14. Memorandum from the Law Society
Thank you for the invitation to provide evidence
to the JCHR's inquiry into Human Rights and Deaths in Custody.
We would like to take this opportunity to make some particular
points about the legal process following a death in custody.
There is a positive obligation on the State
to prevent real and immediate risk to life. Article 2 (1) of the
European Convention on Human Rights, which has been incorporated
into domestic law by the Human Rights Act, emphasises that the
right to life "shall be protected by law". This requirement
on the State includes both protection from the intentional taking
of life as well as the requirement to take "reasonable preventative
measures to protect an individual whose life is at risk . . .".
[165]
According to data held by the organisation INQUEST,
627 people have died in police custody since 1990. Between 1998-99,
65 people died in police custody, "the largest number of
deaths in police care or custody on record", according to
the Police Complaints Authority. [166]Although
the figures have reported a decrease, this issue is still of serious
concern.
According to that data, since 1990 there have
been 114 black deaths in prisons in the UK and in the same time
period 67 black deaths in police custody. A total of 181 black
deaths occurred while individuals were under the custody or care
of the State. [167]
The disproportionate disparity in the number
of prisoners who are black and from ethnic minorities should not
be ignored.
Because of the sensitive nature of death in
custody cases, vigorous independence must be demonstrated. Previous
reports examining the system from death through the inquest have
raised the issue of public perception regarding bias in decision-making
of the Crown Prosecution Service (CPS). The number of deaths in
police and prison custody and the lack of prosecutions have reinforced
the real or perceived bias of the CPS. The obligation of the CPS
to produce "cogent reasons for not issuing proceedings"[168]
may assist the public in their perception of independence.
The Society welcomes the establishment of the
Independent Police Complaints Authority as a positive step towards
building confidence in the system, and views the independent investigation
of every death in custody as a possible homicide as essential.
In addition to concerns of bias, families of
the deceased have had to contend with considerable delays. There
are countless examples of delayed cases, and many still awaiting
closure, adding much undue stress to already traumatised families.
For example, Roger Sylvester, a black man, died in January 1999
following restraint by eight Metropolitan police officers. His
inquest began in September 2003, nearly five years after his death.
David "Rocky" Bennett was a 38 year-old
black man who died in October 1998 following an incident involving
the use of restraint in an NHS medium secure unit. His 2001 inquest
returned a verdict of Accidental Death aggravated by Neglect with
recommendations from the Coroner on the need for national standards
on restraint in psychiatric hospitals, and for staff to be pro-active
in dealing with incidents of racist behaviour by and against patients.
[169]Following
calls for a public inquiry, the Government has agreed to an extended
form of the usual inquiry that follows a death in psychiatric
detention with a public element looking at the national lessons
to be learnt. The inquiry began in March 2003.
The Law Society supports proper initiatives
to remedy the delays in investigating deaths and concluding proceedings.
The Law Society has particular concerns about
the effect on the ability of bereaved families to participate
and feel included in the inquiry into the death. It has been documented
that current disclosure arrangements at inquests fall below modern
judicial standards in openness, fairness and predictability. [170]
The Law Society supports the disclosure of information
to bereaved parties throughout the inquest process.
The ability of families to participate in the
inquest process is greatly enhanced by the availability of public
funding for representation at inquests. The Law Society welcomes
the announcement that exceptional funding will apply to all deaths
in custody. However, we are concerned about the practice of means
testing wider family members in inquest cases.
The Law Society supports reporting from the
Coroner following an inquest to relevant authorities and monitoring
to help prevent future deaths.
15 September 2003
165 R (Amin and Middleton) v Secretary of State
for the Home Department [2002] 3 WLR 505. Back
166
Police Complaints Authority, "News and PCA Reports - Deaths
in Police Care or Custody", 1999. Back
167
See INQUEST statistics www.inquest.gn.apc.org Back
168
Rule 28 of the Coroners Rules 1984. Back
169
INQUEST (2003) Press Release: Public Sessions of the Inquiry
into the Death of David "Rocky" Bennett. Back
170
Fundamental Review of Death Certification and the Coroner Services
in England, Wales and Northern Ireland (2002) Certifying and Investigating
Deaths in England, Wales and Northern Ireland p 13 paragraph 20.2. Back
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