Coroner's power to direct criminal prosecution modified by Constitution to require Attorney-General's exclusive authority.

[*1589] 1972 February 26

(G. PIKIS, CORONER)

IN THE DISTRICT COURT OF FAMAGUSTA

DECEASED: Nicolas Georghiou Linghis, late of Akhna,

(Inquest No. 16/70).

Coroner - Inquest - Coroners powers under sections 23 and 25 of the Coroners Law, Cap. 153 - To be read and applied subject to the provisions of Article 113.2 of the Constitution - Article 188 of the Constitution.

Constitutional Law - Article 113.2 of the Constitution

- Its implications and effect on sections 23 and 25 of the Coroners Law, Cap. 153.

Inspector Economides, for the Police.

DECISION

The following decision was delivered by: -

PIKIS, CORONER.: This inquest was stayed on [*1590] the Court finding that sufficient grounds had been disclosed necessitating, the prosecution of persons, named by the Court, in connection with the fatal accident under consideration. Eventually only a charge contrary to Regulation 50 of the Road Traffic Regulations was instituted, on the Dhekelia Sovereign Base Area authorities objecting to the preferment of a more serious, charge. Apparently the Dhekelia authorities were consulted on the matter as the accident took place within the British Sovereign Base Areas. The above information has been conveyed to the Court in answer to a question regarding omission on the part of the prosecution authority to file a more serious charge.

Inspector Economides submitted that the Attorney General is vested exclusively with the right to prosecute and argued that the coroner has no power to direct the institution of Criminal proceedings. He cited in support an opinion of the learned Attorney-General where the position is adopted that the coroner has no right to direct the institution of Criminal proceedings, this being the exclusive right of the Attorney-General in virtue of the provisions of Article 113.2 of the Constitution. Therefore, the Court is required to examine the implications and effect of Art. 113.2 on the provisions of CAP. 153.

If I may say so with the utmost respect I agree that the Attorney-General is the only competent authority to direct the institution of Criminal proceedings, of a public nature, in virtue of Art.113 .2 of the Constitution. In consequence the provisions of sections 23 and 25 of the Coroners Law - CAP. 153 - enacted in 1936 - must be read [*1591] and applied with the necessary modification, in accordance with Article 188 of the Constitution, so as to avoid any inconsistency with the provisions of Article 113.2 of the Constitution.

Section 23(1) of CAP.153 expressly empowers the Coroner to stay proceedings where sufficient reasons have been disclosed for “instituting criminal proceedings in connection with the death against any person in custody or whose arrest is contemplated.” The combined effect of sections 23 and 25 of CAP. 153 is to confer power on the Coroner to direct the institution of Criminal proceedings, subject to a residuary power to resume the Inquest after the

conclusion of Criminal proceedings, if he is of opinion that “public benefit is likely to result from his so doing”. Section 25 requires the Coroner to state, inter alia, in the inquisition “how, when and where the deceased came by his death” and the form of inquisition which must be filled by the Coroner requires the Coroner to state “offence (if any) to which death is attributable”. Therefore, unless the above provisions of CAP. 153 are read and applied subject to the provisions of the Constitution, they would conflict with the order set up by Article 113.2 of the Constitution, regarding the right to prosecute.

Moreover as a matter of justice it would be highly undesirable and grossly unfair for a Coroner to attribute the commission of any offence to a living person, or a dead person for that matter, without affording him an opportunity to be tried according to law, one of the fundamental rights of citizens [*1592] under the Constitution. -It is my respectful view that sections 23 and 25 must he read and applied with the necessary modification so as to avoid any violation or inconsistency with the provisions of Article 113.2, a course that appears feasible and does not involve any radical alteration of the objects of the law under consideration.

I may also add that the composition of the Coroners Court and in particular the fact that the Court is presided over by judicial officers makes the change all the more desirable as Judges are not required to participate in any direct way in the institution of Criminal proceedings, a position consonant with their traditional vole in the administration of justice, under our system of law, thus remaining aloof of any decision to prosecute. It is noteworthy that the Brodrick Report on Death Certification and Coroners published on November 10, 1971 - H.M.S.O.

Comnd 4810 - makes recommendations entailing far reaching changes in the position and duties of the Coroner and advise that the role, of the Coroner should become medico-social and that he should not be directly concerned in the prosecution of Crime but be only concerned in finding the cause of death (See an interesting article on the report published in 1972 – Criminal Law Review p. 70). Therefore the power conferred on the Coroner, implicit the provisions of Sections 23 and 25 of CAP. 153, to order the institution of criminal proceedings must be read and applied subject to the aforesaid provisions of the Constitution.

However, the power of the Coroner to stay proceedings with a view to affording the competent authority opportunity to institute criminal proceedings is [*1593] not inconsistent with the aforesaid Article of the Constitution and no modification is necessary to preserve it in force. In practice the appropriate authority, subject to the exercise of a discretionary power, may institute such proceedings and thus ensure that those appearing to be involved in the commission of a crime are brought before justice. Summarising, the Coroner is vested with power to stay Inquest proceedings with a view to giving the opportunity to the appropriate authority to study the implications of evidence adduced at the inquest, but has no power either to direct the institution of Criminal proceedings or order any other authority to bring such proceedings.

After such stay, the Coroner may depending on the outcome of Criminal proceedings or the reasons for not instituting criminal proceedings if that be the case, either resume the inquest or refrain from so doing if no public benefit is likely to accrue therefrom.

Having considered the reasons for not instituting criminal proceedings and in particular the unwillingness of the British police authority to co-operate in the institution of such proceedings and given that the accident occurred within the British Sovereign Base Area I consider that no public benefit is likely to result from the resumption of the inquest.

Order accordingly.