Has Horizon claim disappeared into the sunset?

In the week that marked the tenth anniversary of the conviction of Robin Garbutt, there have been three noteworthy developments, with a fourth to follow on shortly with the handing down of a Court of Appeal judgment, in a connected matter, on Friday 23rd April, 2021 at the Royal Courts of Justice: The Post Office Horizon software scandal that has led to a large number of former postmasters and postmistresses having convictions quashed.

I was present at all four days of the hearing of those appeals in March, 2021 writes Neil Wilby. Principally to observe what effect, if any, the outcome would have on the murderer’s long standing claim of innocence.

Garbutt was convicted on 19th April, 2021, at Teesside Crown Court, of murdering his postmistress wife, Diana. She was bludgeoned to death as she lay, apparently, sleeping in her bed in the living quarters above Melsonby Village Shop and Post Office in North Yorkshire (read more here).

A depressingly poor investigation by North Yorkshire Police had followed the murder (read more here) but there was still enough probative evidence presented for a jury to return a 10-2 majority verdict.

A miscarriage of justice campaign was formed soon afterwards by two relatives of Garbutt’s, his sister Sallie Wood and brother-in-law, Mark Stilborn, and an unsuccessful appeal was made to the Court of Appeal. Three law lords were emphatic that the conviction was safe.

Three applications have subsequently made to the Criminal Case Review Commission by Garbutt’s legal team. The ones made in 2015 and 2017 were unsuccessful. A third was made in December, 2019 amid a blaze of publicity (read more here). Much of it due to the efforts a later addition to the campaign team, Jane Metcalfe, a close friend of one of Garbutt’s life partners before he met, and later married, Diana.

Regrettably, Jane has been exposed regularly for what might be charitably termed as ‘decorating the truth’, her enthusiasm for winning Robin’s freedom blinding her, seemingly, to the stark reasons why the village shopkeeper remains a guest on the Category A wing of HMP Frankland (read more here).

Earlier this week, the press office at the CCRC confirmed that the third Garbutt application remains ‘under review’ and no decision, provisional or otherwise, has been communicated to the legal team representing Garbutt. They are solicitor, Martin Rackstraw, and Jim Sturman QC. Responsible for all three CCRC applications.

The reason for that enquiry was a post on the ‘Robin Garbutt Official’ website dated 8th April, 2021. It appeared to indicate that there has been some movement in terms of the CCRC making findings on that third application.

The post is attributed to Mark Stilborn, but easily recognised, in any event, by its muddled style and familiar syntax errors.

As is the the apparent failure to take on board the size and nature of both the evidential and legal hurdles that a CCRC applicant faces by way of the Criminal Appeal Act, 1995. A comment that could also safely be applied to Jane Metcalfe and Sallie Wood.

None of them have grasped that, for Garbutt’s conviction to be deemed unsafe, there has to be a reversal of the jury’s verdict, amplified forcefully by the trial judge; the ruling of the Court of Appeal; and the two previous decisions by the CCRC. All of whom found that the story of an armed robber (or robbers) who murdered Diana with a rusty iron bar, some hours before venturing downstairs armed with a gun (but not the piece of rusty metal), emptying the safe and till in the shop, leaving Robin unharmed and immediately free to raise the alarm, beyond belief.

Much of the publicity that accompanied the third CCRC application featured a new ground of appeal upon which the Garbutt campaign team pinned great hope: The aforementioned Horizon software was to blame for cash shortfalls identified during the murder trial by two expert forensic accounting witnesses. It undermines the prosecution case fatally, they say.

Now it doesn’t even rate a mention in the most recent case update, posted by the same campaign leaders who were so vociferous upon the subject just a year ago. To those adjacent to this case, including the author of this piece, that comes as no surprise at all: If robbers emptied the safe of £16,310, a sum that Garbutt told the jury tallied with the shop and post office accounts, it seems inconceivable that he now claims a software glitch has a bearing on his guilt.

The third development comes via a response to a recent freedom of information request. It is reproduced in full here:

“I am writing in response to your email received by Post Office Limited on 23 March, which I am dealing with under the terms of the Freedom of Information Act 2000 (“FOIA”).  
 
In your email you have requested the following information: 
 
Please disclose the following information by way of the Freedom of 
Information Act, 2000. 
 
1. The number of written complaints made by the Sub-Postmistress of 

Melsonby Post Office, and received by POL, where the terms ‘software faults’ 
or ‘Horizon’ or ‘shortfall’ formed part of the text of such complaints.  
 
2. Alternatively, the number of telephone complaints, where POL’s record of 

those complaints includes those same terms mentioned in para 1. above. 
 
3. The relevant period is 1st January, 2009 until 22nd March, 2010. 

 
4. A copy of the ‘Known Error Log’, in issue by Post Office Limited at 31st 

March, 2010. This document, which recorded faults in Fujitsu’s Horizon 
software, has been referred to repeatedly in proceedings at the Court of 
Appeal Criminal this week (commencing 22nd March, 2021). 
 
The difficulties in respect of passage of time, and the consequent possibility 
of data weeding, are recognised. It is hoped that, by keeping the request as 
compact as possible, this may assist the location of the information or in 
establishing that none existed. 
 
Whilst FOIA requests are, generally, to be regarded as applicant and motive 

blind, POL is aware of my journalistic interest in this particular sub-post 
office and its history. I am, of course, grateful to POL for past assistance and 
hope that this request can be fulfilled as efficiently and with the same co-
operation. 
 
Response

Post Office does not differential between complaints, general enquiries or notifications made in writing and those made by telephone by Postmasters.  We confirm that we do have a log covering the period you have identified, however none of the entries match the criteria you have provided. 

Regarding the additional request for a copy of the “Known Error Log” that you sent to us, following our acknowledgement letter, we will respond to this by 26th April.

Information Rights Manager 
Post Office Limited  – Information Rights Team 
20 Finsbury Street 
London EC2Y 9AQ ”

The obvious conclusion drawn from such disclosure is that Melsonby Post Office raised no complaints about cash shortfalls or Horizon software faults. No such faults were raised by Garbutt’s defence team at trial, or at the Court of Appeal, or in their previous two CCRC applications.

That may well be why this ‘new’ ground of application has disappeared into the sunset. Robin’s campaign team has been asked to provide clarification on this point. They have never taken up right of reply, previously. Preferring news outlets with a less searching and more accommodating approach to their claims.

Page last updated: Thursday 22nd April, 2021 at 1655 hours

Photo Credit: York Press

Corrections: Please let me know if there is a mistake in this article. I will endeavour to correct it as soon as possible.

Right of reply: If you are mentioned in this article and disagree with it, please let me have your comments. Provided your response is not defamatory it will be added to the article.

© Neil Wilby 2015-2021. Unauthorised use, or reproduction, of the material contained in this article, without permission from the author, is strictly prohibited. Extracts from, and links to, the article (or blog) may be used, provided that credit is given to Neil Wilby, with appropriate and specific direction to the original content.

Line of Duty – review of episode 4

Wow! That was Jed Mercurio and television drama at their finest.

Keeping up with the storyline

Where to start? Because with Line of Duty plots it is often not ‘at the very beginning’. We leave that to Julie Andrews and Sound of Music.

Indeed, for this week’s review the closing scene is a good starting point. It left millions of viewers agog and social media in meltdown. AC-12’s all-action Temporary Detective Inspector, Steve Arnott, eventually receives the report from the forensic tear-up of Police Sergeant Farida Jatri’s home. As expected by most viewers and fans, the newly promoted Temporary Detective Superintendent Joanne Davidson’s fingerprints are prolific, exposing Jo’s lies about the relationship between herself and the exquisite Farida (I’m in love with her, too).

My instinctive reaction was that it was either Anne-Marie Gillis (see my review of episode 1 here) or rogue Detective Sergeant, John Corbett, (see episode 2 and 3 reviews here and here) which only served to demonstrate how an hour of Line of Duty can seriously addle the brain.

A second viewing of the episode, and many more of that closing drama, may yet rule out Corbett. The clues ‘nominal‘ and ‘not on the internal police database‘ point away from the now deceased detective sergeant.

By way of explanation, a nominal is, in policing terms, usually a person about whom information is held on a Police National Computer (PNC) nominal record. Primarily, convictions and cautions. There is no distinction, within that description, between shoplifter or murderer. Although the latter would, most likely, carry a marker or a flag. Alerting an officer mining the PNC as to the class of offender and any attendant risks associated in dealing with him or her. Particularly in relation to known use of weapons. Other reasons for being on the PNC can include being reprimanded, warned or arrested over a recordable offence. That is to say, one that is indictable (for example rape, armed robbery, murder) or can be tried either in the Magistrates’ or Crown Court and, generally, carries a prison sentence.

So, the search for the mystery person in the AC-12 file, one might think, is limited to convicted persons, or previously involved in an investigation of some seriousness, or of interest to the security services. The nominal is not, seemingly, currently serving in the police force, but is plainly well known to Supt. Hastings.

It is not revealed whether T/DI Arnott previously knew of this person before the database search. That could open up possibilities that it may be a criminal (or terrorist) known to Ted from his earlier career with the Royal Ulster Constabulary.

The BAFTA-contending look on Detective Constable Chloe Bishop’s face suggests that viewers are going to be rocked off their chairs when the identity of Jo’s blood relative is made known.

It might also indicate that the revelation will not assist Ted in deflecting the impending retirement forced upon him earlier in the piece by the wily, world-weary deputy chief constable, Andrea Wise. Hastings – an officer with perenially forthright views – blames Chief Constable Philip Osborne for the decision to drastically reduce the number of anti-corruption officers in Central Police, and, in doing so, tagging him a “bare-faced liar”. With good cause for those that cast their mind back to Series 1. Osborne’s lying led to Steve Arnott leaving the unit to which he was attached (counter terrorism), headed up by DCI Osborne as he was then, following the shooting without warning of Karim Ali. The bent chief constable is many people’s favourite to be ‘H’.

Jo Davidson has a Scottish accent that might point to the deceased Organised Crime Gang (OCG) leader and paedophile, Tommy Hunter, later known as Alex Campbell in police witness protection, from whence he was reported to have died in the notorious ambush scene at the opening of series 2 (or did he perish, some now ask?).

Others touted by fans and viewers include Jackie Laverty, murdered during Line of Duty Series 1 and whose body, or parts or traces thereof, have popped up in Seasons 5 and 6. Laverty was a money launderer for the OCG and had an affair with bent cop, DCI Tony Gates, who was present when her throat was fatally cut. A method of execution favoured by the OCG as Carl Banks and John Corbett also found to their cost.

Gates was framed for the Laverty murder by the OCG; blackmailed by Tommy Hunter; relentlessly taunted by a much younger Ryan Pilkington; but was cleared of the murder before walking into a truck. ‘In the line of duty’, reported Steve Arnott at the time.

The body count increased significantly in Episode 4, including yet another female authorised firearms officer (AFO). This tragedy occurred during a dramatic hi-jack of a prison van carrying Arnott and a surprisingly tanned-looking Jimmy Lakewell, a crooked criminal defence lawyer who took bribes from the OCG, last seen taking his final breaths as a garrotte held by OCG henchman, Lee Banks, choked the life out of him. Lakewell is, of course, a veteran from Series 4 who set middle-aged female pulses racing.

The death throes were played out before Detective Superintendent Ian Buckells, currently on remand in HMP Blackthorn and, ostensibly, visiting Jimmy in his cell for a brew. It was a warning from the OCG, if one were needed, of the fate meted out to those who either rat on the OCG, or their continued existence presents an ongoing threat to these ruthless criminals and the bent cops in their midst.

The shoot-out between the OCG and Central Police, in broad daylight on a main road beneath a trunk road bridge, was pure television drama. With the permitted artistic licence that goes with such scenes. The sniper in the the third floor window of an adjacent building was such an embellishment, as was the acrobatic (or pained contortionist) James Bond-class shot from a 9mm Glock that took him out. Take a commendation, and a nod to your time in the Counter Terrorism Unit (CTU), Steve Arnott. After a minute’s silence for another fallen AFO. RIP PC Ruby Jones.

The use of Stingers to halt the armed police convoy accompanying the prison van again points to serious police involvement in the OCG. Normally deployed in authorised police pursuits, this specialist equipment requires officers to be trained in its use and injuries during deployment are not uncommon.

Last week’s prediction, in these columns, that PC Ryan Pilkington, the OCG’s most junior but callous, fearless man on the inside, would be reined in by the police, or rubbed out by the crime bosses, bombed spectacularly.

Pilks is not only stalking her, he is now openly ‘running’ DCI Davidson at Hillside Lane Police Station. For emphasis, using a gun pressed firmly to the back of her head outside the plush, fortress property she visits to make, or attempt to make, encrypted communications with the OCG hierarchy. It, increasingly, looks as though she doesn’t actually live there. Which would explain why the framed ‘mother and daughter’ style photograph, on the cabinet in the main living area, ended up drenched by a glass of wine hurled through the air by Jo. Placed there as a reminder that she is now firmly under the control of the OCG and the reason why. Davidson has previously told her ex-lover, Farida, that she had no family. Which, of course, may yet turn out to be another of an increasing number of lies she has told.

Following the encounter with the sidearm, and the accompanying words of advice from Pilkington, Jo reversed her decision to transfer him out of ‘The Hill’. It appears that the OCG needs Ryan to be there to monitor progress of the Gail Vella murder enquiry, codenamed Operation Lighthouse, and to watch with whom Miss Davidson is getting into bed with, literally.

Speaking of which, the wily Kate Fleming continues to successfully play all sides off against the middle, but for how long? The blossoming friendship, potential romance, is starting to hit a bump or two as DI Fleming begins to question what is going on between Jo and PC Pilkington.

During a scene in AC-12’s very own grubby pedestrian underpass, surprisingly well lit and litter-free, between Kate and Ted Hastings, a decision is taken by the war-torn superintendent, at the behest of the now back in favour detective inspector, to leave the armed and dangerous constable in-situ, rather than ‘bring him in’. The rationale, apparently absent of any recognisable risk assessment, being that Pilkington’s link to the OCG, and the high ranking corrupt officer, or policing body involved with it, would be broken otherwise – and valuable intelligence lost. She also raised the lack of probative evidence against him, so far, and Pilkington’s cool and confident demeanour under questioning.

Some burning questions

Is Tommy Hunter still alive and the ‘unknown user’ in the computer messaging?

It is a plausible theory and one I am running with for the moment. The slit throat method of execution lives on, since the first of that ilk, when Hunter ordered the murder of Jackie Laverty. One suspects the end of Jimmy Lakewell would have been so arranged but for the biometric traces it would have, inevitably, left afterwards in his prison cell.

It is likely that Lakewell will be found hanging in his cell, by an OCG-friendly prison officer, some time after Banks and Buckells have returned to their own accommodation in HMP Blackthorn.

The control exerted over Ryan Pilkington by the OCG, both in last season and this, would also support the theory. He was groomed as a serious and violent criminal, and very probably sexually abused by Hunter, from an early age. The iron grip the OCG still have over bent cops, and the sheer force of the attacks they are able to mount against authority, aided by crucial information from some of the most sensitive areas of Central Police, point to a very strong-minded, cunning and utterly ruthless character in charge. Tommy Hunter definitely matches those competencies and leadership qualities.

Is Superintendent Buckells still a contender as ‘H’

Nigel Boyle’s fine acting has been a plus point in the present season, but the character he plays does not appear bright enough – which may still be a Columbo-style act – or have enough seniority in an OCG group if he is subservient to a thug such as Banks. The fact that he is ‘a twat’, as expounded by Jo Davidson, is not in doubt. Not least for accepting sexual favours for dropping charges. Buckells seems now to be an unlikely candidate as a criminal mastermind (‘H’), resembling much more a lazy, box ticking cop whose lack of attention to detail may inadvertently assist organised criminals. On a generous view, fooling round with persons of interest to the police, victims or suspects, may have given the OCG the leverage to blackmail him.

