The
Chairman: Thank you, Mr. Rebello. You have left
the Committee with a certain amount to think
about. Mr.
Rebello, Helen Shaw, Deborah Coles, Alison Cox, Professor Furness,
thank you all very much indeed for coming and for affording us the
benefit of your opinions and your experience. Parliament is indebted to
you. I
hope that the buses come along. Have a safe journey
home. 5.27
pm
The
Chairman: I welcome Anita Coles and Isabella Sankey from
Liberty. I invite David Howarth to put the first series of questions to
you.
Q
120David
Howarth (Cambridge) (LD): I want to ask about secret
inquests, data protection and the information-sharing orders in the
Bill. I invite you to give the Committee your view of clauses 11, 12
and 13 on certifying jurorless inquests.
Isabella
Sankey: We have grave concerns about the clauses 11
to 13 governing secret inquests. We regard these as breathtaking
measures, which have been reintroduced after being deleted from the
Counter-Terrorism Bill last year with very little consultation. Our
view is that the grounds on which a certification can be made have been
broadened, despite the cross-party opposition to the proposals when
they were first brought in. Our concerns about these proposals are
manifold. The
starting point is that we are talking about Executive control over
whether juries can be convened at inquests. We do not see any cause for
the Executive to be involved. We think that it would breach article 2,
which requires investigations to be impartial, and it would also mean
that the bereaved and the public were excluded, also breaching article
2. We do not see how the proposals could be compatible with
it.
On
safeguards, there is a provision for judicial review in the Bill,
although, that was always possible under the previously drafted
provisions. As the judicial review would be on whether something was in
the public interest, we think that it would be extremely difficult to
challenge the inquest in practice. We do not regard it as a safeguard
at
all.
Q
121David
Howarth: On the relationship between the publicity of the
inquest, whether the family is allowed in and article 2, are there are
any circumstances in which an inquest could be held in camera or, as
the Government say, are there extreme circumstances in which it could
happen, but you believe that it needs more safeguards or
conditions? Isabella
Sankey: We are saying that there are no
circumstances in which an inquest in an article 2 scenario could be
helped with a blanket prohibition on a jury. There are, of course,
measures to exclude certain bits of information from the public, from
families or from any individuals whom the coroner decides need to be
excluded in the interests of justice We do not take issue with the use
of the special measures available to coroners, but we do not see how
any of the reasons put forward justify the blanket prohibition of a
jury and the involvement of the Executive in deaths, which are likely
to be extremely politically
contentious.
Q
122David
Howarth: So you are distinguishing between the exclusion
of the jury and measures to keep information out of the public domain.
Those are two separate
issues. Isabella
Sankey: Absolutely. In our view there
is nothing really that should distinguish the operation of
coroners’ courts from how juries operate in a criminal context,
where, of course, public interest immunity certificates can be issued
and there are special measures for witnesses. We have seen that
operating in the coronial system for decades, and we do not see any
arguments to justify any more exceptionality in that
area.
Q
123David
Howarth: What about the suggestion that juries could be
vetted, as they are in the criminal justice system, for espionage and
terrorism trials? That is a possibility under the
Attorney-General’s guidelines on jury checking. Could that be
applied to the coroner’s court?
Isabella
Sankey: In principle, we would not take
issue with measures that already exist in the criminal justice system
being introduced into the coronial system. We do
not see that there is a principled area to differentiate, as it were.
With the measures that are already possible—excluding certain
persons or pieces of information—we do not see why further
measures are necessary in that
context.
Q
124David
Howarth: Can I move on to data protection and the
information sharing aspects of the Bill? What do you think of those
information-sharing aspects? Are they compatible with human rights
protection?
The
Chairman: Just before we move on to data protection, are
there any other questions relating to the first line of
questioning?
Q
125Mr.
