11. Memorandum from Doughty Street
1. We are writing to convey our written
evidence on behalf of the above chambers, to you as Chair of the
Joint Committee on Human Rights. As part of your inquiry into
human rights and deaths in custody, you have asked for evidence
upon Article 2 of the ECHR and the "investigation of deaths
in custody", which is the question we will address. Members
of our chambers have been at the cutting edge of this issue for
many years, in the conduct of inquests into "custody deaths",
and in challenging their inadequacies by way of judicial review.
2. You will be aware that the Judicial Committee
of the House of Lords is due to rule upon much of this territory
in the case of "Amin v Home Secretary". It is anticipated
that judgement could well be given in October or November. There
will also be further relevant rulings by the same Committee in
the appeal of "Middleton" and the joined case of "Sacker",
both of which more directly concern inquest procedure. The hearing
of those appeals will take place in February 2004.
3. We append the text of the critical paragraphs
from the two leading ECtHR authorities, which definitively interpret
the investigative requirements of Article 2. Those
passages are paragraphs 102-109 from Jordan v UK, 4 May
2001, which are repeated verbatim at paragraphs 69-73 in Edwards
v UK, 14 March 2002. More appears from other parts of those
judgements, but these are the "general principles" establishing
the minimum common safeguards, to be consistently applied in all
Convention jurisdictions. It should however be remembered that
Convention law provides a "floor, but not a ceiling".
There is no impediment to national jurisdictions keeping or even
developing more effective safeguards. For example, there is good
evidence that through inquest juries, we have had forms of public
hearings and investigations into custody deaths for many centuries:
see the Statute de Officio Coronatoris, 1276, cited in
R v Southwark Coroner ex p. Hicks  1 WLR 1624 at
1636: and Hale's History of the Pleas of the Crown, 1736, reprint
of 1971, vol II, Chapter VIII, at p 57. The strength of common
law protections is not diminished by the passing of the Human
Rights Act 1998.
4. In summary, the requirements for a compatible
at the instigation of the state itself: not waiting
for complaints or allegations, see paragraph 105;
independent, meaning lack of hierarchical connection
with those connected with the events: eg in a police custody death;
at least a separate police force would be required: see paragraph
effective: eg gathering eye witness and scientific
evidence to maximise the chance of getting at the truth and if
necessary founding a prosectution: see paragraph 107;
promptness and reasonable expedition: see paragraph
108. A recent example of unacceptable delays appears in Finucane
v UK, 1 July 2003;
with sufficient public scrutiny to ensure effective
accountability: see paragraph 109. Though this seems to allow
for public scrutiny of the "results" of the investigation,
rather than the process, this has been significantly fortified
by paragraph 83 in Edwards v UK. A prison death required
"the widest exposure possible" so that a private inquiry,
though rigorously conducted, was insufficient for Article 2. The
same would apply to police custody deaths;
and participation of the next of kin, sufficient
to safeguard their private interests: see paragraph 109. The Court
emphasised at paragraphs 133-4, that disclosure of documentation
to the family at any inquest was essential to effective participation.
5. The most controversial requirements are
the last two above: public scrutiny; and participation of the
next of kin. Indeed the Home Secretary is attempting to argue
in the Amin appeal, that these are not consistent requirements
at all; and even if they are, they are not separate requirements.
These arguments are deployed despite the centuries of common law
history above. The House of Lords Judicial Committee will have
to decide these points.
6. The ECtHR made clear in Jordan v UK
that, though they were establishing certain minimum safeguards,
there was no one uniform method of providing those safeguards.
The investigative mechanisms and procedures will vary considerably
across the many different Convention jurisdictions: see paragraphs
105 and 143. Indeed it is not necessary for any one procedure
to comply with all the requirements.
7. It follows that all the examples of investigative
steps given in your question are of relevance to compliance with
Article 2. No one mechanism needs to provide all the requirements.
However, in the round, they must ultimately satisfy them all.
To take one kind of investigation, an internal Prison Service
investigation into a prison death could not be "independent"
or provide sufficient participation by the family, or public scrutiny.
