Neutral Citation Number: [2007] EWCA Civ 1259
Case No: C1/2007/2626
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Lord Justice Thomas and Mr Justice Aitkens
2007 EWHC 2721 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 28/11/2007
Before :

LORD JUSTICE WALLER
Vice President of the Court of Appeal, Civil Division

LORD JUSTICE LATHAM
and
LORD JUSTICE DYSON
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Between :

	Assistant Deputy Coroner of Inner West London	Appellant	
	- and -		
	The Queen on the Application of Paul and the Ritz Hotel Limited	Respondent	
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(Transcript of the Handed Down Judgment of
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Ian Burnett QC and Jonathan Hough (instructed by Field Fisher Waterhouse) for the Appellant
Michael Beloff QC and Tom de la Mare (instructed by Barlow Lyde and Gilbert) and
Richard Keen QC and Robert Weeks (instructed by Stuart Benson & Co) for the Respondents
Edmund Lawson QC and Duncan Macleod  for the Commissioner of Police for the Metropolis

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Judgement

Lord Justice Waller : 
1.	This appeal is concerned with the way in which certain hearsay evidence can be given at an inquest.  The point arises in the context of the inquests at present taking place into the death of the late Diana, Princess of Wales and the late Dody Al Fayed.   Their deaths, as is well known, occurred in a car crash in the Alma Underpass in Paris on 31 August 1997.  A number of witnesses are resident outside the jurisdiction and cannot be compelled to attend the inquests.  Many of those witnesses have given statements in documentary form and the question that arose at the inquests was whether the Coroner could simply read those statements to the jury, or whether a witness had to be called in order to put the statements in evidence before the jury.  
2.	On the 7 November 2007 the Assistant Deputy Coroner, The Right Honourable Lord Justice Scott Baker, ruled that the statements should simply be read by him and that there was no necessity to call a witness to put the statements in evidence.  In so ruling he expressed the view that Rule 37 of the Coroners Rules 1984 had no application to the statements with which he was concerned and that he was simply exercising his common law power to admit hearsay evidence.
3.	The interested parties, the family of the driver and those representing the Ritz Hotel, sought a judicial review of that decision and the matter was brought, as a matter of urgency, before the Divisional Court, who heard argument on Friday 16 November 2007.  On 20 November 2007 they handed down a written judgment, under which they granted permission to judicially review the Coroner’s decision and set that decision aside, holding that the statements could not be read to the jury without calling witnesses.
4.	As a matter of urgency, this court arranged for the hearing of an appeal from that decision.  The appeal was heard on Friday 23rd November and we gave our decision on Monday 26th November that the appeal would be dismissed for reasons to be given later.  These are my reasons.
The Factual Background
5.	I can take this from the Divisional Court’s judgment:-
“4. The car in which the deceased were travelling was being driven by the late Henri Paul who was employed by the Ritz Hotel Limited.  This application for judicial review was brought by his parents Jean and Giselle Paul and also by the Ritz Hotel.  They are both “Interested Persons” in the Inquests.  As is well known, the car carrying the deceased was being followed by members of the paparazzi.
5. In the hours following the accident, officers of the French Brigade Criminelle began to take statements from witnesses; many were interviewed several times by officers and by examining magistrates.  As is usual in France and other similar legal systems, a dossier was assembled into which the statements and other documents were added as they were obtained.  At the conclusion of the judicial investigation, on the application of the State Prosecutor, the Examining Magistrates, Judges Stephan and Devidal issued a notice of dismissal on 3 September 1999.  Mr Mohamed Al Fayed, the father of Dodi Al Fayed, appealed against Judge Stephan’s notice of dismissal; that appeal took some time to complete, but the notice of dismissal was ultimately confirmed.  Further proceedings remain pending in France.  
6. In January 2004 the inquests into the deaths of the deceased were formally opened.  Prior to that the coroners who had jurisdiction had written an International Letter of Request to Judge Stephen as a result of which, over a period of time, the dossier was made available to the coroners.  The inquests were adjourned pending an investigation by the Commissioner of Police for the Metropolis, known as “Operation Paget”, into an allegation made by Mr Al Fayed that the deceased had been murdered in a criminal conspiracy.  The report of that investigation was produced in December 2006.  A separate report for the Coroner was produced in early 2007.
