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Families can hear security service evidence, appeal judges rule

30 November 2010

The families of those killed on 7 July 2005 can hear evidence given by the security services at their inquest, the Court of Appeal has ruled.

The court held that Lady Justice Hallett, the coroner, had no power to exclude families and their lawyers under rule 17 of the Coroners Rules 1984.

Theresa May, the home secretary, challenged Hallett LJ’s ruling that she could not order a closed hearing, attended only by members of the security service, their lawyers and counsel for the inquiry.

Delivering judgment in R (on the application of the home secretary) v The Assistant Deputy Coroner for Inner West London [2010] EWHC 3098 (Admin), Lord Justice Maurice Kay said the rules provided that every inquest should be held in public unless the coroner directed that “the public” be excluded in the interests of national security.

Counsel for the home secretary argued, at the judicial review hearing, that “the public” included the families and their lawyers.

Maurice Kay LJ said the central issue in the appeal was one of statutory construction and the “legislature would not have created a procedure with such exceptional consequences in the absence of clear language to that effect”.

He said that rule 17 applied equally to inquests whether or not there was a jury.

“This raises the obvious question of how a closed procedure could possibly operate with a randomly selected jury.

“It cannot have been contemplated that a properly interested person and his legal representative would be excluded while a jury sees and hears closed material.”

Maurice Kay LJ said section 45 of the Coroners and Justice Act 2009, yet to be implemented, would have given senior coroners the power to exclude specified people from inquests.

The lord justice wondered why this power would have been considered necessary if rule 17 was to be interpreted in the way suggested by counsel for the home secretary.

He said a further provision on inquests which raised national security issues was contained in the Counter Terrorism Bill 2008, but was rejected by parliament.

Counsel for the home secretary was, he argued, attempting to “to pre-empt legislation which is either not yet in force or has been rejected in the recent past by parliament”.

Maurice Kay LJ said that material protected by public interest immunity could often be produced in a “redacted, summarised or gisted way” without any risk to national security, but he accepted that some sensitive material would not be suitable for disclosure.

He rejected the home secretary’s application for judicial review. Lord Justice Stanley Burnton agreed.

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