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Memorandum from
http://www.liberty-human-rights.org.uk/publications/1-policy-papers/index.shtml
Overview
1. The Government's zeal for reform of the criminal justice system has been a prominent feature of its administration. Liberty has agreed with many of these reforms, but has expressed concern about a number of measures that have been ill-thought out and impact adversely and unnecessarily on traditional rights and freedoms. We welcome many of the provisions contained in the Coroners and Justice Bill, especially the broad reforms of the coronial system, which have been long overdue. However, the government has introduced a number of provisions that raise significant concerns. Liberty's Second Reading Commons Briefing[1] on the Bill details several areas of specific concern. Here we produce a shorter summary of our key concerns. This briefing considers Part 1, which relates to coronial reform. Our particular concern relates to the reintroduction of proposals for the Secretary of State to certify 'secret inquests' after deaths at the hands of the State (a measure dropped from the Counter-Terrorism Bill in 2008).
Part 1 - Coroners etc
2. Part 1 of the
Bill is designed to address the failures in the current coronial system,
largely unchanged since the 19th century, and will replace the Coroners Act 1988 (the 1988 Act). The stated aims of the
coroners system are, to "serve family and friends by clarifying the causes
and circumstances of death, contribute to the health and safety of the public
and provide information on mortality and pr
3. Clause 1 sets out a duty to investigate certain deaths. The circumstances in which the duty will apply largely mirror the requirements currently in place under section 8(1) of the 1988 Act but the current duty to investigate where a death occurs 'in prison' has been extended to cover circumstances where the deceased "died while in custody or otherwise in state detention". The explanatory notes state that this will include deaths in "prison, in police custody, or in an immigration detention centre, or held under mental health legislation". The requirement that a death be 'sudden' has also been removed. Liberty welcomes this extension which better reflects the State's Article 2 obligations to protect life.[4] The state's obligations following a death in custody were expressed by the Court in Jordan v UK[5]: to give the deceased's family the truth; ensure that lessons are learnt to improve public health; and to ensure that, if appropriate, criminal proceedings are brought. This position was confirmed by the House of Lords in Amin.[6] The requirements are that the investigation must be made on the initiative of the state (i.e. not civil proceedings); independent; effective; prompt; open to public scrutiny; and support the participation of the next of kin.
4. Clause 5 covers the purpose of the coronial investigation and matters to be ascertained. Sub-clause (1) lists as the purposes: "who the deceased was; how, when and where the deceased came by his or her death; the particulars (if any) required by the 1953 Act to be registered concerning the death". Sub-clause (2) inserts: "where necessary in order to avoid a breach of any Convention rights (within the meaning of the Human Rights Act 1998, the purpose mentioned in sub clause (1) is to be read as including the purpose of ascertaining in what circumstances the deceased came by his or her death". This new sub-clause is welcome. It represents a positive recognition of the State's duties under Article 2 to investigate the wider circumstances of a death where State action (or inaction) may be involved.
5. Clause 10 is
linked to clause 5 in that it governs the outcome of investigations. The
requirement under clause 10(1)(a) that the senior coroner (or jury where there
is one) make a 'determination' as to the factors listed in clause 5(1) is
broadly similar to the current rule in the 1988 Act. Liberty welcomes the
addition that the determination must include the circumstances of the death in
Article 2 investigations. We do, however, believe that clause 10 could go
further. Clause 10(1)(b) requires the coroner or the jury to make a 'finding'
at the end of an inquest as to the particulars to be registered under the 1953
Act.[7]
This continues the current system allowing for short verdicts (such as
'unlawful killing' or 'misadventure') in non-article 2 cases which can become
an additional source of distress to the bereaved. Short verdicts give an
inadequate explanation of the circumstances of death and can be applied inconsistently.
Liberty believes the extension of narrative verdicts to all inquests would
provide better answers to questions the bereaved have about the circumstances
of the death as well as pr
Secret Inquests
Clause 7 governs the use of a jury inquest. The general rule is that an inquest must be held without a jury. Sub-clauses (2) and (3) set out exceptions to this rule and give the coroner the power to decide to hold an inquest with a jury in any case where he or she thinks it is appropriate. These parts of the clause are modelled on section 8(3) of the 1988 Act. However, the Bill dramatically departs from current rules at clause 7(1) which provides that rules concerning jury inquests are subject to provisions governing 'certified investigations' found at clause 11. Clause 11 introduces a provision which would gravely limit transparency, and increase executive control, over the inquest process. Clause 11(1) allows the Secretary of State to issue a certificate that an inquest will be held without a jury giving the Secretary of State significant scope to intercede in inquest proceedings. The removal of juries will effectively allow 'secret' inquests to take place following deaths that result from state actions. This unhappy provision was first introduced in the Counter-Terrorism Bill 2008 (CT Bill). Following a public outcry and concerted cross-party opposition to the proposal, proposals for secret inquests were dropped after the CT Bill entered the Lords.