7. On 2 October 2007 the Inquests commenced before the Coroner.  A timetable has been devised with the objective of concluding the Inquests within 6 months.  In accordance with that timetable, the jury has visited Paris and heard evidence from 32 witnesses who saw the journey of the car, the crash and its aftermath.  
8. It was intended that the paparazzi should give evidence between 29 October and 5 November 2007, but only one, Stéphane Darmon, attended in response to a summons.
9. An arrangement made with the judicial authorities in France was that French witnesses were to be summoned by the French police to give evidence via a video link from the Palais de Justice in Paris.  Over the summer, International Letters of Request had been sent on behalf of the Coroner to ask for summonses to be served; it had not been possible to serve all of these because witnesses were not resident at known addresses; enquiries are being made to try and serve such witnesses.
10. On 24 and 25 October 2007, the Coroner asked the French authorities to compel the paparazzi to attend the Palais de Justice.  On 29 October 2007 the French authorities stated they were not prepared to accede to this request, relying on the provisions of Article 694 of the French Code of Criminal Procedure, which provides that such a request may be refused on the basis of interest of “l’ordre public”.  
11. The claimants contend that the paparazzi witnesses are of critical importance to the jury being able to answer the question of how the deceased met their deaths. They contend that there are serious doubts as to the truthfulness of the documentary evidence of the paparazzi witnesses contained in the statements and serious concerns as to the scope and rigour of the French investigation in which that evidence was obtained. 
12. The position therefore is, at present, that a number of important witnesses to the deaths of the deceased will not attend and there is no power, as they are not resident in England and Wales, to compel them to attend, the French authorities having declined to exercise such powers as exist.”
6.	The issue arises in respect of four categories of statement, all of which are in documentary form.  They are:  (i)  statements of witnesses made in proceedings in France;   (ii)  statements of witnesses made to the Metropolitan Police,  in the  course of its “Operation Paget”;   (iii)  interviews of witnesses to the media,  which were recovered by the Metropolitan Police Service or in the course of proceedings against the television company, Channel 4;  and (iv)  books written by witnesses.   
7.	As the Divisional Court judgment made clear, and in relation to which there is no issue, at common law the Coroner has the power to admit hearsay evidence and no-one suggests that the above statements cannot be admitted in evidence.  This appeal is not thus about the admission of hearsay evidence, it is about the way in which that hearsay evidence can be placed before the jury.  It is the claimants’ argument that, so far as documentary evidence is concerned, that can only be put in evidence directly by the Coroner if it falls within the provision of Rule 37 of the Coroners Rules 1984.  Those representing the Coroner seek to support his ruling that Rule 37 does not deprive him of his power to put hearsay evidence before the jury by any method he chooses, including simply by reading from a document.  In the alternative they seek to argue that the provisions of Rule 37 read “purposefully” allow the Coroner to read the statements without calling a witness.
8.	Rule 37 of the Coroners Rules 1984 provides as follows:-
“(1)	Subject to the provisions of paragraphs (2) to (4), the coroner may admit at an inquest documentary evidence relevant to the purposes of the inquest from any living person which in his opinion is unlikely to be disputed, unless a person who in the opinion of the coroner is within Rule 20(2) [a ‘properly interested person’] objects to the documentary evidence being admitted.
(2)	Documentary evidence so objected to may be admitted if in the opinion of the coroner the maker of the document is unable to give oral evidence within a reasonable period.
(3)		Subject to paragraph (4), before admitting such documentary evidence the coroner shall at the beginning of the inquest announce publicly -
(a)	that the documentary evidence may be admitted, and
(b)	(i)	the full name of the maker of the document to be admitted in evidence, and
(ii)  a brief account of such document, and
(c)	that any person who in the opinion of the coroner is within Rule 20(2) may object to the admission of any such document, and
(d)	that any person who in the opinion of the coroner is within Rules 20(2) is entitled to see a copy of any such documentary evidence if he so wishes.