Boswell: I wonder whether there is an alternative approach
to what you say, as I understand it, must include an absolute right to
have jurors and the handling of evidence within already set
precedents—I think that that would be a summary of where you
are. I am relatively fresh to it, but one of my concerns is that the
Secretary of State is the certifying authority. Would it be at least a
compromise, if not a halfway house, to say that the Secretary of State
could not certify, but could apply to a High Court judge to certify
that such an inquiry was appropriate? That would be a safeguard, as it
were, so that one would not have the potential moral equivocation of
the two capacities—the Secretary of State as a member of a
Government which might have authorised something which led to a death
in custody, for example, and at the same time being able to fix the
inquiry so that it would not cause embarrassment to that Government.
Could you take the decision process, if the Government think it is
essential, out of the hands of Government
itself? Isabella
Sankey: The involvement of the Executive in the way
that you describe would still be extremely problematic in terms of
independence. In terms of public perception, as I said earlier, we are
talking about inquests into what are often the most contentious of
circumstances—where people have died at the hands of the state.
Any involvement of the Executive in trying to keep the surrounding
circumstances of those deaths secret would be hugely publicly
contentious and would have enormous implications for public trust and
public
confidence.
Q
126Mr.
Edward Garnier (Harborough) (Con): The Secretary of State
for Justice, Mr. Straw, and, I believe, Ministers on this
Committee, have from time to time batted the matter back to those of us
concerned about the principle of these secret inquests, including
yourselves, asking what we would suggest; there must be occasions when
it is in the national interest, for one reason or another, that certain
information that might be relevant to the inquest is not disclosed to
the public, and sometimes not even to the families. Do you have a
bedrock principled objection to the types of inquest suggested under
clause 11, or may there be occasions when some form of inquiry into a
death has to be conducted without full public knowledge of what is
heard by the tribunal—be that a High Court judge or another form
of
coroner? Isabella
Sankey: In terms of what is currently
available under public interest immunity certification—I think
that really answers the point that you are making concerning
knowledge of matters which are a cause of enormous sensitivity when it
comes to national security and so on. We do not see why there should be
any difference between the arrangements that are currently in place in
the criminal justice system, whereby the judiciary can hear ex parte
applications from the prosecution as to why the existence of certain
information cannot be revealed to the defence, let alone the subject
matter of that information. I do not really see a problem with keeping
certain information secret, and that can be accommodated within the
system of jury
inquests.
Q
127Mr.
Garnier: You were not in the Chamber of the House of
Commons this afternoon during Justice questions, but one of the answers
that the Secretary of State gave when Opposition Members were putting
precisely those points to him went broadly along these lines: with a
prosecution, if the Crown wanted to keep something secret and the judge
or the criminal court is not amenable to an application for PII or any
equivalent, the prosecution has the discretion not to proceed with the
prosecution. There is no such discretion with an inquest; the coroners
system requires that the death is looked into. Do you think there is
anything in that distinction, or do you think the Secretary of State is
perhaps not thinking this through carefully
enough? Isabella
Sankey: I think definitely the latter.
It is completely illogical to argue that the state is entitled
potentially to breach its article 2 obligations in order to fulfil its
article 2 obligations because they have to continue with the inquest.
That argument is tautological and does not really hold up. I would also
argue that the state does not have the prerogative to stop judicial
review proceedings, where PII certificates are issued. We are talking
about exactly the same kind of scenario that you have in inquest
proceedings, so I do not think that that distinction holds any
water.
Q
128Mr.
Garnier: Have you been able to enter into any direct
discussions with officials or Government Ministers about your concerns,
other than by kindly supplying the Committee with you written
concerns? Isabella
Sankey: We always engage with the Government on
anything that they are bringing forward, and we try as far as possible
to offer alternatives and to get them to hear our
suggestions.
Q
129Mr.
Garnier: What has their response been to your
suggestions? Isabella
Sankey: I understand that, as with any Bill, there
will be a chance for amendment and a chance to look again at some of
the provisions introduced. We hope to engage further on
it.
Q
130Mr.
Garnier: But you have not had face-to-face discussions
with Ministers or
officials. Isabella
Sankey: Yes, we
have.
Q
131Mr.
Garnier: You have. And they said that you should wait for
the
Bill. Isabella
Sankey: We should wait for the Bill scrutiny
process.
Q
132Mr.
Garnier: You must be hugely confident that what you are
proposing will be included in the
Bill. Isabella
Sankey: We are hugely confident that there will be
enough cross-party opposition to the proposals contained in clauses 11
to 13 that we will be able to negotiate with the Government on their
proposals.
