Evidence submitted by INQUEST
1. INQUEST is the only voluntary organisation
in England and Wales that works directly with the families and
friends of those who die in all forms of state custody—in
prison, young offender institutions, immigration detention centres,
police custody or while being detained by police or following
pursuit, and those detained under the Mental Health Act—to
provide an independent free legal and advice service to bereaved
people on inquest procedures and their rights in the Coroner's
Court. It was set up in 1981. It provides specialist advice to
lawyers, the bereaved, advice agencies, policy makers, the media
and the general public on contentious deaths and their investigation.
It also monitors deaths in custody where such information is publicly
available and identify trends and patterns arising.
2. INQUEST also provides generic advice
on the inquest system to bereaved families and publishes free
for any bereaved family—Inquests—An Information
Pack for Families, Friends and Advisors[43]—that
explains the whole process and where to find emotional and practical
support. We have provided this service in the absence of a similar
service from the current inquest system. Since we have published
our pack in August 2004 we have distributed more than 350 hard
copies and it has been downloaded over 5,200 times from our website.
Since 1996 the organisation has worked directly to support over
2,000 families facing inquests.
3. This submission is made on behalf of
INQUEST by Deborah Coles and Helen Shaw. They have been the co-directors
of INQUEST since 1990 and 1994 respectively and are joint editors
of Inquest Law, the quarterly journal of the INQUEST Lawyers
Group. Deborah is a trustee of the charities Women In Prison and
the Centre For Corporate Accountability and is a member of the
BBC Charitable Appeals Committee. Helen was appointed as a non-executive
member of the Human Tissue Authority in April 2005 and was previously
(April 2001—March 2004) a non-executive member of the Retained
Organs Commission. She is also a trustee of the charity National
Bereavement Partnership. They are joint members of the Independent
Police Complaints Commission Advisory Group and the Ministerial
Group on Suicides in Prison. They are co-authors of the forthcoming
INQUEST publication Families' Experiences of the Investigation
of Contentious Deaths and Deborah is co-author with Barry
Goldson of In the Care Of the State, Child Deaths in Penal
Custody (INQUEST 2005).
4. INQUEST published its submission to the
Fundamental Review of Coroner Services in 2003[44]
which outlined concerns about the operation of the inquest system
at that time regardless of circumstance of death. We also gave
oral and written evidence to the Joint Committee on Human Rights
Inquiry into Deaths in Custody 2004 which addressed the problems
with the inquest system alongside other matters. INQUEST will
be publishing a new report on Families' Experiences of the Investigation
of Contentious Deaths in April 2006 and hope this will contribute
to the reform process.
5. INQUEST believes that the current inquest
system is failing and that this is heightened in deaths that involve
questions of state or corporate accountability.
6. The coroner's system is one of the most
neglected areas of law. In contrast to the constant evolution
of other legal and administrative structures and a more rights-based
approach generally to public functions and services the coroner's
court has failed to evolve. This means that its standards fail
to reflect modern concerns about the rights of those participating
in legal proceedings. The resources and structure of the current
system militate against the delivery of a service that addresses
the needs of post-death investigation in the 21st century.
7. INQUEST has always argued that the right
to an inquest is fundamental after a sudden and unnatural death.
Any new system needs to operate within a framework that ensures
openness, accountability, compatibility with the Human Rights
Act and sensitivity to bereaved people and the public.
8. To establish such a framework there need
to be clear national protocols for all aspects of post-death investigation.
Those protocols need to enshrine clearly defined mechanisms of
accountability, minimum levels of service delivery and a system
of sanctions where practice falls below acceptable standards.
Above all it needs to be a system that balances the needs of the
state with those of bereaved people and ensures that all participants
have an equality of resources and information. Whilst the process
will be painful for bereaved people, it will be more bearable
if the system is seen to have legitimacy and meaningful outcomes.
9. This submission summarises the concerns
that have emerged based on 25 years of advising and supporting
bereaved families, monitoring post-death investigations and attending
inquests around the country.