(4)	If during the course of an inquest it appears that there is available at the inquest documentary evidence which in the opinion of the coroner is relevant to the purposes of the inquest but the maker of the document is not present and in the opinion of the coroner the content of the documentary evidence is unlikely to be disputed, the coroner shall at the earliest opportunity during the course of the inquest comply with the provisions of paragraph (3).
(5)	A coroner may admit as evidence at an inquest any document made by a deceased person if he is of the opinion that the contents of the documents are relevant to the purposes of the inquest.
(6)	Any documentary evidence admitted under this Rule shall, unless the coroner directs otherwise, be read aloud at the inquest.”
9.	The argument of the claimants in simple terms is that Rule 37 is a complete code as to when documents can be put directly in evidence without the calling of a witness and, they submit, that documents which do not fall within the provisions of Rule 37 cannot be read to the jury by the Coroner. They submit that these statements are, in the opinion of the Coroner, “likely to be disputed” and thus cannot be introduced under Rule 37.  They would add that if it were possible for the Coroner to form the opinion that the documents were “unlikely to be disputed”, it could in any event not be the opinion of the Coroner that the makers of the documents were “unable” to give oral evidence within a reasonable period or at all, since all witnesses were “able” but simply unwilling to come and give evidence.
10.	Importantly, the claimants accept that the contents of the documents can be proved by the calling of a witness – not necessarily the maker of the document nor indeed the person who took the statements but by any witness giving, if necessary, double or more than double hearsay evidence.  They add, however, that they rely on point (14) of Sir Thomas Bingham MR’s judgment in Regina v HM Coroner for North Humberside and Scunthorpe ex parte Jamieson 1995 QB 1, page 26, where he said:-
“It is the duty of the Coroner, as the public official responsible for the conduct of inquests, whether he is sitting with a jury or without, to ensure that the relevant facts are fully, fairly and fearlessly investigated . . .”
It is their submission that it is in the result the duty of the Coroner to call those witnesses as close to the original maker as possible, and they submit thus that it would be an unacceptable device if the Coroner simply called the solicitor to the enquiry to produce all the statements and then considered what further evidence to call.  The question of what the Coroner’s duty is in this regard is not a point argued out before us on this appeal.  I make no further comment about it save to say that I find it difficult to contemplate that there can be any variation in the scope of whatever the duty to call further witnesses is, depending on whether the statements were put in directly or were put in in some other way.  
11.	The argument of those representing the Coroner is, shortly, as follows.  If Rule 37 is intended to apply to documents containing statements which are likely to be disputed, then a purposive or imaginative construction must be applied to the rules to enable the Coroner to admit such documents, where the Coroner cannot compel the maker of the statements to give evidence.  They submit that the duty of the Coroner is to enquire into deaths and, if the Coroner has documentary evidence which would assist him or a jury in that task, where the maker of the document is overseas and non-compellable, it would be contrary to the whole purpose of the inquest to hold that such documentary evidence could not be put in evidence by the Coroner.  That same argument applies to the alternative submission on behalf of the Coroner which is to the effect that, if Rule 37 does not apply so as to allow the admission in evidence of controversial statements in documents when the maker is non-compellable, then the rule should not apply at all to such documents.  They further submitted that the answer of those representing the claimants, i.e. that the Coroner can always call some witness, leads to a rather absurd result and a waste of time, requiring the quite unnecessary step of someone having to prove the hearsay statements, even if formally.
12.	The Coroner in his ruling preferred the route that Rule 37 did not apply so as to restrict his common law power to introduce hearsay evidence.  He also expressed the view that, if necessary, he would have construed Rule 37 so as to allow him to read the statements.  
The background to Rule 37
13.	The background is set out in the Divisional Court’s judgment from paragraph 21 through to paragraph 40.  That summary deals with certain points which I would emphasise.  First, it emphasises the inquisitorial nature of a Coroner’s inquest, citing from the judgment of Lord Lane CJ in Reg v South London Coroner, Ex parte Thompson (1982) 126 SJ 625, where he said:-
“Once again it should not be forgotten that an inquest is a fact-finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish the facts. It is an inquisitorial process, a process of investigation quite unlike a trial where the prosecutor accuses and the accused defends, the judge holding the balance or the ring, whichever metaphor one chooses to use.”