What or whose are the initials on Ian Buckells’ phone records

Line of Duty’s propensity for policing acronyms is well known. But none of those on the screen in the AC-12 interview room are recognisable as such. The best answers I have seen, by a considerable distance, are to be found on Den of Geek‘s brilliant Line of Duty blog: RGT could be ‘really great tits’, FAF could be ‘fit as f**k, NA ‘nice arse’. For BJL (………) the broad-minded are invited to insert their own answer. Or, like me, phone a younger friend more versed in those ways of the world.

What did Jimmy Lakewell reveal in the back of ambushed prison van?

If he did reveal information, it is likely be crucial in leading to the heart of the OCG – and ‘H’. In his interview in the Ac-12 interview room, after the ambush ordeal, Lakewell is at pains to say that he didn’t talk to Arnott in the back of the prison van, suggesting that he knows that there is a leak from Ac-12 to the OCG, and rejecting the offer of immunity and witness protection in return for what he knows. But that doesn’t discount him passing a note, or either of them writing in Steve’s pocket book (PNB for acronym and jargon enthusiasts). There has been speculation that the two spoke ‘off the record’, hinted at by knowing looks between the pair after Supt Hastings had left the room. But the savvy Lakewell might have correctly deduced that either the van, or DI Arnott (or both), were wired for sound.

Either way, the OCG did think that he had ‘ratted’ on the OCG – and paid the full price. The message from inside Central Police was that Lakewell had revealed something, even inadvertently.

Are Lee and Carl Banks related?

It has now been relegated to a matter of much less significance, but may assist Operation Lighthouse officers in solving the murder of journalist, Gail Vella. With so much action elsewhere in episode, the investigation seemed to be on slow burn. Although one interesting line was followed up by DI Fleming and Sgt Chris Lomax on ‘workshopped’, or modified, untraceable firearms. A ballistics link leads them to the guns used in the armed robbery on Hickey’s Bookmakers, which featured in the opening scenes of the current series. Banks, of course, is a common enough surname, but they are both members of the same OCG, with significant police records as serious, armed criminals. Brothers, cousins or another classic Jed Mercurio red herring?

Will the decision not to arrest Ryan Pilkington backfire?

Viewers and fans know about the murders of serving police officers (DS Corbett and PC Patel), an attempted murder of key witness, Terry Boyle, and the gun threat to Jo Davidson, so Pilkington is as dangerous as they come. Without factoring in other likely acts of extreme violence since, as a thirteen year old, he tried to cut off Steve Arnott’s fingers with a pair of industrial pliers in a classic tied to a chair in a derelict building torture scene. But Central Police, principally through the nous of Kate Fleming, only suspect his nefarious involvement with the car in the reservoir incident with Terry and Lisa.

The official police record shows that Ryan was commended for bravery as a result. Only Terry can tell a different tale and, knowing his life is likely to end soon afterwards, he is unlikely to go down the route of enlightening Central Police. For now, at least.

There is no police inkling, so far, that Corbett was slain by Pilkington. That may change, of course as the story unfolds over the closing episodes and OCG loose ends are tied together. But the Line of Duty body count is unlikely to remain static whilst he is at large. Those most at risk are likely to be carrying a warrant card.

Not least, because Ryan Pilkington was, even more seriously, one of the four machine-gun toting villains that carried out another armed convoy ambush at the start of Series 5, in which three AFO’s shot and one badly injured. John Corbett was one of the others.

Who will head up the merged and decimated AC-3, AC-9 and AC-12 units?

The announced re-appearance of Detective Chief Superintendent Patricia Carmichael is very much welcomed in this quarter, and forecast in my preview piece prior to episode one (read here).

Anna Maxwell Martin is a sublime actress and one whose poker-faced AC-3 presence lit up the latter part of Series 5. The interviews with the, then, murder suspect, Ted Hastings, are enduring moments.

She is, not unoriginally, my hot favourite to land the new AC-3, AC-9, AC-12 supremo role with a twist in that particular tale (or tail) before this Line of Duty season is over.

What’s next?

So much yet to be revealed, so much to look forward to over the concluding three episodes. Buckle (or Buckell) in again at 9pm tonight, BBC One.

Finally, a sincere thank you to all those who have read the previous four Line of Duty pieces on this website; proof-read, gently chided, offered corrections to syntax errors and said the kindest things about our common passion.

For me, it is a form of escapism from the serious side of my journalism and court reporting – and much harder work than I thought. But I enjoy every moment, and the fun and fellowship the Line of Duty brethren brings into an, otherwise, mostly dull lockdown life.

It is hoped this latest piece, offering a different to slant to the events on screen, entertains and informs in the same way as before.

Page last updated: Sunday 17th April, 2021 at 1835 hours

Corrections: Please let me know if there is a mistake in this article. I will endeavour to correct it as soon as possible.

Right of reply: If you are mentioned in this article and disagree with it, please let me have your comments. Provided your response is not defamatory it will be added to the article.

Picture credits: BBC, World Productions.

© Neil Wilby 2015-2021. Unauthorised use, or reproduction, of the material contained in this article, without permission from the author, is strictly prohibited. Extracts from, and links to, the article (or blog) may be used, provided that credit is given to Neil Wilby Media, with appropriate and specific direction to the original content.

Line of Duty 6 – review of episode 2

After a frenetic opening to season six, the tempo changed in the second stanza as the plot thickened and the show’s key characters were fleshed out; notably the key ‘corrupt cop’ suspect, Detective Chief Inspector Joanne Davidson, writes Neil Wilby.

Criticised in some quarters over her acting of the role, viewed from this quarter at least, Kelly Macdonald, with her to-die-for, lilting Scottish accent, has been outstanding.

But, that aside, what was learned and what are the key questions being asked by fans?

Keeping up with the with the storyline

Not always easy, as there are oblique clues and false trails aplenty, it seems. Operation Lighthouse, an investigation into the murder of investigative journalist Gail Vella, seems to have hit the rocks – and there didn’t seem to be a great deal of conventional detective work on show.

Jo Davidson, the Senior Investigating Officer, is distracted by the break-up of one intimate relationship, with a sergeant on her team, Farida Jatri, and developing a new love interest with another team member, Detective Inspector Kate Fleming, a Line of Duty stalwart whom, it was unexpectedly discovered, had left the Central Police Anti-Corruption Unit, codenamed AC-12, at the beginning of episode one.

The murder enquiry, ‘the highest profile investigation in this police force’ says Ted Hastings, now appears to have been taken over by AC-12 (not something that would happen in ‘real life’ policing), having sequestered all the files in a second raid on the murder incident room at Hillside Lane Police Station (‘The Hill’).

The first raid flopped after Kate Fleming betrayed a confidence shared with her by Detective Sergeant Steve Arnott, her erstwhile long term colleague at AC-12. The lovestruck DI tipped off her new best friend, Jo, which presented an opportunity for them both, and the rest of the murder squad, to embarrass and humiliate the anti-corruption team (which does happen in policing). A scene relished by The Hill’s most senior officer, the permanently shifty Superintendent Ian Buckells.

Buckells had earlier received a request from Farida for a transfer from The Hill. She said she could no longer work with, or for, DCI Davidson. Jo did not reveal they were in a relationship, or that it had just ended messily (Farida is still stalking Jo), simply saying that the transfer should be granted and ‘she would become another police station’s problem’.

The body count increased by one, as Carl Banks, installed last week as the viewer’s favourite to be lifted for the murder of Gail Vella, was found dead on waste ground. Far away from prying eyes of pedestrians and motorists – and not a CCTV camera in sight. He had been tortured before being put out of his misery with a cut to the throat. The price one pays for shooting off at the mouth over organised crime group business.

Conveniently, some might say, the murder weapon was found at the scene, close to the body. The blade was later linked, forensically, to Alastair Oldroyd, the CHIS (police informant) found dead next to a high building from which he either jumped or was pushed. This scene was the significant sign off to episode one.

Also close to the body was the now ubiquitous PC Ryan Pilkington. More on him later.

AC-12 led by, on this occasion, a remarkably unprofessional Superintendent Ted Hastings, and assisted by Acting DI Steve Arnott and emerging star, DC Chloe Bishop, grilled DCI Davidson over gross misconduct charges relating to alleged failures during the Operation Lighthouse investigation. There were two competing theories:

(i) Jo Davidson posits that Oldroyd killed Banks and then committed suicide, and argues in support that the timeline, and rate of decomposition of Banks’ body, backs this hypothesis.

(ii) Ted Hastings isn’t buying that: He argues that she appears not to have considered a more plausible theory, namely that Banks was hired to kill Gail Vella by the organised crime group. Then Banks was killed by the OCG to silence him, after he started bragging about involvement in the death of the journalist. Oldroyd was framed for his murder, and also bumped off, thus stymying any further police information or investigation.

Jo was accompanied by her Police Federation representative DCI John Rix. But, in spite of his formidable presence, she was arrested, on suspicion of perverting the course of justice, at the conclusion of the interview.

She was later de-arrested and released from custody, on Hastings’ say so, seemingly no longer under suspicion, and after lovelorn PS Jatri was implicated in corruption. Jo Davidson, at the end of her tense interview had invited AC-12 to search the homes, cars and electronic devices of Farida, Ian Buckells, DS Chris Lomax and CHIS handler, DS Marks.

During a search of the property of Farida Jatri, DC Bishop and the Central Police Forensic Investigation Unit uncovered a stash of unregistered burner phones. Subsequent analysis of these phones by the force’s Cyber Crime Unit (some dramatic licence needed here) reveals that those same phones made calls at the exact same time the intelligence from Alastair Oldroyd was received in the murder incident room. DNA on the phones also matches to PS Jatri, her biometric data being held on police systems for crime scene elimination purposes.

However, Jo was seen being driven away by PC Pilkington, from Decker Avenue police station, where she was being held, and taken to retrieve her car. She immediately drove to a deserted underpass and collected a boxed burner phone, from a shady looking bearded man in a blue van. Casting suspicion on her once more. It appears to be similar to the ones ‘found’ in PS Jatri’s house (formerly shared with Jo).

The episode ended with Jo Davidson having what appears to be a breakdown, banging her fists on the windows of the car in which she is sitting and screaming in anger and frustration.

In the meantime, newly promoted Steve Arnott (now an acting detective inspector) had driven over to Liverpool to visit Stephanie Corbett, widow of the central figure in season five, Detective Sergeant John Corbett. Whose throat was, of course, slit open in a gory scene near the end of the final episode. By none other than Ryan Pilkington. The reason for the visit was not clear, although Steve had spotted Steph leaving AC-12 HQ with Ted Hastings earlier in the piece.

After her husband was killed, Steph helped clear Ted Hastings when he was under investigation by AC-3. At the very end of the last series, Ted handed her an envelope, which some say contained £50,000 of OCG money.

The question of whether there was intimacy between Steph and Steve, during the protracted home visit, was left hanging in the air. Arnott, of course, has ‘previous’ for either overplaying his charms or succumbing to female temptation.

More questions than answers:

Is DCI Joanne Davidson a corrupt cop or is she being blackmailed

The question that now underpins all others: The answer is probably both. No officer, centrally involved in any of the previous seasons of Line of Duty has escaped from AC-12’s clutches. There have been strong inferences throughout the first two episodes that link Jo to organised criminals and, by default, to the remaining senior police officer(s) in league with them. She also appeared more familiar with Pilkington than one might expect from a newly installed member of her Operation Lighthouse team. Once seated in the car together, he immediately asked her whether she knew of the finds at Farida’s house and her subsequent arrest. To which she responds, “Well that’s what happens to a rat”. Words not dissimilar to what was said straight after John Corbett’s murder. Ryan, bizarrely, appeared to be posted outside the interview room whilst PS Jatri’s was interviewed by Hastings and Co.

What led to the death of Gail Vella

Gail Vella was shot dead, at point blank range, outside her home in the Kingsgate area on 10th September, 2019. One bullet in the back of the head, execution style. That area of town has featured prominently in past and present series of Line of Duty. The initial murder suspect, Terry Boyle, lives there – and it was also the location of a printing and forgery business run by an OCG, infiltrated by DS John Corbett before he turned ‘rogue cop’.

She was a prominent TV journalist, working on several lines of enquiry about police corruption and organised crime. In the latest episode, as much more was learned of the Vella enquiries, Chloe Bishop reviewed film of Gail’s televised reports on previous investigations into OCG’s and corrupt officers in the Central Police force area.

As Steve Arnott says: “Gail Vella drew attention to links between organised crime, politicians and senior police officers; and these are just the reports we found in our own archive.”. Operation Lighthouse detectives had two theories: It was either a contract killing, a ‘professional hit’; or she was gunned down in cold blood by a crazed fan or stalker.

It was also discovered that Gail’s notes and files have gone missing – suggesting that someone was trying to conceal her work. A/DI Arnott and DC Bishop met with Vella’s producer, Nadaraja, who provides an important new lead: Her home may have been burgled and ransacked, before or following her murder, and key tape recordings removed including one of a tell-all podcast containing material that mainstream media would not air. A dummy laptop was left behind by the intruders to allay suspicion. Detectives at Hillside Lane Police Station had not recorded any of this during their investigation.

Another theory doing the rounds is a potential illicit relationship between Jo Davidson and Gail, that, maybe, is now being used as leverage to blackmail the senior detective. It would also lend support to Farida’s contention that Jo had a roving eye and a propensity to be unfaithful.

What lines of enquiry was Gail Vella following?

  • The inquest into the police shooting of Karim Ali, who was killed by officers in series one.
  • Karim Ali’s wife reported that police gave her husband no chance to surrender before he was gunned down.
  • Line of Duty fans may recall that Steve Arnott was part of this tactical unit, led by (as he was then) Chief Inspector Philip Osborne.
  • Osborne asked officers to lie about their actions during that operation, which led to the transfer of Arnott from Counter Terrorism to Anti-Corruption.
  • Philip Osborne is now Central Police’s Chief Constable and Gail Vella was challenging the official police line.
  • She also reported on the trial of retired chief superintendent Patrick Fairbank, who featured centrally in series three. Fairbank suppressed police investigations into child sexual exploitation, which implicated prominent local politicians, including Council Leader, Dale Roche.
  • Gail was also questioning police findings over Operation Peartree, which as outlined previously, saw John Corbett going undercover to investigate links between the OCG and senior police officers. Corbett was fixated on Ted Hastings being ‘H’ (read more here in the episode one recap).

Who is the voice on Gail Vella’s podcast

After the interview with Nadaraja, Arnott discovers that, before she was killed, Gail Vella was interviewing key figures for a freelance venture, centred on police corruption and cover-ups. Her original laptop appears to have been stolen in the burglary, but the decoy laptop left in its place has retained part of an audio file of her podcast, which includes Gail speaking to a mystery voice: “There are some people we can’t challenge,” the man says, before the tape cuts out.

Sharped-eared fans are emphatic that the voice belongs to Jimmy Lakewell. He is the lawyer from series four, who defended both DCI Roz Huntley and her husband, Nick.

Lakewell was revealed to be one of the group behind the attack by ‘Balaclava Man’ (DS John Corbett), with his known links to the OCG, whom attacked Steve Arnott with a baseball bat and threw him down three flights of stairs. The smooth, but tricky, Jimmy was sent to prison at the end of that series, after pleading guilty to perverting the course of justice.

The same balaclavas that appeared in the opening scenes of episode one, worn by the robbers raiding the local bookmaker’s shop. The young, petty criminals appear to have been recruited as stooges by the OCG.

Is Chloe Bishop the daughter of Tony Gates?

Those with good memories, or like me have recently re-watched Line of Duty from end to end, may remember that DCI Tony Gates, the original bent and OCG blackmailed copper, from series one in 2012, had a daughter called Chloe.

Gates’ daughter would be roughly DC Bishop’s age and Chloe could easily have changed her surname to protect her identity when applying to join the police.

The likeness of a photograph from that era, compared to the present day Chloe, cannot be discounted. Either way, she has been a valuable addition to the show’s regular cast.

Ryan Pilkington – cop or robber?

Featured in the margins of Line of Duty series five, as a fully seasoned member of the OCG, Ryan has returned as a bent copper in The Hill’s Murder Investigation Team (MIT) as PS Jatri’s replacement on Operation Lighthouse.

He is recognised by Kate Fleming, but she can’t seem to remember where from. Or is that what we are being led to believe? In one scene, as it cuts away from her police computer it can be seen on the screen that she is viewing his internal police record. Which might infer she still retains her AC-12 access rights to such records.

