Last week the high court ordered that the inquest into the deaths of Diana, Princess of Wales and Dodi Al-Fayed should be held with a jury, reversing the ruling of Baroness Elizabeth Butler-Sloss, sitting as the deputy coroner. Should we care? Actually, yes. Few noticed the proposition advanced by their lordships: that, in the eyes of English law, the paparazzi on wheels are a threat to public health and safety.
It had been thought that the decision of whether to proceed with a jury should be at the discretion of Butler-Sloss. But it emerged that the baroness's legal analysis was incorrect; there had to be a jury. It all turned, somewhat bizarrely, on a point of health and safety, as the judges used the existing law in a novel and unexpected way to justify their move. This finding could have real implications for the royal family, celebrities and the press, regardless of the results of Butler-Sloss's inquest—whenever it concludes.
For reasons of costs and constitution, juries are a rare phenomenon in inquests; ten years ago, when Diana died, about 770 out of more than 21,500 inquests had juries. Their appearance inevitably slows proceedings down, which racks up costs, but on the other hand, they make inquests seem more democratic.
The cases for which juries are mandatory include deaths in custody and cases relating to certain health and safety at work issues. Otherwise, a jury's presence at an inquest remains at the discretion of the coroner. In the Diana inquest, Butler-Sloss took the view a case of this kind would tax a jury too much (seven to 11 heads were much worse than one). She also argued that a jury might suffer irremediable prejudice generated by a decade of publicity of the facts.
It is a little worrying for Butler-Sloss, a former senior judge, to express such a lack of faith in both the capability of a jury to detach itself from the media frenzy and apply itself to the evidence—juries seem to manage well enough in criminal trials—as well as her own ability to direct such a jury to do so.
But all of this was found to be legally irrelevant by the high court, because the Coroners Act requires an inquest jury where "the death occurred in circumstances the continuance or possible recurrence of which is prejudicial to the health or safety of the public or any section of the public." The court was uncertain why this provision existed. It nonetheless decided that it had to apply it. In doing so, it may have widened the scope of this area of law, or at the very least applied it in a novel and unique context. Perhaps the novelty is underscored further by the fact that the significance of this provision was not debated at the hearing before the deputy coroner. This was, the court, observed, "unfortunate." If it had been, the judicial review might have been avoided.
The court decided that it was at least arguable that the fatal crash was caused or contributed to by pursuing paparazzi. History could repeat itself. Other members of the royal family (the court mentioned "Miss Kate Middleton, Prince William's friend") as well as other celebrities might face similar threats.
As the court said, "it is likely that there will be a recurrence of the type of event in which the paparazzi on wheels pursued the princess and Dodi Al Fayed." It is possible that "legislation or other means" could prevent this. Under the legislation, this justified—and required—the presence of the jury.
It is unclear what recommendations, if any, the jury to this inquest, when empanelled, will make about the high court's concerns about "paparazzi on wheels" once the inquest concludes. It is also becoming less clear that this inquest will be the speedy forum for resolution of the issues that some—understandably, if unrealistically—hoped it would be. However, the novel and unexpected way the judges have effectively imposed a jury on this inquest—with a potential additional remit of reviewing the role of more aggressive sections of the press—could turn up some powerful recommendations in the context of a case that perhaps reflects the media at one of its lowest watermarks.