However, provided there is also a prompt, independent and effective
police investigation, and a public inquest, it may well contribute
somewhat to the gathering of evidence to get at the truth and
possibly contribute to founding a prosecution or discipline proceedings,
to prevent recurrence. If the Report is served upon the next of
kin it may contribute somewhat to providing them with necessary
information. Though quite insufficient in itself, an internal
prison service investigation is therefore of some relevance to
8. The requirements of the "Jordan"
criteria are no innovation, for the normal manner of investigating
relevant deaths within this jurisdiction. The combination of an
independent police investigation and a Coroner's inquest will
generally in practice take place after any death triggering the
Article 2 investigative duty.
9. The scheme of section 8 of the Coroners
Act 1988 provides that there is a statutory duty to hold an inquest
where there is "reasonable cause to suspect":
any death at all in prison: section 8(1)(c);
any "violent or unnatural death; or sudden
death of which the cause is unknown", see section 8(1)(a)
10. Although there is no express reference
to deaths in police custody, or at the hands of the police in
section 8(1), as a matter of practice, and under Home Office Circulars,
Coroners always hold inquests with juries in all custody deaths;
see R v Inner London North Coroner, ex parte Linnane 
3 WLR 395.
11. An independent police inquiry and an
inquest are capable of providing an "effective investigation"
within Article 2, and compliance with the "Jordan" requirements.
In particular, the inquest combines in one process "public
scrutiny" with involvement of next of kin. Providing for
both of these requirements is no special burden or innovation.
It is the norm under our system, and has been for many centuries.
12. It was held in McCann v UK, at
paragraphs 162-3, that that particular inquest, despite certain
shortcomings, was Article 2 compliant. In Jordan v UK,
at paragraphs 132-34, the Court expressed reservations about whether
in the absence of legal representation and advance disclosure
of documents, inquests could so comply. [We here put aside those
profound problems, peculiar to the Northern Ireland inquest system,
of endemic delays of many years, the unavailability of any "unlawful
killing" verdict, and the lack of compellability as witnesses
of those who perpetrated the killing.]
13. Until recently the absence of legal
representation and advance disclosure of documents, were general
problems with our inquest system, arguably preventing compliance.
However, under Home Office Circular 20/1999, set out at paragraphs
73-74 in the Jordan v UK judgement, there is now provision
for advance disclosure. Further, under a scheme similar to that
mentioned at paragraph 67 in the same judgement, a limited scheme
for funding of legal representation now operates.
14. We have the following reservations about
the current ability of our inquest system to comply with the Jordan
requirements, and therefore with Article 2:
Lack of resources
We attach a copy of the striking affidavit of
the West London Coroner in the "Amin" case, explaining,
at paragraphs 6-10, why she simply could not practically hold
the kind of inquest required by that case.
There is continuing delay and obstruction in
complying with the Home Office Circular.
While there is generally moderate legal aid
in the major high profile cases, there is inconsistency, and no
clear principle applying to all death in custody cases.
There is now a possible limited verdict of "system
neglect" as a result of the Court of Appeal decision in Middleton
v West Somerset Coroner  3 WLR 505. However, in practice
Coroners are applying two restrictions, (a) only where the neglect
is "gross" and (b) proof must be beyond reasonable doubt.
These restrictions are unfounded and prevent findings of many
levels of state neglect. The inquest cannot then publicly attribute
many instances of state fault.
15. A fundamental Home Office Review into
the whole Coronial system has reported in June 2003: CM 5831.
It makes 123 recommendations, covering organisation, resources,
procedure verdicts and family rights. Some of these proposals
have been reinforced by the Report of Dame Janet Smith into the
Harold Shipman deaths. It is widely anticipated that there will
be changes to substantive and procedural inquest law, as well
as to the organisation and resourcing of the system. We commend
these as vital to ensuring consistent compliance with Article
2 within our jurisdiction.
16. Until these problems are addressed,
Article 2 compliant inquests will not consistently take place;
and in some of the most complex cases, inquests may not be possible
at all. In the interim therefore, other methods of investigation
will be necessary. It is to be noted that the Hutton inquiry is
specifically taking the place of the inquest under section 17A
to the Coroners Act 1988. Whatever form of alternative inquiry
is adopted, its process must be public and there must be provision
for participation by the next of kin, with legal representation
and advance disclosure of documents.
20 September 2003
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