The Ryan Pilkington character was first introduced in series one, as a ‘hoodie’ running errands on a BMX bike for the OCG. In episode four he tried to cut off Steve Arnott’s fingers with industrial pliers. If the newly promoted inspector has clocked him, he’s not letting on.

At the end of the last series the young thug had been accepted without demur, it seems, into training college as a student police officer. From which one might fairly conclude, his file on police systems, and his association with serious criminals from a young age, had been wiped.

Kate Fleming straight or spy?

Some viewers, including me, suspect that Kate is, actually, under deep cover, and that’s not just the bedsheets. Is she straight, lesbian or bi-sexual. Does it matter? Not really. Her interest in developing a closer, personal relationship with Jo Davidson may well be a very cleverly acted ploy.

As is the repeated distancing of herself from her former anti-corruption colleagues. A unit in which she was an integral part, and highly commended for her resourcefulness and bravery, over the past eight years or so.

For example, was tipping off Jo Davidson, that she is under investigation by AC-12, intended to curry favour before delving further into organised crime and its corrupt influence on the police, to which her new boss appears to be, at the very least, adjacent?

What’s next?

So much yet to be revealed, so much to look forward to over next five episodes. Buckle in at 9pm tonight, BBC One.

Page last updated: Sunday 4th April, 2021 at 1615 hours

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Picture credits: BBC, World Productions (Steffan Hill)

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Supreme Court rules against bereaved family

A judgment handed down on 30th March, 2021, by the Supreme Court, means that the family of Andrew Stephen HALL, a 43 year old Huddersfield man who died following police custody in 2016, will not see the officers give evidence about the incidents leading up to his death, writes Neil Wilby.

At a pre-inquest hearing in June, 2019, the Assistant Coroner for West Yorkshire (Western Area), Oliver Longstaff, ruled that, as part of special measures to preserve the anonymity of sixteen police officers, they would be allowed give their evidence screened from all but the coroner, the jury and the legal representatives of the interested parties.

This decision became the subject of protracted legal proceedings and arguments for and against have been heard, successively, at the Administrative Court in Leeds, where the judge overturned the ruling, then at the Court of Appeal where the law lords, on a majority decision, quashed the judicial review finding (read more here).

The press office at the Supreme Court say that an application to challenge that decision was refused earlier this week on the grounds that ‘there was no arguable point of law’.

The inquest touching the death of Mr Hall will now open at Bradford Crown Court on Monday 19th April, 2021, where two courtrooms will be in use for what is scheduled to be a ten week hearing. It was originally listed to be heard in November, 2019. If permission to appeal had been granted by the Supreme Court it would have meant a further delay of well over a year (read more here).

The picture shows the inside of a courtroom, at neighbouring Leeds Crown Court, featuring the measures in place to counter the effects of the virus epidemic.

Legal costs for all parties to the inquest are expected to have topped £1 million before the inquest opens. Freedom of information requests have been made to those expected to have spent the most, notably West Yorkshire Police, the Police Federation of England and Wales, Calderdale and Huddersfield NHS Foundation Trust and Bradford Council (host authority of the coroner’s office). It has been heard, at pre-inquest hearings, that Mr Hall’s family have been funded, largely, by the Legal Aid Agency.

Page last updated: Saturday 3rd April, 2021 at 0915 hours

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Picture Credit: Her Majesty’s Courts and Tribunal Service

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Post Office robberies claim was a sham, say police.

At around this time last year (March 2020) I was in regular contact with Jane Metcalfe, a relative newcomer to the innocence claim of convicted murderer, Robin Garbutt (read more here), writes Neil Wilby.

She was, however, widely recognised as the campaign leader at that point and had done remarkably well in raising the profile of the case: Appearing at miscarriage of justice conferences and lectures; networking effectively; and persuading a large number of press and broadcast outlets to publicise the latest challenge to the conviction, via the Criminal Case Review Commission (read more here).

A third application to the criminal justice watchdog was submitted by Garbutt’s legal team on 5th December, 2019. The previous two applications had been rejected after review, but without investigation. A helpful ‘How it Works’ guide is published on the CCRC website (read here).

The contact with Jane ended after a series of pertinent questions, regarding the presentation of facts by the campaigners, were raised and went unanswered. It would be true to say that she panicked when realising, belatedly, that the investigation into the merits of the claims by Robin Garbutt, concerning the brutal slaying of his wife, Diana, was neutral and a search for the truth.

There was also considerable concern from this quarter that ‘Poor Robin’ was being painted as the victim, not Diana and her close family. For whom the campaigners appear to have little regard.

Robin Garbutt speaks frequently to Jane Metcalfe from HMP Frankland. She is also very close to his mother, Joyce Brook, whom she accompanies on prison visits.

Following the publication of the first article on this website, which covered the lead-up to, and the aftermath of, the killing in the living quarters of Melsonby Post Office, in 2010, the response was surprising, to say the least. Led by the same Jane Metcalfe, who had been so gushing in her praise of this journalist, a smear campaign was organised and executed by a number of figures prominent in the miscarriage of justice community. It sought not to question the facts and evidence, so carefully researched and presented in the first and subsequent articles, but amounted to nothing more than an ad hominem attack (read more here).

The campaigners pointed to articles on The Justice Gap website and in the Private Eye magazine saying they were were serious publications and their journalists were credible. The clear, and intended, inference being that Neil Wilby didn’t meet either threshold.

In the event, the error-riddled pieces by The Gap and The Eye were both publicly slaughtered – and led to the publication of one of the most widely shared and read articles on this website, ‘Blind in one Eye‘ (read here).

In June, 2020, Jane teamed up with criminologist, Dr Sandra Lean, to launch an ill-fated, and short-lived, podcast series with the unfortunate title of ‘Truthseekers‘. Metcalfe had already been proved to have lied on more than one occasion, previously. Not least with her ludicrous, and oft-repeated claim, that ‘Robin Garbutt had only ever told the truth’.

It was established at his murder trial in 2011, beyond any doubt, that he had lied to the police and then lied to the court. Most crucially, about an alleged armed robbery that had taken place at the time of the murder. Garbutt blamed the robbers. The jury didn’t believe him. Neither did the trial judge (he described the robbery story as ‘ludicrous’), or three court of appeal judges in 2012. Nor did the CCRC in 2015 or 2017.

The podcast was not just a car crash, it was a motorway pile-up. A transcript was commissioned and an article subsequently published on this website (see here). It was a devastating take down of the woeful interviewing by Dr Lean, lacking one single interrogative feature, and the glib, tailored narrative of Jane Metcalfe.

One of a number of claims made that did not appear adjacent to the facts of the Garbutt conviction included a startling new one, never previously aired on social media, in the press or as part of TV interviews. It was said that, prior to Robin and Diana Garbutt taking over the post office and village shop in 2003, there had been two previous armed robberies at the premises.

A number of enquiries were made locally regarding this revelation, including a retired senior police officer who was brought up in the village and whom, in fact, bought his first car from Nixon’s garage on the opposite side of the road to the post office. He was baffled by the claim and was sure he would know if such events had occurred.

A number of other locals were spoken to, they had no recollection of such dramatic events, either.

Enquiries with the local press also drew a blank. No such robberies had resulted in any newspaper stories.

For absolute certainty, two freedom of information requests followed: One to Post Office Ltd (read in full here) and a second to North Yorkshire Police (read in full here). Both have now confirmed that they have no records of the robberies alleged by Jane Metcalfe.

The only possible conclusion is that the truth has been decorated, yet again, by Team Garbutt. The motive for which is unclear, beyond the bolstering of public support for what appears, taken at its face, to be yet another futile CCRC application.

Since the murder trial, there has been considerable doubt about a claimed robbery at the shop in Melsonby in March, 2009, almost exactly a year before the murder. Garbutt says two armed men entered the shop and stole over £13,000 in cash and stock.

Post Office Ltd say in their freedom of information disclosure that no restitution was made by them. North Yorkshire Police gave up their investigation into the alleged 2009 robbery after only a few days. The Garbutt campaigners have stated publicly that there was scepticism amongst NYP officers, about the alleged robbery in 2010, almost from the moment they arrived on the murder scene.

An innocence claim grounded in lies is a most unfortunate juxtaposition and one that may cause even more battening down of hatches amongst their wider supporters, including, of course, Private Eye and The Justice Gap.

Another podcast featuring the Garbutt case, and with Jane Metcalfe at its centre, presented and produced by Nick Wallis of Post Office trials fame, may now have to be shelved. Nick did not respond when asked to confirm the present status of the project. He was also asked about the likely impact of the defects in the Post Office’s Horizon software, about which he has written so much, on the Garbutt innocence claim.

The campaigning members of the Garbutt family, sister Sallie Wood and brother-in-law Mark Stilborn, were contacted for comment, particularly in relation to the present composition and leadership of their campaign team. As have their lawyers, Martin Rackstraw of Russell-Cooke Solicitors and Jim Sturman QC.

The Garbutt campaign is also heavily backed by another well known QC, Glyn Maddocks. He is a friend of Jane Metcalfe and has steadfastly refused to comment previously on concerns regarding her integrity.

Another friend of Jane, and strong supporter of the innocence claim, is Kevin McMahon, co-founder of the well known campaigning group, United Against Injustice. He has also refused to reply to previous articles, in which both he and UAI are name-checked. Metcalfe was a speaker at their annual conference in 2019. Kevin also refuses to respond to those same concerns.

When last contacted, on 19th March 2021, a CCRC spokesperson said: “I can confirm that the [Garbutt application] is with a Case Review Manager and is under active review. No decision has yet been reached on the case”. No likely date was given as to when a decision whether to refer the case to the Court of Appeal will be made.

Page last updated on Friday 19th March, 2021 at 1305hrs

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Photo credits: Northern Echo

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© Neil Wilby 2015-2021. Unauthorised use, or reproduction, of the material contained in this article, without permission from the author, is strictly prohibited. Extracts from, and links to, the article (or blog) may be used, provided that credit is given to Neil Wilby, with appropriate and specific direction to the original content.

Review of February, 2021 on neilwilby.com

A fairly busy month saw six articles published on this website. They have contributed to a pleasing and continuing upward trend in visitor numbers and page impressions.

The first, published on 10th February, saw a return to the vexed situation in Oldham, where a group of political agitators cling desperately to a series of mostly shocking and desperate untruths, designed almost solely to smear three senior political figures in the town and the party they represent. The article (read in full here) exclusively revealed that Cllr Sean Fielding, the Leader of Oldham Council, had been cleared by Greater Manchester Police of a series of bizarre allegations made by a retired police officer, a tax inspector and a PhD researcher at the University of Manchester.

The offences cited were very serious and included harassment, malicious communication and misfeasance offences; the evidence behind them almost non-existent – and an insider says the police inspector reviewing the case, unsurprisingly, didn’t deem them worthy of investigation.

There were also a series of other exclusive revelations that left agitator-in-chief, Raja Miah, and his core far-right supporters, reeling.

The next three articles, concerning the deaths of two Huddersfield men following contact with the police, were linked. The first tragedy happened in September, 2016 after Andrew Stephen Hall was detained and restrained at the local police station before being taken to the Royal Infirmary, where he died shortly afterwards (read more here).

Less than four months later, Yassar Yaqub was, controversially, shot dead on a slip road at junction 24 of the M62 Trans-Pennine motorway. Just 2km from the Infirmary and less than 4 months after Andrew’s death. The article covered the announcement by the police watchdog that none of the police officers involved in the killing would face misconduct charges (read more here).

Coincidentally (or otherwise), the announcement by the Independent Office for Police Conduct (formerly the IPCC) came on the very same day as the latest pre-inquest hearing touching the death of Mr Hall. The report from that hearing (read in full here) revealed, exclusively, that arguments over police witness anonymity are set to reach the Supreme Court.

On Friday 26th February, 2021, a police watchdog made its latest in a lengthening series of shocking revelations as to the failings of forces in England and Wales. The report by Her Majesty’s Inspector of Constabulary finds, emphatically, that racism, either conscious or unconscious, around stop and search remains unaddressed. My informed take on it can be read here.

The month’s publishing ended on a lighter note with the news that the popular policing drama, Line of Duty, is set to return to TV screens soon (read here). A programme that always resonates strongly with me as I spend a considerable portion of my time either dealing with or reviewing the work of the Professional Standards departments (or branches or directorates) of five police forces.

Two other older pieces are worthy of mention. Both recorded high viewing figures last month: ‘Blind in One Eye’ (read here) challenges the sub-optimal reporting by iconic satirical magazine, Private Eye, of the innocence claim of convicted murderer, Robin Garbutt. ‘Dr Truthseeker loses her moral compass’ owes its renewed interest almost entirely to the recent airing of a Channel 5 documentary featuring Dr Sandra Lean as a criminology ‘expert’. She is, or was, ‘Dr Truthseeker’ (read more here).

Page last updated on Thursday 4th March, 2021 at 1045hrs

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Police forces still unwilling to confront institutional racism

A police watchdog has reported, four decades after the introduction of stop and search, that ‘no force fully understands the impact’.

Police in England and Wales are unable to explain why their powers are still used disproportionately, and in many cases unlawfully, on suspects from black, Asian and minority ethnic (BAME) backgrounds.

Her Majesty’s Inspectorate of Constabulary and Fire and Rescue Services (HMICFRS) warns that police risk losing the trust of the communities they serve after the latest inspection on the disproportionate use of search powers.

Many policing commentators and elected representatives would say that, in some inner city areas of almost all the countries’ major cities, that trust has already decayed to the point of extinction.

A HMICFRS inspection report, published earlier today, says:

“Over 35 years on from the introduction of stop and search legislation, no force fully understands the impact of the use of these powers.

“Disproportionality persists and no force can satisfactorily explain why.”

It points to very recent data, from 2019 and 2020, that reveals ethnic minorities were four times more likely to be stopped under suspicion, and searched, than white persons.

Black people were almost six times more likely to have force used on them by police than whites and more than nine times as likely to have a Taser device pointed at or deployed against them. A chilling statistic, on any measure.

The inspection also uncovered further troubling numbers including black people being eight times more likely to be handcuffed while compliant and three times more likely to have a spit and bite guard used on them than white people, the reasons for which HMICFRS says are unclear.

The watchdog points out that forces may be acting unlawfully, because this power was disproportionately used on certain ethnic groups, without apparent evidence as to why: “Unjustified use of handcuffs is unlawful and could amount to an assault,” the report correctly points out.

The inspectorate further observes that the excessive use of these powers was unfair and could lead to more black and ethnic minority people being drawn into the criminal justice system, as well as disrupting their lives, education and work opportunities.

HM Inspector of Constabulary, Wendy Williams, formerly a very senior and highly rated black lawyer, who authored the report, says:

“It feeds perceptions among the public and police about black people and crime, and may also influence how the police allocate and deploy resources.”

HMICFRS found the most common reason given by the police, for the use of stop and search, was a suspicion of drug possession, rather than the much more serious offence of supply of drugs. She questions whether this is an effective use of the police power or their time, given that so little was found.

Drug searches on black people are also more likely to be carried out without intelligence, with officers recording weak grounds for so doing and, accordingly, less likely to find anything incriminating.

This indicates that efforts are not being effectively focused on policing priorities says Mrs Williams.

She adds: “Unfair use of powers can be counterproductive if it leads people to think it is acceptable to not comply with the law.

“It may also make people unwilling to report when they are the victim of crime or come forward as witnesses.

“The police must be able to show the public that their use of these powers is fair, lawful and appropriate, or they risk losing the trust of the communities they serve.”

HMICFRS say that, whilst improvements had been made, too many police forces still did not analyse and monitor enough information and data to understand fully how fairly and effectively the powers are used.

They found a wide variation in approaches between regional forces, such as their response to cannabis smoking, and said a consistent process was needed.

At the end of March 2020, statistics show that 93% of police officers were white, 1% black and 3% were Asian. There has only ever been one black chief constable in England and Wales; Michael Fuller, who took up his post in Kent in 2004.

