Lessons from the Birmingham Pub Bombing inquest

The inquest into the deaths of 21 innocent civilians in the Birmingham Pub Bombings 1974 has now concluded. The inquest was heard before a jury and lasted six weeks. Over 28,000 pieces of evidence were disclosed. Witnesses included civilians, police officers, emergency response crew and former members of the IRA.

The jury returned a verdict of unlawful killing by murder. The unlawful killing verdict had been put to the jury on the basis that if murder alone had been put to the jury and not been found to have satisfied the evidential threshold then the verdict of manslaughter could have been returned by the jury which would have justified the position of the IRA that this had been an accident and the position of the West Midland Police (WMP) that they could not have been expected to plan for an accident.

The jury were unable to find any fault with the WMP given the evidence available to them. The scope of the inquest excluded the issue of perpetrators. The scope of the inquest excluded the issue of agents and informers.

Maxine Hambleton was one of the 21 people who lost their lives in the attacks

Are there any lessons to be learnt from this inquest?

I ask that question as this was the last opportunity for the families of the victims to be able to effectively participate in an independent investigation into the deaths of their loved ones. I also ask this question with an eye to the forthcoming resumption of the Guildford Pub bombing 1974 inquest and in the light of the on-going conflict related legacy inquests in Northern Ireland including the Ballymurphy Massacre 1971 and the Kingsmill Massacre 1975.

First, it should be remembered that the pub bombings in Guildford and then in Birmingham were excluded from the Good Friday Agreement 1998 and are out-with any of the arrangements for dealing with the toxic legacy of the conflict in Northern Ireland.

These include the stalled implementation of the proposed arrangements under the Stormont House Agreement (SHA) 2014 including establishing an Historical Investigations Unit (HIU). Legislation which has been drafted under the terms of the SHA 2014 cannot be brought forth because of the continued political impasse at Stormont.

Second, this inquest (in fact 21 individual inquests) only came about because of the self-starting motivation of the families. Until 2012 there had been no investigation into the pub bombings save in terms of the failure of the WMP regarding the prosecution and conviction of the Birmingham Six. The families had to campaign for an independent investigation into the death of their loved ones.

Third, the WMP originally opposed the resumption of the original inquest which has been suspended given the conviction of the Birmingham Six. The decision to resume the original inquest was made by the senior coroner for Birmingham who decided she was functus (no longer in office) in relation to this matter. This was an important intervention by an independent law officer and followed sustained legal argument by the families, the WMP and the Police Federation.

Fourth, the decision to resume led to disclosure by the WMP. Disclosure was on-going until the last week of the inquest over approximately three years. The initial disclosure made by the WMP informed the initial decision of the Senior Coroner on both the scope of the inquest and human rights compliance in terms of the investigation.

The former Chief Coroner was appointed Coroner to the Birmingham Inquest (1974).

Fifth, the substantive inquest was delayed because the families challenged the ruling of the Coroner on scope – specifically his decision to rule out of scope the perpetrator issue. This led to the judgment of the Court of Appeal in Coroner for the Birmingham Inquests (1974) v Hambleton and Others [2018] EWCA Civ. 2081 which reversed the judgment of a Divisional Court and restored the ruling of the Coroner.

In the absence of public funding by way of legal aid, the families were unable to apply to the Supreme Court to challenge the judgment of the Court of Appeal. In part, they were refused legal aid because the Legal Aid Agency (LAA) noted that they had previously successfully used the Crowd Justice online funding platform to raise money to bring the judicial review.

The reasoning of the LAA suggests that it made both an assessment on the merits of the judicial application and considered that an applicant for legal aid who has raised money by way of public subscription should be excluded from public funding.

The Hambleton judgment has narrowed the jurisdiction of inquests in respect of complex multi-death inquests. In essence the arguments advanced by the parties balanced commonlaw tenets against European Human Rights Convention jurisprudence in this area. The law in this area remains unsettled.

Sixth, the families were only granted legal aid for the inquest from November 2018 despite the support of the Coroner. Because the families had instructed solicitors from Northern Ireland (in the absence of finding a solicitor in England) the legal aid regulations required amendment and the firm had to obtain LEXCEL ‘kite-mark’ accreditation in order to apply for an individualcasecontract (ICC). All work conducted by the lawyers for the families firm from 2014 to 2018 was therefore undertaken pro bono.

The families had sought a block grant Hillsborough Disaster Fund model of fiscal support direct from the Home Office. This was refused on the basis that the much derided LASPO 2012 legislation would be sufficient in terms of providing funding for legal representation. The Home Office will not repeat the Hillsborough Disaster Fund model again.

The Birmingham Six who spent 16 years in prison wrongly accused of the attacks

The Ministry of Justice, in its review of legal aid funding for inquests has recently rejected demands for automatic legal aid for families in complex multi-death inquests in which the state is a party – despite spending over £4 million a year on the provision of legal representation at inquests where the prison service is a party.  Further, the WMP, in line with all forces, was provided with legal representation throughout the duration of the inquest, through council tax.

The government argues that legal representation for families at inquests is not necessary as an inquest is inquisitorial and not adversarial. There are at least two problems with this position. First, it begs the question why state agencies inevitably have legal representation at inquests. Second, human rights compliant inquests (engaging an enhanced investigatory standard) demand the effective participation of the family of the victim, which is secured through independent legal representation.

The Birmingham Inquest (1974) clearly demonstrated the inequality of arms and the lack of parity in this core part of the legal process.