10. From our work with bereaved people we
have identified the following problems within the current system:
a. Lack of provision of clear, accessible
information for bereaved people about their rights in relation
to the inquest system and coroner's post mortem;
b. Lack of understanding and sensitivity
within the system to religious and cultural beliefs;
c. No shared understanding of the function
and purpose of post-mortem examination;
d. Lack of explanation to families about
their rights and funding for a second post-mortem;
e. Lack of explanation and public understanding
of the legal status of the body and problems with different standards
and practice in relation to bereaved families' access to the body;
f. Insensitivity of coroners and others
in relation to post-mortem evidence;
g. Inconsistency of quality and extent of
coroner's post-mortems;
h. The formality of the procedure frequently
more than many given to expect;
i. Variable time delays and approach to
inquests into deaths in similar circumstances dependent on geographical
area;
j. Variable quality of courts and lack of
private space for bereaved people;
k. Inappropriate delays in holding the inquest;
l. Variable treatment on a range of issues
dependent on geographical area;
m. Good practice dependent on the approach
of individual coroners and coroner's officers rather than agreed
and inspected quality standards;
n. Varying levels of legal knowledge and
understanding of relevant issues amongst coroners and lack of
compulsory training;
o. Insensitive treatment of families before
and during the hearing—by coroner/coroner's officers and
other advocates for Interested Persons;
p. Lack of career structure and training
for coroner's officers;
q. Lack of clear accountability as no national
coroner service;
r. Lack of easily accessible and effectve
complaints procedure;
s. Rules of coroner's jurisdiction prevent
the hearing of complex cases before specialist coroners;
t. Lack of right to disclosure of documentary
evidence;
u. Narrow legal remit of the inquest;
v. Lack of central monitoring of coroner's
Rule 43 concerns and lack of duty to respond;
w. Perception by bereaved people that the
inquest does not function to prevent future deaths occurring in
similar circumstances;
x. Problems with lack of non-means tested
funding for legal representation
y. Negative impact of the above on physical
and mental health of bereaved people;
z. Lack of referrals to legal, social and
health service providers, including voluntary sector providers;
aa. Lack of follow-up communication about
action being taken where the death has occurred in an institution.
Bereaved families frequently describe how they know that the inquest
cannot bring back their relative but that if lessons are learned
to prevent similar deaths it will have some meaning for them.
11. These factors have serious consequences
for families faced with an unexpected or violent death. The narrow
focus of the inquiry puts artificial and invidious limits on the
scope and style of conduct of the coroner's inquiry, which often
exclude from the inquest the issues of greatest concern to the
family. The inquest is usually the only investigation of death
to which a family has access. Importantly, for the public interest
and democratic accountability, it is the only public forum in
which contentious deaths will be subject to scrutiny. Inquests
are too often at risk, particularly in the absence of legal representation
for the family, of being opportunities for official and sanitised
versions of deaths to be given judicial approval—rather
than being an opportunity for the family to contest the evidence
presented, to discover the truth and full circumstances surrounding
the death of their loved one.
12. Despite some examples of good practice,
an outmoded administrative mindset means that families are marginal
to the overall process, whereas they should be central. Death
is far more significant for the bereaved than for the doctors,
police, coroner and lawyers involved, for whom it is ultimately
a professional matter.
13. There have been some developments seeking
to soften the hard edges of legal procedures following death,
and individual coroners do often try on an ad hoc basis to be
sensitive to families' feelings and concerns. The position however
remains that families' legal rights in proceedings are restricted:
the inquiry is not for them, and the administrative framework
is not directed at their full inclusion in the process. Families
are not recognised properly as stakeholders with an interest in
the final outcome. The Government's review is an important opportunity
to change the inquest system fundamentally.
14. Bereaved families have frequently described
the experience as one that adds to rather than diminishes distress,
marginalises them and leaves more questions than answers. Many
agencies have little or no understanding of the particular experience
of the inquest system including lawyers, generic advice agencies
and bereavement agencies. Lawyers are not routinely taught about
inquests during their training. Coupled with the lack of access
to public funding in most inquest cases, this means that often
families have sought advice from lawyers that has been inadequate,
expensive and sometimes wrong.