Michael Lockwood, Director General of the perennially disgraced Independent Office for Police Conduct comments, one might say disingenuously: “Only by understanding the causes of this disproportionality – and helping officers to understand fully how their use of stop and search and use of force impacts on those most affected – can we start to make the changes that are needed.”

If Mr Lockwood doesn’t understand the cause by now, the role of the IOPC in it and the actions needed for remedy (which do not include constantly panderinging to the Police Federation), then he should go back to local government and leave the monitoring of policing to those more able and knowledgeable.

The equally ineffective National Police Chiefs’ Council (NPCC) glossed over the scandal in its usual superficial, nothing to see here manner: “We are developing plans to address the disproportionality in the use of stop and search and to explain it and take action to reduce it wherever possible”.

NPCC’s spokesperson for stop and search is the Metropolitan Police Service‘s Deputy Assistant Commissioner Amanda Pearson, whose portfolio includes violence reduction. She goes on to say that chief constables will consider the recommendation around the best approaches to tackling drug crime. There is no acknowledgement or signaled intention to address the core findings of the inspection – and the consequent impact on public confidence in the police service. Which, one must observe, is routine for the policing body she represents.

In DAC Pearson’s own force, only six MPS officers have been disciplined over the misuse of stop and search since 2014. Despite receiving almost 5,000 complaints.

Figure obtained by the Press Association, using the Freedom of Information Act, show seventeen officers faced disciplinary proceedings. Of six allegations that were proven, four officers received management advice, one a written warning and another a final warning.

The data also shows the number of complaints more than doubled from 786 in 2019 to 1,744 in 2020, with the number of searches carried out rising from 268,771 to 319,713 in the same period.

The Association of Police and Crime Commissioners said it shared concerns over the impact of disproportionality on community relations and was involved in numerous initiatives to tackle it. But did not specify what they were – or explain why they appear to be having little or no impact.

Policing Minister, Kit Malthouse, whose usual starting point is to exempt the police service from any criticism, says stop and search saved lives after it helped remove 11,000 dangerous weapons from UK streets last year, adding that young black men are disproportionately more likely to be the victims of knife crime. Which is, of course, entirely correct but not the point in issue. Better (and lawful) targeting and more effective use of police time may well uncover more dangerous weapons.

He goes on to say: “We are committed to ensuring that stop and search is conducted lawfully, and that safeguards, including training, guidance, and body worn video, are in place to help ensure it is used effectively, and that nobody is stopped solely on the basis of their skin colour.”

Mr Malthouse, in his familiar, glib, politician manner, skirts around the key findings of the inspection which are damning in any number of ways over police misconduct and lawful performance of duties.

Andy George, president of the National Black Police Association, is much nearer the mark and says the HMICFRS report “dispels some myths that are used to justify the disproportionate targeting of black communities” and that he hoped it would “allow police leaders to admit that racism is still present in our systems and processes”.

“We want to see determined, accountable and transparent action being taken to remove disproportionality and bias from policing,” he added.

But interestingly, apart from Mr George not one of the policing spokespersons or, indeed, any mainstream media report save that of The Guardian (whose reporter, Vikram Dodd, is of BAME origin), touches on ‘the elephant in the room’: Institutional racism in the police. The spectre of which raises its head once more, almost 22 years to the day after the publication of the iconic Macpherson Report, following the murder of South London teenager, Stephen Lawrence.

HMICFRS has said police forces will face further inspections on race, including on recruitment, ethics and techniques to avoid conflict. There will also be a full inspection of diversity across policing. This will bring troubled West Yorkshire Police very much into focus, not least because of damning reports such as these elsewhere on this website (read here and here).

Wendy Williams is to be warmly applauded for such a searching inspection and pulling no punches in her reporting of it. This is her biography as posted on the HMICFRS . Impressive on any measure and, very arguably, the most effective recruit ever to the ranks of criminal justice watchdogs.

Page last updated on Suday 28th February, 2020 at 0855hrs

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Photo credits: BBC and HMICFRS

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Police anonymity argument set for Supreme Court

At a pre-inquest hearing on 19th February, 2021 it was revealed that a coroner’s ruling made in June, 2019 is now the subject of an appeal to the highest court in the land. It touches the death of a black man from Huddersfield, a large Pennine town in West Yorkshire. Andrew Stephen Hall was 43 years old when he died in the Royal Infirmary after an incident in the custody area of the local police station.

The hotly contested issue, a huge drain on public funds, is one of anonymity for the sixteen police officers who will give evidence at the inquest to be held in Bradford Crown Court. The ten week hearing is presently listed to open on 21st April, 2021 before Assistant Coroner for West Yorkshire (Western Area), Oliver Longstaff.

The matter of the use of screens to preserve anonymity has already been fully ventilated in the Administrative Division of the High Court in Leeds, in October 2019, before Mrs Justice Jefford, and then at the Civil Division of the Court of Appeal in London almost a year to the day later (read full history here).

Unusually, the three law lords were split on the appeal. Lord Justices Flaux and Lewison in favour of overturning the decision of the lower court. Lord Justice Males giving a dissenting judgment. It is assumed that the latter has given impetus to the Hall family’s challenge.

The pre-inquest heard that the delay in filing the detailed grounds supporting the appeal with the Supreme Court, made in timely fashion after the Court of Appeal hearing, was entirely due to delays in obtaining approval for funding from the Legal Aid Agency. The green light was given on or around 12th February. The Hall family is fronted, for legal purposes, by Andrew’s partner, Natalie Dyer, and her legal team is led by Leslie Thomas QC.

In the light of the impending Supreme Court appeal, Mr Thomas QC had made an application to the coroner to vacate the hearing in April, in view of the uncertainty of the appeal outcome and the impact it would have on preparation by the large number of legal teams involved in the process. He was, however, mindful of the impact that any further delay would have on other interested parties and those due to give evidence.

After hearing lengthy submissions on behalf of a large number of interested parties, and his own counsel, Marc Willems QC, the coroner ruled that a decision did not need to be made immediately. Several representatives, notably Brian Dean of behalf of the Police Federation of England and Wales, were already in contact with the Registrar’s office at the Supreme Court, regarding the urgent nature of the appeal and the prospects of permission being granted, or otherwise, before the end of March, 2021. At which time a more informed decision regarding the start date of the ten week inquest, presently listed for 21st April, 2021, could be made.

Mr Dean very helpfully took the coroner through the various Court Rules and Practice Directions and pointed out that, even with everyone working expeditiously towards a resolution of the permission appeal, a strict reading of the timetable meant that it was perfectly possible that the decision would not come in time.

The submission of Hugh Davies QC, on behalf of the Chief Constable of West Yorkshire Police, that the inquest hearing opened in April and would be adjourned if the permission appeal was successful, did not find favour with either Mr Willems QC or the coroner himself. The latter expressed particular concern over the impact that a delay of some months, in those circumstances, could have on the jury.

Various estimates were advanced as to when and where a re-listed inquest might be accommodated, bearing in mind a large, ‘special measures’ courtroom (or courtrooms) is a specific requirement. They ranged from eighteen months to two years. The coroner pointed out that, even in the pre-virus epidemic era, there was a gap between the previous date vacated in November 2019 to the present listed date of 17 months.

A planned visit by the coroner, and the interested parties, to Bradford Crown Court is set to go ahead on 3rd March, 2021. Court staff are limiting the numbers attending on that day due to the virus epidemic. Arrangements regarding the positioning of TV screens, witness box screening and entry to/exit from the court in order to preserve anonymity of police witnesses will be amongst the topics discussed. Mr Willems QC told the hearing that a risk assessment had already been carried out by Crown Court staff, or those acting for them in that connection. Partitions between jurors and between counsel are already in place.

Mr Longstaff wen on to say that West Yorkshire Police had kindly offered to prepare the inquest hearing bundle which runs to over 6,000 pages. It will be distributed electronically in ‘pdf’ form. This represented a considerable saving to the coroner’s team, and their host authority, City of Bradford Metropolitan District Council, both in terms of outsourcing cost and saved hours internally.

Some of those savings look as though they will be re-invested by the Council in making a rolling transcript of the proceedings available throughout the inquest hearing. Mr Willems QC noted that such a resource would be useful to the coroner when summing up and, most particularly, the jury in their fact finding role. (Also, it must be said, very useful to members of the press).

Amongst five witnesses who had sought excuse from attendance at the inquest hearing was Christopher Hodgson of the Independent Office for Police Conduct. The IOPC had queried whether his evidence was necessary and, if so, could his statement be read to the jury.

By an extraordinary coincidence, the IOPC released an important statement concerning the findings of its investigation into the controversial death of another Huddersfield man, Yassar Yaqub, on the very same day as the pre-inquest hearing (read more here). The much delayed inquest touching that death, which followed a ‘hard stop’ shooting by police marksmen, is set to be heard in January, 2022.

Page last updated: Sunday 21st February, 2020 at 0835 hours

Corrections: Please let me know if there is a mistake in this article. I will endeavour to correct it as soon as possible.

Right of reply: If you are mentioned in this article and disagree with it, please let me have your comments. Provided your response is not defamatory it will be added to the article.

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This article contains public sector information licensed under Open Government Licence v3.0 (read more here).

© Neil Wilby 2015-2021. Unauthorised use, or reproduction, of the material contained in this article, without permission from the author, is strictly prohibited. Extracts from, and links to, the article (or blog) may be used, provided that credit is given to Neil Wilby Media, with appropriate and specific direction to the original content.

Watchdog clears police over M62 shooting

An investigation by the police watchdog into the shooting of a 28 year old Huddersfield man, after a hard stop on the M62 slip road at Ainley Top in January, 2017, has decided that no West Yorkshire Police officer committed a criminal offence or breached professional standards (writes Neil Wilby). 

Yassar Yaqub was a passenger in an Audi saloon car. It was returning to the Huddersfield area from a meeting at Cafe de Akbar in Bradford. His family believe he was ‘set up’ by a notorious police informant whom he had met shortly before he was killed.

At Leeds Crown Court, during the trial of the driver of the Audi car, Moshin Amin, it was heard that a microphone had been concealed in the ceiling at the restaurant, by police, who then followed the car through the city and out onto the motorway network. Amin hotly disputed that a hand gun was in the vehicle but the jury found him guilty of conspiring to possess a firearm with intent to endanger life. 

He also says no warning was given before three shots were fired into the Audi by a police marksman (codename Victor 39) from the passenger seat of an unmarked Mercedes Benz car. Amin’s testimony was, also, that Yasser was unarmed and on his mobile phone to a man who owed him money over the sale of a car when he was shot. The trial judge, Mr Justice Turner, during sentencing said that the evidence about the dispute being over a car, rather than drugs, was ‘implausible’.

The Independent Office for Police Conduct (IOPC) said yesterday that its final report into the incident will not be published until after an inquest which is scheduled for January 2022.

Steve Noonan, the IOPC’s Director of Major Investigations, said: “Our investigation into the death of Yassar Yaqub concluded in 2019.

“Our detailed final report has been shared with West Yorkshire Police and the office of Her Majesty’s Coroner. 

“The outcome of our investigation has been shared with Mr Yaqub’s family and interested parties, while recommendations for learning have also been published on our website.

“A copy of our final report has recently been shared with Mr Yaqub’s family and interested parties.

“Our investigation was comprehensive and detailed.

“Police were treated as witnesses throughout the investigation and the report did not indicate that any officer may have committed a criminal offence or behaved in a manner that would justify the bringing of disciplinary proceedings.

“Due to the investigation’s complexity, as well as a parallel criminal investigation and subsequent trial in late 2018 which restricted our access to a number of key witnesses, there was an inevitable impact on when we could finalise our investigation. We recognise that this will have affected Mr Yaqub’s family.

“It would not be appropriate for the IOPC to publish a report or provide further information until the inquest is concluded.

“As always, our thoughts remain with all those affected by Mr Yaqub’s death.”

The investigation was led by one of its former Commissioners, Derrick Campbell, about whom the Yaqub family and their legal team are fiercely critical.

Michael Mansfield QC, the barrister acting for Yaqub’s family, is understood to have told IPCC investigators at a meeting in April 2017 that their approach was reminiscent of “the bad old days” when families were treated with “utter contempt by the police and those charged with investigating police misconduct”.

“The IPCC panel was not fit for purpose – that’s what they’ve shown,” said Mohammed Yaqub. “They tried to tell me certain things that were incorrect. They didn’t have their files with them [at the meeting]. I was very, very, very shocked.”

The disgraced watchdog was forced to change its name to the IOPC a year to the day after Yassar was shot. The IPCC brand had become too toxic after a lengthy catalogue of high profile failures almost from the day of its inception in April, 2004. It replaced the equally troubled Police Complaints Authority.

Mr Yaqub, a successful and well known local businessman, who is adamant that his son was shot unlawfully, has been approached for further comment. Mr Yaqub is a prominent member of the United Friends and Family Campaign (UFFC) which is a coalition of those affected by deaths in police, prison and psychiatric custody, supports others in similar situations. Their present number totals around 1,700.

The press office at West Yorkshire Police has also been asked for a statement. It is understood that the force has applied for anonymity for its officers at the forthcoming inquest. Important case law on the controversial topic, particularly in relation to the death following police custody of another Huddersfield man, Andrew Stephen Hall, is covered in great detail elsewhere on this website (read more here).

Page last updated: Saturday 20th February, 2020 at 0805 hours

Corrections: Please let me know if there is a mistake in this article. I will endeavour to correct it as soon as possible.

Right of reply: If you are mentioned in this article and disagree with it, please let me have your comments. Provided your response is not defamatory it will be added to the article.

Picture Credit: Christopher Furlong/Getty

This article contains public sector information licensed under Open Government Licence v3.0 (read more here).

© Neil Wilby 2015-2021. Unauthorised use, or reproduction, of the material contained in this article, without permission from the author, is strictly prohibited. Extracts from, and links to, the article (or blog) may be used, provided that credit is given to Neil Wilby Media, with appropriate and specific direction to the original content.

Inquest delayed over police anonymity arguments

Andrew Stephen Hall, a black man from Huddersfield, died in the town’s Royal Infirmary on 13th September, 2016. He was 43 years old and his admission to hospital followed an episode in West Yorkshire Police (WYP) custody at the local police station and an earlier visit to the Accident and Emergency Department (A & E) of the same hospital.

From documents filed at the High Court, these are the circumstances noted in submissions and are not the subject of factual dispute by any party to those proceedings:

In the early hours of that same September day, Mr Hall was found collapsed at home by his partner, Natalie Dyer. He had taken prescription medication and drunk alcohol. When paramedics attended, he was unresponsive and was taken to A & E where he received further medication and his condition appeared to improve.

He became agitated, however, and was alleged to have slapped a nurse. Ms Dyer says in a witness statement that this occurred because he was disorientated, frustrated and panicking. As a result of the incident, he was removed from the hospital to the nearby police station in the town centre, arriving at about 7.30 am.

At 8.35 am, Mr Hall was taken to a custody area and his handcuffs were removed. He told officers that he was feeling unwell and was going to be sick. He was taken to a cell where he could vomit. He was assessed by a male custody nurse at around 10am and, thereafter, taken back towards the cell by three officers. In transit, he freed one of his arms and grabbed a barred gate. During the ensuing struggle, at least one of the officers struck Mr Hall multiple times. He may have struck back. By 10.18 am the officers had restrained him and returned him to his cell. The custody nurse observed the later stages of what happened to Mr Hall during the altercation and he was of the view that the detained person needed to be taken back to hospital.

Paramedics attended the police station at 10.42 am and Mr Hall was returned to hospital in handcuffs and leg restraints. He was sedated, medicated and arrangements were made for him to have a computerised tomography (CT) scan. Whilst waiting for this procedure his condition deteriorated and clinical staff could not feel a pulse. Cardiopulmonary resuscitation (commonly termed as CPR) was performed, but he was declared dead at 12.44 pm.

Andrew’s death, therefore, occurred shortly after he had been in police custody and restrained. Because of the prevalence of such incidents across the wider police service, dating back many years, there is significant public interest in an inquest into the death of a black man in these circumstances. The recent surge of publicity surrounding the Black Lives Matter campaign is ample demonstration of that.

Sixteen police officers are expected give evidence at the delayed inquest, to be held later this year. Anonymity was originally sought for fifteen of them, a number, seemingly, reduced to thirteen by the time the matter reached the appeal court.