Seventh, inequality was further demonstrated in the process of disclosure in this inquest. Beyond the disclosure made by the WMP, disclosure was also requested from the Home Office, the Ministry of Defence and the Foreign Office, amongst other agencies including the Police Service of Northern Ireland (PSNI).

An affidavit from a civil servant within the Government Legal Department gave an assurance on behalf of those departments that no material relating to the pub bombings was held. The Coroner accepted this assurance, and this impacted on his rulings on scope. The Coroner further undertook an exercise in disclosure which sifted what he considered relevant to the scope of this inquest and either did not disclose apparently irrelevant material or to disclose material in a redacted form.

There was no explanation as to the mechanisms employed by the government departments in undertaking their searches or the search methods of the Coroner.

The lawyers for the families pressed the Coroner on disclosure. They requested all material relating to policies, practices, procedures, guidelines, training manuals and schedules, orders that had been generated by any government agency in response to the terrorism campaign of the IRA at this time.

Prior to the explosions in Birmingham there had been 50 incidents involving bombs and incendiary devices in the city, including a previous attack on the Rotunda Building, which was the site of the Mulberry Bush pub, one of the two pubs bombed on 21 November 1974.

There was nothing to be disclosed as to any planning to prevent or respond to this terrorist threat.

The lawyers for the families – working with their clients – assessed and analysed over 28,000 pages of disclosure which included detailed forensic and technical reports from experts. This informed the examination of witness strategy which in turn lead to the formulation of questions for the jury.

In the absence of ‘live’ evidence (for example from senior police officers) or evidence going to the issue of response and prevention procedures, the WMP could not be found at fault in terms of either acts or omissions on the evidence presented to the jury.

This came as a blow to the families as they had always believed, following the miscarriage of justice, that WMP had been woefully ill-prepared to respond to a terrorist bomb threat and had too easily apprehended the Birmingham Six and violently coerced them.

Following the release of the Birmingham Six (and the Guildford Four) efforts appeared to be concentrated on ensuring the police misconduct on this scale could not occur again.

No effort appeared to be expended in investigating those responsible for the respective public bombings. Chris Mullin, the investigative journalist whose work contributed to the release of the Birmingham Six, identified the actual perpetrators but this did not lead to a new police investigation save by way of ‘force on force’ reviews.

Finally, despite having ruled out of scope the issue of perpetrators (framed as Who bombed Birmingham? Who authorised the bombing? Who made the bombs? Who carried the bombs and Who planted the bombs?), and despite rumour and suspicion intensifying on the names during the course of the proceedings (including a credible ITV documentary by respected journalist John Ware; and an admission of collective responsibility from a former IRA member to the BBC), it seemed that names would be not named. Chris Mullin was pressed to reveal the names he had been given but stood fast to the principles of journalism (much to the anger of the families).

However, Witness O (by a video-link), a former IRA member, named the four people he was told either directly or indirectly responsible for the Birmingham bombings. As noted above two are still alive. The other two names were already in the public domain but are now dead.

One purpose of an inquest is to allay rumour and suspicion and to restore confidence in the Rule of Law. The two are linked the exposure of one restoring the status of the other. Ruling perpetrators out of scope meant the issue could not be put to the jury and jarred with similar issues in the Northern Ireland Legacy inquests where individual perpetrators have been named. The ‘revelations’ of Witness O, which took the form of an IRA authorised admission (despite the IRA no longer being in existence), were akin to a moment in a Truth and Reconciliation Commission (TRC) rather than an inquest.

This was a moment of importance for the families who had now secured the names of those apparently responsible for the murder of their loved ones to be on the public record for the first time.

The Hambleton judgment was clear that an inquest is not an alternative to a criminal justice investigation (by way of the police inquiry or a prosecution decision) (although this remains disputed). Therefore, the responsibility to investigate the evidence from Witness O and Chris Mullin, returns to the WMP, the police force in which the families have no faith and until last year had maintained there was no active investigation into the bombings. Now, the WMP having been effectively ‘cleared’ of culpability by either act or omission, on the basis of the evidence presented to a jury at an inquest, must investigate or, following the precedent in Northern Ireland, invite another force to do so andit or another force must engage with the families.

There is one aspect of the tragic scenario which has not delivered to the families what they sought. There is no TRC proposal for addressing the out-workings of the conflict in Northern Ireland. In any event, as noted above, any statutory proposal to investigate conflict-related deaths (which would have to be human rights compliant – and that is not guaranteed under the present draft statutory proposals), would not include the Guildford and Birmingham pub bombings. The coronial process has only delivered partial results to the families and has been tested because of issue of funding and disclosure.

Would the pub bombing deaths have been better approached by way of a statutory inquiry under section 1 of the Inquires Act 2005?

This would have meant the provision funding for legal representation of core participants by way of a chair, consultation on terms of reference and the conduct of proceedings, the ability to make recommendations, and even though not able to allocate civil or criminal liability (as with an inquest) it would ‘not to be inhibited in the discharge of its functions by any likelihood of liability being inferred from facts that it determines or recommendations that it makes’ (section 2 Inquiries Act 2005).

Further, it would not have been constrained by juridical tensions on the coronial jurisprudence.

It is extremely unlikely that there will be a further independent investigation into the Birmingham pub bombings. A police investigation needs to take place to follow through on the evidential leads exposed through the coronial process. There is less likelihood of a civil action against the WMP given the verdict of the jury. Sadly, for the families, questions remain unanswered. A lesson for lawyers undertaking this work is one of the management of client expectations, particularly when faced with the implacable force of the state in a time of austerity and in a time of secrecy.

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