI rules’), Rule 4 provides that: “Every inquest shall be opened, adjourned and closed in a formal manner.” Although what that formal step might be is not stated.
In Re McDonnell’s Application [2015] NICA 72[3] it had previously been said that:
“…once the inquest is closed the coroner no longer has power to take any steps in relation to the conduct of the inquest. To do so would offend the rule that he has become functus officio. That includes any steps in relation to questions of anonymity and screening which he had to deal with in the course of the inquest.”
It was noted that the Coroners (Inquests) Rules 2013 in England and Wales do not provide for the “closing” of an inquest. Although s.10 Coroners and Justice Act 2009 sets out that at the end of an inquest the coroner is required to make a record of the “findings” for registration and “determinations” regarding the statutory questions under section 5, as well as recording the cause of death.
Additionally, the view of the Chief Coroner, as set out in her ‘Guidance for Coroners on the Bench’,[4] is that:
“On the signing of the Record of Inquest the inquest and investigation are formally concluded, and the coroner becomes functus officio.”
The appellate court agreed with the first instance judge that this inquest had not ended when the Coroner gave her initial summary finding in open court, as she had also indicated that a written ruling would follow without further hearing. However the Court determined that handing down the Coroner’s written ruling, which included the inquest verdict, was the final formal step which had closed this inquest.
Anonymity should have been reconsidered
The application of anonymity for a witness is not addressed in the 1963 NI rules but is part of the common law powers of a coroner to conduct proceedings as he or she sees fit.[5]
It followed that the anonymity which attaches to a witness is part of the coroner’s investigation and not a separate administrative task that the coroner has power to revisit after the inquest has closed.
The Court considered that a decision to grant anonymity was such a clear derogation from the principle of open justice that the issue of anonymity should be kept under review and reconsidered in two situations:[6]
(i) There is a material change of circumstances which merits a re-balancing of the competing interests; and/or
(ii) The coroner is requested to reconsider by either the witness, or one of the interested persons in the proceedings on the basis that there is a change in circumstances or new information.
Nevertheless the court still wholeheartedly supported the judge’s “common-sense approach” that there was no utility in quashing the closure of this particular inquest and remitting the matter back to the Coroner, given there was unlikely to be any change to her decision.
The Court of Appeal gave some guidance to avoid such situations arising in future:
- For the avoidance of any doubt a coroner should state clearly that the inquest is being opened, adjourned and closed. This should ideally be in open court, but may be done in writing where appropriate.
- It is best practice to give advance warning to IPs of the coroner’s intention to close the inquest.
- IPs should assist the coroner by identifying any ancillary issues that need to be dealt with before an inquest closes
- After making a finding which is critical of the behaviour of an individual with anonymity, a coroner should consider whether this necessitates reopening the issue of the grant of anonymity and should seek submissions from the IPs to that effect.
Commentary
This case reminds coroners and inquest lawyers to note carefully the point at which the inquest ends, as from that point the coroner will no longer have any implied or common law powers in respect of the investigation and inquest.
No specific words are required to conclude an inquest in either Northern Ireland or in England and Wales, but the habit of many coroners to rise from the bench having said something like “That concludes this inquest/ these proceedings” is a wise one. It provides formality and is sufficiently clear so that all those engaged with an inquest know that it has been closed.
Save where statute provides otherwise, all final procedural steps related to an inquest need to be taken before the inquest is closed. By way of example, once the conclusion is delivered and the ROI signed there is no power to seek out or hear any further evidence relevant to making a PFD report,[7] although statute allows for the report itself to be made and responses received after the inquest.
As this judgment indicates the onus falls on the coroner to consider and review their own decision if appropriate, regardless of whether an application has been made by an Interested Person. In the Court of Appeal’s view in this case there had been a collective failure to resolve the anonymity issue at the appropriate time. Counsel might have raised it when the summary findings were delivered, but the Coroner also should have adjourned the inquest briefly and allowed any representations to be made in writing to her on the question of anonymity continuing.
It had to be the status of functus officio that was the focus of the challenge here rather than the anonymity decision itself. If the anonymity decision was flawed then it was also a judicially reviewable decision in its own right, but the first decision would likely have been made some months before, so any direct challenge was now out of time. In any event, the Court’s view of the lack of merit in any such challenge is made abundantly clear.
Ian Skelt KC of Serjeants’ Inn Chambers was instructed by the Coroners Service for Northern Ireland for the Respondent Coroner.
Footnotes
[1] Save where a specific statutory provision allows post inquest procedural steps, such as issuing a PFD report under reg.28.
[2] If manslaughter charges were to be brought anonymity would in any event be lifted.
[3] §25
[4] Chapter 15, §13.
[5] Similarly in England and Wales granting anonymity derives from this common law power, although r.18 governs when a coroner might allow the giving evidence from behind a screen.
[6] Derived from both Re McDonnell’s Application [2015] NICA 72 and Re Officer C and others [2012] NICA 47.
[7] See the Chief Coroner’s Bench Guidance, chapter 16 §16. “That the duty under paragraph 7(1) of Schedule 5 is triggered by “anything revealed by the investigation” means that it would be inappropriate to convene a separate hearing to consider evidence about PFD matters after the inquest (and hence the investigation) has ended and a conclusion has been returned.”