Transcript of the Pre Inquest Hearing 15 July 2013

           1                                           Monday, 15 July 2013

           2   (10.52 am)

           3   THE CORONER:  Good morning, everybody.

           4   MR UNDERWOOD:  Good morning, sir.  May I introduce everyone?

           5   THE CORONER:  Yes, please.

           6   MR UNDERWOOD:  There have been some personnel changes.

           7           Mr Keith and Ms LeFevre appear for the

           8       Metropolitan Police Service.

           9           Mr Stern for the armed officers, if I may refer to

          10       them in that way.

          11           Mr Thomas and Mr Straw, behind me, for the Duggan

          12       family and Ms Douaihy.

          13           Z51 is represented by Mr Butt, towards the back

          14       there.

          15           The IPCC has, perhaps with his last appearance only,

          16       Mr Tam today.

          17           And Ms Leek appears for SOCA.

          18           I have circulated a note to which people have very

          19       helpfully responded and may I run through the issues

          20       that arise on it, and then perhaps let people comment at

          21       the end of all of it?

          22   THE CORONER:  Yes, please.

          23                     Address by MR UNDERWOOD

          24   MR UNDERWOOD:  We will start with an update of progress by

          25       the inquest team; and you will recall initially on


                                             1
 

 

 


           1       28 January, after your appointment, we had a hearing in

           2       which I ran through a number of things which, in the

           3       opinion of the team, needed sorting out before

           4       an inquest could properly be held here.

           5           Perhaps I can comment on those and how far we have

           6       got.

           7           Intelligence was one of the matters I raised.  You

           8       have now seen the intelligence and we are awaiting

           9       a statement from an intelligence officer, which we

          10       propose, if relevant, to put into a form where it can be

          11       used in open hearing at the inquest.

          12           Additionally, a matter has arisen about an anonymous

          13       letter which has been circulated, which makes

          14       an allegation about how it was Mr Duggan came by the

          15       gun, if indeed he had it; and whether that was some sort

          16       of put-up job by someone.  That is a matter which is

          17       being chased down, both by the Metropolitan Police and

          18       by us in various ways; and if necessary, that, too, will

          19       be a line of investigation which will be pursued in

          20       public at the hearing.

          21           So far as disclosure is concerned, the IPCC very

          22       helpfully gave us all the materials in their possession

          23       and we have also gathered other materials in the

          24       possession of other parties.  All of that has been put

          25       into a form for disclosure.  It has been disclosed in


                                             2
 

 

 


           1       part already.  The final tranche of that will be sent

           2       out this week.

           3           So as far as everything we are currently in

           4       possession of is concerned, everybody else will have

           5       that by the end of this week.

           6           Forensic scientists is an issue I spoke of at some

           7       length on 28 January; and I mentioned all the things

           8       which we would like to do, in terms of checking what had

           9       been done and carrying out further tests.  All of that

          10       is in hand.  The instructions to experts have been sent

          11       to them.  We are awaiting the reports which will, of

          12       course, be distributed as soon as we have them.  I have

          13       sent out copies of our instructions to the experts, to

          14       my learned friends; so that is clear where we are with

          15       that.

          16           So far as anybody else wishing to commission experts

          17       is concerned, of course we appreciate that they may wish

          18       to contest what comes up.  Can I just put in this

          19       plea: what we cannot do is wait for the experts' reports

          20       commissioned by us to come in and for people then to

          21       worry about whether they like them or not and then

          22       commission their own experts.  All the raw material upon

          23       which we have instructed the experts is in the hands of,

          24       or is available to, others; and so if other people wish

          25       to commission experts' reports, then I would urge them


                                             3
 

 

 


           1       to do it at this stage, rather than risk disruption

           2       later on.

           3           Venue was the next matter we raised, and on

           4       28 January that was completely uncertain.  It is now

           5       settled.  We have this court, together with Court 76, to

           6       have some form of transmissioning as an overspill court.

           7       So far as the seating is concerned here, rather than do

           8       the traditional jury box up on a limb somewhere, what we

           9       have done is set out the tables where the press are

          10       currently sitting as the jury area.  And that leaves

          11       sufficient space for the lawyers and it, we hope,

          12       represents a fair balance between the importance of the

          13       jury and such importance as there is to us lawyers.

          14           We are not proposing to have video screens or any

          15       other technology provided by us on desks.  Rather, what

          16       we are going to have for transmission of any videos,

          17       et cetera, is the use of the screens which are currently

          18       in court and additional large screens; and it may well

          19       be that there needs to be some consultation between our

          20       teams about precisely where they are best placed.  And

          21       it may well be that from your position, you may need

          22       a screen on the desk --

          23   THE CORONER:  Yes.

          24   MR UNDERWOOD:  -- because it is difficult to see elsewhere

          25       where one would go.  But we will sort that one out.


                                             4
 

 

 


           1           The question about screened witnesses fits into this

           2       issue.  One could have witnesses who are screened from

           3       the press and public in here, with some form of curtain

           4       or arrangement or similar behind, or one could have the

           5       use of this court only when screened witnesses are

           6       called, so that everybody else goes to Court 76 and

           7       hears the screened witness and perhaps, if we have

           8       a videolink there, sees a video of you, the counsel,

           9       et cetera.  But again, I throw that up for people to

          10       comment on it at this stage.

          11           Then finally on the question of progress, there is

          12       the IPCC report.  You asked the IPCC to give you the

          13       draft by 13 May and, as asked, they did that.  Mr Tam

          14       can, in due course, tell you what progress is being made

          15       with that report.  I think the only concern is if the

          16       report comes in towards the middle of September, before

          17       our hearing, and if it causes the DPP to ask you to

          18       adjourn, obviously that would be very disruptive and to

          19       be avoided.

          20           So the next issue on the agenda is witness lists and

          21       timetabling.  On that, my team have put together

          22       a witness list of all of those prospective witnesses we

          23       think could usefully be called, giving some sort of time

          24       estimate for when they could be called and a sequence in

          25       which order we might usefully call them.  People have


                                             5
 

 

 


           1       been considering that and there is no substantive

           2       disagreement with it, as I understand it, although of

           3       course there is bound to be nuancing about how long

           4       a particular witness is likely to take.  And it may well

           5       be that there will be a round table meeting between

           6       counsel later this week, to sort out the nuts and bolts.

           7       But essentially, we are on track for that; and obviously

           8       what I am anxious to do is to be able to write to

           9       witnesses to tell them when it is we want to have them

          10       here.

          11           Moving on, then.  The next issue in the agenda is

          12       jury matters.

          13   THE CORONER:  Do you want to just stop there and just find

          14       out what the position is of the IPCC report at this

          15       stage?

          16   MR UNDERWOOD:  By all means.

          17   THE CORONER:  Yes.  Mr Tam can then help us about that.

          18                      Submissions by MR TAM

          19   MR TAM:  Sir, I am grateful.

          20           Sir, it is a vexed question which has been before

          21       you and your predecessor.  In addressing that, can I

          22       make two preliminary observations, please?

          23           The first one, of course, is that the inquest is

          24       an inquest which will hear the evidence about the

          25       relevant matters and it is not an inquest investigating


                                             6
 

 

 


           1       the IPCC's report.  And to that end, since your

           2       appointment, we have now got an orderly process for the

           3       disclosure of IPCC evidence to you, so that you and your

           4       team can consider the relevance of that evidence and

           5       then its preparation and onward disclosure to the other

           6       legal teams in preparation for the inquest.  That is

           7       what the inquest will be looking at, rather than the

           8       report.

           9           The second preliminary observation is this: as many

          10       here will know, the governing statute for the IPCC

          11       requires the investigation to conclude with some

          12       decision-making directed to certain ends.  As in all

          13       administrative decision-making, it is important that the

          14       decision-maker has all the relevant evidence before him

          15       or her, or "it" in the case of the IPCC.  And in a case

          16       like this, that puts the IPCC in something of a dilemma.

          17       If there is further information coming in, does the IPCC

          18       wait until all of the evidence is available and exhaust

          19       all of the apparently relevant lines of enquiry before

          20       making its decisions, thus taking up more time; or

          21       should the IPCC try to conclude its investigation more

          22       speedily, notwithstanding the fact that there may be

          23       relevant matters which it therefore ignores?  That is

          24       a difficult position and in the course of submissions

          25       that I have made on previous occasions, I think it has


                                             7
 

 

 


           1       been apparent to everybody that that is the dilemma in

           2       which the IPCC has been caught.

           3           Sir, on the last occasion, you directed that the

           4       IPCC provide draft reports to you by Monday 13 May.

           5       There are two reports.

           6           Can I deal, first of all, with the main report which

           7       deals with the shooting itself?  On 13 May, we duly

           8       delivered a draft report to your team.  On that day, we

           9       were told about, and I think on that day shown for the

          10       first time, a letter which an expert had written to one

          11       of the firms of solicitors representing the families and

          12       written back in October of last year.  We were

          13       completely unaware that such a report -- well, it was

          14       a letter providing an expert opinion; perhaps it is too

          15       short to be called a "report".  We were unaware that

          16       such an opinion had been provided.  I don't think there

          17       was any necessary reason why the family should have told

          18       us before then, but obviously it does not help if, at

          19       that very late stage, we are told for the first time

          20       that there is potentially a new expert opinion which

          21       ought to be considered by the IPCC before reaching its

          22       conclusions.

          23           Sir, we have been working on that and, as

          24       I understand it, you and your team have, in parallel,

          25       been working with this expert and trying to see how and


                                             8
 

 

 


           1       to what extent the expert opinion matches the other

           2       expert opinion which has been obtained; certainly by us

           3       and possibly by you as well.  And all of that work is in

           4       progress.  As I understand it, an initial report was

           5       provided by this new expert -- can I call him the "new

           6       expert" so we know who we are talking about?

           7   THE CORONER:  Yes.

           8   MR TAM:  Last week, and received by us at the beginning

           9       of -- I am sorry.  At the end of the week before,

          10       I think you had it, and at the beginning of last week,

          11       we had it.  And that is something on which we are

          12       seeking the comments of experts who have already been

          13       instructed by the IPCC.

          14           There are questions about where we go from there.

          15       One option is to say: right, well, we have got to do

          16       much more work on this and bottom all of this out.

          17       I understand that there are further forensic tests which

          18       your team are contemplating.  But all of that would

          19       inevitably delay the final report until well after the

          20       date on which the inquest is due to commence.

