1. INQUEST is the only non-governmental
organisation in England and Wales that works directly with the
families and friends of those who die in all forms of custody—deaths
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. It provides
an independent free legal and advice service to bereaved people
on inquest procedures and their rights in the coroner's court.
It also provides specialist advice to lawyers, advice agencies,
policy makers, the media and the general public on contentious
deaths and their investigation. INQUEST has a free information
pack for any bereaved family that explains the whole process and
where to find emotional and practical support. It also monitors
deaths in custody, where such information is publicly available,
and identifies trends and patterns arising.
2. We have accrued a unique and expert body
of knowledge on issues relating to deaths in custody and seek
to utilise this towards the goal of proper post-death investigation,
the prevention of custodial deaths and improvements to the inquest
system. Since it was founded in 1981 INQUEST has been at the forefront
of working alongside bereaved people to bring the circumstances
of the deaths into the public domain and under public scrutiny
and to hold the relevant authorities to account. We have reported
our concerns about custodial deaths and their investigation at
a national and international level.[2]
3. Over many years there have been a significant
number of deaths in custody that have raised public and parliamentary
disquiet. These and other contentious deaths often raise policy
issues and issues of accountability which we believe are the proper
business of parliament.
4. INQUEST has considered the four points
that the committee ask written submissions to be guided by, namely:
(i) Should there be a separate sub judice
rule for coroners' inquests?
(ii) Should the point at which coroners' inquests
become "active" for the purpose of the rule be redefined?
(iii) Is the Chair's discretion to disapply the
sub judice rule where necessary an effective mechanism?
How does it operate in select committee proceedings?
(iv) How do other Parliaments or legislatures
apply the sub judice rule to similar proceedings?
5. INQUEST does not have the expertise to address
the third and fourth points. Rather, we have restricted our comments
to the first two and present background information about the
investigation of contentious deaths, our views about the current
legal context, examples of past practice and our recommendations
for the future. We set out our experience of how the sub judice
rule has worked effectively in the past; why we do not consider
it to be working effectively at the present time in the Commons
and what we think should be changed.
THE INVESTIGATION
OF CONTENTIOUS
DEATHS
6. As set out above INQUEST has expertise in
relation to the investigation of deaths in detention and the operation
of the inquest system in general. After any sudden and unnatural
death there will be an investigation and an inquest if there are
no criminal charges.
7. In many deaths in police and prison custody
the investigations by the Independent Police Complaints Commission
(IPCC)/Prison and Probation Ombudsman (PPO) and previously the
police on behalf of the PCA often take months and sometimes years
to complete. The file has then sometimes been handed to the CPS
for consideration as to whether charges will be brought and in
the majority of cases this too has taken months and sometimes
years. Once a decision has been made—again in most cases
not to prosecute—the papers are then handed to the coroner
and again there will be a delay of months or years until the inquest
date is set.
8. In specific cases as set out in the Coroners
Act 1988 the inquest will take place in front of a jury. These
are when:
(i) the death occurred in prison or in such circumstances
as to require an inquest under any Act other than the Coroners
Act 1988;
(ii) the death occurred while the deceased was
in police custody, or resulted from an injury caused by a police
officer in the purported execution of his duty (see Section 5
on deaths in police custody);
(iii) the death was caused by an accident, poisoning
or disease, notice of which is required to be given under any
Act to a government department, or to any inspector or other officer
of a government department or to an inspector appointed under
Section 19 of the Health and Safety at Work, etc, Act 1974;
(iv) 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
(Coroners Act 1988 Section 8.3). This gives the coroner the general
discretion to order an inquest to be held with a jury if he or
she believes it to be necessary.
9. The latest published figures show that in
2003 there were 210,700 deaths reported to coroners; inquests
held into 27,100 of the deaths and of those only 640 were held
in front of a jury.[3]
10. Our advice to our service users about
commenting on the circumstances of a death before an inquest is:
"Sub judice and inquests
In relation to inquests there is no strict sub
judice rule. The reporting of the matter in and of itself
is not contempt.
