This was the issue facing Dame Heather Hallett in the 7/7 Inquest (and which I trailed here). She has decided that she cannot hear evidence in the absence of the interested parties - including the bereaved families. Accordingly any evidence which MI5 might give to the inquest will have to be given in the presence of the bereaved families if not in the presence of the public at large. The Coroner rightly requires MI5 and the Home Secretary to find a way of putting evidence before her which can be heard in public or at least by the families. There is always a way - redaction, gisting, inspection protocols or in camera sessions, of protecting national security and these methods should be tried first before relevant evidence is withheld on public interest immunity grounds. It is always right that national security is a prime concern; but rarely right that this trumps open justice; or at least justice in the presence of those most concerned with its outcome: In this case the families of those who died.
Dame Heather is to be commended on a magisterial and wise judgment which I hope survives any appeal; here is just one of many fine extracts:
I do not accept that my ruling will amount to an abrogation of the inquisitorial function.
On the contrary, I am satisfied my ruling is entirely consistent with that function as presently regulated by Parliament. I am still hopeful that, with full cooperation on all sides, most, if not all, of the relevant material can and will be put before me in such a way that national security is not threatened.
I am all too aware, given the events of the weekend, of the unenviable task facing the Security Services. I repeat, sources may be withheld, redactions made. I do not intend to endanger the lives of anyone. I do not intend to allow questions which might do so. I do not intend to allow questions which I know to be based on a false premise or which I know to be misleading.
There may be times when the parties will simply have to accept my ruling without demur. I may have to forbid certain questions. I may have to rephrase them. Finally, I wish to emphasise I do not intend to make findings adverse to the Security Services which I know to be false.
STOP PRESS
The Home Secretary is apparently judicially reviewing this ruling.
Her Ladyship was also at pains to point out that if the government decides to opt for an "inquiry" as opposed to an inquest then the matter might well have to be restarted. Beyond that, she gave no indication of what she would do if Ministers opted for that course.
ReplyDeleteHer final sentence did make me wonder. Has there even been a hint that someone thinks she would make findings adverse to the Security services which she knew to be false? She would not have said this without good reason and, to be frank, this reveals the possibility (and I say nothing stronger) that shadowy figures may have suggested that she might.
A further thought arises. There will also have to be a separate inquest into the deaths of those who planted the bombs. I think that the same ruling may have to apply. Hence, their relatives would have to be allowed to be present when sensitive evidence was being considered. That may well cause the authorities even geater angst. We shall see.
It has now been announced that the Home Office is to apply for judicial review of Hallett LJ's ruling.
ReplyDeleteInterestingly, her ruling raised certain other concerns which are discussed more fully on the UK Human Rights Blog. Suppose that evidence (call it X) is presented to her privately. She argued that she cannot use X in the final decision but she could control or rule out questions on the basis of X and the parties may have to accept this "without demur." Of course, the parties are prevented from knowing what X is and so they cannot challenge her ruling out a question and they cannot challenge the evidence in any way. Is this really an acceptable way of conducting such an important inquest? The whole business has an extremely unsatisfactory feel to it.
Leaving aside Hallett's ruling - which way should these matters go in the future? This is an important issue which will have to be addressed.
a) One could go the "Inquiry" route with all the problems inherent in the Inquiries Act.
b) One could alter the law to enable closed sessions at inquests provided the person presiding was a High Court Judge (or similar status). This was the route proposed when the Coroners and Justice Act was a Bill but it was dropped as a result of parliamentary objection. However, it might be a better route than (a).