Applications for anonymity

In March 2019, the WYP chief constable made an application to Her Majesty’s Coroner for West Yorkshire (Western) for anonymity for three of his officers and, also, for them to give evidence from behind screens. The ranks of those officers are, as yet, undisclosed.

A similar application followed from the Police Federation, on behalf of twelve of their members (officers holding the rank of constable up to chief inspector).

The application for anonymity was not contested by Mr Hall’s family and an Order was made, by the coroner, Oliver Longstaff, together with Orders that the CCTV footage featuring the officers will be modified so their names cannot be heard and their faces will be pixelated. The coroner, jury and legal representatives of the family will have access to unedited copies of the CCTV.

The applications for police officer evidence to be given from behind screens were, however, resisted by the bereaved family. The coroner heard these applications on 6th June 2019. He had two statements from WYP’s Inspector Danny Rotchell, together with his risk assessment; open statements from three officers and closed statements from other officers. The applications were grounded on the premise that if officers were seen, they might be identified and if so, they might be identified either by, or to, Andrew Hall’s brother, Qassim. He has a lengthy criminal record, is well known to the police in Huddersfield and records show that he has a history of making threats.

Qassim Hall was not one of the family members involved in the applications before the coroner, the subsequent judicial review and the consequent appeal to the Court of Appeal. He has not, so far, attended any of the hearings.

The named claimant (or respondent) in those proceedings is Andrew Hall’s partner (and the mother of one of his children). She was, in effect, acting with, and on behalf of, six other members of his family including his mother (Pamela Hall), father (Franklyn Lindor), three siblings (Tracey Nash, Daniel Priestley and Bianca Priestley) and an adult son (Joseph Hall), collectively referred to by the various courts as ‘the family’.

The coroner’s ruling

The coroner ruled, in the event, that the police officers giving evidence would be screened from the public (including accredited members of the press) and the family, but be fully visible to himself, the jury and the legal representatives of all the interested parties.

He stated that the wealth of competing legal authorities presented to him by counsel for all those parties demonstrated that, first and foremost, applications of this nature are ‘immensely fact-sensitive’.

Instinctively, the coroner said, the proposition that the family of the deceased who has died, in circumstances that call into question the State’s discharge of its obligations under Article 2 of the European Conventions on Human Rights [ECHR], should not see the agents of the state implicated in that death ‘offends what can be appropriately described as natural justice, in the sense of the fair and impartial application of law and procedure to all parties to a particular legal process.’

‘That instinct was all the stronger where the application was not based on any sufficient evidence or intelligence reflecting adversely on the family members most likely to be affected,’ adding that there was no basis upon which the Rule 18 power (under the Coroners (Inquests) Rules, 2013) could be exercised other than in respect of the perceived danger said to be posed to officers by Qassim Hall.

The coroner found that proposition credible, referring to Hall’s convictions for violence and history of making threats, including to kill. He accepted that Qassim blamed the police for Andrew Hall’s death and that the police officers had a genuine fear that if identified it would create a risk of harm to them, or their families, from the actions of Qassim Hall. He further accepted that in the case of some of the officers, these fears were affecting their health, and will continue to do so, unless steps are taken to minimise the risk. Hugh Davies QC and Brian Dean, of counsel, had both submitted, in terms, on behalf of the chief constable and Police Federation respectively, that the officers’ fears were not irrational but could be characterised as subjective fears that were objectively justified.

The coroner accepted the submission of Leslie Thomas QC, on behalf of the family, as to the presumption that evidence would not be given from behind a screen and said that Coroner’s Rules permits a departure from that presumption if he determined that the use of screens was likely to improve the quality of the evidence of the officers, or allow the inquest to ‘proceed more expeditiously’. (The sharp-eyed may have noted that the Rule, as drafted, refers to expedience not expedition).

He went on to conclude that permitting the officers to give evidence from behind a screen would be likely to improve the quality of their evidence overall. Witnesses who are fearful for their safety, or the safety of their families, in the event that they are identified, were more likely to be straightforward and forthcoming in their evidence if confident they will not be identified. He had considered whether the use of screens would impede the questioning of any witness and concluded that the retention by the family of a leading QC obviated the risk of any such impediment.

The coroner emphasised that his starting point was the interests of justice, generally, and of anyone concerned in the legal process ‘are best served when those charged with making findings of fact, and reaching conclusions based upon those findings, are able to do so on the basis of the best evidence’ and that, in this case, the best evidence will be given if the police officers give evidence from behind screens.

He confirmed that his decision cast no doubt, or aspersion at all, on the good character of the bereaved family, but his decision was based upon what he perceived as the genuine risk posed by Qassim Hall to the officers and their families.

Delay to inquest

The inquest touching the death of Andrew Hall was listed to commence on 4th November, 2019 at Bradford Law Courts.

That date was vacated as a result of the extant legal proceedings challenging the coroner’s decision and, subsequently, the decision of the High Court in respect of that ruling.

It will now be heard in April 2021, if and when the effects of the virus crisis are mitigated. Multi-handed hearings, before a jury and with large numbers of court staff, lawyers, security, witnesses, reporters and public to be accommodated, pose their own set of problems.

The next hearing will take place on 19th February, 2021. It is listed as a pre-inquest review before Mr Longstaff. Presumably, one of the issues to be resolved is a date for the final hearing of the inquest.

The judicial review application by the Hall family

On 11th October, 2019, Mrs Justice Jefford sitting in the Administrative Court in Leeds heard an application from Mr Hall’s family opposing the coroner’s directions in relation to the screens.

It is worth setting out the grounds in full as they articulate some of the recurring concerns of bereaved families, across a broader portfolio of deaths following police contact, particularly as anonymity orders and screening of police officer witnesses is now an increasing trend:

Ground 1: “The coroner misdirected himself, in that he failed to recognise (i) the fundamental importance of open justice and to give it great weight; (ii) the particular importance of open justice in this inquest, as it involves a controversial death in police custody of a black man following police restraint; (iii) that his decision interfered with the rights of the press within Article 10 of ECHR; (iv) that screening is only permitted in exceptional circumstances; and (v) that in this context screening, particularly screening of all factual police witnesses, is a serious incursion into open justice.”
Ground 2: “The decision to screen the 16 officers from the family and public was a greater intrusion into open justice than was strictly necessary. It follows from the coroner’s ruling that here was no rational basis for screening the witnesses from anyone other than Qassim Hall. There was a less intrusive means of achieving the aim pursued, which was to screen the witnesses from him alone.”
Ground 4: “The coroner proceeded on the basis that screening is permitted if that would improve the quality of evidence, and thereby misdirected himself.”
Ground 5: “The decision was not compatible with the procedural duty within Article 2 ECHR; was not correct as a matter of common law; or alternatively was disproportionate.”

The family was refused permission to apply for judicial review on ground 3 and, as such, it does not appear in the list above. HHJ Philip Kramer, sitting as a judge of the High Court, granted permission in respect of grounds 1,2,4 and 5.

As the hearing unfolded, grounds 1 and 4 were argued together, and the judge said it was first necessary to address the legal framework. There was no dispute that the principle of open justice is a fundamental tenet of common law, as applicable in a coroner’s court as in any other court, citing, inter alia, R (T) v West Yorkshire Senior Coroner [2017] EWCA Civ 318[2018] 2 WLR 211.

She then set out the different facets of the principle, including the ability of those present in court to see and hear the evidence being given. She stated that she did not consider it particularly helpful to frame any incursion into the principle of open justice as only allowed in exceptional circumstances. Her analysis was that: “where there is a balancing exercise to be undertaken, particular weight is to be attached to this fundamental principle and one of the consequences of attaching particular weight to that consideration is that the incursion into openness should be no more than necessary.”

The judge set out the four reasons advanced on behalf of the Hall family as to why the use of screens was a significant incursion into open justice: “(i) it undermines the effectiveness of the investigation because the public would not be prompted to bring forward further evidence; (ii) the observing of the witnesses is an important part of the investigative process (not limited to the process undertaken by the decision makers); (iii) preventing the witnesses being seen undermines public confidence in the process; (iv) not being able to see the witnesses reduces the prospect of catharsis for the family of the deceased.” She noted that no further reliance was placed on the first point but the family continued to rely on the remainder.

She further noted that being able to see a witness give evidence is an important factor in assessing demeanour and credibility. She said that, nonetheless, screening was common in criminal trials because the courts had recognised both the needs of vulnerable witnesses and innocent bystanders giving evidence in difficult circumstances – and the consequent benefit to the quality of their evidence from being made comfortable. This was not seen as undermining public confidence in the system of justice or the openness of the process. However, she added that the position being argued here was significantly different. In the case of an inquest such as this, the public interest in seeing the police officers, however they may have been involved in the events leading to the death of Mr Hall, was of a different nature and measure from the public interest in seeing a vulnerable complainant or witness give evidence – and the risk of undermining public confidence all the more obvious. She referred to the submission of Adam Straw on behalf of the Hall family that there must be such an overarching consideration because of the fundamental importance of the principle of open justice. She also noted his submission that, by following the Rules, the coroner had failed to weigh in the balance the fundamental importance of open justice.

The judge then set out why she considered it was right that the principle of open justice must always have a place in the decision making process and be given appropriate weight in the balancing exercise between potential benefits and detriments of screens and went on to say that it by no means followed that the coroner had misdirected himself in law, for two reasons she identified: Firstly, she noted the opposing arguments had been fully ventilated at the hearing, before the coroner, so it could not be said that Mr Longstaff was not aware of the matters the Hall family averred should be taken into account. Secondly, the coroner’s decision had to be read “with a degree of benevolence or pragmatism” and that the coroner must be taken to have in mind all of the arguments made by counsel, even if he did not set out each of them in detail. If he took account of the relevant factors, he could not be said to have misdirected himself in law, even if he did not articulate the legal principles in the way counsel for the Hall family would have formulated them.

In her judgment, she took the view that the coroner was entirely correct in saying the police application for screening was based upon the fears that Qassim Hall would seek to harm them and found that threat credible and the fears genuine.

She recorded the family’s view that what the coroner did was set out the competing submissions but did not then evaluate the comparative importance of the various factors or weigh them against each other. That is to say: Quality of the evidence weighed in the balance with the interests of open justice.

The judge found that his references to ‘the principles of natural justice’ were clearly in context references to ‘the principles of open justice’ and said, further, that the coroner had made clear his instinctive difficulty or discomfort with the proposition that the family would not see the witnesses implicated in Andrew Hall’s death if their evidence was given from behind screens. It was also found that the ruling in which the coroner considers all the circumstances of the case, may well be read as having inherent in it a balancing exercise in which the principle of open justice played a part.

The judge concluded in relation to grounds 1 and 4 that the coroner did misdirect himself in law and the challenge on the basis of ground 1 succeeded. The family’s position was, in those circumstances, that the judge should make her own decision about the use of screens if she considered there was only one possible outcome, but she could remit the matter back to the coroner if she thought there was a range of possible outcomes. She noted that there was no real dispute that, from the police perspective, it was the appropriate course. To deal with this issue, she considered it easiest to address what her decision would have been on grounds 2 and 5 had she not concluded that the coroner had misdirected himself.

Ground 2 involved a Wednesbury irrationality challenge, that even if the coroner did not misdirect himself, his decision was irrational essentially on the basis that less intrusive measures could have been directed, such as directions to screen the officers from Qassim Hall only, or to restrict his entry to the courtroom. It was said by the Hall family that, even if screens to protect the officers from the view of the general public was rational, it was irrational to direct screens that prevented the family members from seeing the officers give evidence.

Ground 5 was argued with ground 2 because it was similar. It was contended that the decision was neither compliant with the common law duty of fairness nor with the ECHR Article 2 procedural duty. Both grounds raising the same broad argument that the coroner’s direction was a disproportionate measure. Article 2 procedural duty requires that there be a sufficient element of public scrutiny of the investigation to secure accountability, maintain public confidence and prevent any appearance of collusion or tolerance of unlawful acts: The family must be able to participate effectively in the inquest. The judge recognised that this did not extend to the family having a right to cross-examine, or it would seem, a right to observe witnesses giving evidence, but the interest in doing so remains a factor to be taken into account.

The judge said that it was common ground that the decision as to compliance with the common law duty of fairness and/or proportionality was one for the court rather than an irrationality challenge. She said that if she considered the use of screens irrational, it would follow that she would conclude that it was not in accordance with common law principles and was a disproportionate incursion into the Article 2 procedural duty. In each instance, it was open to her to substitute her own decision, which she understood to be common ground.

The judge then set out details of Qassim Hall’s lengthy criminal record and history of making threats. It is not necessary to set out the detail of those findings, as none of the parties has sought to challenge the coroner’s finding that the threat from Qassim Hall was credible and the officers’ fears of being identified by him genuine.

Other than an alleged incident, the day after he had been told of his brother’s death, when Qassim Hall is said to have attempted to climb over the gates of Huddersfield police station (of which incident the police had no record) there was no further evidence that, in the three years since Mr Hall’s death, Qassim Hall had taken any steps to identify or threaten any of the officers. Before the coroner Hugh Davies QC, on behalf of West Yorkshire’s chief constable, had made very clear that none of the other Hall family members represented a threat to the officers or would, themselves, breach the anonymity order. What was contended was that the family members were vulnerable to forced extraction of the identity of the officers. Set against this is the fact of the family already knowing the identity of two of the officers and there was no suggestion they had disclosed that information to Qassim Hall.

The judge referred to the fact that Qassim Hall was not estranged from his family and to two incidents, one in which his mother was charged with violent disorder in 2005, whilst attempting to prevent his arrest and another when she was arrested but not charged when Qassim and his partner were under investigation for harassment. The judge described these as: “the high point of the evidence that a named family member might become engaged with Qassim Hall, out of a sense of loyalty, in steps against the officers by disclosing their identity or otherwise.”

The judge said in the ‘Discussion’ section of her judgment that the coroner made a rational judgment that the quality of the evidence of the officers was likely to be improved by screens and that the quality of the evidence must necessarily be a weighty factor but quashed the coroner’s decision to permit screens to the extent that the screens prevent the identified family members from seeing the officers give evidence. However she decided on the entirety of the evidence that the coroner’s directions as to screens should continue to apply to officers identified as ‘C’ and ‘N’. The reasons for drawing this distinction were not set out.

She concluded that the screening of all the officers from the family was not in accordance with the common law duty of fairness and was a disproportionate measure. The argument that the family would both identify the officers and breach the anonymity order, for which there was no evidence, was wholly speculative.

The appeal to the Court of Appeal by the police

The grounds of appeal of the Chief Constable are that Mrs Justice Jefford’s decision in her judicial review was wrong for the following reasons:

  1. She misdirected herself as to law
  2. She made irrational and/or inconsistent conclusions.
  3. She failed to apply the common test on facts as found.
  4. She wrongly concluded that Article 3 was not engaged and/or that, whether or not it was engaged, the only rational order was to permit defined family witnesses to see the anonymised witnesses.

As one might have expected, there was a considerable overlap between those grounds and those advanced by the Police Federation which were as follows:

  1. The judge erred in ruling that the coroner had not taken account of the principle of open justice.
  2. In reaching that conclusion and substituting her own decision, the judge made errors of law and misdirected herself.
  3. Having reached her erroneous conclusion, the judge wrongly substituted her own findings on the evidence and minimised or dismissed evidence that was uncontested. She reached conclusions that are inconsistent and unsupported by any rationale.
  4. The judge failed to rule appropriately or at all on important submissions in particular as to Article 3, failed to consider the risks to the officers’ families at all and having substituted her own views as to the (un)likelihood of disclosure by force or threat, failed to consider the risk of inadvertent disclosure.
  5. Overall the judge was wrong to find that in the case of 14 out of the 16 witnesses, the balance came down in favour of allowing the family to see the witnesses.

At the outset of his submissions on behalf of the Chief Constable, Hugh Davies QC emphasised that the course which the coroner had adopted, that the officers would be screened from the public and the family but be fully visible to the coroner, the jury and the legal representatives, and the redaction and pixelation of the CCTV footage, so far as the public and family were concerned, was entirely compliant with the Article 2 procedural obligations on the State in relation to the investigation into the death of Mr Hall.