15. Overwhelmingly our work with these families
has resulted in an outpouring of anger and distress from bereaved
people and raises some fundamental questions about society's collective
ability to deal with the aftermath of death. It affirms what we
suspected, that far from being the isolated or highly controversial
cases or incidents that the system proves incapable of dealing
with, it is ill equipped to deal with most deaths and most families
suffer additional distress and grief as a result.
16. The significance in this context of
the coroner's court—as a point of contact with public services
for most "at risk" families, regardless of how and where
their loved one's death occurred—is at once clear. Its potential
role in guaranteeing informed and effective access to appropriate
bereavement intervention options for bereaved families must therefore
be a central concern in developing a new system.
INQUEST'S
SERVICE
17. The aim of our casework service is to
advise families and empower them through the provision of information
and advice about their rights. Because of the length of time from
the death to the conclusion of the investigation and inquest process
our support can last for a number of years.
18. We operate a telephone-based service
offering free support, advice and information to all bereaved
people facing an inquest and their basic rights in the coroner's
court. There is no other organisation in England and Wales with
such specialist knowledge about the inquest system. Our informed
casework team provides this specialist advice as well as sending
out written information, such as our comprehensive Information
Pack[45]
and leaflets concerning specific areas of death. We also provide
information to bereaved people about how to access other services
and in many non-custody related deaths we will provide both advice
and referrals to other organisations eg road traffic related deaths
to RoadPeace, work related deaths to the Centre for Corporate
Accountability, deaths in hospital to AvMA. We also monitor any
legal issues arising from these cases that concern the inquest
system.
PARTICULAR PROBLEMS
FOLLOWING DEATHS
IN CUSTODY
19. In the context of all of the problems
described above there are particular concerns about how deaths
in custody are dealt with and INQUEST outlined these in both written
and oral evidence to the Joint Committee on Human Rights in 2003
and 2004. [46]
20. The key role of the public inquest in
contentious deaths is that it is often the only public forum in
which there is any scrutiny of the death. The importance of the
investigation being in public cannot be underestimated.
21. With custody-related deaths the lack
of support and appropriate assistance is more acute with families
feeling doubly victimised—they have suffered a death and
because of its nature they are treated as though they are criminals.
22. All deaths in custody involve an inquest
so the potential role of the Coroner's Service in guaranteeing
informed and effective access to appropriate bereavement intervention
options for bereaved families must therefore be a central concern
in developing a new system.
23. Finding out how someone has died is
a fundamental human right and an essential part of the bereavement
process and in coming to terms with the death. All of the families
who have sought our assistance have been motivated by a need to
establish the truth for their own peace of mind, and to prevent
others going through the same experience. Above all, they want
an acknowledgement of fault or responsibility where appropriate,
an apology where an apology is due, for justice to be seen to
be done and for lessons to be learnt.
24. Maximising the possibility for families
and friends to discover the truth is the guiding principle of
INQUEST's casework service. The family can have a real information
deficit after a death in custody. They have a very steep learning
curve to understand the various investigations that are initiated
by such a death. Some professionals argue that the family should
not be overloaded with information. But all families have told
us how access to proper information and advice is crucial in ensuring
that they are aware of their rights and it is the responsibility
of the state to ensure that this happens at the earliest possible
opportunity.
25. This should include information about
access to the body, post-mortems, organ retention, rights regarding
disclosure, the inquest process, and legal rights. These principles
apply equally to deaths in other circumstances
26. In our experience the nature of the
circumstances of many of the deaths on which we work inherently
attracts prejudice and strong feelings. The majority of families
we work with do not experience the system as compassionate. Families
feel overwhelmingly excluded, dissatisfied and let down by it
as a process for establishing the facts. The coroner's inquest
has become an arena for some of the most unsatisfactory rituals
that follow a death—accusations, deceit, cover-up, legal
chicanery, mystification; everything but a simple and uncontroversial
procedure to establish the facts.