In cases of deaths where possible criminal charges
are to be considered and where papers have been given to the CPS
it is inadvisable for anyone to make in depth public comment where
a description of the events involved in the death is the primary
focus. This is a matter of tactics rather than law. If the CPS
did decide to prosecute, then this would be ammunition for lawyers
defending those charged. They would then have the possibility
of arguing that a fair trial is not possible because of the fact
that there had been adverse publicity in the media. This would
be detrimental to the concerns of the deceased's relatives or
friends.
If a decision is made to prosecute then the matter
becomes sub judice once an arrest is made. If civil proceedings
are to follow an inquest then the matter becomes sub judice
once it is set down for trial—not when proceedings are commenced.
The same applies after an inquest where papers are referred back
to the CPS. This is rare but happens when an inquest has concluded
that the death was an unlawful killing.
It is not a good idea to make public comment while
an inquest or any other proceedings are imminent on the facts
of the case beyond what is already in the public domain. However,
it is still possible to speak about the general issues and concerns
the death raises and the way a family has been treated."[4]
Should there be a separate sub judice rule for
coroners' inquests?
11. There are good positive legal arguments
that coroners' courts should be treated differently for these
purposes.
12. Although the Human Rights Act 1988 expressly
excludes Parliament from the categories of "public authority"
it is to be assumed that Parliament nevertheless wishes to abide
by the HRA, and therefore, Article 2.
13. Unlike other legal proceedings bound by the
sub judice rule, inquests are the primary means by which
the State will discharge its Article 2 investigative obligation.
14. The European Convention on Human Rights does
regard Article 2 as conceptually different to the rights which
may govern other sorts of legal proceedings covered by the sub
judice rule, such as Article 6 (the right to a fair hearing
in a criminal case or civil dispute). See, for example, Jordan
v UK [2001] ECHR 24746/94 at para 102, quoting McCann and
others v UK [1995] ECHR 18984/91, where the ECHR held: "Article
2 . . . ranks as one of the most fundamental provisions in the
Convention . . . Together with Article 3 it also enshrines one
of the basic values of democratic societies making up the Council
of Europe . . . The object and purpose of the Convention as an
instrument for the protection of individual human rights also
requires that Article 2 be interpreted and applied so as to make
its safeguards practical and effective . . .".
15. It is a specific requirement of Article 2
inquiries, unlike other trials, that they include a sufficient
element of public scrutiny, in order to ensure practical as well
as theoretical public accountability for deaths occurring under
the State's responsibility (Jordan at paras 105 and 107).
This is effectively a right of the public, and so is different
to the defendant's right to a trial in public in a criminal case,
or the comparable right of parties to a civil dispute under Article
6.
16. Article 2 also generates a particular need
for openness and transparency, given the public purposes of an
Article 2 inquiry, which are: ". . . to ensure so far as
possible that the full facts are brought to light; that culpable
and discreditable conduct is exposed and brought to public notice;
that suspicion of deliberate wrongdoing (if unjustified) is allayed;
that dangerous practices and procedures are rectified; and that
those who have lost their relatives may at least have the satisfaction
of knowing that lessons learned from his death may save the lives
of others . . ." (Amin v Secretary of State
[2004] 1 AC 653, per Lord Bingham at para 31).
17. The prevention of similar fatalities is clearly
part of the Article 2 function (see Amin above) but has
always historically been part of the coroner's function at common
law, and this does not apply to other sorts of trials. Under Rule
43 of the Coroners Rules 1984 after the verdict the coroner may
announce that he or she will write to the person or authority
that has the power to take action to prevent the recurrence of
similar fatalities.
18. Articles 2 and 13 have also been held to
require the state to permit the public, and especially the relatives
of the deceased, to have access to the investigative process,
which the sub judice rule clearly limits. As the Court
held in Jordan at para 109, "For the same reasons,
there must be a sufficient element of public scrutiny of the investigation
or its results to secure accountability in practice as well as
in theory. The degree of public scrutiny required may well vary
from case to case. In all cases, however, the next-of-kin of the
victim must be involved in the procedure to the extent necessary
to safeguard his or her legitimate interests . . .".