          21           The alternative approach is to adhere to that which

          22       I outlined on the last occasion, which was that it may

          23       well be that we will come to the position where we

          24       simply say: there are a lot of expert opinions, they

          25       don't all agree and we have simply got to do what we can


                                             9
 

 

 


           1       with a number of disagreeing experts.  And we have

           2       concluded that seeing as it would be helpful for

           3       everyone to have the final report from the IPCC before

           4       the commencement of the inquest, that we should work on

           5       that basis, that that is an approach which we are likely

           6       to take.  We cannot conclude everything until the

           7       existing experts have had a chance to look at this new

           8       opinion, so we know what the interplay is between the

           9       expert opinions.

          10           We have been told that the new expert is going to

          11       produce a final report by the end of August.  That would

          12       be too late.  However, the existing experts who we have

          13       been in touch with, one of them anticipates being able

          14       to provide his comments as soon as he is back from leave

          15       in two or three weeks' time; and the other expert, we

          16       are pressing very hard for a view from him.  And at the

          17       end of that, obviously the threads will have to be drawn

          18       together.  The decision-making will have to be taken.

          19       And on that basis, if there is nothing unforeseen and

          20       there is no imperative for further work to be done,

          21       further investigative steps to be taken, then the report

          22       could be finalised around mid August.

          23           That, if we can do that, will at least give the

          24       teams a few weeks to digest the report in parallel, of

          25       course, with the evidence which is what will be under


                                            10
 

 

 


           1       consideration by the inquest.

           2           So that is, as best as I can, an outline of where we

           3       are going with that.  I know that one of the questions

           4       is whether what has happened since 13 May is likely to

           5       lead to an adjournment of this inquest.  From our side,

           6       we would respectfully say this: because the inquest is

           7       going to consider evidence and it is not

           8       an investigation into our investigation, there is no

           9       reason why this should delay the start of the inquest,

          10       if it is otherwise ready to proceed on 16 September.  So

          11       that, I hope, will allay any concerns on that score.

          12           I did say there is a second report.  That report

          13       couldn't be delivered to you on 13 May, for reasons

          14       which were explained to you, and I think your team have

          15       been kept informed throughout.  That draft report has

          16       now been provided to you and your team, and the process

          17       of assessing whether there is anything in that

          18       investigation which is of any relevance to this inquest

          19       can get underway.  And so in relation to that, again

          20       there is no reason that we can see why that should delay

          21       the commencement of the inquest.

          22           And I hope that that is a helpful summary update of

          23       what has happened so far.

          24   THE CORONER:  Thank you, Mr Tam.  Would anybody like to say

          25       anything about that?  Mr Thomas, do you want to ...?


                                            11
 

 

 


           1                     Submissions by MR THOMAS

           2   MR THOMAS:  May I start first with a correction?

           3       Unfortunately, time and time again, I come before this

           4       court, either you or your predecessor, sir, and have to

           5       make corrections.

           6           The IPCC were well aware, before the initial

           7       post-mortem, that we had instructed an expert.  They

           8       were aware of the identity of that expert.  Sir, I am

           9       talking about 2011.  Because we informed the IPCC -- and

          10       the person at the IPCC who we informed was Mr Sparrow,

          11       Colin Sparrow -- that we wanted access to documents, so

          12       that we could instruct our expert.

          13           Sir, it is a little bit surprising to hear, some two

          14       years later, the IPCC say they were taken by surprise

          15       that we had instructed an expert, when we had notified

          16       them.  And in that two-year period, the IPCC never came

          17       back and indicated that they needed any documentation or

          18       information from us.

          19           My junior has just handed me a note saying that they

          20       even made arrangements for our expert, for a second

          21       post-mortem.

          22           Sir, I am not going to say anything else.  I just

          23       think that it is right that these matters be corrected

          24       where they need to be corrected.  It is a little bit

          25       shocking, to say the least, that the IPCC, who have been


                                            12
 

 

 


           1       conducting this investigation, promising in a report --

           2       I have forgotten how many times they have broken

           3       promises in relation to the report -- to have produced

           4       a report and to suddenly say that they have to start

           5       from scratch because of new evidence, it is just very

           6       surprising.

           7   THE CORONER:  Right.

           8           Mr Stern, would you like to say anything at this

           9       point?

          10                     Submissions by MR STERN

          11   MR STERN:  Sir, can I just add this.  I have set out in my

          12       note, which I hope you have had an opportunity to see,

          13       the position is somewhat surprising that the IPCC were

          14       unaware of the second post-mortem.  But that being the

          15       position, we have been told, as my learned friend

          16       Mr Thomas has said, since I think at least August last

          17       year, that the report is imminent.  We are now told that

          18       it cannot be provided to us until the middle of August

          19       this year.  It is a very unsatisfactory position, as you

          20       can appreciate.

          21           May I just ask, in relation to your team, that so

          22       far as any further scientific reports are concerned,

          23       when it is that we are likely to receive those?  I have

          24       seen some correspondence where a Dr Seaman has been

          25       instructed, and indeed another expert as well; and I am


                                            13
 

 

 


           1       wondering when it is that we are going to receive that.

           2       We heard from the IPCC about their material, but I don't

           3       think we have actually heard when it is that we are

           4       going to receive yours, sir.

           5   THE CORONER:  All right.  Well, I will put that right in

           6       a moment.

           7   MR KEITH:  Sir, in relation to the IPCC, I have nothing to

           8       add on behalf of the Metropolitan Police Service.  The

           9       issues before you are very well identified already.

          10   THE CORONER:  Thank you very much.  Ms Leek, anything?

          11   MS LEEK:  No.

          12   THE CORONER:  Mr Tam, just to confirm that you are

          13       absolutely right that the draft reports have been

          14       provided to myself and my team.  I have had the

          15       opportunity of reading them and considering them; and

          16       certainly there is nothing within the reports which

          17       would lead me to delay the start of this inquest.

          18       Indeed, it seems to me now that whilst, when I arrived

          19       on the scene earlier on this year, I was very keen that

          20       I would see your final report, it seems to me now that

          21       you are absolutely right in one thing that you say: that

          22       really, this inquest will be looking at all the facts

          23       and the witness observations and all the details and the

          24       evidence to be put before the jury; and it seems to me

          25       that that is all that will be available and able to be


                                            14
 

 

 


           1       put before the jury in due course.  And so the final

           2       decisions, if there are to be some to be made, will not

           3       put us off course for going ahead on 16 September.

           4           But it may be that Mr Underwood might want to say

           5       something else.

           6                   Submissions by MR UNDERWOOD

           7   MR UNDERWOOD:  No.  So far as the experts are concerned, let

           8       me make it clear.  I believe that we are likely to be

           9       going further in our investigations than the IPCC is

          10       because, as I say, we have asked experts to carry out

          11       reconstructive work, and so on, on the events, on

          12       shootings, on ballistics tests, et cetera.  Nothing,

          13       that I am aware of, that the IPCC is doing is likely to

          14       unravel any of the work being done by the inquest; and

          15       indeed, of course, they are sharing the work that they

          16       are doing with us in any event, for which we are very

          17       grateful.

          18           I would just echo what you said to Mr Tam: that as

          19       far as I am concerned, all we are exercised by is

          20       getting the inquest on and getting the evidence heard.

          21   THE CORONER:  But also, Mr Stern is concerned that he does

          22       not want to be served a day or two, or a week or two,

          23       before the first day, if there was some rather important

          24       and complex piece of expert evidence.

          25   MR UNDERWOOD:  Yes.  On that, I would apprehend that the


                                            15
 

 

 


           1       expert evidence commissioned by us should be available

           2       by mid August.  Accidents can happen, but that is the

           3       indication that we have had from the experts.  I would

           4       also apprehend that it is very unlikely that anything

           5       the IPCC does will add to that.

           6   THE CORONER:  And clearly, obviously as soon as we receive

           7       any report, if it is earlier than that, that can

           8       immediately be disclosed --

           9   MR UNDERWOOD:  Of course.

          10   THE CORONER:  -- so there is nothing other than full

          11       transparency.  But at the same time, I can understand

          12       that Mr Stern wouldn't want it much later than that, and

          13       probably he would rather have it earlier.  But as soon

          14       as we get it, we will make sure you receive it.

          15   MR STERN:  Yes.  No, I am grateful, sir, because the letters

          16       that I have been kindly copied into show that there was

          17       an instruction on 2 May and one on 8 July; so naturally

          18       I was concerned that certainly the one on 8 July, we may

          19       not receive for some time.

          20   THE CORONER:  No.  That has come out of other work that we

          21       have been doing.

          22   MR STERN:  So I understand.  So I understand.

          23   THE CORONER:  Yes, all right.  Thank you very much.

          24   MR UNDERWOOD:  Again I am, whether or not by way of round

          25       table, entirely happy to share with my learned friends


                                            16
 

 

 


           1       later on exactly where we are with the expert

           2       instructions, what it is we are asking for, how long we

           3       think that might, in practice, take.  So if anybody has

           4       any difficulties about that, of course I will help.

           5   THE CORONER:  Sorry, Mr Tam just wanted to say something.

           6                      Submissions by MR TAM

           7   MR TAM:  Yes.  Before leaving the topic of our report and

           8       the work we are doing, may I just say something to

           9       correct the impression which I think my learned friend

          10       Mr Thomas has inadvertently given, that there is

          11       something in what I said to you which is not true?

          12   THE CORONER:  Right.

          13   MR TAM:  Back in 2011, it is right that we were aware that

          14       the family had instructed an expert.  Now, we were aware

          15       that the family was proposing to have a second

          16       post-mortem conducted; and then after the event, it is

          17       right that we then discovered that one had been

          18       conducted.  We had not been told in advance of this

          19       taking place.

          20           That is all true, but that is not what I was telling

          21       you about.  What I said was that we were not aware of

          22       that expert's October 2012 letter, and the opinion

          23       contained in that, until 13 May this year.

          24           So that is what has set off the current chain of

          25       investigation.


                                            17
 

 

 


           1           And so in fairness to my client, I would ask to put

           2       that on record and to make sure --

           3   THE CORONER:  Well, Mr Tam, you have put that on record.

           4       I am not going to come to any conclusions one way or the

           5       other or findings about it, but you have said that and

           6       we have heard from Mr Thomas what he has had to say.

           7           Right then.  Back to you, Mr Underwood.

           8   MR UNDERWOOD:  The next matter on the agenda is jury

           9       matters.

          10   THE CORONER:  Yes.

          11   MR UNDERWOOD:  What we are proposing to do is -- some jurors

          12       from the same area as Mr Walker would have some of them

          13       from, had this inquest taken place in Barnet; so we will

          14       replicate as near as possible the conditions of that

          15       inquest.  And indeed, I am very grateful to Mr Walker

          16       and his team because they are going to help us with that

          17       summonsing exercise; in fact, I think, do it for us.

