Joint Committee On Human Rights Written Evidence


11.  Memorandum from Doughty Street Chambers

  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. [139]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 [1987] 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 investigation are:

    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 106;

    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 overall compliance.

  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); and

    any "violent or unnatural death; or sudden death of which the cause is unknown", see section 8(1)(a) and (b).

  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 [1989] 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.

Disclosure

  There is continuing delay and obstruction in complying with the Home Office Circular.

Representation

  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.

Verdicts

  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 [2002] 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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