The inquest into the shooting of Mark Duggan would have benefited from greater transparency.
On 4 August 2011 an unarmed man was shot down in Tottenham. ‘Today we have had what we can only call a perverse judgment’, said Marcia Willis Stewart, solicitor for the family of Mark Duggan.
The Duggan family left the Royal Courts of Justice on 8 January bewildered, confused and no doubt disappointed with the verdict. Indeed, with the formulation that an unarmed man was shot, it is not difficult to understand their reaction to a verdict of lawful killing.
Unfortunately, their experience is not uncommon for families who find themselves in coroners’ courts. A process labelled as ‘inquisitory’ has the distinct feeling of being adversarial. The authorities involved are concerned about potential criticism and recommendations that are likely to be made against them, while the family is suspicious of the evidence the authorities have to offer. The platform is generally seen by families as underpinning justice, but sadly rarely lives up to that expectation.
This is not because coroners’ courts are averse to the idea of justice. It is more that the limited remit and focus on the narrow question of ‘how’ (and ‘by what means and in what circumstances’ in article 2 of the European Convention on Human Rights inquests) the deceased came by their death provides a rod for the inquiry.
So, what is the remedy for a family that believes a verdict, officially known now as a ‘determination’, is perverse? There is no appeal and judicial review is often the only option available. The Duggan family have already indicated that they are considering this route. However, judicial review is not designed to delve into the merits of the decision-making, but the quality and reliability of the process. Thus judicial review can never quite live up to a family’s expectations.
Perversity harks back to the Wednesbury standard that no reasonable decision-maker could come to the conclusion in the same circumstances. However, the fact that the coroner was able to leave a conclusion of lawful killing to the jury would tend to indicate that it was a verdict upon which the jury may reasonably settle. Otherwise, he ought not to have left the determination as an option to the jury at all. Attempting then to suggest that the jury actually selecting that option as their determination is so unreasonable that no reasonable jury could come to that conclusion does not spark the strongest case for a successful judicial review.
Of course, it is not the verdict of ‘lawful killing’ per se that is the key bone of contention. The crux of the confusion is this. Eight (out of 10) jurors felt sure that Duggan did not have a gun in his possession before he was challenged by the police; one felt it was more likely than not that he did not have a gun. That does seem incompatible with the idea that he could have been lawfully killed. While it may not be a comfortable conclusion, it does not strike one as irrational.
The law has long recognised that a person defending himself or others may not be able to assess the situation as well as one might do with hindsight. All the jury needs to determine is whether, in a moment of unexpected anguish, a person did what he honestly and instinctively believed was necessary. It does not matter if that belief was mistaken.
The questions given to the jury did not ask them to break down their findings on how Duggan was unarmed and then lawfully killed. In these circumstances, it may have made understanding their conclusion clearer. Why?
The officer known as V53 described the last moments of Duggan’s life as like a freeze-frame. He saw Duggan turn and could see the detailed form of a gun through a sock; his focus was on the gun for the duration of the interaction and then once he had fired his own gun, the weapon Duggan was meant to have been holding disappeared. Did V53 honestly and genuinely believe that Duggan had a gun? Scepticism is understandable. But I was not a juror. I did not see how V53 gave his evidence, watch the way he described the situation or assess how genuine I felt his evidence to be. And nor would any High Court judge charged with dealing with a judicial review. That is why, on a determination based on facts, judicial review is unlikely to yield a result that can dislodge a jury’s conclusion.
What about procedural issues? Interestingly, where the jury recorded their conclusion, there was little space for them to record any relevant findings of fact that led them to that conclusion. Could this amount to fettering the jury’s ability to make findings of fact, which could potentially provide a ground for judicial review in terms of procedural impropriety? The directions given to the jury do not encourage or highlight that the narrative verdict they give need not be confined to the questions provided. The jury, as finders of fact, should not have their discretion fettered in making those factual findings. However, not highlighting to them that they can include more findings is unlikely to amount to ‘fettering’ of their discretion, and even less likely to change their conclusion. It might have made their conclusions more cogent.
Perhaps that is one of the final points to glean from this. Where the reality may not meet the expectation, surely more transparency in the decision-making would be welcome. Aside from making it clearer what can and cannot be judicially reviewed, it allows families, and ultimately the public, to have a full and frank account of how the facts have been determined where the family has lost a loved one in the jurisdiction, custody or charge of the state.
It is difficult to discern exactly on what basis a judicial review challenge may be considered, and ultimately brought, by the Duggan family. We can only wait. Nevertheless, if the Duggan family successfully surmount the high thresholds and succeed in a judicial review, what in fact lies at the end? Realistically, at most, the outcome will be to go through the whole painful four-month inquest exercise once more.
One suspects that greater transparency during the inquest and decision-making process would have spared the family and the parties involved from reliving the facts that changed many peoples’ lives in the summer of 2011.