          18   THE CORONER:  Good, right.

          19   MR UNDERWOOD:  That will leave us with a pool of jurors

          20       available on 16 September.  It looks as if the question

          21       of anonymising them is of no difficulty now, because the

          22       way the rules and regulations have changed under the new

          23       statutory regime means you can do that with no

          24       difficulty.

          25   THE CORONER:  We have a whole raft of new rules coming into


                                            18
 

 

 


           1       force on 25 July.

           2   MR UNDERWOOD:  Exactly.  The 2009 Act, some regulations and

           3       some rules.

           4   THE CORONER:  Yes.

           5   MR UNDERWOOD:  The question of whether screening questions

           6       can be put to jurors to make sure they don't have any

           7       conflicts of interest has been circulated in my note and

           8       very helpfully commented on by my friends.  Those for

           9       the family have come up with a list of prospective

          10       questions.  People have added to and revised those.

          11       I have no doubt that we can sort out a very useful list

          12       of screening questions over the course of the next few

          13       days, without needing to trouble you with the detail of

          14       that.

          15   THE CORONER:  Good.

          16   MR UNDERWOOD:  And the only other issue on jurors is whether

          17       there needs to be some sort of provision for more than

          18       11 of them to start with.  The consensus seems to be

          19       building that although the maximum number of jurors you

          20       can have is 11, that on the first and perhaps second

          21       days, what we can have is two or three additional

          22       members of the jury pool sitting, if they would be so

          23       kind, under their summons, waiting to see whether,

          24       having heard the opening, people who thought they had no

          25       conflict suddenly discern that, in fact, they do know


                                            19
 

 

 


           1       something about this which gives them a conflict and

           2       they wish to stand down.  In that event, we won't have

           3       to start from fresh, we will just bring in one or more

           4       of those --

           5   THE CORONER:  Certainly that is the way that it often

           6       happens in the Crown Courts on the longer trials.

           7       Clearly at the conclusion of the opening and at the

           8       beginning of calling of the evidence, then the bar comes

           9       down and one cannot then put in any substitute jurors.

          10       But that would at least ensure that we would start with

          11       the maximum 11, with the first witness.

          12   MR UNDERWOOD:  Yes.  So subject to any other comments later

          13       on, that seems to be what is likely to happen.

          14   THE CORONER:  Right.

          15   MR UNDERWOOD:  Now, I have circulated in May some issues

          16       which very broadly, we say, cover the sort of areas the

          17       witnesses are likely to speak to.  And what I want to do

          18       is to construct an opening note so that the jury can

          19       make some sense, in advance, of what the witnesses are

          20       likely to be doing.

          21   THE CORONER:  Yes.

          22   MR UNDERWOOD:  And I am going to do that in the structure of

          23       those questions, as set out.  What I am proposing to do

          24       is to circulate a draft or drafts of that opening note

          25       well in advance, so people can comment on it, to make


                                            20
 

 

 


           1       sure it is sufficiently neutral and covers all the

           2       issues.

           3   THE CORONER:  Right.

           4   MR UNDERWOOD:  Again, I have floated that idea.  Nobody

           5       seems to be objecting so far; but no doubt, if there are

           6       comments, they will be made.

           7           The next issue on the agenda is the sitting dates.

           8       The proposal is that we are going to sit, apart from the

           9       very first day of the inquest, on Mondays from 2 o'clock

          10       to 4.30 and then on Tuesdays through to Thursdays.

          11   THE CORONER:  Yes.

          12   MR UNDERWOOD:  We won't be sitting with the jury on Fridays.

          13       If there are any issues of law that need to be dealt

          14       with in the absence of the jury, that may well be

          15       usefully dealt with on Fridays, if they arise.  And

          16       again, subject to realistic --

          17   THE CORONER:  As I understand it, that is quite an usual

          18       pattern to enable that, to ensure that when the jury is

          19       here, things should move as seamlessly as possible.

          20   MR UNDERWOOD:  Yes, quite.

          21           The next issue on --

          22   THE CORONER:  Given that sort of framework of a week's

          23       timetable, what is the overall impression about the

          24       length of this hearing?

          25   MR UNDERWOOD:  We think about nine weeks for the evidence.


                                            21
 

 

 


           1       So it would comfortably finish before Christmas on that

           2       analysis.

           3   THE CORONER:  Really towards the end of November, would be

           4       the time.

           5   MR UNDERWOOD:  Yes.

           6           The next issue on the agenda is anonymity and Public

           7       Interest Immunity applications.  You have made some

           8       anonymity rulings which have been served and, as

           9       I apprehend it, there is no difficulty with those.  No

          10       Public Interest Immunity applications have been received

          11       as yet.  A few documents have been held back to see

          12       whether they are genuinely relevant and, if genuinely

          13       relevant, whether there is any need to take out some

          14       detail of intelligence, and so on.  If there is, from

          15       past experience of working with Mr Fairbrother and the

          16       Metropolitan Police, it is exceptionally unlikely that

          17       there is going to be any long-winded debate about that.

          18       So we have no reason to believe that the absence of PII

          19       applications at this stage means there is any danger at

          20       all of putting back the hearing.

          21   THE CORONER:  All right.  There are not going to be any

          22       surprises that are going to come out on the first day?

          23   MR UNDERWOOD:  No.

          24   THE CORONER:  Good.

          25   MR UNDERWOOD:  The next item on the agenda is transcripts of


                                            22
 

 

 


           1       evidence.  As we are doing at the moment, we are being

           2       transcribed as we go.  We will have everything loaded up

           3       onto the website when the transcripts are available,

           4       which will probably be the day following the day the

           5       evidence is given; and I know that you are minded at the

           6       moment not to restrict, or seek to restrict, a juror's

           7       access to the internet.

           8   THE CORONER:  I shall hear what is said, but I am aware that

           9       in other recent inquests, the jurors have been given

          10       full access to all the transcripts of the evidence and

          11       very much have been left to get on with it themselves in

          12       their deliberations.  I am not quite sure about that,

          13       but I will be guided and helped, I know, by others.

          14   MR UNDERWOOD:  As we understand it, there is nothing on the

          15       inquest's website which is likely to mislead a juror or

          16       give a juror a false impression of any sort.  If anybody

          17       has any notion that anything on the inquest website

          18       should not be there, for this purpose, then perhaps they

          19       could let us know at some convenient point and that

          20       could be taken off.

          21   THE CORONER:  Because in the opening, it would certainly be

          22       hoped that the jury can be told of the website and then

          23       be able to access it, if they feel they wish to.

          24   MR UNDERWOOD:  Yes.

          25   THE CORONER:  So I would encourage everyone to look at that


                                            23
 

 

 


           1       and see whether there is anything there that they would

           2       not want the jury to see.  Thank you.

           3   MR UNDERWOOD:  That then leads me to the most difficult

           4       issue, which is the question of live feed of video or

           5       audio out of the court, elsewhere.

           6           The proposal always has been that this court will be

           7       used to hear the witnesses and Court 76, as I say, would

           8       be an overspill court and ideally, in essence, to be

           9       treated as part of this court for people who cannot fit

          10       in and therefore should have a live videolink with it.

          11           The firearms officers wish to go further and have

          12       a direct videolink to a police station and the MPS would

          13       wish to have a room available in the precincts of the

          14       court for a live videolink for officers there.

          15           It squarely raises, I am afraid, the question of the

          16       lawfulness of that.  When I say "I am afraid", if it

          17       were left to the inquest team, we would be urging you to

          18       allow a live video screen of the entire proceedings out

          19       to the world.  The difficulty with that, which I have to

          20       draw to your attention, is what I take to be a reading

          21       of the law on this, since 1925.

          22           Can we have a look at the statutory provisions?

          23   THE CORONER:  Yes.

          24   MR UNDERWOOD:  People have got them in various forms; I know

          25       you have got a folder.  And behind divider 2, we start


                                            24
 

 

 


           1       with the Criminal Justice Act 1925.  And section 41

           2       deals with the image question, if you like.  What it

           3       says is:

           4           "No person shall take or attempt to take, in any

           5       court, any photograph."

           6           And then it deals with sketches.

           7           "... of any person, being a judge of the court or

           8       a juror or a witness in, or a party to, any proceedings

           9       before the court, whether civil or criminal, or publish

          10       any photograph made in contravention of the foregoing

          11       provisions."

          12           And then it sets out what happens to such a person.

          13       And then it says under subsection (2):

          14           "For the purposes of this section, the expression

          15       'court' means any court of justice, including the court

          16       of a coroner, apart from the Supreme Court and the

          17       expression 'judge' includes a coroner."

          18           Now, of course on its face, that just deals with the

          19       taking of a photograph; and if it were left at that,

          20       there would not be a difficulty.

          21           Before I move on to the way it has been construed,

          22       though, can we look at the sound transmission; and that

          23       is two pages on, section 9 of the Contempt of Court Act

          24       1981.  And that provides:

          25           "Subject to subsection (4) below, it is a contempt


                                            25
 

 

 


           1       of court to use in court, or to bring into court for

           2       use, any tape recorder or other instrument for recording

           3       sound, except with the leave of the court."

           4           And (b):

           5           "To publish a recording of legal proceedings made by

           6       means of any such instrument or any recording derived

           7       directly or indirectly from it, by playing it in the

           8       hearing of the public or any section of the public or to

           9       dispose of it or any recordings so derived with a view

          10       to such publication."

          11           So there again, it is recording that it seems to be

          12       directed at.  The difference between video and audio is

          13       that with audio, you of course have a discretion to

          14       allow it.  If we just go over to subsection (4), the

          15       only exception to the prohibition:

          16           "This section does not apply to the making or use of

          17       sound recordings for the purposes of official

          18       transcripts of proceedings."

          19           Now, what we say is that one needs to look at the

          20       underlying purpose of that; and if I can take you on.

          21       In the clip you have got, at page 5 of it, the Crime and

          22       Courts Act 2013.  It is a provision that is not in force

          23       yet.  Section 32 is a provision which will temper what

          24       we have just seen.  Do you have it, sir?

          25   THE CORONER:  Yes, thank you.


                                            26
 

 

 


           1   MR UNDERWOOD:  As I say, not in force yet.  If we look at

           2       section 32(1):

           3           "The Lord Chancellor may, by order made with the

           4       concurrence of the Lord Chief Justice, provide that

           5       a section mentioned in subsection (2) or any provision

           6       of either of those sections:

           7           "(a) does not apply in relation to the making of

           8       a recording or the making of a prescribed recording.