19. Although a key requirement of Article 2 is
that the investigation is conducted "promptly" and with
"reasonable expedition" (see Yasa v Turkey
[1998] ECHR 22495/93 at para 98; Jordan at para 108; and
R on the application of Wright and another v Secretary
of State for the Home Department [2001] EWHC Admin
520 where Jackson J included reasonable promptness as one of the
five necessary features of an investigation compliant with Article
2) we know from experience (as set out below) that inquests into
contentious deaths are subject to uncharacteristic delays due
to the investigations by the IPCC/PPO/Police/other investigation
bodies, the CPS process, delays in arranging juries and lack of
available appropriate court space etc. This means that the problems
referred to above caused by the sub judice rule which are
particularly stark and worrying in inquest cases (lack of scrutiny,
failure to prevent similar fatalities with immediate effect, exclusion
of the family), ironically, can last for a particularly long time
given the frequent delays in inquest proceedings.
20. By a further twist, the delays are likely
to be particularly long in the most serious cases by virtue of
the fact that it is only those where the CPS are likely to be
involved, and hence likely to take a lengthy period of time in
their deliberations.
21. In this submission we hope to show by example
how both Houses of Parliament have addressed such cases in the
recent past and how important it is that Parliament can debate
the issues arising from contentious deaths before the inquest
has been held. This is particularly important given the current
state of the inquest system there can be delays of years before
the inquest is held. We raised these concerns in our written evidence
to the Joint Committee on Human Rights Inquiry into Deaths in
Custody 2004[5];
"144. One of INQUEST's key
concerns about the way in which deaths in custody are investigated
is the serious delay from the death through to the investigation
and subsequent inquests. Delays of over a year 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. 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.[6]
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.
Delays in holding inquests into Article
2 cases ***.
Delays of one to two years are not
uncommon—indeed of the families that gave oral evidence
to the Committee all have had serious delays in the inquests being
heard.
22. Since INQUEST made the submission the
Committee published its report and the Government its response
which is set out below:
The JCHR said at paragraph 304:
"The Article 2 obligation to hold
a prompt investigation is at risk of breach due to significant
delays in the inquest system. INQUEST cite delays of more than
two years in a number of recent deaths in custody cases . . .
such delays are particularly disturbing in cases where systemic
failings are in issue, and may remain unaddressed pending the
inquest. (Where the inquest is the means by which the Article
2 duty of investigation is satisfied following a death in custody,
then significant delays may breach Article 2, which requires that
an investigation into a death be prompt. We are concerned that
current delays may in some instances lead to breaches of Article
2. We emphasise the need for the reviews of the coronial system,
both in England and Wales and in particular in Northern Ireland,
to address delays in the system.)"
[original emphasis]
The Government said:
"The Government shares the concern
expressed here about the delays in the holding of some inquests.
There are often good reasons why it can take time to investigate
complex cases like custody deaths and it is essential for such
investigations to be thorough as well as to take into account
other inquiries being made. While recognising that there can be
reasons for delay it is also crucial to minimise such delays.
There have been some cases where delay is unacceptable; work is
underway to ensure these backlogs are tackled and reduced.
The Northern Ireland Court Service will
shortly publish a response to their recent consultation exercise
on Administrative Redesign of the Coroners Service in Northern
Ireland. This response will set out what changes will be made
to reform the coroner service. It will include the appointment
of a High Court Judge as head of the service supported by three
full-time coroners. It is anticipated that these changes will
alleviate the current backlog of cases and provide the public
with a more professional and effective coroner service."[7]
23. INQUEST is aware that the government is intending
to announce its proposals for reform of the inquest system shortly
but the problems of delay are still current and do not apply only
to custodial deaths.