14.	That said, however, the citation from Talbot J’s judgment in R v Divine [1930] 2KB at 29 demonstrates that evidence at an inquest will normally be sworn evidence.  Talbot J said:-
“Again it is clear that a coroner’s inquest is not bound by the strict law of evidence.
…
No doubt a coroner has considerable latitude as to the way in which he may conduct the inquest; he is not fettered by detailed rules of procedure; but on the other hand, the proceedings are formal, they are conducted on lines which are now established by long usage, and the public and those more particularly interested have a right to expect that the verdict will be given upon the sworn evidence heard at the inquest and upon nothing else.”
However, it is right to point out that the issue in that case was the correctness or otherwise of the Coroner inspecting a car with the foreman of the jury.
15.	Before us Mr Keen QC, representing one of the interested parties, developed an argument to the effect that all evidence before a Coroner prior to 1953 had to be via sworn oral evidence.  He did not accept the proposition that, prior to 1953, there was some general power exercised by Coroners to put documents before the jury or before themselves containing hearsay statements, without those documents or their contents having been sworn to by a witness.  He referred to s.11(2) of the Coroners Act 1988, which he told us was in the same terms as the corresponding section of the Coroners Act 1887.  It provides:-
“(2) The Coroner shall, at the first sitting of the inquest, examine on oath concerning the death all persons who tender evidence as to the facts of the death and all persons having knowledge of those facts whom he considers it’s expedient to examine.”
16.	Mr Burnett answered this point by referring to a passage in Lord Goff’s judgment in Regina v HM Attorney General for Northern Ireland ex parte Devine [1992] 1WLR 262 at 266F-G, which will appear in a citation to be quoted below where Lord Goff seemed to confirm that the common law power of coroners would have included the power to admit documents to establish hearsay evidence.  He also submitted that if Mr Keen were right and that by statute all evidence was required to be by sworn oral evidence, the 1953 Coroners Rules as well as the 1984 Coroners Rules would have been ultra vires.
17.	So far as the power of the Coroner is concerned, I would not accept Mr Keen’s submission.  What, however, I would accept is that it was rarely, if ever, the practice of Coroners to admit documentary evidence without the calling of a witness.  In particular, it is difficult to think that Coroners would have been inclined to admit statements of witnesses in documentary form even when those witnesses were unavailable for some reason.   Support for the view that Coroners were disinclined to admit documentary evidence is provided by the report of the Broderick Committee, on passages which, again, I shall quote hereafter.  Perhaps some support for the reluctance of the Coroner simply to put documents in evidence is supplied by what in fact happened in ex parte Devine before the Coroner, who, having ruled that statements were admissible by virtue of Rule 17 of the Northern Ireland Coroners Rules, proved those statements via witnesses.
18.	It was in 1953 that rules were made to cover the conduct of an inquest and Rule 28 related to documentary evidence in these terms:-
“(1)	Documentary evidence as to how the deceased came by his death shall not be admissible unless the coroner is satisfied that there is good and sufficient reason why the maker of the document should not attend the inquest.
(2)	If such documentary evidence is admitted at an inquest, the inquest shall be adjourned to enable the maker of the document to give oral evidence if the coroner or any properly interested person so desires.”
19.	Important aspects of that rule, as it seems to me, are twofold.  First, it expressly made documentary evidence not admissible unless the rule applied.  No-one before us suggested that this rule did not apply to all documents, controversial and uncontroversial.   Thus the rule did, on its face, limit the power of the Coroner to admit documentary evidence.
20.	But the second important aspect is that at the same time as imposing the above restriction, it did allow documents to be admissible if the Coroner was satisfied that there was “good and sufficient reason” for the maker of the statement not to attend.  It is this second point which led the Divisional Court to say rightly that, under the 1953 Rules, the Coroner could have simply read the statements with which the Coroner in this case was concerned, without calling a witness to establish the contents.