           9           "(b) does not apply in relation to the making of

          10       a recording, or the making of a prescribed recording, if

          11       prescribed conditions are met, including conditions as

          12       to a court or tribunal or any other person being

          13       satisfied as to anything or agreeing."

          14           And then subsection (2) sets out: those sections are

          15       section 41 of the 1925 Act and section 9 of the

          16       Contempt Act.

          17           So when this comes into force, a court will be able,

          18       with the concurrence of the Lord Chancellor, to lift the

          19       provisions on a case-by-case basis.

          20           Now, if we look --

          21   THE CORONER:  Or a court-by-court basis, as will happen in

          22       the Court of Appeal Criminal Division in the near

          23       future.

          24   MR UNDERWOOD:  Exactly.  If we look four pages on, there is

          25       the Hansard note of this, and the reason I am going to


                                            27
 

 

 


           1       this is that there is clearly some ambiguity.  And what

           2       is headed "A Pepper v Hart note" deals with that

           3       section.  In the Bill, it was clause 28.  And what was

           4       said by the minister was:

           5           "Clause 28 provides for the current bans on

           6       photography and sound recording in courts to be lifted,

           7       under conditions to be set out in secondary legislation.

           8       Allowing the public to see first-hand at least part of

           9       the court process will help to increase their

          10       understanding of the justice system, making it less

          11       opaque and increase public confidence.  However, whilst

          12       it is important for justice to be seen to be done, it

          13       cannot be at the expense of the proper administration of

          14       justice.  The courts deal with serious matters that can

          15       affect the liberty, livelihood and reputation of all the

          16       parties involved.  It is vital, therefore, that

          17       safeguards are in place to protect the rights and

          18       interests of individuals connected with proceedings and

          19       in the interests of justice.  To that end, we propose

          20       that clause 28 should be amended to strengthen the

          21       judiciary's veto to stop or suspend filming or to

          22       prohibit the broadcasting of filmed material."

          23           So what I suggest you get from that, and I know it

          24       postdates the provisions we are talking about, is

          25       Parliament's understanding of the purpose of the 1925


                                            28
 

 

 


           1       Act and of the Contempt of Court Act; and that purpose

           2       is to regulate what would otherwise be the uncontrolled

           3       transmission out of court, of sound and vision of what

           4       is going on in court.  And that purposive construction

           5       is what has led the Court of Appeal to expand the use of

           6       the word "photograph" to include video.  That is in the

           7       Loveridge case that we have seen.

           8           Now, if it is right that live streaming, either of

           9       audio or video, is not caught by section 41 of the 1925

          10       Act or by the Contempt of Court Act, then nothing would

          11       inhibit, in any court in this country, live

          12       transmissions out; and nothing would inhibit live

          13       transmissions out which are then recorded outside the

          14       court.  If that is right, it would clearly run utterly

          15       roughshod over the purposive construction of the 1925

          16       Act and of the Contempt of Court Act.

          17           Much as we would desire to have that live

          18       transmission out, and much as of course I sympathise

          19       with my learned friends in wanting that too, I have to

          20       draw to your attention that if they are right, it would

          21       mean that it does not just apply here; it means that it

          22       applies in Family Courts, Magistrates' Courts, Crown

          23       Courts, the Court of Appeal, the High Court.  Everybody

          24       could walk in with a camera and an outside broadcasting

          25       unit outside, and transmit live, sound or vision or


                                            29
 

 

 


           1       both.  The problem with the 1925 Act, in particular, is

           2       that it is "do or die".  There is simply no provision at

           3       the moment for the court to regulate it.

           4           So if my friends are right, there would be no

           5       discretion at all in the hands of the judge to prevent

           6       the live transmission.  Conversely of course, if I am

           7       right, unfortunately there is no discretion to allow it.

           8   THE CORONER:  The only discretion would come, once the new

           9       provisions are in and you have got the concurrence of

          10       the Ministry of Justice or the Lord Chancellor and the

          11       Lord Chief Justice.

          12   MR UNDERWOOD:  Exactly.  Of course, that is not true of

          13       sound, where you currently have a discretion anyway.

          14       But it is vision that we are talking about there.

          15   THE CORONER:  Yes, right.

          16   MR UNDERWOOD:  So that, I am afraid, is the harsh issue.

          17       I would apprehend there is no difficulty about Court 76,

          18       because I think it is generally accepted that was to be

          19       treated as an extension.

          20   THE CORONER:  That can be deemed to be part of this court.

          21   MR UNDERWOOD:  Exactly.  So with that deeply unappetising

          22       submission, which as I say is made --

          23   THE CORONER:  Well, it is very interesting, but we will see

          24       if there are some other interpretations of it.  I have

          25       read one or two submissions.


                                            30
 

 

 


           1   MR UNDERWOOD:  Though I would urge my learned friends to

           2       make a better job of it and to try to persuade you that

           3       I am wrong.

           4   THE CORONER:  All right.  Who wants to go?  Mr Keith looks

           5       very keen.

           6   MR KEITH:  Can I respond to the gauntlet that has been

           7       thrown down so very charmingly?

           8   THE CORONER:  Yes.

           9                     Submissions by MR KEITH

          10   MR KEITH:  Sir, we have developed the submissions in the

          11       skeleton argument that I know you have received, and

          12       I am sure you have had a chance to consider them.

          13   THE CORONER:  Yes.

          14   MR KEITH:  In essence, on behalf of the Metropolitan Police

          15       Service, I do apply for permission for such a live link

          16       to be provided.  I seek permission because, of course,

          17       if you are with me in principle, then there will need to

          18       be certain administrative steps carried out, in order to

          19       put whatever ruling you make, if it is in favour of the

          20       application, into practice.

          21           But can I emphasise that the application that we

          22       make is for a live stream to a room in the RCJ.  We --

          23       that is to say the Metropolitan Police -- are not

          24       seeking for a live stream to a remote location.  And the

          25       purpose of the application is to allow those witnesses,


                                            31
 

 

 


           1       the MPS witnesses who are anonymised, to be able to

           2       follow the proceedings in advance of giving evidence

           3       themselves.

           4           And sir, in broad terms, the application raises two

           5       issues; one of legality and one of discretion.

           6           In relation to legality, we say firmly that there is

           7       no statutory bar on live streaming of the proceedings

           8       themselves; and indeed, we go further and we say: were

           9       there to be such a legal bar, a statutory prohibition,

          10       then there would be no proper means by which courts

          11       could ever receive evidence by way of a live TV link

          12       from a remote location; for example, under the

          13       Criminal Justice Act 1988, with which you will be hugely

          14       familiar in the criminal sphere --

          15   THE CORONER:  Oh no, but that is different.  Obviously

          16       evidence is what happens here.  It is providing

          17       information for the decision of the jury or the judge.

          18       What comes into a court is governed by a number of

          19       regulations.  What here we are considering is what is

          20       going out.

          21   MR KEITH:  Well, sir, I will develop the point in a moment.

          22       But in relation to the Criminal Justice Act provision

          23       under section 32, the Youth Justice and Criminal

          24       Evidence Act provision under the 1999 Act; what is clear

          25       is when a witness gives evidence from a remote location,


                                            32
 

 

 


           1       they will have on their screen, as you will know from

           2       sitting in the criminal jurisdiction in Winchester,

           3       a block on the screen which allows the witness to see

           4       what is going on in court.

           5           Moreover, when a criminal defendant is absent and is

           6       perhaps taking part in the proceedings from a prison

           7       location, they again are not just contributing by way of

           8       giving their observations in relation to the

           9       proceedings, but are seeing on the screen what is going

          10       on in court itself.  In truth, the communication is both

          11       ways.

          12           Moreover, it appears to be accepted that you could

          13       have a live stream from this court to Court 76.  That is

          14       no different in principle to a live stream to another

          15       room in the Royal Courts of Justice.

          16           And the reason for that, sir, is this: my learned

          17       friend expresses understandable concern that if this

          18       argument is right, it would allow streaming -- that is

          19       to say, the simultaneous provision, the simultaneous

          20       recording, he says -- of proceedings to the whole world.

          21       In fact, it would not.  The reason why court proceedings

          22       are not simultaneously filmed for the whole world to see

          23       is that, firstly, the electronic process or the

          24       mechanical process of providing that publication

          25       involves recording of the proceedings.  So if there is


                                            33
 

 

 


           1       a television camera in court, it is not just

           2       simultaneously streaming the proceedings; it is also

           3       recording it, or at least simultaneously providing

           4       a means of recording it.  And that is the gravamen that

           5       all the statutory provisions are meant to avoid.

           6           Secondly, if you record these proceedings or if you

           7       simultaneously stream the proceedings to a remote

           8       location, there is a danger that if that remote location

           9       is a public place, that it can be recorded in that

          10       public place; and that recording would also infringe

          11       section 9 and section 41.  But the application that we

          12       make is for a live streaming without any recording

          13       capability to a location in the Royal Courts of Justice,

          14       where there will be no members of the public present

          15       other than the witnesses and where there will be no

          16       means of recording at that juncture.

          17           So for all those reasons, the legal bar is simply

          18       not applicable here.  And I need not, I think, take

          19       you --

          20   THE CORONER:  When in the past there has been a tent out in

          21       the quadrangle or whatever, has that been a live feed in

          22       this way or ...?

          23   MR KEITH:  Yes.  Sir, as the submissions make plain, there

          24       was a live feed in the Stockwell inquest and in 7/7.

          25       I bear some partial personal responsibility in relation


                                            34
 

 

 


           1       to 7/7.  There was, in fact, a stream to the media tent

           2       in the courtyard, but also to a secretariat room in

           3       Chichester Rents and also, furthermore, to a police room

           4       and a family room.  Your predecessors in those other

           5       proceedings never saw fit to rule expressly on the legal

           6       issues that arose.  The streaming simply took place

           7       without any objection from any of the interested

           8       parties.

           9   THE CORONER:  All right, yes.

          10   MR KEITH:  But I am afraid on this occasion, it has been

          11       raised for your resolution.

          12   THE CORONER:  No, well --

          13   MR KEITH:  In all those proceedings, there was a live stream

          14       of the evidence, but there was no recording capability

          15       at any of the remote locations.  And so we say that that

          16       is the most --

          17   THE CORONER:  So that is the distinction.

          18   MR KEITH:  That is the distinction.  And if you look at the

          19       statutory instruments.

          20   THE CORONER:  Yes, please, yes.

          21   MR KEITH:  You will see from section 41, it prohibits, of

          22       course, the taking or attempting to take any photograph

          23       or the making or attempting to make, with a view to

          24       publication, any portrait or sketch.  And we say that

          25       those words are plainly concerned with a medium that can


                                            35
 

 

 


           1       be either temporarily or permanently recorded.