27. The limited ambit of investigations,
ineffective inquiries and the failure to prosecute those responsible
have all been issues for bereaved families. They have also increasingly
become an issue in law both in the ECHR and in the domestic courts.
LEGAL DEVELOPMENTS
28. The most significant recent development
in coronial law has been the implementation of the Human Rights
Act and the direct incorporation of Article 2 (the right to protect
and safeguard life) into domestic law. Alongside this two significant
House of Lords judgments (Amin[47]
and Middleton and Sacker[48])
have impacted on procedure in coroners courts.
29. The obligation on the state to protect
the right to life requires the state taking appropriate measures
to protect life, to investigate deaths and ill treatment in custody
thoroughly and to prosecute where there is sufficient evidence
to justify proceedings.
AMIN
30. The decision of the House of Lords in
the case of the SSHD ex-parte Amin (October 2003), established
consistent minimum standards for the state's duty to investigate
deaths in custody. [49]
31. The House of Lords ruled that whichever
form the investigation takes there are minimum standards, which
must be met as set out in Jordan v UK[50].
The Court concluded in Jordan that there were five essential requirements
of the investigatory obligation: independence; effectiveness;
promptness and reasonable expedition; public scrutiny and accessibility
to the family of the deceased. The lack of an investigation which
embodies the requisite qualities will and of itself constitute
a violation of Article 2.
32. The Court ruled that such requirements
apply with at least equal force to a "state neglect"
or omission case (relevant to deaths in police custody) as to
a state "lethal hands" case.
33. Many of INQUEST's concerns about the
inquest process were put forward for the family at the Amin hearing
including: inconsistency of disclosure of evidence to the family
despite the Home Office circular; inconsistency of funding; the
narrow boundaries to the jury's findings; coroners' current restrictions
upon system neglect. The Amin judgment recognized these concerns
as legitimate.
34. There is now strong recognition of the
need for more effective investigation than can be currently provided
by inquests. The issues raised about individual and system neglect
in the Amin judgment, although rare, are sadly not unique. Until
reformed substantially there is strong judicial recognition for
the need for more effective investigations than can be provided
currently by inquests and provides an important incentive to accelerate
the programme for inquest reform.
35. This legally significant case has been
brought about because of the courageous struggle by the family
of the deceased whose campaigning will contribute to the future
protection of vulnerable prisoners. Lord Bingham recognised this
as one of main purposes of the investigation and thereby humanely
connected the needs of the bereaved with the duties of the state.
[51]
MIDDLETON AND
SACKER
36. In the House of Lords cases of Middleton
and Sacker (11 March 2004) their Lordships affirmed that Article
2 of the ECHR required there to be an effective official investigation
into a death involving the state. Both cases concerned prisoners
who had hanged themselves in prison in circumstances where prison
officers and health care staff might have done more to prevent
the death.
37. The critical function of a coroner's
inquest is to determine how a person came by their death. The
word "how", as used in inquest law, is contained in
section 11(5)(b)(ii) of the 1988 CA and rule 36(1)(b) of the 1984
Coroners Rules.
38. Before Middleton, the case of Jamieson[52]
had held that "how" in the primary legislation should
be interpreted as "by what means" and not in "what
circumstances"
39. The effect of that judgment was threefold:
a. First, to narrow the circumstances in
which state responsibility for failing to prevent a suicide could
be reflected in the conclusion of a jury;
b. Second, it limited the scope of the inquiry
to the means and not the circumstances by which the death had
come about; and
c. Third, Jamieson required inquest juries
to follow a highly restrictive concept of causation based on the
requirement of a "clear and direct causal link" to the
death as opposed to a requirement for them to be satisfied that
an act or omission had acted as a "material contributory
cause"—that is to say "a more than minimal cause"
of a death—a test that we know operates in other areas of
civil and criminal law every day of the week.
40. As a result of Middleton, the word `how'
is now to be interpreted as "by what means and in what circumstances".
41. Inquest juries now have more opportunity
to draw attention to any failings in the circumstances surrounding
the death through the use of more narrative verdicts, or in answers
to questions put to them on factual matters by the coroner.