21.	The change from the old Rule 28 into a rule in the present form of Rule 37 came about in 1980, by an amendment to the 1953 Rules.  That followed the report of a Home Office Committee chaired by Judge Broderick QC.  The recommendation of that committee in relation to written evidence was contained in paragraphs 16.62 – 16.67 of the report.  Paragraph 16.62 reflects the then rule, i.e. Rule 28 of the 1953 Coroners Rules.  Paragraph 16.63 stated as follows:-
“It is understandable that hitherto the law has placed a certain emphasis on the value of oral evidence: the inquest is, and is intended to be, a public enquiry to serve the public interest.  We are satisfied, however, that provided “the public” features of the inquest are preserved, there is nothing to be lost and much to be gained by allowing the coroner greater discretion to accept written evidence. It often happens that the evidence of a particular witness, although essential to the coroner’s enquiries, is uncontroversial, appears unlikely to be disputed and is not, in the event, questioned.  If the attendance of every such witness has to be arranged in every case the whole process of convening and conducting the enquiry is unnecessarily made more complicated, burdensome and productive of delay.  Accordingly, we recommend that, subject to the same right of objection for properly interested persons as exists under the present law, (see Rule 28), coroners should in future have a general discretion to accept documentary evidence from any witness at an inquest.”
22.	In July 1976 a working party was set up to consider the Broderick Report.  It will be noted from the last sentence of the above quotation that the recommendation, that coroners should have a general discretion to accept documentary evidence, seemed to relate to all documents, not simply documents in relation to which there would be no dispute.  The working party, when it came to consider the matter, made clear however that it was their view that any discretion granted to the coroner should be limited.  In paragraph 19 of their recommendation they referred to the recommendation that “Coroners should in future have a general discretion to accept documentary evidence from any witness at an inquest” and then stated “We are of the opinion that this discretion should be limited to documentary evidence (including witnesses’ statements), which is relevant to the purpose of the inquest and which in the coroner’s opinion is uncontroversial and unlikely to be disputed.”  This recommendation forms the genesis of what became Rule 37.  It was a deliberate decision to confine the discretion of the coroner to uncontroversial documents.  But, it seems reasonably clear that in concentrating on non-controversial documents the draftsman overlooked the second aspect of former Rule 28 of the 1953 Coroners Rules, under which any document could be admitted in evidence if there was “good and sufficient reason why the maker of the document should not attend the inquest.”
23.	The most significant authority so far as the arguments of both the Coroner and the interested parties are concerned is the decision of the House of Lords in Regina v HM Attorney General for Northern Ireland ex parte Devine [1992] 1 WLR 263.  That decision was not concerned with a rule in the same terms as Rule 37 but is said by those representing the Coroner to demonstrate the proper attitude that the court should take to the construction of a similar rule. Lord Goff of Chievley, who gave the leading speech with which the others agreed, adopted an “imaginative” construction of “unnecessarily” and it is suggested that the court should be equally creative in relation to the construction of Rule 37.  Those representing the interested parties, however, submit that the authority supports their position.  They submit that however imaginative the court might be in its construction of Rule 37 there is no construction that would allow the Coroner to put the statements directly in evidence. They submit that Re Devine simply supports their position that the way to prove the contents of the documents as hearsay is by calling a witness as had happened before the coroner in Re Devine.
24.	In ex parte Devine the Coroner had held an inquest into the deaths of three persons who had been shot by soldiers.  The Coroner had admitted statements made by the soldiers under Rule 17 of the Northern Ireland Rules.  Those statements had been produced in evidence by the officers who had taken the statements.  Rule 17 provided:-
“(1) A document may be admitted in evidence at an inquest if the coroner considers that the attendance as a witness by the maker of the document is unnecessary and the document is produced from a source considered reliable by the coroner.
(2) If such a document is admitted in evidence at an inquest the inquest may, at the discretion of the coroner, be adjourned to enable the maker of the document to give oral evidence if the coroner or any properly interested person reasonably so desires.
(3)…”
The Coroner held that the attendance of the soldiers was “unnecessary” because they were not compellable witnesses, and that the documents containing their evidence, which consisted of statements to the police, were reliable and there was no point in adjourning the hearing because the witnesses could not be compelled to attend.  On that decision being judicially reviewed, Carswell J held that Rule 17 did not apply but held that, since under common law, the statements could be produced by the witnesses who were called, the application for judicial review should be dismissed.  That view of the matter was upheld by the Court of Appeal in Northern Ireland.  The judgment of Lord Hutton LCJ is, however, of importance in that he adopted an approach to the ambit of Rule 17 akin to that which those representing the Coroner in this appeal would seek to persuade us to follow.  