Mr Davies QC submitted that the order for anonymity recognised that Qassim Hall posed an objective threat and an indiscriminate risk to the officers and their families. The risk assessment by Inspector Rotchell, a qualified professional, was that Qassim Hall was a threat of harm in the limited area of Huddersfield. He continues to offend and express views antithetical to the police. The assessment by Mrs Justice Jefford that, if the public were able to see the officers give evidence, there was a real risk of identification by, or to, Qassim Hall, but that the family were in a different position, would not stand scrutiny. He had a background of mental instability and there was a real risk that if the family could see the officers give evidence, Qassim Hall would learn that the family had seen the witnesses and seek to obtain information about them, with an increased risk to them of his putting pressure on them to extract that information. Contrary to the judge’s conclusion that this was “pure speculation”, it was, he said, a real risk. The judge’s conclusion was contrary to the coroner’s finding that the threat to the officers and their families from Qassim Hall was “credible”.

Although in his opening submissions to the Court of Appeal, Mr Davies QC put the case on behalf of the Chief Constable on the basis of both the common law and Articles 2 and 3 of the ECHR, during the course of the hearing he accepted that (as Leslie Thomas QC for the Hall family had correctly pointed out) the application before the coroner was in the end one of common law . Article 2 was, accordingly, not relied upon further and Mr Davies QC accepted that Article 3 had been “put on the shelf”.

Ultimately, the real complaint levelled by the Chief Constable against the judicial review judgment was in relation to the judge’s categorisation of the threat or risk as “pure speculation” which amounts to a rejection of any objective justification.

So far as concerns the correct construction of Rule 18 of the Coroner’s Rules, Mr Davies QC adopted the submissions of Jonathan Hough QC on behalf of the coroner, which are summarised below.

Mr Davies QC submitted that the reference in the coroner’s ruling to “a balancing of competing interests between the officers and the family”, in the context of the ruling as a whole, could only be to the competition between the family’s open justice expectations and the position of the officers, which was the whole point of the competing submissions. He said that whilst the judge had recognised that the ruling should not be subjected to minute dissection, that was the outcome which the judgment had produced. The judge had adopted a narrow contextual analysis of the ruling. Whilst it was accepted that the coroner had arguably not gone through a “pre-flight check list” in relation to the competing interests of open justice on the one hand and the concerns of the officers on the other, Mr Davies QC submitted that the coroner had dealt with the competing interests adequately and the judge had been wrong to substitute her own decision.

On behalf of the Police Federation, Helen Malcolm QC indicated that the only area where her submissions diverged from those of Mr Davies QC was that she contended that both Articles 2 and 3 of the ECHR were engaged fully. She submitted that the real question was not whether Article 3 was engaged as a matter of law, but how the protective duty of the state under Article 2 was to be satisfied. This concerned the balance to be struck between the state’s obligation to protect the officers and the state’s obligation to ensure that the family have access to the extent it is possible. She submitted that, contrary to the judge’s conclusion, the coroner had engaged in an appropriate balancing exercise and had given important weight to the principle of open justice in his ruling, where the reference to “natural justice” was clearly intended to be to “open justice”. The suggestion that he had not taken it into account at all was just not sustainable.

Ms Malcolm QC submitted that the judgment was riddled with public law errors. After the hearing she and her junior counsel, Brian Dean, helpfully compiled a Note setting out these errors. It is not necessary to enumerate all of them but two of them seemed to be of particular significance. The first is that the judge mis-characterised as “submissions” matters which formed part of the coroner’s decision in his ruling. The second is that, although the judge accepted the coroner’s findings on the evidence as to genuine fear and concern of the officers, she then minimised the risks and apostrophised the professional risk assessment of Inspector Rotchell as “wholly speculative” or “pure speculation”. Whether these are “public law errors” or just errors or inconsistencies in the judgment may not matter.

Ms Malcolm QC submitted that it was illogical for the judge to say at [64] of her judgment that there was a greater risk from the officers being seen by the general public than from there being seen by the family who were those who were closest to Qassim Hall and were in communication with him. She submitted in this context that the coroner and the Court would be entitled to take into account not only the risk of disclosure by family members of the officers’ identity as a consequence of pressure from Qassim Hall but also the risk of inadvertent disclosure.

She submitted that the judge had misunderstood the purpose of an inquest which was not to provide “catharsis” for the family or to allow them to assess the demeanour of the officers giving evidence, although that may be its welcome effect. Ms Malcolm QC emphasised that the inquest was not a blame-laying exercise, however much the family might want it to be, and that the family had no right to cross-examine witnesses other than with the permission of the coroner. She submitted that, in an inquisitorial process such as an inquest, getting the best evidence was of particular significance. It was in the public interest for the best evidence to be available to the fact-finder and that public interest was actively served by making life comfortable for the officers giving evidence. If there was no blame on them, then it was right and proper to protect them. If there was blame, the correct forum for that issue to be resolved was a criminal trial, not the inquest. She submitted that the coroner had to have an eye to the future. If the officers were identified and then threatened or harmed, it was less likely that there would be a full and proper criminal trial. The officers would be less able or willing to give evidence.

On behalf of the coroner, Jonathan Hough QC adopted a neutral stance as to the outcome of the appeal but he sought to assist the Court on two aspects of the case: (i) the correct interpretation of Rule 18 and (ii) the nature and content of the ruling.

He reminded the Court that prior to the enactment of Rule 18, there was no full procedural code and thus no statutory rule in relation to the use of screens in inquests. Any orders for screens were made under inherent common law case management powers. Before the Rules were made, in March 2013 the Ministry of Justice issued a consultation on coroners’ rules and regulations which attached draft Rules. The draft Rule 18 was similar to the current version, except that (i) sub-rule (2) only referred to improving the quality of the witness’s evidence as a basis for a screening determination; and (ii) sub-rule (3) did not make reference to national security interests as a factor in the determination. Following the consultation, the Ministry issued a response paper in which it explained: “We have amended rule 18 to allow the coroner to permit screened evidence only where this would be [i] likely to improve the quality of the evidence, or [ii] is in the interests of justice or [iii] national security.” The Rules were then laid before Parliament and passed in their current form.

Mr Hough QC submitted that the use of the word “may” in sub-rule (1) indicates that this is a discretionary power. Sub-rule (2) provides for a threshold condition that the discretion can only be exercised if the coroner determines that either giving evidence from behind screens would be likely to improve the quality of the witness’s evidence or “allow the inquest to proceed more expediently”. The “determination” referred to in sub-rule (3) is that determination made under (2) but it requires the coroner to have regard to all the circumstances of the case including the interests of justice and national security. He submitted that, contrary to the judge’s view, “expediently” should be given a relatively broad meaning of “appropriately” and not limited to convenience or practicality. This made internal sense of the Rule and meant that a determination that the giving of evidence from behind screens would allow the inquest to proceed more appropriately was a threshold condition. The consideration of what was most appropriate brings in the wider issues of what is in the interests of justice or national security.

He submitted that if “expediently” is given the narrow meaning which the judge seems to have favoured, serious practical problems are created since it is difficult to see how a coroner could order screens for national security or operational reasons (for example in relation to witnesses from the security services or under-cover police officers) if expedience was limited to convenience or practicality. This wider meaning was consistent with the use of the word expedient in other statutory contexts. Thus, the now repealed Tribunals of Inquiry (Evidence) Act 1921 permitted the public to be excluded from a hearing if “it is in the public interest expedient so to do for reasons connected with the subject matter of the inquiry or the nature of the evidence to be given.” Section 9A(2)(a) of the Coroners and Justice Act 2009 (a section added by amendment after the making of the Rules) provides that a coroner may require a juror to surrender an electronic communications device if the order “is necessary or expedient in the interests of justice”. Mr Hough QC submitted that if “expedient” bore only the narrow meaning of “practical”, it would be an oxymoron in each case.

Mr Hough QC submitted that consideration of both anonymity orders and screens orders engages the open justice principle. What is entailed is a fact-sensitive balancing exercise taking account of all the factors, including the fears of witnesses, even if objective justification is weak or lacking. He submitted that in practice a coroner will comply with the balancing exercise by posing three base questions: (i) would the screening order sought improve the quality of the evidence or be appropriate in all the circumstances; (ii) if yes, does the balance of competing interests, including those of the family, justify the order sought; and (iii) would there be an Article 2 or 3 risk (risk to the life of the witness or risk of serious harm to the witness) if the order were refused? If so, the order would usually be made.

He submitted that there were five particular features of the case which provided the context for the coroner’s ruling: (i) the case involved the controversial death of a black man in police custody following multiple restraint; (ii) there was substantial evidence that Qassim Hall had a lengthy history of crime, including violence, although not the most serious, and a propensity for persistent harassment. On the basis of that evidence and evidence that he blamed the police for his brother’s death, the anonymity orders were made; (iii) the other members of the family had no criminal history and there was no evidence that they posed a threat to the officers; (iv) there was evidence that the officers were fearful of giving evidence if they were identified; and (v) it was common ground that the coroner, the jury and the legal representatives will see the witnesses but that if the general public saw the witnesses there is a real risk of their being identified to Qassim Hall, as the judge found at paragraph 64 of her judgment.

Mr Hough QC then drew attention to the salient aspects of the ruling. The coroner had recorded that Mr Thomas QC objected in principle to screens but also argued that his clients, the Hall family, should see the officers. In the Decision section, the coroner recorded that these applications are immensely fact-sensitive and he recognised the importance of the matters set out in Rule 18(3). He made the points about the screening of the officers from the family offending “natural justice” (in other words open justice) so that, as Mr Hough QC submitted, the coroner was focused on the central issue of whether the family members should see the witnesses. He dealt efficiently with the evidence about the threat posed by Qassim Hall, concluding (i) that the threat was credible; (ii) that the officers had a genuine fear; (iii) that it was affecting their health and (iv) that it would continue to do so, none of which, Mr Hough submitted, was controversial.

He submitted that the ruling followed the scheme of Rule 18 and said that the coroner was trying to reflect the terms of Rule 18(2) which requires one or other threshold condition to be satisfied, not cumulative conditions; and (ii) the coroner took account of the interests of justice in the remainder of his decision. He concluded that the use of screens would improve the quality of the evidence, which nobody challenged. He further stated that the coroner set out that he could not make the determination without considering all the circumstances of the case, in particular the matters set out at Rule 18(3)(a) and (c). No issue of national security impacted on his decision.

He then considered the remaining limb of (3) at sub-section (b), the interests of justice, saying they were best served when fact-finders could make findings on the basis of the best evidence which would be achieved by the evidence being given from behind screens. Mr Hough QC submitted that the coroner used the words “to the extent” at the beginning of paragraph 48 of his ruling because he recognised that he was considering both a threshold consideration and a balancing exercise, not purely a balancing exercise.

The judge had concluded that the coroner had engaged in too limited a balancing exercise but Mr Hough QC submitted that he had, in fact, taken account of the interests of the family.

On behalf of the Hall family, Adam Straw emphasised the importance of the principle of open justice in the balancing exercise that has to be undertaken. He drew specific attention to what was said by the Court of Appeal in at [63]:

Mr Straw submitted that part of the purpose of open justice was that the family should see the police witnesses and be able to assess their demeanour when a central issue was whether they had an honest belief that Andrew Hall posed a threat whilst in their custody. Mr Straw was, however, unable to point to any legal authority which established specifically that part of the principle of open justice was to enable members of the public, or here the family, to assess the demeanour of witnesses. He submitted that not having sight of the witnesses will make it more difficult for the family to understand the decisions reached by the jury.

In relation to ground 1 of the appeal by the Police Federation, that the judge had erred in concluding that the coroner had failed to take account of the principle of open justice, Mr Straw submitted that whether the judge was wrong was a question of fact and the standard of review for this Court was whether the judge’s decision was clearly erroneous. He relied upon the analysis of the circumstances in which an appellate court can review findings of fact by a court of first instance and that the judge was clearly right that the coroner had not had regard to the powerful imperative of open justice.

He submitted that the judge had been correct to substitute her decision for that of the coroner as there was a balancing exercise in considering the duty of fairness to a witness and on a judicial review it was for the Court to decide for itself whether a measure was fair. Whilst due weight should be given by the Court to the decision of the coroner as the primary decision-maker, in this case very little weight should be given to his decision since he had misdirected himself as to the law.

Leslie Thomas QC made similar points in his oral submissions. Whilst he accepted that the family was not the decision-maker in the inquest, they play an important part. They could not grieve properly until they were able to look into the eyes of the person who took their relative’s life, as their solicitor Alice Stevens (of Broudie Jackson Cantor) made clear in her witness statement. He emphasised that because this case concerned the death of a black man in custody, there was a belief that the system was weighted against them and there could be a cover-up. There was no good reason why they should not see the witnesses and if they did not, far from being at the heart of the coronial system as the Explanatory Memorandum said, they would feel side-lined.

He submitted that the Chief Constable was simply wrong in taking exception to the judge considering race as a factor relevant to open justice. A principal purpose of open justice was to restore public confidence and there was always a high public interest in open justice in any case where someone was killed at the hands of police officers, particularly the death of a black man, of which there were a disproportionate number globally. There was a legitimate interest in knowing whether race played any part in this death.

In relation to the complaint by the police that the judge had erred in distinguishing screening from the family and screening from the wider public he submitted that the onerous threshold to which Mr Straw had referred had not been met. The family was a small group of known individuals and Inspector Rotchell had identified no threat from the family itself. Ms Dyer says that she has known for four years the identity of two of the officers, but she has never disclosed that information to Qassim Hall. The family has made clear that they will not disclose the identity of the officers to him and has provided undertakings to the court. By contrast, the wider public could be anyone who came into the public gallery. That person’s character or propensity was an unknown risk. The distinction the judge had drawn was a rational one.

Mr Thomas QC submitted that the judge was correct to conclude that there was no objective risk, that there was no evidence that the family will breach the undertakings and the assertion that they will be forced to do so by Qassim Hall is, as the judge, said pure speculation. The alleged risk was without evidential or objective foundation. It was not correct that the judge had failed to evaluate the subjective fears of the officers. She had correctly stated the common law test and concluded that the officers’ fears and concerns were genuine, but she was entitled to conclude that they had less weight because they were not objectively justified.

In relation to the suggestion by the Police Federation that Inspector Rotchell’s evidence was not contested, Mr Thomas QC said that ultimately the only risk relied upon was that Qassim Hall would somehow forcibly extract the information about the identity of the officers from the family – and even that was contested by the family. There was no evidence of any stronger risk and no evidence of any risk of inadvertent disclosure.

The starting point for the analysis of this appeal, said Lord Justice Flaux, must be to consider what is the correct construction of Rule 18 of the Coroner’s Rules. As was essentially common ground between counsel for both the police and the Hall family, the Rule is not happily worded, but the analysis of the Rule put forward by Mr Hough QC is the correct one. Rule 18(1) confers a discretion and Rule 18(2) then provides that one of two threshold conditions must be met before the discretion can be exercised: That the coroner determines that giving evidence behind screens would be likely to improve the quality of the evidence or that it would be likely to allow the inquest to proceed more expediently, or appropriately.

In making that determination a coroner has to consider all the circumstances of the case under Rule 18(3) and, in particular, the matters listed in (a) to (c). In agreement with Mr Hough QC, it can be said that if “expediently” bore the narrow meaning of efficiency or practicality, it is difficult to see how, in the case for example of evidence from the security services or undercover police officers, ordering the evidence to be given from behind screens, whilst in the interests of national security, could be said to allow the inquest to proceed more efficiently or in a more practical manner. On the other hand, if expediency is equated with allowing the inquest to proceed in the most appropriate manner, the coroner can give the proper consideration which (3)(b) requires him to give to the interests of justice and of national security.

The “interests of justice” clearly is and is intended to be a wide term which encompasses the principle of open justice. The importance of that principle has been emphasised in countless legal authorities in the higher courts.

The critical question for the Court, said Flaux LJ, is whether the coroner erred in law in concluding that an order for the officers’ evidence to be given behind screens was justified. In considering that question, it is important to bear in mind that, despite the attempt by Ms Malcolm QC to broaden the application, the application which was made to the coroner was under the common law and not under Articles 2 and 3 of the ECHR.