24. In addition even with reform of the system
there will always be some delay to allow the cases to be properly
investigated to the required standard. Therefore it will still
be appropriate that the policy issues are able to be debated in
the House of Commons before the full inquest hearing is held.
The case of Phillip Prout, the first IPCC police shooting investigation
and in which the CPS moved reasonably swiftly, had a certain delay—he
died on 4 May 2004 and the inquest did not start until 3 October
2005.
25. There is a further artificial distinction
between cases where there has been a death (and where the inquest
would mean that the sub judice rule would bite) and where
there has not been (and where the lack of an inquest would mean
there was no such restriction on parliamentary questions). Such
a distinction did not impress Munby J in R (on the application
of D) v The Secretary of State for the Home Department
[2005] EWHC 728 (Admin) when he ordered a public inquiry in such
a "near miss" case. Menson v UK, Application
No 47916/99, ECHR, 6 May 2003 also makes clear that the Article
2 requirement to undertake an effective investigation in any situation
where there is reason to believe that an individual has sustained
life-threatening injuries in suspicious circumstances, even if
they do not lead to death.
26. The fact that the rule did not historically
apply in its current form to coroners' courts as we show in appendix
1 (not printed) to this submission would suggest there is no principled
reason for it. To reverse the rule would therefore seem hard to
justify on common law grounds, and it looks particularly odd when
the effect of it is to raise serious Article 2 concerns—when
the trend is towards changing established practices and laws to
recognise and accommodate such human rights issues, post implementation
of the HRA in October 2000.
27. Similar anomalies flow from the fact that
(as the first report of the Procedure Committee notes at para
29 et seq)[8]
the sub judice rule would not apply to other tribunals
or inquiries (nor does the Committee recommend it be so extended),
which can raise issues of comparable gravity to an inquest—such
as in Bloody Sunday or the de Menezes case (where there is still
a debate as to whether the appropriate investigation is an inquest
or a public inquiry).
28. As well as Article 2, the right to speak
in Parliament arguably raises the MP's Article 10 rights to free
expression. Unlike Article 2 which is non-derogable and absolute,
to infringe Article 10 requires justification under one of the
grounds set out in Article 10 (2), and proof that the intervention
is necessary in a democratic society and proportionate. The points
suggest that such justification may be difficult to find.
Should the point at which coroners' inquests become
"active" for the purpose of the rule be redefined?
29. In the most contentious deaths (which are
a tiny minority of the deaths examined before a jury at inquests)
where there is a real possibility of criminal charges, INQUEST
has always taken the view that it is appropriate to comment on
the broad issues raised by the death but to avoid speculation
about the precise and detailed circumstances of a death prior
to the conclusion of the investigation and inquest.
30. The Attorney General acknowledged (see para
24 of the Procedure Committee report) the unusual delay in coroners'
cases caused by the fact that inquests are usually formally opened
within a couple of days of the death, but then not concluded for
some years. If the inquest is regarded as "active" for
this entire period it is much longer than in conventional trial
proceedings, where the case is not "opened" within a
few days of, eg the road traffic accident or criminal act, but
only when civil proceedings are commenced or a criminal charge
laid.
31. One way to strike the balance more appropriately
might be for the Committee to follow the practice set out in INQUEST's
advice to service users, ie to only consider the inquest "active"
when it has been set down for hearing. We do not regard the formal
opening of the inquest some days after the death as a key date—the
key date with an inquest is when the date has been set for the
full hearing.
32. In our experience and as we set out at appendix
1 [not printed] we believe MPs can be trusted to raise issues
in parliament in a manner that follows the advice INQUEST gives
to families and their advisors (see above) and that they exercise
their judgement in such a way as to not prejudice inquest proceedings
by asking inappropriate questions. Also, if a particular question
was asked which it was felt might prejudice the inquest or other
proceedings could the Speaker's discretion to disallow a particular
question not bite at that stage? We urge that if this approach
were adopted it should be used on a question by question basis
and not in a manner which forbids any serious discussion of the
issues raised by individual deaths.
