Armed Forces-related inquests
AN English coroner has rejected calls for a jury to hear evidence at the inquest into the deaths of an Australian and nine British servicemen in Iraq.
The long-awaited inquest into how Melbourne-born RAF Flight Lieutenant Paul Pardoel and his British colleagues died in a plane crash three years ago finally began overnight in southwest England but quickly got bogged down by lengthy legal debates without any evidence being heard.
Pardoel, 35, had been working as a navigator for Britain's Royal Air Force when the transport plane he was travelling on with eight RAF servicemen and a soldier was shot down by insurgents north of Baghdad in January 2005.
After a three-year wait to hear evidence about the crash, a group of about 25 relatives endured a frustrating first day at the inquest after a lawyer representing two of the British RAF servicemen demanded a jury be called.
In a last-minute submission to coroner David Masters, barrister John Cooper urged him to empanel a jury to ensure the inquest was a "full, fair and fearless" inquiry.
"This inquest deals with the biggest single loss of life in Iraq (so far for Britain)," Mr Cooper said. "If this doesn't warrant a jury, what would?"
However Pardoel's widow, Kellie Merritt, and her lawyer, Bernard Collaery, who flew from Canberra for the hearings, as well as several other relatives of the British men said they saw no need for a jury. ...
The sister of one of 10 servicemen killed when an RAF Hercules crashed in Iraq urged a coroner not to be deterred from conducting a "full" inquiry.
... The inquest comes in the wake of a High Court challenge by the Ministry of Defence (MoD) to ban coroners from using the term "serious failings" in respect of MoD conduct, because that could be seen to be apportioning liability.
Sarah Chapman, sister of Sgt Bob O'Connor, killed in the crash, said outside the inquest: "We have waited three years to get to this point.
"There is only one inquest and it is of paramount importance that it is done correctly, and for truth and transparency to be upheld." ...
The Ministry of Defence has asked the High Court to prevent coroners from using language strongly critical of the MoD in inquest verdicts on soldiers who have died on active service.
Defence Secretary Des Browne yesterday asked the High Court to outlaw the use of language strongly critical of the MoD in inquest verdicts on soldiers who have died on active service.
The application came in a test case relating to Territorial Army soldier Private Jason Smith, who died of heatstroke in Iraq.
Oxfordshire's assistant deputy coroner, Andrew Walker, recorded in a November 2006 inquest verdict that Private Smith's death was "caused by a serious failure to recognise and take appropriate steps to address the difficulty that he had in adjusting to the climate".
Sarah Moore, appearing for the Defence Secretary, said the coroner should not have made reference to a "serious failure" to take appropriate steps.
She argued that the phrase could be seen as deciding civil liability and that could not be allowed under Rule 42 of the 1984 Coroners' Rules. Rule 42 prohibits the framing of the verdict in such a way as to determine any questions of criminal liability on the part of a named person, or civil liability.
There has been speculation that the Ministry is keen to outlaw the use of critical language by coroners before the start of the Hercules XV179 and Nimrod MR2 XV230 inquests in the coming weeks. BAFF understands that the Hercules inquest begins on 31 March, and the Nimrod inquest on 6 May.
Jason Smith was a mobilised TA soldier from Roxburghshire. The 3-day High Court hearing will decide the remit of a second inquest into his death. According to an inquest specialist solicitor quoted in The Independent - Grieving families call for legal aid to fight MoD, it was only under questioning by a barrister, who was acting for free, that failings in Jason's medical treatment became known at the original inquest:
BAFF comment 18/03/08 (updated 23/03/08)
We would never wish to see serving personnel pilloried for honest mistakes made in good faith while serving their country overseas, however tragic the consequences. We would have more sympathy for the MOD's position if their motive in this judicial review was to protect serving individuals from unreasonable personal criticism. But that is not our impression of this case. We await the High Court's judgement with interest, but it seems to us misconceived to treat the Coroner's use of phrases like "serious failure" as a breach of the Coroner's Rules.
Rule 43 of the Coroner's Rules provides that "A coroner who believes that action should be taken to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held may announce at the inquest that he is reporting the matter in writing to the person or authority who may have power to take such action and he may report the matter."
It has long been established that Article 2 of the European Convention of Human Rights imposes on the State a subsidiary, procedural duty to investigate deaths. The Coroner is a public authority for the purposes of the Human Rights Act 1998, and is thus subject to the duty to investigate. If the Coroner in any particular inquest is in a position to identify a systemic failure in order to help prevent future deaths, then we say that he must do so in whatever language he finds appropriate, without regard to possible political embarrassment for a Government Department.
The Ministry of Defence published a new booklet in February 2008:
This booklet is intended to provide a general overview of two forms of inquiries - Board of Inquiry and the Coroner's Inquest - that might take place after a death and to help explain the purpose of each one. It does not replace the support and advice of your Visiting Officer or specialist advice that is already available to you from either the Ministry of Defence about Boards of Inquiry, or from the Coroner's office on Inquests.
The Boards of Inquiry and Coroners' Inquests booklet can be downloaded from this MOD web page. Other links on that page may be helpful.
BAFF supports EDM 578, a House of Commons 'Early Day Motion' about legal aid to help bereaved service families work through the legal complexities of an inquest. The EDM was initiated by David Davies MP. Click the link below to see if your MP has signed yet.
The EDM relates specifically to the shooting down of Hercules XV179 in Iraq in 2005, but the principle applies to most service-related inquests.
We do not say that every bereaved family which is involved in an inquest, or Fatal Accident Inquiry in Scotland, necessarily requires legal representation. Service-related inquests, however, often raise complex issues in which professional legal preparation and representation can be particularly helpful - not only to the families, but to the proceedings.
Additionally, in many inquests the costs of legal representation can ultimately be recovered as part of the legitimate costs of the family's claim against another party's insurer. This is unlikely to be the case in inquests into deaths on operations.
There are also issues surrounding inquest delays and jurisdiction.
This is the text of the Early Day Motion:
LEGAL AID TO SERVICEMEN'S FAMILIES 13.12.2007
Davies, David TC
That this House notes that legal aid has been made readily available to a vast number of people and groups in the United Kingdom; recalls that legal aid has been given to allow for, amongst other things, a schoolgirl's father to sue a headteacher over a school's uniform policy, for a murderer to repeatedly protest his right to have a baby by IFV, and for a terrorist associate to resist extradition and punishment; understands from the Legal Services Commission's website that the Commission helps over two million people a year; expresses surprise and dismay that the families of nine RAF servicemen who were shot down and killed in Iraq in 2005 will not qualify for automatic legal aid to help them work through the legal complexities of the case; further notes that the family of an Australian serviceman killed in the same attack has been granted legal aid by their home country; and therefore calls on the Legal Services Commission to reconsider this case as a matter of urgency and allow these families of British soldiers access to legal aid as soon as possible.
Coroner's Rules 1984 - SI 1984 No 552 - as amended (link courtesy King's College London) See Rules 36, 42 & 43.
Ministry of Justice 30/10/07 - Inquests into the deaths of servicemen in operations and exercises overseas. 'This is the sixth quarterly ministerial statement about the inquests into the deaths of servicemen and women overseas under the jurisdiction of the Oxfordshire coroner, Nicholas Gardiner and the Wiltshire and Swindon coroner, David Masters.'
RAF Hercules Memorial Flypast. (YouTube) 'In January 2005, a Royal Air Force Hercules was shot down in Iraq. All 10 people on board died. This is the memorial flypast for them at the Royal International Air Tattoo in July 2005. The video includes the words and music for the memorial.'
Royal Air Force Nimrod XV230 (Wikipedia)
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