Evidence from behind screens
A look into the rights that officers have for evidence behind screens where there is a credible threat
Chief Constable of West Yorkshire & others v (1) Natalie Dyer (2) HM Assistant Coroner for West Yorkshire Western & others
The court reinstated the decision of the coroner that police officers at the inquest of a man who died following police detention could give evidence from behind a screen. This was permitted under Coroners (Inquests) Rules 2013 rule 18. The brother of the deceased had a history of making threats and it was believed that the officers would give evidence better if their fears were allayed. This met the requirement of rule 18 (2) that the inquest would proceed more expediently and the requirements of the interests of justice (including open justice) set out in rule 18 (3).
The deceased died in hospital following a period of police detention. His brother held the police responsible and had a history of making threats. The police applied for anonymity for officers (which was granted and not contested) and for the evidence of officers to be heard behind screens.
The Coroners (Inquests) Rules 2013 state that a coroner may direct that evidence is given from behind a screen under r.18 (2) if ‘.. the coroner determines that giving evidence in the way proposed would be likely to improve the quality of the evidence given by the witness or allow the inquest to proceed more expediently.’ Rule 18 3(b) states that they must consider ‘whether it would be in the interests of justice or national security to allow evidence to be given from behind a screen.’
The coroner held that it would improve the quality of the officers’ evidence if they gave it from behind a screen, it would remove the fear for their safety and make their evidence more open. He believed that the interests of justice were served because the screens would allow the best evidence to be obtained and the family of the deceased retained the services of counsel to cross examine the officers.
The decision was subject to judicial review. The judge hearing the judicial review concluded that the coroner had not properly applied the interests of justice test in rule 18. He had drawn it too narrowly in merely weighing the need for best evidence against the interests of the family in being able to cross examine the officers. He had not properly considered the advantages of open justice in the family being able to witness the demeanour of the officers. There was no evidence that the family, as opposed to the brother, of the deceased were a threat to the officers. The judge therefore substituted her own decision that the evidence of the officers could be heard behind screens but that the family should be able to see the officers. The Chief Constable appealed.
The appeal was allowed. In reviewing the coroner’s decision, the court ruled that he had properly considered open justice. He had plainly considered that the family would be at a disadvantage by not being able to see the officers. He had weighed this against the interests of the officers in giving their evidence without the risk of being identified and threatened by the deceased’s brother. The court did not accept that allowing the family to see the officers removed the threat. One could not exclude the possibility that they would pass the information on to the brother.
This was enough to allow the appeal but the court also ruled that the threat to the officers had to pass a subjective and objective test and the coroner had plainly based his decision upon these grounds. The court also did not consider arguments under Article 2 and Article 3 since the decision was based simply upon the common law.
The lead judgement was given by Flaux L-J but Males L-J gave a dissenting judgement stating that the coroner had not given sufficient weight to open justice nor had he ruled properly on the supposed threat.
This is a helpful decision because it reasserts the right of officers to have their evidence heard behind screens where there is a credible threat to them. It also lays out principles for the application of Rule 18 of the Coroners Rules 2013. These can be summarised as: - (1) Will the quality of evidence be improved by screening? (2) This must be weighed against the interests of justice including open justice (3) An objective and subjective test should be applied to the alleged threat (4) The test to apply is a common law rather than one under Article 2 or 3 of the Human Rights Act.
For those who are interested the common law test replicates Articles 2 and 3 and can be found in the decision of Lord Carswell in Re Officer L  UKHL 36;  1 WLR 2135 which forms the basis of this decision.