33. Given this context parliamentary scrutiny
of the issues that arise is crucial. The examples set out in appendix
1 [not printed] demonstrate how parliament has addressed some
of these issues in the last six years. MPs commented sensibly
and with discretion, and were allowed to do so, at the time of
Roger Sylvester's death in Metropolitan Police custody 1999. Lords
continue to be able to comment sensibly and with discretion in
the second chamber ***. Committees continue to take evidence on
death in custody case histories and the perspective of the organisations
involved in those cases.
34. In the view of INQUEST recent discussions
of the application of the sub judice rule in the Commons
and its application undermine the democratic process. We are not
aware that any complaints were made in the past, or that there
was intrusion into the full effective investigation of deaths
in custody by the legitimate and appropriate exercise of judgement
by the MPs concerned, the Speaker, and relevant House Officials,
for example in the Table Office. Our understanding and experience
has always been that the rule as previously interpreted operated
effectively to ensure that debate upon those cases which raise
political questions of public importance did not interfere with
the legal process.
35. INQUEST is of the opinion that the appropriate
balance between the political public interest and the legal process,
which must of course be protected and allowed to operate effectively
in all cases, has to be considered in inquest cases as distinct
from other legal cases. As we have set out it is common for an
inquest to be held at least two years after the death and not
unusual for the family, and society, to wait much longer to find
out how and why their loved one died and what the lessons are
that can be learnt. In some cases the risk to which the deceased
was exposed was such that reform of procedure and legislation
cannot wait for the inquest verdict and this is recognised by
all concerned. Thus the political debate continues but it is muted
and cannot operate effectively if the sub judice rule is
applied in an over zealous manner in order to neuter all discussion
rather than to filter inappropriate comment but allow informed
debate.
36. A different rule applies in the House of
Lords which, unlike the Commons, has a dual legislative/judicial
function, and so is arguably more closely analogous to a court,
but treated more generously for these purposes.
37. It is for these reasons that we submit it
would be appropriate for the operation of the rule in the House
of Lords to be taken as the precedent in this instance and the
application of the rule in the Commons to be brought in line with
the second chamber. This would ensure comity between the two Houses.
It is important for the parliamentary process, in our view, that
the two Houses operate according to the same standard of scrutiny
of debate in this instance.
January 2006
2 The Ashworth Inquiry 1992; United Nations Committee
on the Elimination of Racial Discrimination 1996 and 2000; Council
of Europe Committee on the Prevention of Torture 1997; Home Affairs
Select Committee on Police Complaints and Discipline 1997; United
Nations Committee Against Torture 1998; Inquiry into the death
of Steven Lawrence 1998; Health Select Committee into Adverse
Clinical Incidents and Outcomes in Medical Care 1999; Health Select
Committee Inquiry into the Provision of Mental Health Services
2000; Attorney General's review of the role of the Crown Prosecution
Service in deaths in custody 2002; Fundamental Review of Coroners'
Services 2002; Joint Committee on Human Rights-deaths in prison
2002; Independent Inquiry into the death in psychiatric care of
David Bennett 2003; Joint Committee on Human Rights Inquiry into
Deaths in Custody 2004; Home Affairs Committee Evidence Session
on Prisons and Overcrowding 2005. Back
3
Deaths Reported to Coroners 2003 Research and Statistics Directorate
Home Office June 2004. Back
4
Inquests-An Information Pack for Families, Friends and Advisors
(INQUEST 2003). Back
5
Joint Committee on Human Rights Deaths in Custody Third Report
of Session 2004-05 Vol II: Oral and Written Evidence HC 15 Vol
II (2004-05). Back
6
Chapter 5-How the inquest system fails bereaved people-INQUEST's
submission to the Fundamental Review of Coroner Services-2002. Back
7
Joint Committee on Human Rights: Government Response to the Third
Report from the Committee: Deaths in Custody: Eleventh Report
of the Session 2004-05 HC 416. Back
8
HC 125 (2004-05). Back