           2   THE CORONER:  But it was 1925 though, wasn't it?

           3   MR KEITH:  It was.  But of course the Court of Appeal in

           4       Loveridge, sir, quite rightly extended the Act to more

           5       modern means of communication.  But again, even there,

           6       in paragraph 25 that you have --

           7   THE CORONER:  Yes.  Let me have it --

           8   MR KEITH:  -- in the clip before you, a copy of the report.

           9   THE CORONER:  Yes, I have that.

          10   MR KEITH:  In that case, in which the then Lord

          11       Chief Justice, Lord Woolf gave judgment.  In

          12       paragraph 25, you will see that his Lordship said:

          13           "Obviously when the Act was passed in 1925, video

          14       cameras were not in contemplation.  However, we have no

          15       doubt that the section should be applied in a way which

          16       takes into account the modern developments in

          17       photography.  We have come to the conclusion that

          18       a filming which took place at the court contravened

          19       section 41."

          20           Sir, our argument does not depend upon a perceived

          21       historical emasculation of section 41.  What we say is

          22       that section 41 applies as strongly as ever, and it can

          23       be applied to any form of modern communication, and

          24       indeed as it does to video recording.  But it is itself

          25       limited to filming; that is to say, any medium which


                                            36
 

 

 


           1       denotes or brings with it a means of providing

           2       a temporary or a permanent record.

           3           Section 9 of the Contempt of Court Act 1981 is

           4       similarly concerned with:

           5           "Recording, any tape recorder or other instruments

           6       for recording sound."

           7           And the argument is further strengthened, sir, with

           8       respect, by the prospective section 32 of the Crime and

           9       Courts Act, which is the provision to which we drew your

          10       attention in our skeleton argument.  Because it provides

          11       for the disapplication or the modification of both

          12       section 41 of the 1925 Act and section 9 of the 1981

          13       Act, and it makes clear that the purpose of the

          14       provision is to disapply those Acts, insofar as they are

          15       concerned with the making of a recording or the making

          16       of a prescribed recording.

          17           So by implication, Parliament was recognising that

          18       those earlier provisions are concerned, both of them,

          19       with recording, not with live streaming.

          20           And so no statutory prohibition exists in relation

          21       to, we say, the live streaming, provided the actual

          22       mechanism for the streaming has no recording capacity

          23       and provided that there is no means by which somebody

          24       can then upload, record, the final product of the

          25       streaming, because that would, of course, violate


                                            37
 

 

 


           1       section --

           2   THE CORONER:  So the proposal that is going on in the

           3       Court of Appeal Criminal Division, where there is

           4       a button pressed just in case some Lord Justice of

           5       Appeal says something that should not go out live, like

           6       a person's name who is redacted or something like that,

           7       that makes it into a recording because there is a delay

           8       of 30 seconds.

           9   MR KEITH:  What I think is envisaged in the Court of Appeal

          10       Criminal Division is that there will be a full camera,

          11       of course, but the camera will then not just provide

          12       a contemporaneous link to the television producer; but

          13       has with it a recording device so that there can be

          14       a delay before it is then disseminated to the public,

          15       and there will be a record, a permanent record, of what

          16       those proceedings consisted of.  So for example, the

          17       following day, the television producer might be able to

          18       go back and look at and edit the actual proceedings

          19       that --

          20   THE CORONER:  No, but there has to be someone there --

          21       because I'm involved in this -- let's say in court 7

          22       here, pressing a button in case a child's name is

          23       mentioned who is obviously the subject of a restriction

          24       on publicity; and then that would turn it into

          25       a recording, because obviously then it cannot be going


                                            38
 

 

 


           1       out live.  They could delay it by 30 seconds.

           2   MR KEITH:  Quite so.  So there must be --

           3   THE CORONER:  What about here, in this hearing, if we are

           4       dealing with anonymous witnesses who should not go out

           5       and something inadvertently is said?  Should there not

           6       be a similar delay type of provision, that I can

           7       suddenly press a button and stop it?

           8   MR KEITH:  In principle, you would not have had the ability

           9       anyway to stop the dissemination of an anonymised name

          10       or something that is sensitive or private to the persons

          11       who are sitting in court anyway, because once the word

          12       is out, the word is out.

          13   THE CORONER:  It's the same in the Court of Appeal, but

          14       anyway, yes.

          15   MR KEITH:  So sir, that, with respect, is nothing to the

          16       point of principle here, which is --

          17   THE CORONER:  It does not turn it into a recording.

          18   MR KEITH:  It is not a recording, in our respectful

          19       submission.  Sir, that seems to us to be eminently

          20       sensible.  This is not a case, for example -- one

          21       recalls the proceedings and then the criminal

          22       prosecution of Mr Abu Hamza, where Sky provided a live

          23       feed of the evidence in the course of that trial and

          24       I think the closing speeches.  They did not provide

          25       a contemporaneous recording of the proceedings.  What


                                            39
 

 

 


           1       they did was they actually transcribed what they could

           2       hear in open court into a different format and

           3       a different medium which they then put onto their

           4       television network.  There was no recording of the

           5       proceedings and there would be, if this application is

           6       granted, no recording of these proceedings either.

           7       There would be just a contemporaneous, very limited live

           8       streaming of what is going on in court.  No different to

           9       what the position would be in Court 76 or in the media

          10       tent or in a room, as was the case in 7/7.

          11           Sir, if you are with me in relation to the legal

          12       issue, then we have put out in our skeleton argument

          13       some reasons why, in your discretion, the application

          14       should be granted.  But in essence, it is not the first

          15       occasion that this application has been made and, at

          16       least by inference, granted.  The utility of the

          17       streaming provision has been well demonstrated in

          18       previous inquests.

          19           Secondly, these proceedings must, of course, be

          20       conducted in public.  Through no fault of their own,

          21       certain witnesses have been allowed the benefit of

          22       anonymisation.  It is potentially unfair to them, if

          23       they are excluded from these proceedings by virtue of

          24       their physical and practical inability to come into

          25       court to hear evidence being given.  If the live


                                            40
 

 

 


           1       streaming is not permitted, they would have no other

           2       practical means by which they would be able to come into

           3       court and hear the evidence being given.

           4           So sir, for all those reasons, we suggest that there

           5       is no legal impediment to the application.

           6           My learned friend, just on a point of law, has

           7       referred to Pepper v Hart, and also to the view of

           8       Parliament in relation to previous legislation; that is

           9       to say, what Parliament said about the 1925 Act, when

          10       passing the 2013 Act.  Sir, you can rely upon what

          11       Parliament says in certain limited circumstances,

          12       according to the principles in Pepper v Hart, and hence

          13       about home(?).  But they do not allow you to have regard

          14       to what Parliament says, unless there is an ambiguity on

          15       the face of the relevant statute, and we say the

          16       statutes are not ambiguous.  They plainly do not concern

          17       live streaming.  They are concerned only with recording.

          18       And it is also well known and well established that one

          19       cannot have reliance upon the view of Parliament in

          20       relation to a previous piece of statutory legislation.

          21           So I would beg to differ, most respectfully, with my

          22       learned friend in relation to what assistance you would

          23       be entitled to draw from what Parliament said when the

          24       2013 Act was passed.  But otherwise, our submissions

          25       are --


                                            41
 

 

 


           1   THE CORONER:  Now, as to the discretionary area, you quite

           2       rightly say that one of the areas that did concern me

           3       when I read your submission, which I was sympathetic

           4       with, was the fact that the anonymised witnesses

           5       obviously would have difficulty coming into this

           6       courtroom to listen to evidence or perhaps even be

           7       upstairs listening to evidence.  But they will have

           8       access to the transcripts, will they not?

           9   MR KEITH:  They will have access to the transcripts,

          10       assuming -- and there will be an application,

          11       I understand, in due course -- for certain witnesses not

          12       to be allowed to have access to the evidence in advance

          13       of giving evidence themselves.  But I do understand that

          14       that application may be limited to certain witnesses

          15       only; that is to say, the SCO19 witnesses.  And

          16       therefore, it follows that there will be bound to be

          17       some anonymised witnesses who could properly, and will

          18       properly, want to have access to the evidence, who will

          19       fall outside the scope of any exclusionary direction

          20       that my learned friend Mr Thomas invites you in due

          21       course to make.

          22   MR THOMAS:  We are making no such application.

          23   MR KEITH:  Oh, no such application is being made.  I am very

          24       grateful for the indication.  There was an indication to

          25       the contrary in the written submissions.


                                            42
 

 

 


           1           In those circumstances, all the anonymised witnesses

           2       therefore are in the same boat.  They would all be

           3       practically disentitled from exercising their right as

           4       a member of the public to see what was going on.

           5   THE CORONER:  All right.  Well, thank you very much.

           6           Mr Stern, do you want to ...?

           7                     Submissions by MR STERN

           8   MR STERN:  Sir, may I adopt my learned friend's submissions

           9       in relation to the question of legality.

          10           The essence of the law is a prohibition on the

          11       permanent recording of material which could be used

          12       outside court, and it is the permanent recording that,

          13       in my submission, is the prohibition; not the

          14       streamlining that is being invited to be allowed here,

          15       because there is nothing to prevent the live

          16       transmission of material, subject to the qualification

          17       that you give your permission for that to happen.

          18           And so my learned friend's concern that that would

          19       allow television companies to provide live transmission

          20       throughout could not happen, because you would not give

          21       your permission.

          22   THE CORONER:  I just wonder about all the fuss that has been

          23       made about all this recent legislation, if this is

          24       right.

          25   MR STERN:  Well, the fuss, if I may say so, is in relation


                                            43
 

 

 


           1       to the recording of the material and the provision of

           2       that going live to the public, in the sense that it

           3       would be unedited or may be unedited by others.  This is

           4       a different issue, if I may say so, with respect.  This

           5       is the question of video conferencing, as it is called

           6       by the Ministry of Justice.  I hope you have seen the

           7       document that I have --

           8   THE CORONER:  Yes, I have, yes.

           9   MR STERN:  Which makes it absolutely clear that there is no

          10       prohibition on this at all.  It enables any person who

          11       has an interest in court proceedings to be involved in

          12       a hearing from a remote location:

          13           "In its simplest form, a witness at a remote

          14       location may give his or her evidence via a videolink to

          15       the court with one screen and one camera in the

          16       courtroom."