6. Media reports surrounding the re-introduction
of the provisions in the current Bill have indicated that the 'secret inquests'
have returned with greater safeguards in place. In fact the reverse is true.
The grounds for the removal of a jury (which were already extremely broad in
the CT Bill) have been extended and now cover situations where the inquest will
involve material that should not be made public: 1) in the interests of
national security; 2) in the interests of a relationship with another country;
3) in the interests of pr
7. Determinations as to whether an inquest will be held without a jury are made solely by the Secretary of State. The only potential challenge to a decision to hold an inquest without a jury would be by way of Judicial Review (JR) in the High Court.[9] However, the purpose of a JR would be to challenge the legality of the decision not to allow a jury. Given that the grounds for the Secretary of State to make a determination cover a broad non-specific 'public interest', the decision could prove difficult to challenge in practice. The Bill does not specifically state that other interested parties, such as family or legal representatives, are excluded. However, the basis for deciding that a jury should be excluded is that "the inquest will involve consideration of material that should not be made public". By implication anyone who is not security cleared is likely to be excluded from proceedings in the same way that they would be from, for example, closed sessions in control order proceedings.
8. We have serious concerns about the impact that jury removal would have on public confidence in the inquest system. We also question the compatibility of the proposals with the UK's legal obligations. Exclusion of the jury and the family would seem to conflict with the requirements of family involvement and public scrutiny established in Jordan v UK.[10]
9. A more general concern is the impact on public confidence in the inquest process. Almost by definition the inquests to which these provisions would apply are likely to involve controversial or violent deaths. If these provisions were already in place it is likely that they could have been applied to the inquest into the shooting of Jean Charles de Menezes. Any decision will be inherently political. Other inquests might raise similar issues to the de Menezes inquiry but not have the same profile or risk the same political fallout. Political considerations risk inconsistent decision-making when based on such arbitrary grounds as 'public interest'.
10. We can see no reason why these proposals are necessary and we do not believe that any of the Government's arguments stand up to scrutiny. Measures already exist to ensure that matters in the public interest can be suitably accommodated in inquest proceedings. These include the issuing of Public Interest Immunity certificates; the power to hold part of an inquest in camera; the power to restrict certain details from media reports; and the use of special measures. One of the main planks in the government's argument seems to be that because jury inquests account for only 2% of the total number of inquests in England and Wales the proposals for secret inquests won't have a huge impact on fundamental rights. As Inquest has rightly argued, "this is a false and misleading argument. It is the investigation of the most serious and most contentious deaths that will be affected by this legislation - deaths at the hands of state agents. The removal of public scrutiny from these proceedings is therefore highly significant".[11] Of further worry is the government's recent reasoning which, if followed to its logical conclusion, could justify scrapping juries in any or all criminal cases.
11. The Government's arguments are even further undermined by clause 13 which amends section 18 of the Regulation of Investigatory Powers Act 2000 (RIPA) to allow intercept material to be admissible in inquiries in 'certified investigations'. The piecemeal removal of the general bar on the use of intercept is a continuing trend[12] and represents a tacit acceptance of the use of intercept material. There is no reason why the removal of the ban needs to be limited only to 'certified investigations'. It would be far more sensible to simply remove the bar and allow established rules of evidence, both in criminal and other proceedings, to determine the appropriateness of admissibility in individual cases. In fact a complete removal of the ban could represent the final nail in the coffin for the secret inquests plan.
12. The only retreat on this issue is an amendment to the proposal for 'specially appointed coroners' as originally proposed in the CT Bill. Clause 65 of the CT Bill originally sought to allow for the appointment of coroners by the Secretary of State in specific cases. Indeed under initial proposals this could have even happened during an ongoing inquest - allowing the first coroner to be replaced with the politically appointed alternative. Such direct governmental interference with the inquest system would have severely undermined public confidence. The purpose of an inquest is to provide an independent determination of law and evidence. Allowing direct executive interference would prejudice this independence.[13] Liberty is relieved that such direct interference is no longer being envisaged.[14] Instead it is proposed that where a certification has effect, the investigation must be conducted by a judge of the High Court nominated by the Lord Chief Justice (clause 11(3)(a)). While this is preferable to what was initially proposed it does not alter our fundamental opposition to the secret inquests proposals.
Suspension and resumption of investigations
13. Clause 14 and
Schedule 1 make provision for the suspension and resumption of investigations.
