Fresh inquest into soldier's death refused

LAW REPORT v 20 June 1996

Re Kelly (deceased); Queen's Bench Divisional Court (Lord Justice Pill, Mr Justice Newman) 14 June 1996

The emergence of new evidence after the conclusion of an inquest, even if it was available and could have been disclosed to the coroner at the time, was not of itself determinative of the question whether the court should order another inquest.

The Queen's Bench Divisional Court refused an application by Sir Montague Levine, HM Coroner for Inner South District Greater London, to quash the inquisition held by him and a jury between 9 and 16 January 1995 into the death on 1 May 1994 of Captain Christopher John Kelly of the 3rd Battalion, Parachute Regiment (3 Para) and to order that another inquest be held. The application was supported by the deceased's family.

Captain Kelly died as a result of injuries sustained in the course of a live firing exercise in Kenya on 25 March 1994. The jury by a majority of 7 to 2 brought in a verdict of accidental death.

By section 13 of the Coroners Act 1988, the court may order another inquest where satisfied that

whether by reason of fraud, rejec-

tion of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts or evidence or otherwise it is necessary or desirable in the interests of justice that another inquest should be held.

It was submitted that another inquest should be held because new evidence had subsequently come to the attention of the coroner, namely that which could have been given by Major Peter Kennedy, a company commander in 3 Para. He had left the battalion and Kenya a week before the fatal wounding, after disagreements with Major Carruthers, battalion second-in-command. On 4 January 1995 Major Kennedy supplied a statement to the Ministry of Defence but council who appeared for the Ministry at the inquest did not disclose it to the coroner. Had the statement been made available, the coroner argued, he would have called Major Kennedy to give evidence, and his absence from the inquest was a serious deficiency.

Ian Burnett (Hempsons) for the coroner; Philip Havers QC and Keith Morton, neither of whom appeared at the inquest (Treasury Solicitor) for the MoD; Andrew Jackson (Toller Hales & Collcutt, Northampton) for Major Carruthers.

Lord Justice Pill said Major Kennedy's statement was wide-ranging and much of it was irrelevant to what the jury had to decide. His view, as summarised by the coroner, was that "inadequate attention was being paid to safety". He mentioned in particular the subject of body armour, which Captain Kelly had not been wearing. The question why not, and other safety issues raised in the statement should, it was said, be explored at a fresh inquest.

If the interests of justice required a fresh inquest, the motives of the witness whose evidence made that course appropriate should not deter a court from quashing the earlier inquisition; but the court must make some assessment of the value of the proposed fresh evidence.

His Lordship did not accept that the emergence of fresh evidence, even if it was in part evidence which the Ministry had and should have disclosed to the coroner at the inquest, was determinative of the question whether there should be another inquest. The emergence of fresh evidence, and the coroner's wish to conduct further investigation, did not relieve the court of its responsibility to keep in mind the public interest involved and the purposes served by an inquest as a fact-finding exercise and not a method of apportioning guilt or a general public inquiry into the Army's safety procedures.

The coroner conducted a full, fair and of course fearless investigation into how the deceased came by his death. He called many witnesses from colonel to private soldier and conducted and permitted detailed questioning both on safety procedures in general and the facts immediately surrounding the shooting. In that context, Major Kennedy's statements about safety procedures in general and the practices followed by 3 Para during the period before the relevant exercise did not merit another inquest. Though the issue of body armour required separate treatment, the same considerations applied.

For these and other reasons the court was not persuaded that another inquest was either necessary or desirable in the public interest.

Paul Magrath, Barrister