Furthermore, if the Appeal Court considers that the coroner did not err in law, then it must follow that the judge’s determination that he misdirected himself in law was wrong. The suggestion by both counsel representing the Hall family (Messrs Thomas QC and Sraw) that somehow this was a question of fact for the judge or that this Court should exercise the same caution in relation to reviewing the judge’s conclusion as we would if she had made findings of fact is wholly misconceived.

The determination of the critical question whether the coroner erred in law in turn depended upon whether he gave sufficient weight to the principle of open justice in engaging in the balancing exercise required by the common law test. As the judge herself recognised, the coroner’s decision must be read with a degree of benevolence or pragmatism.

It seems to me that this approach by the judge fails to take into account sufficiently the opening words of the coroner’s ruling: “To the extent that my decision has involved a balancing of competing interests between the officers and the family”. That is not a reference to what follows in the subsequent paragraphs, which does not consider those competing interests, but to what he has already said elsewhere in the earlier Decision section about those competing interests. In particular, the coroner identifies his instinctive concern that the proposition that the family of the deceased who died in circumstances calling into question the discharge by the state of its Article 2 obligations should not see the agents of the state implicated in his death whilst giving evidence offends the principle of “natural justice” (by which he clearly means open justice) and procedural fairness. He goes on to say the instinct is all the stronger where the application for the use of screens is not based on evidence or intelligence reflecting adversely on the family members most likely to be affected by it.

Those paragraphs do demonstrate that the coroner had well in mind the principle of open justice and that that principle would be offended if the family could not see the witnesses. In the circumstances, it cannot be said that he failed to appreciate the significance of the principle. What he then went on to do was to balance against the principle of open justice, and the interest of the family in seeing the witnesses, the fears of those witnesses of threats from Qassim Hall and their interest in not being identified to Qassim Hall. Thus, in my judgment, the judge was wrong to conclude that the coroner had only weighed against the quality of the evidence being improved by the use of screens the question of whether the effectiveness of questioning will be impeded by screens and thus engaged in too limited a balancing exercise. The judge has overlooked the earlier part of the Decision section where the competing interests were considered and balanced. This may have been overlooked by the judge because she appears to have erroneously characterised as submissions aspects of the ruling which were clearly part of the coroner’s decision.

Whilst the ruling is not expressed as clearly as it might be, the coroner did not err in law in failing to take proper account of the principle of open justice or engage in too narrow a balancing exercise. It follows that the judge was wrong to conclude that he had erred in law and to substitute her own decision for that of the coroner. Accordingly both appeals were allowed and the coroner’s order reinstated.

In the circumstances, Flaux LJ said it was not strictly necessary to consider the other criticisms of the judgment raised by the appellants but, nevertheless, he dealt with them relatively briefly: The principal matter was the judge’s distinction between what she recognised is the real risk that, if the general public could see the officers give evidence, the officers would be identified by or to Qassim Hall but the position of the family was very different and the suggestion that they may be forced by Qassim Hall to disclose the identities of the officers was “pure speculation”.

Despite Mr Thomas QC’s arguments to the contrary, Flaux LJ (and Lord Justice Lewison) agreed with Ms Malcolm QC that the distinction which the judge draws is an illogical one. Aside from Qassim Hall, or an associate of his going into the public gallery and identifying the officers (and in the case of an associate passing on information to him), it is difficult to see how a member of the public seeing the officers creates a real risk of identification to Qassim Hall whereas the members of the family who have that familial connection with Qassim Hall and are in communication with him do not create a real risk.

The professional risk assessment of Inspector Rotchell set out in his second statement was:

As already noted, the coroner referred to the fears of the officers that Qassim Hall would seek to harm them if made aware of their identity and he said that the Rule 18 power could only be exercised in respect of the threat said to be posed to officers by Qassim Hall. He found that threat to be credible and went on to make the further findings to which Mr Hough QC referred. Although the coroner dealt with the matter in a rather attenuated fashion, it seems that he was concluding that the fears of the officers were both subjectively genuine and objectively justified. By finding that the threat from Qassim Hall was credible, he was accepting the risk assessment of Inspector Rotchell that there was an objective threat to the officers from Qassim Hall. In the light of his evidence, the specific finding by the coroner (which was not challenged on the judicial review) and the fact that an order for anonymity was made by the coroner without objection from the family (itself a powerful indicator that the officers’ fears were objectively justified) the judge was wrong to conclude that the risk of Qassim Hall extracting the identity of the officers from family members was pure speculation. The risk and the threat he posed were objectively established.

As noted in the summary of the submissions of the parties, Mr Thomas QC advanced various reasons why the family should be able to see the police witnesses give their evidence pursuant to the principle of open justice. He referred to the fact that this was a case of a black man who died in custody (or rather immediately after having been in custody) in circumstances where the police as agents of the state were implicated in his death and there was a high public interest in open justice. That was a submission he also made to the coroner and the coroner clearly accepted the force of the submission in his findings, but he then had to balance that public interest (and interest of the family) against the interests of the officers: The balancing exercise in which he engaged was an appropriate one.

Mr Thomas also submitted that it was important for the family to be able to see the officers implicated in Mr Hall’s death in order to achieve catharsis. This does not seem to have been advanced as a distinct argument before the coroner. Whilst Ms Malcolm QC is, no doubt, right that achieving this purging for the deceased’s family is not the purpose of an inquest, the fact that the Explanatory Memorandum to the Rules states that one of the policy objectives of the reforms introduced by the 2009 Act is “to put the needs of bereaved people at the heart of the coroner system” demonstrates that, since one of those needs is likely to be the need for closure, this is an important matter to be taken into consideration. However, the coroner recognised the interests of the family but concluded on the balancing exercise that they were outweighed by the need to allay the fears of the officers to ensure that they gave the best evidence, itself an important aspect of the public interest.

Mr Thomas QC and Mr Straw emphasised that the family should be able to see the witnesses give their evidence in order to assess their demeanour. Mr Thomas QC did raise the question of demeanour before the coroner, but only in the context of pixelation of the CCTV footage so that the jury would not be able to assess the demeanour of the officers during the struggle with and restraint of Mr Hall, but the concerns he raised were addressed by ensuring that the coroner, jury and legal representatives see an “unredacted” version of the video footage. Counsel for the Hall family were unable to point to any legal precedent which considered that one of the reasons why the members of the deceased’s family, or members of the public more generally, should be able to see witnesses give their evidence is to assess their demeanour.

As was pointed out in the course of legal argument, recent decisions of the Appeal Court have cast some doubt on the extent to which assessment of demeanour by the Court is a reliable indicator as to credibility. However, whatever the values of or limitations as to assessment of demeanour, that assessment is for the fact-finder in any court, here the jury in the coroner’s court, and not for the family of the deceased. Mr Straw’s fall-back submission that unless the family could see the witnesses, they might not understand the decision reached by the jurydid not find favour. As Lewison LJ pointed out in argument, if the family thought a witness whom they could see was lying but the jury believed him, in one sense that poses a worse problem.

Accordingly, it was consider that none of the additional matters raised by Mr Thomas QC and Mr Straw affects the validity of the balancing exercise in which it was found that, contrary to the judge’s view, the coroner did engage.

Finally, it was recorded in the Appeal Court judgment that during the course of argument we raised with the parties the question of whether the media should be able to see the police witnesses. No real objection was raised on behalf of the police, but points were raised as to the safeguards that would need to be in place and matters such as undertakings by representatives of the media. In the circumstances, although if an application is made to the coroner by representatives of the media to see the witnesses give evidence, it will be worthy of consideration, the decision as to whether to accede to such an application and on what terms is one for the coroner.

For the above reasons, said Flaux LJ, the appeals of the Chief Constable and officers B and E and of the Police Federation and the officers it represents were allowed and restore the order for screens made by the coroner. Lewison agreed with his fellow law lord.

The dissenting judgment of Lord Justice Males

But the allowing of the appeal was not unaminous. Uncommon in both the civil and criminal appeals courts. The judgment of Males LJ is set out in full (apart from minor corrections). For anyone interested in deaths following police custody and inquest hearings it is a recommended read, providing useful additional detail about what happened in the lead up to the death of Andrew Hall and, more crucially, through the eyes of this journalist at least, the most lucid, well laid-out argument about the case and the points of law in issue. Without wishing, in any way, to demean Flaux LJ’s output, it is an outstanding piece of work (and learning) from Lord Justce Males:

“While I agree with much of Flaux LJ’s judgment, I have reached a different conclusion. To explain why, it will be necessary to travel over some of the ground which Flaux LJ has already covered.

When an application for witnesses at an inquest to be permitted to give their evidence behind a screen is based on fear for the witnesses’ or their families’ safety if their identity becomes known, there are two bases on which the application may be made. One is that the witnesses’ rights under Article 2 or Article 3 ECHR are engaged. The other is that screens are necessary in accordance with the common law principle of fairness.

As appears from cases such as In re Officer L [2007] UKHL 36, [2007] 1 WLR 2135, there are material differences between an application invoking Convention rights and an application under the common law, albeit that both routes may, and often will, lead to the same destination. These differences may be summarised as follows:

The application for screens in the present case was made under the common law. Although some submissions were made to us based on Article 3, that was not a case advanced to the coroner and, as I have explained, it would have given rise to different considerations. It follows that we are concerned with the common law and our primary focus should be on the coroner’s decision.

At common law, open justice is always an important consideration to which, as a matter of law, substantial weight must be given (for example in R (T) v West Yorkshire (Western Area) Senior Coroner [217] EWCA Civ 318, [2018] 2 WLR 211 at para [56] referring to open justice as “the fundamental principle in respect of all proceedings before any court, including coroners’ courts” and at para [64] referring to “the powerful imperative of open justice”). Accordingly any derogation from open justice (including both anonymity and the use of screens) must have a clear justification and must go no further than is reasonably necessary.

I agree with what Flaux LJ has said concerning Rule 18 of the Coroners (Inquests) Rules 2013. Although in some respects not happily drafted, the terms of the Rule permit (and therefore should be read as requiring) the principle of open justice to be taken into account when making a decision as to the use of screens. Depending on the circumstances of the case, this may fall to be considered either (1) under Rule 18(3) when making the Rule 18(2) determination whether screens would improve the quality of the evidence or allow the inquest to proceed more expediently or (2) when considering the overall justice of the case after having made that determination. What matters is that it should be clear that the principle has been considered and given proper weight at some stage.

Where the coroner determines, after giving substantial weight to the need for open justice, that the use of screens is reasonably necessary, the inquest will be Article 2 compliant: Bubbins v UK (2005) 41 EHRR 24.

In considering whether there is justification for the use of screens, the purpose of the principle of open justice as applied to the facts of the case must be taken into account (T v West Yorkshire Coroner at para [63]). In the case of an inquest, one major purpose of open justice is to ensure public confidence in the fairness, thoroughness and transparency of the process. Referring to the state’s common law duty to investigate deaths of those in custody in R (Amin) v Secretary of State for the Home Department [2003] UKHL 51, [2004] 1 AC 653 at [31], Lord Bingham’s summary of the purposes of open justice in an inquest into the death of a person in custody emphasises not only the importance of public confidence, but also the particular role of the bereaved family. The importance of that role is underlined by paragraph 7.1 of the Explanatory Memorandum to the Coroners (Inquests) Rules 2013, explaining that one policy objective of the Coroners and Justice Act 2009 was to “put the needs of bereaved people at the heart of the coroner system”. It is therefore not surprising that Rule 18(3)(a) requires the coroner to consider any views expressed by an interested person, which clearly includes the family of the deceased.

In the present case it was accepted (or at any rate not disputed) that the police witnesses should be anonymous. This was itself an important derogation from open justice which was necessary because Qassim Hall, the deceased’s brother, was found to represent a credible threat to the safety of the witnesses and their families if their names were known to him, and because the officers were genuinely fearful for the safety of themselves and their families and, in some cases, that fear was affecting their health. The need for anonymity was not challenged before the coroner and has been accepted by the family. The issue before the coroner was whether those concerns justified a further derogation from open justice, namely the use of screens. Before the coroner the family challenged the need for the use of screens at all, and their submission that witnesses should not be screened from family members (other than Qassim Hall) was merely a fallback position. It is therefore understandable, perhaps, that the principal focus of the coroner’s decision was on whether screens were necessary at all.

The family has not challenged in this appeal the coroner’s decision that it was necessary to screen the witnesses from the public in general (including, if he attends, Qassim Hall). That was because of the risk that if the witnesses were seen by the public, their identity would be disclosed to Qassim Hall. For my part I do not see any want of logic in saying that the witnesses should be screened from the public, but not from the family. If Qassim Hall is indeed anxious to discover the witnesses’ identity, it would not be difficult for him to ask an associate who is familiar with police officers in the Huddersfield area to attend on his behalf.

We are concerned only with the coroner’s decision that screens should prevent the family from seeing the witnesses give their evidence. It is important to note, however, as Flaux LJ has explained, that the family’s legal representatives will have sight of the witnesses while they give evidence and have been or will be given access to unedited CCTV footage which (we were told) shows in full the incident during which force was used on the deceased by police officers and when restraint was applied to him. We have not seen that footage, but we are told that it shows a struggle between Andrew Hall and a number of police officers extending over several minutes, in the course of which officers struck Mr Hall a number of times and there is some evidence of him striking back. The family and the public will see an edited version of that footage in which officers’ faces will be pixelated and their names will be “bleeped out”. The jury will see a further version of the footage in which there is no pixelation but officers’ names remain “bleeped out”. It follows that the family’s legal representatives will not be hampered in any way in conducting cross examination of the police witnesses by the existence of screens. Moreover, if it were to turn out that there is anything relevant to the cross examination which has been removed in the editing process, the family’s legal representatives will be in a position to cross examine about it, albeit that care will need to be exercised to ensure that what is said does not identify the officers concerned.

Accordingly the use of screens to prevent the family from seeing the police witnesses will not affect the efficacy of the investigation into Andrew Hall’s death. This case is not, therefore, about the ability of the family to have the evidence of those witnesses properly challenged. Whether or not screens are used, there will be a thorough investigation into the circumstances of his death in which the family’s legal representatives will be able to challenge the officers’ evidence and to suggest, to whatever extent is appropriate, that the use of force by the police was unlawful. The case is solely concerned with whether the family should be permitted to see that process as well as to hear it.

It is, therefore, necessary to consider how the purposes of open justice in inquest proceedings may be served by enabling members of the deceased’s family to see police officers whom they believe to be responsible for the deceased’s death give their evidence and the extent to which those purposes may be frustrated if the family is unable to see the officers do so.

This topic was addressed in the witness statement of Deborah Coles, an Executive Director of INQUEST, a charity which provides advice to bereaved people concerning contentious deaths, their investigations and the inquest process. Ms Coles has extensive experience acquired over 25 years of working with families of persons who have met their death at the hands of state agents. Under the heading of “The benefit for families of seeing important witnesses giving evidence”, she identified four overlapping benefits, which can conveniently be labelled “trust”, “demeanour”, “accountability” and “catharsis”. She said:

With the exception of what Ms Coles says in paragraph 8 of her statement about families placing weight on the demeanour and body language of a witness, I regard this as a compelling explanation of why it is important for family members to see the witnesses themselves in circumstances such as these and why it is not a sufficient alternative that their legal representatives may do so. As to demeanour, however, it is not the family’s role to determine whether the witnesses are telling the truth, that being the function of the jury, while in any event it has increasingly come to be recognised that demeanour and body language are an unreliable guide to truthfulness (see R (SS) (Sri Lanka) v Secretary of State for the Home Department [2018] EWCA Civ 1391 at [33] to [43]). I have no doubt that in the present case the CCTV footage of the incident will be played many times during the cross examination of the police witnesses, if necessary in slow motion. The extent to which their evidence is supported by or consistent with that footage will be a far more reliable guide to whether they are telling the truth than their demeanour or body language.