          17           And then a little further down in the fourth

          18       paragraph, it sets out that:

          19           "The courts listed below have VC equipment and it is

          20       possible for every location to connect to any other

          21       location on the list.  For example, VC equipment in

          22       Birmingham can be used to give evidence in a matter

          23       being heard in Plymouth.  It is also possible for

          24       multiple locations to be connected, e.g. Bournemouth,

          25       Leeds and Manchester.  It can be used to take evidence


                                            44
 

 

 


           1       for a matter being heard at the Royal Courts of Justice

           2       in London."

           3           So that is precisely what it is that we are inviting

           4       you to adopt.  That is to say, to allow evidence that is

           5       being given here to be heard in another location.

           6       Whether it is in a particular court or in a police

           7       station or in a police facility or in another room in

           8       this particular building, in my respectful submission,

           9       makes no difference whatsoever.

          10           The principle is precisely the same; that is to say

          11       that the proposal to be able to see evidence being given

          12       as it is being given, without the facility to record it,

          13       is not prohibited.

          14   THE CORONER:  Right.

          15   MR STERN:  And indeed, if one looks a little further down

          16       under the next subheading, "Video Conferencing now

          17       available in Care Centres", the second paragraph there

          18       says:

          19           "All 53 care centres across England and Wales have

          20       now been equipped with mobile VC units and DCA is in the

          21       process of developing a national directory of suitable

          22       sites at hospitals, medical institutions and

          23       universities that could be used by expert witnesses.

          24       This means HMCS will now be able to arrange hearing

          25       dates and conclude cases more quickly and ensure costs,


                                            45
 

 

 


           1       et cetera, will be reduced and experts less time

           2       travelling."

           3           So the purpose of this video conferencing is clear;

           4       and there is a clear distinction, in my submission,

           5       between this process and the process that is set out and

           6       prohibited absolutely under section 41 of the 1925 Act

           7       and carried through, obviously, into more modern

           8       technology.  So there is a clear difference.

           9           Indeed, if one wants to look at the previous

          10       instances, this is not unknown.  Now, my learned friend

          11       Mr Keith makes the point: well, it may not have been

          12       argued.  But nevertheless, in my submission, there are

          13       a number of individuals who were present in all of the

          14       instances when this has been used on previous occasions

          15       who one would have expected or indeed thought that if

          16       this was illegal, it would immediately have attracted

          17       their attention.  I am thinking particularly of the

          18       inquest that my learned friend just referred to, the 7/7

          19       inquest.  In addition, the Stockwell inquest where there

          20       were a whole host of lawyers who were involved in

          21       thinking about this issue; and indeed the coroner,

          22       Sir Michael Wright, who sat at that inquest.

          23           I see, and I hope again that the document has found

          24       its way to you, that there is also a preliminary hearing

          25       ruling in the Hillsborough disaster.


                                            46
 

 

 


           1   THE CORONER:  Mm-hm.

           2   MR STERN:  And you will see, or will have seen from that

           3       that although the issue is entirely different and

           4       separate from the issue that you have to determine, that

           5       nevertheless the question of videolink and the live

           6       transmission of evidence is being considered and has

           7       been considered and was advanced as one of the aspects

           8       of the reason why it was that it would be perfectly

           9       appropriate to hold an inquest in London, when the

          10       events all happened in the north of England; and

          11       Lord Justice Goldring has said in the course of that

          12       decision that he is considering the question of a video

          13       live link to London.

          14           So no-one has considered this issue as being a bar

          15       in any previous inquest where it has taken place, or

          16       indeed in bringing it right up to just a few months ago,

          17       Lord Justice Goldring in the Hillsborough inquest.

          18           So in my respectful submission, the position is

          19       clear, and I won't repeat the points that I have already

          20       made.

          21   THE CORONER:  No.

          22   MR STERN:  They are set out absolutely clearly.  And

          23       otherwise I adopt the points that have been made; that

          24       is to say that you would not be able to have video live

          25       evidence or videolink evidence.  And in the Crown Court,


                                            47
 

 

 


           1       of course, the position is this: if somebody says

           2       something inadvertently, then the learned trial judge

           3       has the power to be able to switch off the screen and

           4       the sound for --

           5   THE CORONER:  And in the Crown Court, there are no problems

           6       about that.  You just make an order and then it is not

           7       published, because it is not actually being televised.

           8       The concern is if it is actually going out almost live.

           9       That is the point.  It is not actually going to be live.

          10       It is going to be with a 30-second delay so that if some

          11       Lord Justice knocks his water over and all the papers

          12       fall on the floor or something like that and there is

          13       a scene of chaos, it can actually be stopped, which

          14       would therefore mean that it must necessarily be

          15       a recording because it has to be recorded and sent out.

          16   MR STERN:  Absolutely, but that is not the position here.

          17   THE CORONER:  That is not the position here.

          18   MR STERN:  No.

          19   THE CORONER:  All right.  Thank you very much.  Right, would

          20       anyone else like to say something?

          21                      Submissions by MR BUTT

          22   MR BUTT:  Sir, very briefly.  Z51 asks for a room to be

          23       provided in the precincts for anonymised witnesses to

          24       hear the evidence and see the evidence --

          25   THE CORONER:  In the Royal Courts of Justice?


                                            48
 

 

 


           1   MR BUTT:  Yes, within the precincts in some way; exactly the

           2       same as with Court 76.  And, sir, I would respectfully

           3       agree with what Mr Keith and Mr Stern have said in that

           4       regard; and also, in fact, with what counsel to the

           5       inquest says at paragraph 14(e) of his submissions, that

           6       there is no difference between Court 76 and, in effect,

           7       another room within the precinct.

           8           Can I just raise two practical concerns --

           9   THE CORONER:  Yes, please.

          10   MR BUTT:  -- in relation to Z51?

          11           The first is timing.  I appreciate, sir, what you

          12       say about transcripts and their availability.  But given

          13       the tight timescales for this inquest and in particular

          14       for the first few witnesses where Z51 would be, he would

          15       be giving evidence very shortly after Z50, Z17 and the

          16       SOCA evidence; and it may very well be the case that it

          17       is not possible for a transcript to be produced and

          18       provided to him in time.  It may well be the same day

          19       that --

          20   THE CORONER:  No, I see.  Certainly it comes out that night

          21       and would be available first thing the next day, I think

          22       is the timing.

          23   MR BUTT:  Yes.  But that could create a delay, if there has

          24       to be a transcript produced and provided to my client,

          25       to give him the chance to read it.


                                            49
 

 

 


           1           Sir, the other practical suggestion is that even if

           2       you are against all of the legal representatives as to

           3       the possibility for there to be a live video and audio

           4       feed within the precincts, I would ask that at the very

           5       least, an audio feed could be made available in a room

           6       in which the anonymised witnesses can be present.

           7   THE CORONER:  All right.  Thank you very much, Mr Butt.

           8           Mr Thomas, is there anything you would like to say

           9       on this?

          10                     Submissions by MR THOMAS

          11   MR THOMAS:  Yes.  Firstly, in relation to the legality of

          12       this, I adopt the submissions of Mr Underwood.  In

          13       relation to whether or not you should exercise your

          14       discretion, I do have the following to say.

          15           Firstly, sir, I think it is really important for us

          16       to look at the context of this case and the exceptional

          17       nature of what happened immediately after Duggan, and

          18       the lack of public confidence in the judicial system in

          19       relation to what has happened.

          20           What is, in effect, being asked of you, in

          21       a situation which is uncontrolled -- and I will come

          22       back, if you reject my argument and you are minded to

          23       run with the arguments of those who ask for a separate

          24       room.  But effectively, in an uncontrolled situation,

          25       you are allowing a number of police officers, who have


                                            50
 

 

 


           1       been anonymised, to be sat together in a room, somewhere

           2       where you have no control, we don't know what is going

           3       on, sitting around, being able to discuss their

           4       evidence.  It raises the question: why on earth --

           5       setting aside the merits of the audio transmission,

           6       because I note that Mr Butt argued it in the

           7       alternative -- why on earth would they need to have

           8       a visual link?

           9           Sir, this is a matter which we would say just

          10       undermines the whole public confidence in this hearing;

          11       and we say that is something that you ought to consider

          12       and give due weight to.  If we are wrong, if

          13       Mr Underwood is wrong -- and I align myself with

          14       Mr Underwood -- if we are wrong in relation to the

          15       legality, when it comes to the exercise of your

          16       discretion, is this sending the right message publicly,

          17       given the great strength of feeling in relation to this

          18       case?  We say it is sending the wrong message.

          19           Should you reject that and you feel that this is

          20       something that you would be minded to exercise your

          21       discretion on, we would urge upon you -- well, firstly

          22       we say don't do it.  But if you were minded to do it, we

          23       would urge upon you that if there was a room hidden

          24       somewhere in the Royal Courts of Justice where you were

          25       going to allow a number of police officers to sit around


                                            51
 

 

 


           1       with no members of the public having access to it, that

           2       it should be in a very controlled environment, with

           3       a court official in there, keeping an eye on what is

           4       going on, in the same way that it would happen if we

           5       were in court.  Because Mr Keith talks about the

           6       disadvantage that these witnesses, who through no fault

           7       of their own have been anonymised.  Well, if they were

           8       in court, you would have court officials in here, you

           9       would have lawyers in here.  Sir, I don't need to tell

          10       you --

          11   THE CORONER:  No.

          12   MR THOMAS:  -- on how many occasions somebody, whether it be

          13       one of the lawyers or whether it has been an official,

          14       has spotted something with a witness who is about to

          15       give evidence, and some eagle-eyed person has spotted

          16       something inappropriate going on and has brought it to

          17       the judge's attention or to the coroner's attention.

          18       You are not going to be in a position to do that, if you

          19       have some secret room somewhere in the bowels of the

          20       Royal Courts of Justice with a number of police officers

          21       sitting around, doing whatever.  It does not send the

          22       right message.

          23   THE CORONER:  But sometimes with live link evidence, as you

          24       know, the judge has a small view of what is going on in

          25       the whole room to make sure that there is no other


                                            52
 

 

 


           1       people there that should not be there.  Are you

           2       suggesting that something like that --

           3   MR THOMAS:  The problem with that, sir -- forgive me for

           4       talking across you.  The problem with that: just having

           5       a link, you cannot hear what is going on.

           6   THE CORONER:  Yes.

           7   MR THOMAS:  That is the problem with that.  Whereas in

           8       court, if you think about what disadvantage those

           9       witnesses have, the disadvantage -- well, they would be

          10       in court.  They would be sitting down and everybody, the

          11       press, the lawyers, members of the public, would all be

          12       able to see -- and the jury would be able to see -- what

          13       they are getting up to.  And this is to do with public

          14       confidence in this process.  That is the problem.