42. This recent ruling signifies a major
breakthrough for inquest law. The essence of these decisions is
that they require an inquest to return verdicts which properly
reflect:
a. Whether a person takes their own life
in part because the dangers of their doing so were not recognised
by the prison authorities;
b. Whether appropriate precautions could
have been taken to prevent the death.
43. These two judgments have positively
impacted on the inquest system and we hope that the spirit and
actuality of the judgments will be reflected in the proposed reforms
of the system. But they have also demonstrated how under-resourced
and unfit the current system is to meet the requirements of the
current law.
FUNDING
44. For families to participate effectively
in the investigation and inquest process they need legal representation.
Despite welcome reforms to the funding regime, INQUEST is still
dealing with ongoing problems in obtaining public funding for
legal representation for families and their operation is proving
an additional stress for already distressed families who find
themselves enmeshed in a legal system following a death in custody
about which they have no choice. INQUEST Lawyers Group members
are constantly engaged in huge amounts of work to obtain funding
for legal representation with little uniformity of approach to
decision making in the various Legal Services Commission (LSC)
offices across England and Wales. Much work is still undertaken
on behalf of bereaved people pro bono.
45. It has often been the lawyers instructed
by the family who have pushed these boundaries to secure funding
for some families. But this funding is sporadic and needs to be
consistent. It still remains the case that unlimited public funding
is available for experienced, good quality lawyers to represent
the police, Prison Service and other bodies, while those representing
families have to make lengthy and time-consuming representations
to the Legal Services Commission for the little funding they receive.
INQUEST is also concerned that the introduction of limited public
funding has not been accompanied by a concurrent introduction
of appropriate quality standards for those representing bereaved
people. We have witnessed and heard of lawyers representing families
sitting through weeks of inquest hearings and making little or
no verbal intervention at all.
DELAY IN
CUSTODY INQUESTS
46. Another illustration of how the system
is failing is the serious delay from the death through to the
investigation and subsequent inquest. Delays of one or two years
are not uncommon—in part due to the length of time such
investigations take, the lack of resources available to coroners
and the fact that these are jury inquests and can last up to two
weeks or longer. This is often made worse by the shortage of suitably
qualified forensic pathologists and other experts. The delay clearly
causes all concerned great difficulty but this is particularly
so for bereaved people who have described how their lives have
been put on hold until they have been through the inquest process.
INQUEST's evidence-based research on families' experience of the
inquest system has highlighted the detrimental effects that delays
in finding out how a relative has died has placed on the physical
and mental health of family members. [53]
47. As there is no public scrutiny of the
death for such a long period, the opportunity for identifying
what went wrong and to seek to prevent recurrences in the future,
learning the lessons and preventing other deaths is seriously
delayed.
CONCLUSION
48. In conclusion we consider the system
is long overdue for reform and can provide further and more detailed
evidence to illustrate INQUEST's concerns if required.
Deborah Coles
Helen Shaw
Co-directors
INQUEST
February 2006
43 INQUEST 2004, also available from www.inquest.org.uk Back
44
How The Inquest System Fails Bereaved People (INQUEST 2003) Back
45
Also available to download from www.inquest.org.uk Back
46
Deaths in Custody: Third Report Of Session 2004-05. Volume II:Oral
and Written Evidence. HL Paper 15-II and HC 137-II. Joint Committee
on Human Rights (The Stationery Office 2004) Back
47
R v. Secretary of State for the Home Department ex parte Amin
[2003] UKHL 51 Back
48
R v. Coroner for the West Somerset and other ex parte Middleton
[2004] UKHL 10 and Regina v. Coroner for West Yorkshire ex parte
Sacker [2004] UKHL 11 Back
49
See "Amin: The Legal Significance"". Paddy O'Connor
QC, Inquest Law issue 6, January 2004 Back
50
Jordan and ors v. UK (2001) 37 EHRR 52 Back
51
O'Connor op cit Back
52
R v. North Humberside Coroner ex parte Jamieson [1995] QB 1 Back
53
Chapter 5-How The Inquest System Fails Bereaved People (INQUEST
2003) Back
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