Liberty understands the policy objective of pr
14. Paragraph 7 of Schedule 1 governs the arrangements for resuming investigations suspended because certain criminal proceedings have been brought. Under sub-clause (1) a suspended investigation may not be resumed unless the senior coroner thinks that there is sufficient reason for resuming it. Liberty believes that there should be a rebuttable presumption that, in cases where Article 2 obligations arise, the inquest will be resumed.
Operation of the coronial system
15. Clause 22 and Schedule 3 sets out the procedure for the appointment of coroners, qualifications required and terms of office. Clause 32 enables the Lord Chancellor to issue guidance about how the system is expected to operate for interested persons. The first of such guidance, in the form of the draft Charter for the Bereaved, was published at the same time as the Bill. We strongly welcome the introduction of the Charter which sets out the rights of the bereaved in the coronial process, the objectives and values of the coronial system and the expected standards of service. The Charter should help the Government fulfil their Article 2 obligations and should help ensure consistency of practice in the treatment of the bereaved.
Recommendations
16. Paragraph 6 of
Schedule 4 gives the senior coroner the power, at the end of an inquest, to
make a report to a person who the coroner believes may have power to take such
action with the view to pr
17. Coroners have, in the past, made making identical findings and recommendations which were not implemented.[15] The previous draft Coroners Bill gave a nod towards this problem with provision made for the Chief Coroner to report to Parliament so that contentious issues could be scrutinised. However, while this alone wouldn't have been sufficient to address the problem of recommendations, the current Bill seems to have recoiled from this relatively mild measure. The Government claims that this Bill is aimed at meeting the needs of the bereaved yet one of the primary concerns of the bereaved is that lessons should be learnt from their loved-ones death. This is unlikely to happen under this Bill. It is vital to the improvement of public safety that mechanisms to implement change are written onto the face of the Bill.
18. Liberty believes that if proper recording mechanisms are established inquests can have long term benefits.[16] We believe that recommendations should be made at the end of every inquest, and that these be centrally recorded and monitored.
Appeals
19. Clause 30 provides a right of appeal of interested persons to the Chief Coroner against decisions that fall within sub-clause (2).[17] Under the current coronial system there is no appeal as such against a coroners decision, short of judicial review.[18] We therefore welcome plans to allow interested persons to appeal decisions. This is a fundamental and important reform which brings greater accountability to coroner's decisions. We do however have concern about the power reserved in clause 30(5) which enables the Lord Chancellor to change the list of decisions that can be appealed by order.
Interested Persons
20. Clause 36 lists those that come within the definition of an 'interested person'. Interested persons have, amongst other things, the right to appeal against certain decisions made in the course of investigations and inquests (by way of clause 30). Clause 36 expands the list of interested persons to include the IPCC. This expanded definition would give the IPCC the right to appeal against a senior coroner's decision or failure to make a decision. This extension provides the IPCC wide scope to intervene in the coronial process. The Government's policy behind this extension should be articulated. At this stage we believe that at the very least, the decisions which the IPCC would be able to appeal should be limited in scope.
February 2009 [1] Available at http://www.liberty-human-rights.org.uk/pdfs/policy-09/coroners-and-justice-second-reading-briefing.pdf [2] [3] Q107 in Mr Round's evidence to the Constitutional Affairs Committee. [4] Article 2 of the European Convention of Human Rights as incorporated into the Human Rights Act 1998 (HRA). [5] (2001) 33 E [6] Ex Parte Amin [2003] UKHL 51; [2004] HRLR 3. [7] Births and Deaths Registration Act 1953. [8] Clause 11(2). The two
additional grounds for jury removal are 3 and 4: in the interests of pr [9] While JR of a decision not to allow a jury would have always been possible under the proposals in the CT Bill, clause 11(5) in the current Bill inserts a 14 day staying period before certification can have effect to allow for any JR challenge. This appears to have been included in an attempt to show that concerns over 'secret inquests' have been addressed. [10] Summarised at paragraph 3 above. [11] Inquest's Briefing on the Counter-Terrorism Bill 2008 for the House of Lords Committee (page 3). [12] The Counter-Terrorism Act 2008 recently introduced a number of other exceptions to the general RIPA ban on the use of intercept. [13] Similar
criticisms of these proposals have been made by: the JC [14] This proposal was scaled back during the passage of the CT Bill before the coroners provisions were removed altogether. [15] These
are referenced in [16] See our 2003 report: Deaths in Custody: Redress and Remedy [17] Including among other things: a decision whether or not to conduct an investigation; a decision whether to discontinue an investigation; a decision whether to resume a suspended investigation; a decision not to request a post-mortem examination; a decision whether there should be a jury at an inquest; and a decision embodied in a determination or a finding. [18] Applications can be made to the High Court under section 13 of the 1988 Act if a coroner refuses to hold an inquest or where a fresh inquest is required but there is no general appeal route. |