25.	Lord Hutton said this:-
“We accept counsel’s submissions that for the two reasons which he advanced the statements of soldiers A, B and C do not come within the ambit of Rule 17.  But we reject his other submission that Rule 17 applies to all documentary evidence and that as the statements do not fall within it the rule prohibits their admission in evidence.  We consider that Rule 17 only applies to the type of document described in paragraph (1) viz a document where ‘a coroner considers that the attendance as a witness by the maker of the document is unnecessary’. . . .In other words the document appears to the coroner to be formal and uncontroversial.  The statements of A, B and C are clearly not such documents and therefore Rule 17 does not apply to them.  Accordingly, Rule 17 does not abrogate the ordinary rule that it was open to the coroner to admit the statements, notwithstanding that they were hearsay.”
26.	When  Re Devine reached the House of Lords, the leading speech, as I have said, was given by Lord Goff who upheld the view of Carswell J and the Court of Appeal in Northern Ireland but did not, as I see it, follow the reasoning of Lord Hutton.  Lord Goff also held, by a purposive construction of the word ‘unnecessary’ that the Coroner had in any event the right to admit the documents on the proper construction of Rule 17.  In upholding the view of the Court of Appeal, Lord Goff said this at p266:-
“The function of rule 17, which was first introduced in the Rules of 1963, is to regulate the circumstances in which a coroner in Northern Ireland may simply admit a document in evidence, without requiring the maker of the document to attend the inquest and give oral evidence.  If the document is admitted as such in evidence under the rule, the contents of the document can no doubt be treated as evidence in the same way as the evidence of the maker of the document given orally to the like effect would have been so treated.  In the absence of rule 17 there would, so far as I am aware, have been nothing to restrict the power of the coroner (who in the conduct of an inquisition has historically not been bound by the strict rules of evidence applicable in litigation: see Rex v Divine, ex part Walton [1930] w KB 29, 36, per Talbot J) to admit a document in evidence in t his way.  It was for this reason that, in McKerr v Armagh Coroner [1990] 1 WLR 649, 657-658, I referred to rule 17 (as substituted by amendment in 1980) as an example of a rule of practice or procedure which restricts the power of a coroner, and described the rule as one which defines the power of a coroner to admit documentary evidence.
But, in agreement with both Carswell J and the Court of Appeal, I cannot see that rule 17 has the effect of excluding evidence which may otherwise be admissible, even it it is in documentary form.  In particular, I cannot see that the rule excludes the power of a coroner to admit hearsay evidence otherwise proved simply because such evidence has been reduced to documentary form.  The evidence in the present case consists of statements made by soldiers A, B and C to police officers, which were proved to have been so given by the police officers in question.  Had these statements not been recorded in writing, rule 17 would obviously have been irrelevant, and it would have been open to the coroner to admit the statements in evidence, although the evidence was in such circumstances hearsay.  As it was, the statements were recorded in writing; but it would be absurd that this fact should render such evidence inadmissible.  I cannot see that rule 17, even on the assumption that the written statements were not admissible simply as documentary evidence under the rule, has the effect of excluding the statements as proved by the police officers in the present case.  On this basis, the conclusion of the courts below on the admissibility of the evidence is, in my opinion, fully supportable.”