          15   THE CORONER:  All right.  Thank you very much, Mr Thomas.

          16           Right, anybody else?

          17   MR KEITH:  Sir, may I just respond to one or two of the

          18       points that have just been made?

          19   THE CORONER:  Please.

          20                     Submissions by MR KEITH

          21   MR KEITH:  It is most unfortunate that you should be invited

          22       to rule on this application by way of in terrorem

          23       references to police officers getting up to whatever

          24       they like in a secret room in the bowels of the court.

          25           The fact is that they are witnesses and they would


                                            53
 

 

 


           1       be entitled to be in court and to hear what is happening

           2       in court.  A remote location gives them no more than

           3       what that entitlement would otherwise give them, namely

           4       the ability to see and hear what is going on in court.

           5       They are not witnesses, and therefore they don't need to

           6       be themselves controlled and subject to a camera in the

           7       room.  And the example given by my learned friend,

           8       namely that if there was a person in court who was being

           9       disrespectful or misbehaving, they would be subject to

          10       your control, well, of course they would be, because

          11       they would then be doing an act in the face of the court

          12       which might otherwise be a contempt.  Police officers

          13       sitting in a room are merely observing what is going on.

          14       Nothing they say or do could possibly impact upon the

          15       proceedings by way of some reverse effect back up the

          16       telecommunication link.

          17           If you are concerned about the practicalities of

          18       police officers sitting in a room, then of course it is

          19       very easy to make arrangements for a lawyer or

          20       a solicitor or a member of the court staff to be in

          21       there with them.  But I do really question why there

          22       could be any proper basis for the assertion that they

          23       will in some way misbehave or anything that they would

          24       do would --

          25   THE CORONER:  No.  The way I understand what Mr Thomas said,


                                            54
 

 

 


           1       it is really much more of an appearance basis; and one

           2       of the examples that you have put within your paper, the

           3       families had their room, so one has a balancing-up of

           4       having their own room.

           5   MR KEITH:  Indeed.

           6   THE CORONER:  I don't understand that those concerned -- the

           7       Duggan family are quite happy to be in this court

           8       hearing and they would not need to go anywhere else.  So

           9       I think there is an appearance of not giving any

          10       particular group special treatment, and I am obviously

          11       sensitive to that.

          12   MR KEITH:  Well, I understand that.  May I make two points?

          13           Firstly, experience has shown that there has never

          14       been any need to control the persons who have had this

          15       entitlement, the ability to view proceedings remotely,

          16       which tends to suggest that there would not be a problem

          17       on this occasion.

          18           But in any event, the police officers who would be

          19       in such a remote location are not receiving a special

          20       entitlement.  What they are receiving is no more or no

          21       less than any other witness, and the remote location is

          22       applied for because of the unfairness that they would

          23       otherwise be subject to, by virtue of the anonymisation

          24       which has already been properly granted by the court.

          25       So it is not a question of giving them something extra.


                                            55
 

 

 


           1       It is a question of putting them back into the same

           2       position as every other witness and with the

           3       entitlements that they would otherwise have.

           4   THE CORONER:  All right.  Thank you very much, Mr Keith.

           5           If there is no-one else, I will ask Mr Underwood if

           6       there is anything else that he wants to say.

           7   MR UNDERWOOD:  With no enthusiasm at all, may I make some

           8       points against what has been said on the other side

           9       here?

          10   THE CORONER:  Yes, please.

          11                   Submissions by MR UNDERWOOD

          12   MR UNDERWOOD:  The starting point, I would suggest, is that

          13       the law is not at all clear.  We are looking at, in

          14       particular, a 1925 Act which was designed to cover

          15       things which had not even been thought of.

          16   THE CORONER:  John Logie Baird was just about to have

          17       a break-through.

          18   MR UNDERWOOD:  Quite.

          19           Secondly, while my friends are right to say there

          20       are exceptional circumstances in which, for example,

          21       witnesses could be seen by video and may see something

          22       of the court by video, and other exceptions such as

          23       video conferencing of pre-trial hearings, and so on,

          24       those are all statutory exceptions.  Without the

          25       statute, there would not be the exception.  So that does


                                            56
 

 

 


           1       not help you in construing the 1925 Act or the Contempt

           2       of Court Act.

           3           Thirdly, it is said: well yes, there is a mischief

           4       here.  There is a purposive construction to be applied.

           5       But the mischief and the purpose are all to do with the

           6       publication.  It is the uncontrolled unknown of what

           7       happens, once a thing goes out of court.  And so, says

           8       Mr Keith, you can have a live video stream out of court

           9       and you can rest assured there won't be uncontrolled

          10       publication or copying after that, because anybody

          11       copying from the video stream outside court would be

          12       caught by section 41.

          13           Unfortunately, that is not right, because if one

          14       looks at section 41 itself, the words he skipped over in

          15       (a), and indeed in relation to photographs and sketches,

          16       is:

          17           "Take or attempt to take, in any court, any

          18       photograph."

          19           So if one video streamed this out of court -- say

          20       the BBC --

          21   THE CORONER:  What happens if I deem the various outlets of

          22       these live streams to be this court?  Do I have that

          23       power?

          24   MR UNDERWOOD:  I would say within a very limited --

          25   THE CORONER:  Inasmuch as I am being encouraged to


                                            57
 

 

 


           1       say: well, Court 76 upstairs, because there is only

           2       a few inches that separate the two courtrooms, can be

           3       deemed to be part of this court.  Would that then mean

           4       that someone sitting upstairs with a video recording or

           5       a video camera, recording the proceedings, would then be

           6       guilty?

           7   MR UNDERWOOD:  They would be guilty.  If you deem it part of

           8       the court and you stream it into there, because it's

           9       part of the court, then a recording would be a recording

          10       from within the court.

          11   THE CORONER:  Could that be done with this other room?

          12   MR UNDERWOOD:  Likewise.  But if one were to say, assuming

          13       you can deem another room somewhere across the

          14       courtyard --

          15   THE CORONER:  Well, have I got the power to do this deeming

          16       now?

          17   MR UNDERWOOD:  Quite.  But let's say the BBC had an outside

          18       broadcast unit that it wished to deploy in court.  If my

          19       friends are right, you would have no power whatever to

          20       prevent them coming in with a thumping great camera at

          21       the back of the inquest and televising directly out to

          22       the outside broadcast unit, which would sit on

          23       Fleet Street, which would broadcast live.  And likewise,

          24       nobody could be prevented from recording that, because

          25       nobody would be recording it in court.


                                            58
 

 

 


           1           And that is the consequence of the argument and it

           2       is not just what happens here, as I hope I have made

           3       clear.  I am more than sympathetic to the notion that it

           4       would be reasonable to have a video stream out of this

           5       particular inquest.  It is the consequences that are

           6       problematic and which would lead one to think that that

           7       must be wrong in law.

           8   THE CORONER:  Did any of these dire consequences happen with

           9       7/7 or anything of that nature?

          10   MR KEITH:  I am sorry, sir?

          11   THE CORONER:  Did you have any of these dire consequences in

          12       7/7?

          13   MR KEITH:  No, sir.  It was live streamed to the media tent

          14       and, as I say, to three rooms in Chichester Rents.  But

          15       there were no problems in terms of recording or any

          16       breaches of the Contempt of Court Act or the

          17       Criminal Justice Act, because I think everybody

          18       understood that whether expressly deemed or not, anybody

          19       recording, by way of holding perhaps a handheld video

          20       recorder, recording the screen that was streaming the

          21       proceedings would of course be caught by both of the

          22       statutory provisions.  But there were certainly no

          23       difficulties in terms of the conduct of the people who

          24       were in any of those locations.  And the system worked

          25       simply by way of a single camera feed.  There was no


                                            59
 

 

 


           1       broadcasting.  There was no recording and you cannot

           2       have broadcasting without a simultaneous recording

           3       capacity.  That is why the stream is quite different.

           4   THE CORONER:  Yes, all right.  Thank you.  Sorry, Mr Stern.

           5   MR STERN:  Sir, if I may assist.  Insofar as Stockwell was

           6       concerned, there was a room downstairs at the Oval.

           7       Obviously the cricket was not as good.  So there were

           8       people watching, media and any members of the public who

           9       wanted to watch it.  It was some distance from the

          10       hearing room itself, and also there was a live streaming

          11       to Leman Street, and for all I know there may have been

          12       other places as well; I can't remember now.  But

          13       certainly to Leman Street.  So there was no difficulty

          14       with that, nor in many other instances have there been

          15       difficulties before.

          16   THE CORONER:  All right.  Thank you very much.  There we

          17       are, Mr Underwood.

          18   MR UNDERWOOD:  Well, there --

          19   THE CORONER:  I think that I am minded just to consider all

          20       this, mull it over for a little while and let everybody

          21       know, either later today or tomorrow or very soon

          22       anyway, what I feel is the answer here.

          23   MR UNDERWOOD:  Yes.  May I just add a gloss to that?

          24   THE CORONER:  Yes.

          25   MR UNDERWOOD:  It may well be that given the importance of


                                            60
 

 

 


           1       this issue having been raised for the first time openly,

           2       the press may wish to make some submissions to you in

           3       writing.

           4   THE CORONER:  Yes.

           5   MR UNDERWOOD:  It may also be that the Ministry of Justice

           6       would like to make submissions to you in writing.  If

           7       so, then of course they would need to be shared.  But

           8       I wonder, if you are going to reserve, whether it is

           9       worth --

          10   THE CORONER:  No, I see the point.  If I am in favour of the

          11       suggestion, then obviously that is needed to be known

          12       comparatively soon, so arrangements can be made.  If

          13       I am against it, then there are not those difficulties.

          14       But I would have thought that if I could have anyone who

          15       wishes to make any representations making those to me

          16       through the team, over the next day or two, so that by

          17       the end of this week, I can let everybody know what the

          18       result is, even though they may not have a fully

          19       reasoned ruling to that effect, but at least know where

          20       they stand and I can also give the reasons thereafter,

          21       then I would have thought that would be satisfactory.

          22   MR KEITH:  Thank you very much.

          23   MR UNDERWOOD:  One other point on this, and then I can

          24       finally let it rest.  I take Mr Butt's point that there

          25       may well be witnesses who, if you were to find


                                            61
 

 

 


           1       a particular way here, are going to end up giving

           2       evidence without having seen a transcript of what went

           3       before, and perhaps not having any other access to what

           4       went before.

           5           If that were to be an unfairness in a given case,

           6       then we would make a provision to ensure that witness

           7       was heard in a different order so that they did have

           8       a chance to see the transcript, so as to avoid the

           9       unfairness.