Q
133Mr.
David Kidney (Stafford) (Lab): Are you saying that if the
stakes are extremely high—for example, a person’s life
depends on their identity not being disclosed, or a terrorist might
learn how to avoid detection if he learns how another person was
detected—the inquest should go ahead with a jury, and that the
jury would not disclose such information to anyone at the end of the
inquest? Or are you saying that there are sufficient safeguards for
such information to be kept from the jury? I am not clear on that
crucial
point. Isabella
Sankey: Absolutely. Often there are very high stakes
in such proceedings. Our point is that safeguards are already in place
to ensure that certain individuals are not identified and
that various bits of information are kept from the jury or the public
when such inquests are held. In fact, it was in the case of
McCann and others v. United Kingdom that article 2 obligations
in circumstances where somebody has died at the hands of the state were
first developed by the European Court of Human Rights. In that case, an
inquest had taken place and certain information about the security
personnel involved in what was, ultimately, the killing of suspected
IRA terrorists was kept from the jury. There were no problems in that
case in respect of how the inquest had proceeded. Article 2 obligations
were fulfilled, people’s identities were protected, and the
balancing act was achieved under the current inquest
system.
Q
134Mrs.
Moon: I would like to ask a question about a
situation that is not at all politically contentious. If a child dies
or a child commits an offence, their identity would be kept
confidential in the court proceedings. The media would be excluded from
the court and would not be able to report on their identity. Families
have told me about being extremely distressed when their child’s
death was reported in the media. Do you think there could be a scenario
in which families could request that confidentiality in respect of
reporting be upheld in a coroner’s hearing in a case where a
child has
died? Isabella
Sankey: I do not see any problem with
family involvement or the opportunity for families to make
representations. In fact, although we object strongly to clauses 11 to
13, as I have outlined, we welcome the way in which the Bill recognises
the involvement of the bereaved with the charter and so
on. The
kind of judgments where confidentiality is at stake are often best left
for judicial control. Judges can undertake a balancing exercise in the
interests of justice and decide whether certain pieces of information
about the identity of the person or the circumstances in which they
died should be revealed and how much information should be given. Such
matters should be assessed on a case-by-case basis and coroners should
have
discretion.
Q
135Mr.
Boswell: I am grateful for these exchanges. Given my lay
status, could you walk me through the situation that might apply? We
know that there is sensitive information, and that there may be
individuals whose
identity is sensitive and may be more readily protectable, but, of
course, the evidence is important. If it is under a public interest
immunity certificate, depending on the nature of that certificate, it
will not be disclosed to the jury. If that is the case, how can the
jury come to a verdict if they have not heard all the evidence? I take
it—I am trying to complete my own thought process—that in
a criminal case, a judge will have heard that information and will
incorporate it into his or her summing up to the jury. In a
coroner’s inquiry, there is obviously a slightly different
procedure. That would concern me not least because we still
have—and the Bill will provide for—vested rights for some
non-judicially qualified coroners to continue. Perhaps that would not
apply in this special case because it requires the appointment of a
High Court judge. Is there a worry that you would not be able to get
the information out of protection to whoever was making the decision
with regard to the inquest? First, can you confirm that I have more or
less understood what is happening, and, secondly, give me your
assurance that it could
work? Isabella
Sankey: Yes, you have absolutely understood the
position. Obviously the situation in which a jury is not able to have
access to all the information is not a perfect scenario for an inquest
to take place. The key to reflecting the lack of knowledge of the jury
is in the verdict and the way in which it is phrased. That brings me on
to some of our other concerns about the Bill, which include allowing
for short verdicts to continue. In our experience, narrative
verdicts—particularly in situations in which the state has been
implicated or responsible for the death of a person—are a lot
more satisfactory for the bereaved and really help with their sense not
necessarily of closure but that justice has been done and that their
hurt has been recognised. In the situation that you are talking about,
a narrative verdict given by a jury could state that not all the
information was put to them or that certain things were excluded. That
could be an exercise that is negotiated between a coroner and a
jury.
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