The jury’s “open verdict” last week at the inquest into the death of Jean Charles de Menezes appeared to be a mark of protest against the coroner’s decision to remove “unlawful killing” from their range of options.

The decision by Sir Michael Wright, a retired High Court judge, was always certain to incur the fury of the family — and to prompt calls of whitewash.

David Davis, the former Shadow Home Secretary, said that the jury’s decision had raised “as many questions as answers, and is a stinging indictment of the Metropolitan Police’s ability to cope with ‘real-time’ operations”.

Fellow coroners and lawyers have been quick to point out that it is the role of coroners, and their duty, to put to the jury only those verdicts as are consistent with the thrust of the evidence as a whole from the range at their disposal — whether unlawful killing, suicide, death by natural cases or accidental death.

As one coroner put it: “A coroner has a duty to leave only those verdicts for which there is evidence of sufficient quality.”

Coroners are likely to come under fire when emotions are running high. Lord Justice Scott Baker similarly came under attack from Mohamed al Fayed who wanted the jury into the deaths of his son Dodi and Diana, Princess of Wales, to be allowed to consider the option of murder.

As with any other judge, though, such a decision is open to question. Helen Shaw, co-director of the pressure group, Inquest, said: “In this case [De Menezes] we think the coroner wrong in the way he directed the jury. It should have been able to consider unlawful killing.”

Professor Gary Slapper, of the Open University, agrees. “The verdict can be seen as defiant.” The coroner’s decision to rule out unlawful killing was “highly questionable”, he added.

In law, under the 1984 Coroners Rules, an open verdict was appropriate where the evidence “does not fully or further disclose the means whereby the cause of death arose”, he said. Juries return such a verdict where evidence sufficient to support a specific conclusion has been unavailable, including where no clear cause of death has been found, he added.

“In the De Menezes case, the physical cause and circumstances of death were clear, so the main question was simply whether the killing was lawful or unlawful. Of those two choices, one was withdrawn from the jury so, from that point onwards, the truth-finding role of the inquest jury was badly compromised.

“They might well, after considering the evidence, have rejected an unlawfully killed verdict but as it was forbidden ground we shall never know. That does not enhance our democracy.”

Then there is the question of the “narrative verdict”. As well as the traditional short-form of “open verdict” the jury included an narrative, an expanded form of verdict that is increasingly popular and stem from a court ruling in 2004. These give the jury the chance to explain in their own words their findings.

Depending on the coroner, the narrative can be in the form of answers to questions posed by the judge — and if so, as in this case, the jury is more confined in what it can say. At the Diana-Dodi inquest the jury delivered a lengthy narrative in its own words.

Narrative verdicts have been welcomed as giving the jury a chance to say things beyond the traditional “short-form” verdict. Equally there is concern that they promote inconsistency, with different coroners following different practice, and also create an impression of a finding that is up to the criminal standard of proof — beyond reasonable doubt.

One coroner observed: “The jury’s comments in their narrative are no more than that — they do not prove to the standard of the criminal courts that something happened. And there is a danger that people will seize on them as having proven something, when they have not.” At the least, there needs to be guidance on when and in what way narrative verdicts are delivered.

Meanwhile, the De Menezes family has achieved a verdict of sorts on their son’s death. But it is not one that will necessarily have given them a sense of justice.

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