          10   THE CORONER:  Well, and they can always come back later as

          11       well, having given evidence earlier on, if there are

          12       other matters that they wish to tell us about.

          13   MR UNDERWOOD:  Yes.

          14           Sir, there are two other matters on the agenda, very

          15       shortly.

          16   THE CORONER:  Right, yes.

          17   MR UNDERWOOD:  Firstly, jury visits.  I forecast that we

          18       might wish to have a couple of visits by the jury to the

          19       various scenes.  Firstly, Vicarage Road where the

          20       handover of the gun is alleged to have happened; and

          21       secondly, of course, the Ferry Lane area itself.  And it

          22       may well be wise to let the jury go and see these places

          23       after the opening, so that they know at that stage very

          24       broadly what the issues are and what the evidence is

          25       likely to cover, so they can see what they are looking


                                            62
 

 

 


           1       at; and then perhaps go and see one or both of these

           2       areas again, once they have heard some of the evidence,

           3       so they can put that evidence back into context.  Again,

           4       I floated that and I take it that there is no discontent

           5       with that approach.

           6   THE CORONER:  Everyone content with that?  Obviously it is

           7       quite -- I had thought initially about having the view

           8       later on, but of course, if we are having jurors from

           9       the area, they may even be going to Tottenham Hale

          10       station and so it is much better for us to go there

          11       initially straight away and then if things arise later

          12       on, perhaps towards the end of the hearing, they can go

          13       and have a second visit back there.  But that is fine,

          14       thank you very much.

          15   MR UNDERWOOD:  Thank you.

          16           And then finally, it is a question of when we

          17       resume.  The notion is that there will be a further

          18       interim hearing at some point, a week or two before the

          19       start date.  We have suggested somewhere between the 10

          20       and 13 September.  I think the family would like it

          21       a little earlier.  Candidly, as long as it is somewhere

          22       within the three weeks or so before the start, I am

          23       indifferent to that, but I hope you are open to

          24       suggestions about that.

          25   THE CORONER:  No, absolutely.  Any --


                                            63
 

 

 


           1   MR STERN:  I was just going to suggest that we perhaps need

           2       not spend a lot of time on this.  It might be helpful if

           3       we all give dates that are convenient to my learned

           4       friend or his assistants, and a date could be found that

           5       is convenient for everybody or as many people as

           6       possible.

           7   THE CORONER:  No, and it may be that there is not very much

           8       to discuss or it may be that over the next few weeks, as

           9       we go on through our work, there may be more substantial

          10       things to discuss.

          11   MR STERN:  Yes.

          12   THE CORONER:  We will have to see what time we need to set

          13       aside for it, but it may be that we can go through quite

          14       quickly.  But we will see.

          15           Mr Thomas?

          16   MR THOMAS:  Sir, it would be good, as we are all here, or

          17       most of us are here today, to see if we could agree

          18       a date for the next PIH, as opposed to us going away.

          19       We are all here.  We could do it immediately afterwards.

          20   THE CORONER:  Do it now if you want.

          21   MR THOMAS:  Yes.

          22   THE CORONER:  If you want to.  But it is a question about

          23       having -- I mean, I see that you have suggested not

          24       Friday 30 August.

          25   MR THOMAS:  That's right.


                                            64
 

 

 


           1   THE CORONER:  There may be people that have got things to

           2       do, but I haven't.  Or I was suggesting something in the

           3       beginning of -- the 9 or 10 September, but again, I am

           4       not particularly worried either way.  But it may be that

           5       some people are going to have two weeks away somewhere

           6       enjoyable at the beginning of September, before coming

           7       back refreshed for this inquest hearing.  But any other

           8       proposals?

           9   MR STERN:  Can I just speak to my learned friend?

          10   THE CORONER:  Yes.  (Pause).

          11   MR THOMAS:  Sir, the date you have suggested, the 9th or

          12       10th, suits.

          13   THE CORONER:  Well, Monday 9th might be better.

          14   MR UNDERWOOD:  That is a week before.

          15   THE CORONER:  So that is the Monday immediately obviously

          16       before we start.  We will then know exactly what the

          17       provisions are with the jury.  We will have arrangements

          18       for the visits worked out.  Anything that arises as

          19       a result of any evidence served over the next few weeks

          20       concerning experts hopefully should be resolved by then.

          21       I mean, to be quite frank, if there are problems which

          22       do arise over the next few weeks, then we will just have

          23       to convene a hearing and I will try and resolve them.

          24       I am around.

          25   MR THOMAS:  Sir, there was just one matter that I just


                                            65
 

 

 


           1       wanted to raise with you, in relation to the jury

           2       questions.  I appreciate that this is something that we

           3       can further discuss at the next PIH.  But it is just in

           4       relation to -- you have seen our proposed questions.

           5   THE CORONER:  Yes, I have, yes.

           6   MR THOMAS:  And I don't think there was too much objection

           7       to the questions that we proposed, from anybody.  The

           8       only issue that we have -- can I take you to the

           9       additional question that was proposed on behalf of the

          10       CO19 officers by Mr Stern in his submissions?

          11   THE CORONER:  Oh right.

          12   MR THOMAS:  I am not asking you to rule on this now, but

          13       I think it is better that I raise the issue.

          14   THE CORONER:  Of course.

          15   MR THOMAS:  I don't think it was a firm suggestion; it was

          16       only a suggestion by Mr Stern on behalf of the officers,

          17       but it is a matter that does cause us a little bit of

          18       concern.

          19           Sir, if you turn to page 3, paragraph 4,

          20       subparagraph (v).  It is in relation to the question 4

          21       in our submissions.

          22   THE CORONER:  Sorry, I am not with you.  I have got your

          23       submissions.  I have got your jury questions.

          24   MR THOMAS:  Sir, it is Mr Stern's reply.  It is page 3, (v)

          25   THE CORONER:  Right, no.  Anyway, you tell me first of all


                                            66
 

 

 


           1       and I will --

           2   MR THOMAS:  I will just read out the question.

           3   THE CORONER:  Just read it out.

           4   MR THOMAS:  What it says; it says:

           5           "Question 4 of the family's submissions seems to

           6       cast the net of exclusion wider than necessary.  Should

           7       there also be added the question of whether ..."

           8           And then quote:

           9           "You have been directly affected by any gang

          10       behaviour in Hackney or Tottenham."

          11           We would object to a question such as that, and we

          12       would object to a question such as that because it

          13       infringes --

          14   THE CORONER:  Sorry, I am just getting that.  Thank you very

          15       much.  (Handed).

          16           Yes.  I don't know whether any of you would

          17       necessarily know that it is gang behaviour or what

          18       behaviour?  It is rather emotive, you would say.

          19   MR THOMAS:  Can I direct you to look at, in your own time,

          20       a paragraph in Archbold, paragraph 4-293?  And that

          21       reads as follows.  Now, it is under the judge's

          22       discretion to stand jurors down, juries down.  And then

          23       it reads as follows:

          24           "... now that those concerned in the administration

          25       of justice are eligible for jury service.  This is also


                                            67
 

 

 


           1       necessary to ascertain whether any juror in waiting is

           2       or has been a member of the prosecuting authority or,

           3       depending on the facts of the case, a police officer or

           4       a prison officer."

           5           And then there is a mention of a case called Khan.

           6           "Awareness of adverse press reporting, however,

           7       should not be the subject of enquiries of the jury

           8       panel.  Such enquiries might produce the result sought

           9       to be avoided by reminding the jury of the adverse

          10       publicity."

          11           And so I say the problem with the phraseology of

          12       Mr Stern's proposed question is the very thing that is

          13       prejudicial, or might be prejudicial, to a jury.  That

          14       is why, if you take the opposite side of the coin, you

          15       never ask jurors whether or not, for instance on

          16       a police case, whether any of them have been beaten up

          17       by the police or shot by the police, because it has that

          18       adverse effect.  You put the jury in a potentially

          19       embarrassing situation, which is why the tone of what we

          20       have suggested in our question does not engage that.

          21   THE CORONER:  No, I understand what you are saying and at

          22       the moment I can see the force of it.  But what we will

          23       do is keep that alive and we will --

          24   MR STERN:  My learned friend was quite right when he started

          25       by saying that he was not sure that I was actually


                                            68
 

 

 


           1       suggesting that that was a question.  It has a question

           2       mark at the end.

           3   THE CORONER:  Yes.

           4   MR STERN:  And so I was wondering really whether or not that

           5       ought to be asked; and it was more, if I may say so, on

           6       behalf of the family whether that needed to be asked,

           7       because --

           8   THE CORONER:  No, I understand that, yes.

           9   MR STERN:  Because the problem is that we are going to hear,

          10       as I understand it from the list of witnesses, from

          11       Mr Hutchinson-Foster, or may do.

          12   THE CORONER:  May do.

          13   MR STERN:  May do.  And so various issues like that may come

          14       up as a result of what he has already said.

          15   THE CORONER:  Yes, and obviously we will try and concentrate

          16       it on the September 11 [as said] as is quite certain, or

          17       rightly so; and probably much better worded in the way

          18       of just dealing with people directly affected by

          19       anything, although it may need to have some gloss that

          20       obviously whilst they will be hearing about this, there

          21       is no suggestion directly of a connection between one or

          22       the other.  One has to be rather careful about how we

          23       word it, but I would have thought that is much better

          24       than to use any term about gang behaviour, because that

          25       can be rather emotive.


                                            69
 

 

 


           1           But anyway, we will leave that up in the air and

           2       I am sure we will all come to an agreement about what

           3       should be the proper questions for the jury panel.

           4           Well, thank you all very much for your help.  Does

           5       anyone else have anything to raise?  If not, then

           6       I shall rise.

           7   (12.30 pm)

           8           (The hearing adjourned until a further date)

           9

          10

          11

          12

          13

          14

          15

          16

          17

          18

          19

          20

          21

          22

          23

          24

          25


                                            70
 

 

 


           1

           2                            I N D E X

           3

           4

           5
               Address by MR UNDERWOOD ..............................1
           6
               Submissions by MR TAM ................................6
           7
               Submissions by MR THOMAS ............................12
           8
               Submissions by MR STERN .............................13
           9
               Submissions by MR UNDERWOOD .........................15
          10
               Submissions by MR TAM ...............................17
          11
               Submissions by MR KEITH .............................31
          12
               Submissions by MR STERN .............................43
          13
               Submissions by MR BUTT ..............................48
          14
               Submissions by MR THOMAS ............................50
          15
               Submissions by MR KEITH .............................53
          16
               Submissions by MR UNDERWOOD .........................56
          17

          18

          19

          20

          21

          22

          23

          24

          25


                                            71