The legal battle to reopen the Birmingham pub bombing inquests highlights the challenges lawyers on both sides of the Irish Sea face when holding state bodies to account, says Belfast litigation consultant Christopher Stanley. Picture of Maxine Hambleton who was just 18 years of age when she died in 1974.
The recent decision by Louise Hunt, senior coroner for Birmingham and Solihull, to resume the inquests into the deaths of the victims of the 1974 Birmingham pub bombings was a seismic day for families of the victims, and important day for justice. It also provided some immediate lessons for lawyers on both sides of the Irish Sea.
First, the relatives of the victims – ignored since 1974 – had to come to Belfast to instruct a Northern Ireland firm of solicitors, KRW Law. The families were unable to find a local firm to take their case. By coming to us, they instructed a firm specialising in all aspects of conflict-related legacy litigation, including what in the North of Ireland are called the Legacy Inquests.
Second, and this will be an experience shared with many inquest practitioners, all the work carried out by both solicitors and counsel has been pro bono until the point of the decision to resume. During the hearing to resume the inquests, all the ‘interested persons’, except for the relatives of the victims, were legally represented by remunerated solicitors and counsel. Further, the relatives of the victims have used their own time, their own money and own initiative to garner support and evidence in their quest for truth, justice and accountability. Since 2014, our firm has assisted the families in all aspects of their campaign, including in meetings with the Home Secretary.
Third, the decision of the senior coroner is important in that she found herself to be functus officio, in that she decided that she had the power, authority and jurisdiction to resume the original inquests following the judgment in Flower v HM Coroner for The County of Devon, Plymouth, Torbay and South Devon  EWHC 3666 (Admin), clarifying a point of law on consolidated legislation and the Interpretation Act 1978. In addition, she carefully analysed the basis of the need for sufficient reason or cause to resume. She relied on preventability and the failure of the West Midlands Police to act on intelligence and prior warnings in order to prevent the bombings. Further, she found the public interest was engaged and, while not following recent European Court of Human Rights jurisprudence, she found that the scope of the inquests should be Article 2 (Middleton) compliant, therefore enabling next-of-kin participation in terms of cross-examination and disclosure of evidence.
Fourth, perhaps in the light of the Hillsborough inquest narrative conclusions, the West Midlands Police have publically stated they will assist in the inquests. Therefore, no challenge from that quarter is expected by way of judicial review of the decision. In any event, the relatives of the victims would have recourse to their earlier strategy of applying for the attorney-general to exercise his fiat in a referral to the High Court.
Fifth, within the time frame ordered by the senior coroner, the West Midlands Police complied with her directions for disclosure and a mass of material became available quickly to us, which enabled further submissions to be made. Inevitably, further evidence has become available via the public in response to the media around the legal process.
This point is a lesson for Northern Ireland. The conflict-related legacy inquests – including the Stalker-Sampson inquests – are burdened by years of argument regarding disclosure and national security. Unlike the West Midlands Police, the PSNI will use all excuses not to comply with disclosure directions. This is why relatives of victims have resorted to civil litigation to obtain information through discovery. Further, the coronial process in Northern Ireland regarding the legacy inquests is starved of resources, despite public calls by the Lord Chief Justice as President of the Northern Coroners Courts to make funding available. Political impasse on this point between Stormont and Westminster cannot move forward this important element of dealing with past in Northern Ireland, where Hugh Jordan, the father of Pearse Jordan has been waiting since 1992 for an inquest into his son’s murder.
The senior coroner for Birmingham and Solihull has made no comment regarding the cost of the resumed inquests she has ordered. The families can therefore (hopefully) expect their participation to be the funded by the public purse and without the imposition of financial eligibility limits. The senior coroner relied upon the human rights jurisprudence of prior knowledge and preventability. In Northern Ireland, many conflict-related deaths engage issue of prior knowledge, intelligence, collusion and preventability; and the PSNI, Ministry of Defence, the Northern Ireland Office, and indeed the judiciary, contest this issue time and again. Once again, the North of Ireland, is a state of exception.
A final immediate lesson is that the management of client expectations is paramount in undertaking pro bono work in inquests and related legal actions, and the building of strong relationships of openness between the legal teams and the relatives of victims is essential. The families in Birmingham represented by KRW Law have provided powerful local and national support, and chided local and national politicians to understand the importance of their journey for truth, justice and accountability and have worked with other victims groups including Hillsborough, Omagh and Warrington to good effect. They have also had the support of Paddy Hill of the Birmingham Six. This groundwork was essential for in winning the resumption of the inquest into the 1974 bombings.
Going forward, there will be negotiations with the Home Secretary regarding funding and pre-inquest review hearings before the senior coroner where matters of scope will be determined. Importantly, the accountability of public authorities and the lessons to be learned by them will, as the modern era of controversial inquests develops following Mid-Staffs, Hillsborough and Deepcut, be central to these hearings and the eventual verdict for the relatives of the victims of the 1974 bombings. Inquests held under Article 2 require the coroner or the inquest jury to explain not just how, but in what circumstances, a person died. They are transforming the accountability of state bodies. Therefore, in line with recent ECtHR jurisprudence, including El-Masri v FYR Macedonia  13 December 2012 (GC) 39630/09, there is a developing recognition of a public right to truth in terms of upholding the rule of law and democracy in terms of the accountability of public institutions following a human rights violation.
Christopher Stanley is a member of the KRW Law LLP team, instructed by six of the families of victims of the 1974 Birmingham Pub Bombings.
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- ‘The decision to resume the Birmingham pub bombing inquests is an important day for justice’ - 17th June 2016