For the family, Leslie Thomas QC placed considerable weight on the fact that Andrew Hall was black. He said that there was a particular and significant public interest in an inquest into the death of a black man in police custody, and that in such cases it is common for the bereaved family to believe that the system is weighted against them, that there is a cover-up, and that police officers are given special privileges. For that reason, he submitted, it is particularly important for the family to be able to see the police officers give their evidence.

For the Chief Constable, Hugh Davies QC took issue with this approach. He insisted that the race of the deceased is irrelevant and that there is a strong public interest in a full and transparent investigation into the death of any person in custody, regardless of their race. Accordingly the public interest in open justice, including the need to hold state agents to account, is no different in the case of a black man than in any other case. From this, it follows that the deceased’s race cannot provide a stronger case for the family to be permitted to see the police witnesses give evidence than if the deceased had been white.

It is of course correct that the strength of the public interest in a full and transparent investigation into the death of a person in custody does not vary according to the deceased’s race. That was not Mr Thomas’s submission. Such an investigation is essential in every case for the reasons given by Lord Bingham in Amin. But I would accept that the death of a black man in police custody gives rise to particularly acute concerns. That is because of the perception which Mr Thomas described. It would be idle to deny that this perception exists. There is no doubt that black communities have in general less confidence in the police than other sections of the community, and that on occasion distrust and lack of confidence have led to racial tensions and conflicts. For present purposes what matters is not whether the perception is well-founded, but rather the fact that it exists.

In these circumstances, it is entirely understandable that the family of Andrew Hall should wish not only to hear, but also to see the police witnesses when they explain why they believed it was necessary to restrain him with the use of force, including the striking of a number of blows, and to see those witnesses when they react to the case which seems likely to be put to them, that the force used was excessive and unlawful.

All this amounts, in my judgment, to a powerful case that the application of the open justice principle in the circumstances of the present inquest requires that they should be able to do so. If they are not permitted to see the police witnesses, there is a real risk that the inquest may not achieve all of the purposes which open justice is intended to promote. This does not necessarily mean that the application for screens should be rejected. But it does mean that a compelling justification will be required to sustain the coroner’s order that the witnesses be screened from the family’s view.

A threshold requirement which must be satisfied before screens can be used is that their use “would be likely to improve the quality of the evidence given by the witness or allow the inquest to proceed more expediently”. In this case the coroner based his decision on the fact that screens would be likely to improve the quality of the police witnesses’ evidence and he did not consider any question of expediency.

A witness’s subjective concerns may be relevant in two overlapping ways. The first, referred to by Lord Carswell in Officer L in the passage from [22] cited above, is that fairness requires that witnesses should not be subjected to fear, particularly if that affects their health, if that can be avoided. The existence of such fears is therefore a factor to be taken into account in the overall assessment. The second is that such fears may impede the witness, for example because he is distracted or pre-occupied, from giving his evidence to the best of his ability – in short, from doing himself justice.

The requirement that screens would be likely to improve the quality of a witness’s evidence is directed at the need for the inquest, in this case the jury, to have the best possible evidence in order to determine the matters which it is the purpose of the inquest to determine, namely who the deceased was, and how when, where and in what circumstances he met his death. This is distinct from allaying a witness’s subjective concerns, which is a separate factor in the balance.

While any likely improvement in the quality of a witness’s evidence is sufficient to satisfy the threshold requirement under Rule 18(2), and obviously it is desirable that the jury should have the best possible evidence before it in order to perform its task, the weight to be given to such a likelihood in the coroner’s overall evaluation whether there is sufficient justification to depart from the principle of open justice must depend on the circumstances of the case. It is necessary to consider what difference the use of screens is likely to make, for example whether any improvement in a witness’s evidence is likely to be significant or only marginal and to balance this against the need for open justice. In general, for example, police officers can be expected to have some degree of resilience when giving evidence. In the present case it should not be too difficult for the officers, assisted as they will be by the CCTV footage, to explain what they did and why they did it – as indeed they have already done to the IOPC investigation which cleared them of any wrongdoing. In the case of an important witness, such as a police officer who has used force on a person in custody, the fact that screens would be likely to improve his evidence only marginally (if that were the position) would be unlikely to carry much weight.

The justification put forward before the coroner for screening the witnesses from the family was a narrow one. The only risk on which the Chief Constable and the witnesses relied was the risk of harm caused by Qassim Hall who (it was accepted) should not see the witnesses. Moreover, at any rate by the conclusion of the hearing, it was not contended that any family member would deliberately or even inadvertently disclose information to Qassim Hall which would enable him to identify any of the officers. Rather, the case which was advanced was that family members would be vulnerable to force or threats of force by Qassim Hall. As Mr Davies put it in submissions to the Coroner on behalf of the Chief Constable and the officers whom he represented, his submissions being adopted by Mr Brian Dean who represented the remaining officers:

This was the only objective basis for the existence of a risk of harm on which the Chief Constable and the witnesses relied.

Accordingly the objective justification for the use of screens depends on the existence of a real risk that Qassim Hall would seek to exert pressure on family members to reveal information likely to enable him to identify one or more of the officers and that those family members would succumb to such pressure.

It is right to acknowledge that in summarising the arguments made to him, the coroner referred to the acceptance by Mr Dean, representing some of the police officers, of the fact “that the use of screens involves a significant departure from an important general principle of natural justice”, and to the submission by Mr Thomas that the family was “asking for no more than the application of the ordinary rules of natural justice”. It is plain that the coroner’s reference to “natural justice” meant (or at least included) the principle of open justice. Further, the coroner began the “Decision” part of his ruling, after acknowledging that applications for the use of screens were fact sensitive and required him to take into account the matters set out in Rule 18, as follows:

I would accept that these passages show that the coroner’s starting point was that the principle of open justice required that the family should be able to see the witnesses in question. He stated also that he accepted Mr Thomas’s submission that Rule 18 was expressed in terms making clear that the presumption was that evidence at an inquest should not be given from behind a screen.

So far, it might be possible to criticise the coroner’s ruling on the basis that he did not spell out that open justice is a principle to which substantial weight must be given or the corollary that the use of screens in the circumstances of the present case requires a compelling justification. Certainly he did not refer to the particular importance of transparency in the case of the death of a black man in police custody. However, if that criticism stood alone, it might not be fair to regard the coroner as having misdirected himself, having regard to the need to accord his ruling a benevolent interpretation. Clearly, having started from the point that “natural justice” required that the family should be able to see the witnesses, he was then correct to go on to consider whether there was a justification for departing from that position.

The coroner went on to find that the police witnesses were genuinely fearful for their safety and for the safety of their families and that, in some cases, those fears were affecting their health. There was, therefore, a finding of subjective fears which were having serious consequences for the officers concerned.

The coroner found also that these fears were credible, by which he meant objectively well-founded, in the light of Qassim Hall’s history including convictions for offences of violence against the police (albeit I would add, relatively minor violence) and a history of making threats of violence. It is important, however, to see precisely what it was that the Coroner found. There are two relevant paragraphs of his ruling, which I set out with my added emphasis:

Thus the coroner found that Qassim Hall presented a threat to the safety of the officers or their families if he became aware of their identity. But the coroner did not at any stage consider whether there was an objectively well-founded risk that permitting the family to see the witnesses give evidence would cause Qassim Hall to become aware of this. In view of the clear but limited way in which the Chief Constable and the officers had put their case, the question which the coroner ought to have considered was whether there was a real as distinct from fanciful risk that Qassim Hall would seek to extract this information from family members by force or threats of force and that they would succumb to those threats. If he had done so, there is in my judgment no basis in the evidence on which he could have concluded that there was such a real risk. There was no basis for thinking that Qassim Hall is so determined to wreak vengeance upon police officers that he is prepared to use violence or to make a credible threat of violence against members of his own family (clearly a threat which was less than credible would not have this effect). Indeed Inspector Danny Rotchell, who carried out a detailed assessment of the risks presented by Qassim Hall for the purpose of the hearing before the coroner, did not really address this possibility. Moreover, there was unchallenged evidence that some family members already know the identity of two of the officers but have not revealed this to Qassim Hall. There was no evidence that Qassim Hall has taken any steps to identify or threaten any of the officers who may have been involved in the events of his brother’s death on 13th September 2016 in the time which has since elapsed.

Accordingly, while the coroner’s findings about the risks presented by Qassim Hall are not challenged, they do not in my judgment justify a conclusion that there is an objectively well-founded risk of harm to the officers or their families. In my judgment the judge was right to say at [64] that “The suggestion that [the family] may be forced by Qassim Hall to disclose the identities of the officers is pure speculation”. Although her use of the word “speculation” was criticised, it is clear that what she meant was that there was no sound evidential basis for thinking that this might happen.

Having made his findings about the risks presented by Qassim Hall, the coroner went on to consider whether the use of screens would be likely to improve the quality of the officers’ evidence and to consider the matters set out in Rule 18(3). He concluded that the quality of the evidence would be improved, but did not expressly refer at this stage to the importance of open justice and its role in promoting the purposes of the inquest. He said:

In my judgment this ruling was flawed.

First, as already noted, the coroner did not treat the need for open justice as a factor to which substantial weight had to be given as a matter of law, in particular in a case concerned with the death of a black man in police custody, so that a powerful justification was needed to override this.

Second, the coroner appears to have lost sight of what had previously been his stated starting point, namely his instinctive view that the family should see the witnesses give evidence as a matter of natural justice “in the sense of the fair and impartial application of law and procedure”. Instead, by the time he came to make his decision, his new starting point was that the interests of justice generally were best served by allowing the use of screens when that would enable the witnesses’ best evidence to be given. That was an error in my judgment. The fact that the use of screens would be likely to improve the quality of the witnesses’ evidence was a necessary threshold but in itself was not a sufficient justification for their use. Nor did it establish a rebuttable presumption that screens should be allowed.

Third, it is clear that the coroner proceeded on the basis that there was an objectively well-founded risk of harm to the officers or their families from Qassim Hall when, for the reasons which I have explained, he was not entitled to do so. It is to be expected that this is a factor that would have carried considerable weight with him as no judge would wish to expose witnesses or their families to such a risk. Subjective fears, however genuine and even when having consequences on a witness’s health, carry rather less weight.

Fourth, while it is obviously desirable that a witness should be able to give his best evidence, there is a distinction between providing for the comfort and allaying the fears of a witness on the one hand and enabling the inquest to obtain the most reliable evidence on the other. So far as obtaining best evidence is concerned, the coroner did not consider whether or to what extent the concerns of the officers which would or might prevent them from giving their best evidence would have a material impact on the ability of the inquest to arrive at reliable conclusions. In the present case what the officers did will be apparent from the CCTV footage. Whether the force which they used was reasonable and proportionate on the one hand or excessive on the other is an objective question, which will likewise depend primarily on the CCTV footage. Their evidence will go mainly to the question whether they had an honest belief in the need to use the force which they used. The coroner did not consider how much difference the presence or absence of screens would make to their ability to give evidence on that issue, which would not necessarily be the same in all cases. The coroner has found that it would make some difference but it is hard to think, at least in some cases, that the difference will be significant. There can be no doubt that the officers will say, as no doubt they have already said to the IOPC investigation, that they honestly believed that their use of force was reasonable, necessary and proportionate in the circumstances as they perceived them to be. Accordingly, while the coroner was entitled to say that obtaining best evidence from the police witnesses was a factor in favour of the use of screens, and while in general the weight to be given to each factor was a matter for him, his decision contained no analysis of what difference the use of screens was likely to make to the ability of the inquest to arrive at the truth. Without such analysis, he was not in a position to decide how much weight to give this factor.

When these flaws are taken together, I do not think that the coroner’s decision can be saved by giving it a benevolent interpretation.

Accordingly the balancing exercise which the coroner ought to have carried out would have taken account of the following factors. Militating strongly against the use of screens was the principle of open justice for all the reasons which I have explained. Factors in favour of their use were (1) the subjective fears of the witnesses (which had not been shown to be objectively well-founded), (2) the fact that, in some cases, the witnesses’ health had been affected, (3) the fact that the use of screens was likely to improve the quality of the witnesses’ evidence, but the weight to be given to this factor would require some analysis, as above, and (4) the fact that the use of screens would not impede the effective testing of the witnesses’ evidence. It would also have been sensible to recognise that the order for anonymity and the fact that the officers would be screened from the public would go some way to alleviating any concern.

For these reasons I agree with the judge that the coroner misdirected himself. I do not agree, however, that this is a case where, undertaking the correct exercise, there is only one possible decision which could lawfully be made. Accordingly I consider that the judge was wrong to substitute her own decision whether screens should be used rather than remitting the decision to the coroner.

I would, therefore, set aside the coroner’s ruling together with the judge’s order and would remit the matter to the coroner to make a fresh decision in the light of this judgment. To that extent I would allow the appeal. However, I would not disturb the judge’s order in relation to Officers C and N, as there has been no appeal from that part of her decision.

I agree with what Flaux LJ has said regarding the reporting of the inquest. For my part, I can see no reason why representatives of responsible media organisations, who can be relied upon not to disclose information to Qassim Hall and to report the unlikely event of any threat being made to them by him, should not be permitted to see the police officers give evidence. That would go some way to promote the objectives served by the principle of open justice. However, I agree that it should be left to the coroner to deal with any application which may be made, or if appropriate to consider the matter on his own initiative.”

Alice Stevens, who represents the family, said after the judicial review hearing: “Andrew’s family have been patiently waiting for three years for a full and fearless inquest. Their priority has always been to find out how Andrew died in such tragic circumstances yet, as a result of anonymity and screening applications, they been subjected to background checks, numerous hearings and multiple legal aid applications.

Recent years have shown a rising trend in police officers seeking anonymity and screening at inquests in which their actions are called into question. This judgment rightly highlights the fact that open justice in inquests involving contact by state bodies should not be undervalued and that screening may undervalue public confidence and should not be granted without careful consideration. Andrew’s family will now be able to fully focus on Andrew’s inquest and try to obtain answers to the many questions that have surrounding his death.”

Although events have superceded that statement much of the sentiments expressed therein remain intact.

Deborah Coles, Director of INQUEST saysWe repeatedly see defensive and combative tactics by police lawyers in the growing number of anonymity requests at inquests. This is about justice being done and being seen to be done. Anonymity goes against the spirit of an open and transparent investigation and hinders scrutiny of public officials. This judgment recognises the significant public interest in deaths of black men in custody. Open justice is vital to assuage public concern about cover ups and to ensure accountability.”

The Hall family are working with INQUEST caseworker Anita Sharma. The Independent Office for Police Conduct are interested parties in the legal proceedings but have, so far, not been represented. The findings of their investigation, following the death of Andrew Hall, will not be made public until after the inquest.

This is an important case, very much in a town I know well, and with familiar faces on counsel’s ‘front row’. I will be following it from the press seats or, for the time being at least, via a rather more stark Cisco Webex Platform.

Other anonymity orders have, typically, been granted for police officers following fatal shootings. However, there has been a recent, creeping trend of anonymity applications being made, and granted, to police officers at inquests and misconduct hearings in other circumstances, such as where the death involved police restraint. This, say INQUEST, ‘is disproportionately the case where the person who died is racialised as black’.

Deaths of black men in police custody, or shortly after restraint, have, over the years, been highly controversial and have led to high profile public protests as well as protracted legal battles to uncover the truth over what exactly occurred.

Recent anonymity cases include the deaths of Rashan Charles, Edson da Costa and Henry Hicks. The first two were young black men.

Police officers were also granted anonymity following the fatal shootings of Azelle Rodney, Mark Duggan, Anthony Grainger and Jermaine Baker. Again, all highly controversial cases. I am particularly adjacent to Anthony’s shooting by Greater Manchester Police officers via his bereaved partner, Gail Hadfield Grainger.

West Yorkshire Police are also understood to be applying for anonymity for officers involved in the shooting of another Huddersfield man, Yassar Yaqub. He was shot through the windscreen of his car after a hard stop adjacent to the M62 motorway at Ainley Top in January, 2017. The inquest touching his death is listed for hearing in January, 2022 (read more here).

UPDATE: At the pre-inquest hearing on 19th February, 2021 it was revealed that the Hall family have appealed the Court of Appeal decision to the Supreme Court. The full report from that hearing can be read here.

Page last updated: Monday 22nd February, 2020 at 1035 hours

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