27.	He then also went on to consider the proper construction of Rule 17.  He reasoned first that the statements of the soldiers would have been admissible under the previous Rule 17 and suggested that it would have been surprising if the Rule 17 with which the Coroner was concerned had imposed a fetter which was not there previously.  Indeed, he suggested that when comparison was made between the old rule 17 and the new rule the basic intention was to enlarge rather than restrict the powers of the Coroner.  This led him to re-examine the possible construction of the old rule and the word ‘unnecessary’ used in that rule.  In the result he gave an imaginative construction to that word as contained in the old rule and that enabled him to give a similar imaginative construction to the word ‘unnecessary’ in the new rule.  He held that:-
“The attendance of a witness could properly be regarded by the coroner as unnecessary where he considered that there was no need for him to attend for the purpose of giving oral evidence.  This could of course be so where the witnesses’ oral evidence would, if given, be formal and uncontroversial, but it could also be so in other circumstances, for example where the witness was available to attend the inquest but his attendance would be futile, as where (as in the present case) he was not compellable to give evidence, or may otherwise be incapacitated from doing so, for example by insanity or a fortiori, where the witness was not available to attend, for example because he had died or because he was ill or overseas.  Only in this way, in my opinion, can the first two paragraphs of the old rule 17 be sensibly reconciled as forming consistent parts of the same rule.  Furthermore, the construction of the new substituted rule 17 can properly be considered against this legislative background; and, on this basis, consistently with the rule in its previous form the word ‘unnecessary’ in the new rule 17(1) should be given the same effect as should have been given to it in the original rule 17(1).  Such a construction is, moreover, consistent with the evident intention to enlarge the powers of the coroner under the new rule 17, and avoids the manifest absurdity of construing the new rule as intended to impose a new and substantial fetter upon his power of the kind which would otherwise result.”
28.	I would make the following points on Re Devine in both the Court of Appeal and the House of Lords.  First, it will be seen that Lord Hutton was not accepting that Rule 17 was a complete code in relation to the admission of documents.  In so doing he had to deal with Lord Goff’s view of Rule 17 as expressed in McKerr v Armagh Coroner 1991 WLR 649 at 658C-E, where Lord Goff said this:-
“Nor, in my opinion, does the mere fact that a rule restricts the power of a coroner as to the evidence which he may call prevent the rule in question from being one which regulates practice or procedure.  In this connection, rule 17, concerned with documentary evidence at inquests, provides an apt illustration.  I have already set out the text of that rule (as amended).  A similar, though not identical, rule applies in relation to documentary evidence at coroners’ inquests in England and Wales: see rule 37 of the Coroners Rules 1984 (SI 1984 No 552).  The general rule is that a coroner, who is conducting an inquisitorial process concerned to elicit certain facts, is not bound by the strict rules of evidence.  Yet here, in rule 17, we find a rule which defines the power of a coroner to admit documentary evidence.  I cannot, for my part, see why that fact should prevent the rule from being described as a rule which regulates practice or procedure at a coroner’s inquest.  It plainly does, in that it regulates the manner in which the coroner shall, at an inquest, set about his task of eliciting the relevant facts.”
Lord Hutton expressed the view that Lord Goff was not defining the power of the Coroner to admit documentary evidence.  He accordingly placed a construction on Rule 17 which placed controversial documents outside it altogether.  That is much the same line as Mr Burnett would submit we should take in relation to Rule 37. 
29.	  It is, however, apparent that Lord Goff in the House of Lords in Re Devine did not accept Lord Hutton’s construction of Rule 17.  He adhered to the view he expressed in McKerr (see the first paragraph of the quotation above).  Furthermore, it would have been unnecessary to place the imaginative construction that he did on Rule 17 if he was agreeing with Lord Hutton that it did not define exhaustively the power of the Coroner to admit documentary evidence.
30.	  It is also highly relevant that he held both that the statements of the soldiers were admissible at common law and that Rule 17 applied to them. It seems to me that the fact that he could hold the statements admissible at common law and that they were covered by Rule 17 demonstrates that so far as the common law power is concerned he was dealing with oral evidence as to the contents of the statements proving the same, whereas so far as Rule 17 was concerned he was dealing with the documents being put in evidence to establish the contents of the same.
31.	  It is also important that Lord Goff was of the view in McKerr that Rule 37 was similar to Rule 17.  Applying his reasoning to Rule 37 it seems to me that his view would have been firstly that the rule did not prevent the proving of hearsay evidence by oral evidence, even if that hearsay evidence has been reduced to documentary form.  But, secondly, if the hearsay evidence was sought to be proved by a document alone, his view would have been that that could only be done if Rule 37 allowed it.  In my view, Lord Goff’s reasoning supports the view that so far as seeking to prove hearsay simply by the production of a document is concerned, the provisions of Rule 37 would have to apply.  
