Jack Straw has finally got his wish: despite valiant efforts in the Lords, his Coroners and Justice Act has castrated one of our most ancient and overlooked institutions. Why? Because the ‘people’s judge’ was just too good at winkling out inconvenient truths.
The office of coroner has existed in this kingdom since the year 1194. The medieval version was chiefly concerned with the protection of Crown revenue and determining responsibility for violent deaths as a means of raising fines. But seven centuries of gradual evolution resulted in a coroner rather more concerned with the welfare of the public.
The modern incarnation emerged in the Victorian era when large numbers of deaths were being caused by novel hazards such as factory and train accidents. The coroner called those responsible to account and sought to prevent similar occurrences in future. In those more enlightened times, coroners were elected: in 1826, rival candidates for a jurisdiction in the East Riding brought nearly 2,000 freeholders to the Castle Yard at York for the vote. The Victorian politician and reformer, Dr Thomas Wakley, expressed the importance of the office thus: ‘The coroner was the people’s judge, the only judge the people had the power to appoint. The office has been specifically instituted for the protection of the people.’
Historically, the beauty of the coronial system has been its dogged independence. Coroners are not judges, but judicial officers, under the aegis of the Lord Chancellor but employed and paid for by local authorities. Their function has been to hold inquisitorial proceedings (unique in the British legal system) with the express requirement fearlessly to determine the truth surrounding a violent or unnatural death. Their wide-ranging powers have enabled them to call for evidence and witnesses from all quarters and to root out injustice where other organs of state have failed.
Such freedom to roam doesn’t sit well with governments, especially Labour ones, it seems, who are deeply resentful of the separation of powers at the best of times. When, in 1975, a coroner’s jury named the missing Lord Lucan as guilty of the murder of his children’s nanny, the government responded to the embarrassment by removing the coroner’s power to commit a person for trial in the Criminal Law Act 1977.
Knives were already being sharpened for a full-blooded attack from the start of the understandably well-publicised Diana inquest. Then came the Shipman inquiry, which called for greater bureaucracy (what else?), and lastly, a rash of uncomfortable inquests into the deaths of British soldiers serving in Iraq.
To understand the impotent fury that politicians and their Sir Humphreys must have felt at the Iraq inquests, you have to appreciate the sheer lowliness and therefore incorruptibility and independence of the vast majority of our coroners. They are drawn largely from the ranks of local solicitors. Often they have no dedicated court room and must hire a village hall or suchlike in which to conduct their proceedings. A South Wales coroner tells me that some do not even have offices and literally work from the kitchen table. There is no progression beyond the office of coroner, and the pay is modest. With no greasy pole to climb, and far freer from civil service interference than their cousins in the regular judiciary, coroners had a genuine opportunity to get on with the job.
This old-fashioned passion for justice is doubtless what drove Andrew Walker, deputy assistant coroner for Oxfordshire, no less; he certainly wasn’t looking to make friends in high places. Walker was the coroner who conducted the inquest into the death of 26-year-old Lance Corporal Matty Hull who, in March 2003, was killed when two American A-10 tankbuster planes attacked the convoy in which he was travelling. I don’t know if a man from Whitehall was ever sent to whisper in Walker’s ear, but if he was, Walker wasn’t listening. He demanded high-level witnesses from the US. His requests were refused. He asked for the A-10’s cockpit video, only to be told by the MoD that it was US classified material which they were incompetent to release. Thankfully, the Sun newspaper obtained a copy and the combined US/UK attempt to suppress the truth was thwarted. The video was damning, revealing the two pilots admitting their fatal mistake, one of them saying, ‘We’re in jail, dude,’ and the other breaking down, with a plaintive, ‘Goddammit!’ Delivering a narrative verdict (a practice discouraged by section 5 of the new Act), Walker held that the killing was unlawful, and rebuked both the MoD and US authorities for their lack of co-operation.
The US fear of their pilots being tried in a British court was unfounded; unlike his forbears, Walker had no power to lay criminal charges, and our prosecuting authorities clearly saw no public interest in provoking a further diplomatic incident. Nevertheless, many remain convinced this episode was at least partly responsible for the invidious provision in the new Act enabling the Lord Chancellor to suspend any coroner’s inquiry where the cause of death ‘is likely to be adequately investigated by an inquiry under the Inquiries Act 2005’. In other words, henceforth, any potentially embarrassing or politically uncomfortable inquest may be avoided by the Lord Chancellor setting up an inquiry which, if its members so decide, may hold its proceedings in absolute secrecy. Such inquiries satisfy the requirements of that many-headed Hydra the European Convention on Human Rights, but slam a meaty fist in the face of our delicately reared constitution.
Concerns for national security and the protection of vital informers will always be the justifications for secret inquiries, but of course we the public will have no means of gauging whether we are being sold a pup or not.
We had a foretaste of the new determination to seize political control of inquests with the De Menezes case. Prerogative powers were invoked to appoint retired High Court judge, Sir Michael Wright, to preside at the inquest, replacing the coroner for Inner London South. Proceedings were held in the clubbable surroundings of the Oval cricket ground’s committee room, and having heard the often inconvenient testimony, Sir Michael presumed to decide on the jury’s behalf that unlawful killing was not a verdict justified by the evidence. He presented them with a range of alternative verdicts which did not include that option. Had the De Menezes family had the resources, this ruling might have been cause for appeal or judicial review; instead they were forced to make their point through revealing T-shirts to the jury declaring, ‘Unlawful killing. Your legal right to decide.’ Maybe the jury hadn’t the bottle to defy a High Court judge, we’ll never know, but they duly delivered an open verdict into his eminently safe hands.
A police shooting following a tip-off from an intelligence source is precisely the sort of case you can expect to see Jack Straw and his successors remove from your local coroner. And the families of future Matty Hulls won’t be reassured to know that from now on only coroners ‘suitably trained to do so’ will be permitted to inquire into the deaths of service personnel.
For the best part of two centuries, we did indeed have a people’s judge prepared, now and then, to take on monstrous Goliaths, but we must now mourn his passing — another, but hopefully the last victim of New Labour’s constitutional wrecking-ball. The sins of mighty superpowers will no longer be exposed in a village hall near you.
M.R. Hall is a former barrister and author of the novel The Coroner. His new novel, The Disappeared, is published by Macmillan in January 2010.
This article first appeared in the print edition of The Spectator magazine, dated December 5, 2009