32.	  Support for the view, that so far as documentary evidence is concerned Rule 37 is a complete code, is gained from authorities cited by Mr Beloff in his skeleton and cited by the Divisional Court in their judgment at paragraph 46.  In particular the view of Croom Johnson LJ in R v Southwark Coroner ex part Hicks [1987] 1 WLR 1624 at 1629 was that the admission of documentary evidence was controlled by Rule 37 and that the use of and reference to documents was narrowly circumscribed.
33.	  In my view, accordingly, it is likely to be impossible to take the route that the Coroner chose in making his ruling but I will come back finally to that question after considering the proper construction of Rule 37. 
Construction of Rule 37
34.	The question is whether an imaginative construction can be placed on Rule 37.  If the Coroner were to be entitled to prove the contents of the statements simply by placing the written documents before the jury under Rule 37 an imaginative construction of that rule would have to be applied in two distinct places.  First, in sub-rule 1, Mr Burnett suggests that “unlikely to be disputed” means “unlikely to be challenged in oral proceedings by interested persons”, as opposed to “uncontroversial”.  If the words could be so read, the Coroner (he submits) would be entitled to form the view that because the witnesses would not come to give evidence, therefore the evidence was unlikely to be challenged and sub-rule 1 of Rule 37 would have been satisfied.  He would then, if objection were taken by the interested parties and if the documents were to be admitted as such, have to form the opinion under sub-rule 2, that the makers of the documents were “unable to give evidence” within a reasonable period.   No-one disputes that such a phrase would cover someone who through sickness could not attend.  It would also cover someone who was overseas but forbidden by the authorities of the overseas’ state to come to England or Wales.  The claimants contend, however, that the phrase does not cover a person overseas who is physically able to come and not prohibited from coming, but yet cannot be compelled to come by the Coroner.
35.	I am quite unable to accept that the words “unlikely to be disputed” can be read as “unlikely to be challenged in oral proceedings by interested persons”.  The phrase “likely to be disputed” plainly refers to documentary evidence that an interested party does not accept and wishes to dispute.
36.	This makes it unnecessary to consider the meaning of the word “unable”.  For my part, I could see ways of placing a wider construction than that favoured by the Divisional Court on that word if one had answered the previous question differently, but it is not fruitful to explore that aspect further. 
Final view on the common law
37.	Once one reaches the view that Rule 37 does not allow the admission of a document, even where the maker is unable to attend and appreciates once again that under Rule 28 of the 1953 Rules the Coroner would have had the power to admit such a document, one returns for a moment to consider whether it is really right that Rule 37 applies to controversial documents.  I admit that I have been tempted to take the route adopted by Lord Hutton in the Court of Appeal in Re Devine in relation to Rule 17 of the Northern Ireland Coroners Rules.  In one sense the argument is more powerful in relation to Rule 37 than it was in relation to the Rule 17.  The argument on Lord Hutton’s reasoning would be that Rule 37 is dealing with uncontroversial and not with controversial documents.  In the case of Rule 37 that argument can be said to gain support from the fact that sub-rule 2 of Rule 37 gives power to the Coroner to admit in evidence only uncontroversial documents where the witness is unable to attend.  Sub-rule (2) is not free-standing and does not apply to all documents.  The rule maker (so the argument would go) cannot have intended to take away the power given by old Rule 28 in relation to all documents to admit in evidence such documents where the Coroner was satisfied there was good and sufficient reason why the maker should not attend.  But, as tempting as it is to adopt that route, it seems to me that Lord Goff’s view of Rule 17 clearly rejected the above process of reasoning.  Furthermore, identifying precisely what tests should be applied when exercising a discretion in relation to admitting a document where a witness was unavailable would involve, in effect, legislating and choosing between the word ‘unable’ or the words of Rule 28, or some other test, and that simply is not the function of the court. 
38.	The fact is Rule 37 replaced a rule dealing with all documents.   The heading to Rule 37 is “Documentary Evidence” in quite general form.  Rule 37(5) deals with a maker who is deceased and applies to all documents. It is simply impossible to hold otherwise than that Rule 37 was intended to be a complete code and that by some error the draftsman failed to put in the saving provision that would have applied under Rule 28 of the 1953 Rules.
39.	Thus, with reluctance, I would dismiss the appeal. 
Lord Justice Latham :
40.	I agree.
Lord Justice Dyson :
41.	I also agree.