20. Memorandum from Dr Leonie Howe
SUMMARY
The report is an extract of a study that investigated
and analysed institutional deaths in police and prison custody
and the ethnic dimensions of the issues raised. The main empirical
work is focused on responses to deaths in custody within the UK
and Australia. The comparative study, conducted in Australia,
was relevant to highlight particular strengths and weaknesses
of our domestic institutions and in suggesting alternatives.
The study began from the hypothesis that, because
of the wider political and social significance attached to minority
ethnic deaths in custody, the normal institutional mechanisms
for investigating them, both in terms of initial fact-finding
and subsequent adjudication, may prove or be perceived as inadequate
in resolving disputes and grievances arising from such events.
This may lead to victim's families and their supporters seeking
alternative means of raising their concerns and resolving their
grievances. These include political campaigning techniques, private
prosecutions, civil actions for damages, and "peoples' tribunals".
The study examines the factors, including legal and other limitations
and forms of social exclusion, which may influence the choice
of these mechanisms and their effectiveness in particular cases.
The research involved a combination of traditional
documentary and literature analysis, particularly in relation
to mapping the legal and regulatory contexts in which different
institutions and mechanisms for responding to deaths in custody
operate, and empirical investigations based on detailed case studies.
In the UK, both historical and contemporary cases have been drawn
from police and prison custodial settings and involving members
of different ethnic minority groups. The rationale for this comparative
element is that official institutions for investigating deaths
in custody in both Australia and the United Kingdom have come
under increased political pressure from minority ethnic groups
and that it should therefore be valuable to compare how these
institutions have adapted in each country. In particular, the
Royal Commission in Australia (1991) represented a unique institutional
response to Aboriginal deaths in custody. This project is relevant
to the ongoing Inquiry in asking whether the UK needs its own
Royal Commission to satisfy the requirements of Article 2 ECHR
for an effective, prompt and independent investigation of deaths
in custody.
THE INVESTIGATION
AND PROSECUTION
OF DEATHS
IN CUSTODY
1. The inadequacies of initial investigations
and inquests have led families and others campaigning over deaths
in custody increasingly to seek out and use alternative remedies.
Some of these alternative remedies, such as the institution of
criminal proceedings against the police or prison authorities,
have proved to be ineffective. Others, such as civil legal actions
for damages, can result in the payment of compensation to relatives
of the deceased but may have limited value in otherwise holding
the authorities to account. Judicial review is a means for challenging
the procedural defects of inquests and other legal remedies and
raising wider issues of concern in the public arena. More recently,
the European Convention on Human Rights and the Human Rights Act
1998 have been used to challenge more fundamentally the existing
systems for redress when deaths in custody occur.
CRIMINAL PROSECUTIONS
AGAINST POLICE/PRISON
OFFICERS
1.1 The purpose of the inquest is to find
out who died and how. This is incompatible with family's need
to see those culpable punished. Usually the case is examined and
the decision made as to the viability of a criminal prosecution
by the CPS prior to the opening of an inquest. Once the inquest
has been opened and a person has been charged with an offence
under s16(1) (a) of the Coroners Act, normally the inquest will
be adjourned until the criminal proceedings are concluded. With
the approval of the CPS, the hearing can proceed prior to the
conclusion of the inquest (Dorries:1999). The coroner may also
refer a case to the CPS if they determine a criminal act has been
committed or if the jury returns an "unlawful killing"
verdict. Concern about the close relationship between the police
and the CPS has grown due to the lack of criminal prosecutions
following deaths in custody. Questions are now being asked if
the interests of the police are more important than those of both
the public and justice (Howe:2000).
The decision making process of the CPS
1.2 The CPS are bound by the Code for Crown
Prosecutors which was issued under s.10 of the Prosecution of
Offenders Act 1985. This code states that: There are two stages
in the decision to prosecute. The first stage is the evidential
test. If the case does not pass the evidential test, it must not
go ahead, no matter how important or serious it may be. If the
case does pass the evidential test, Crown Prosecutors must decide
if a prosecution is needed in the public interest. The second
stage is the public interest test. The Crown Prosecution Service
will only start or continue a prosecution when the case has passed
both tests.
1.3 Following the public outcry at the deaths
in custody of Joy Gardner (1993), Shiji Lapite (1994), Wayne Douglas
(1995) and Brian Douglas (1995), an Explanatory Memorandum
to the Code for Crown Prosecutors issued in June 1996 added
"If the evidential test is not satisfied, there must not
be a prosecution, no matter how great the public interest may
seem in having the matter aired in court". Under the revised
Code (6.4(d) and (h)), public interest factors that would justify
a prosecution include the defendant being in the position of authority
or trust.
1.4 It is arguable that, at least in the
public's mind, an unlawful killing verdict at an inquest should
be followed by a criminal prosecution. Before reaching a particular
verdict, the coroner and the jury need to be satisfied on the
necessary facts to the required standard of proof. For a verdict
of suicide or unlawful killing the standard of proof is at the
same level set in a criminal court"beyond reasonable
doubt". For all other verdicts, the lesser civil standard
of proof applies"on the balance of probabilities"
(Dorries: 1999:193). The question is, however, why given that
the standard of proof for a verdict of "unlawful killing"
during an inquest, and the standard of proof for a criminal prosecution
are similar, that one does not follow the other? There can be
several reasons for this inconsistency including not meeting the
evidential test; evidence admissible at the inquest may not be
admissible in a criminal trial; the deceased took their own life;
or it is unclear which of several people might have caused the
death (Dorries: 1999). This is little consolation to the family
who are aware that the deceased was unlawfully killed but the
law is unable to punish those responsible.
1.5 Another unofficial obstacle to such
prosecutions is that it may be felt by the CPS that juries are
less likely to convict police officers. There is no available
evidence to support this view and the CPS denies it. In addition
to the failure to prosecute officers involved in deaths, there
is the perception that the criminal justice system discriminates
against ethnic minorities.
Case: Alton Manning
Alton Manning was 33 when he collapsed and died
on 8 December 1995 at Blakenhurst Prison while on remand. Alton's
family was informed a post-mortem had already been carried out,
with inconclusive results. The family believe this was deliberate
and wanted to know why cuts and bruises were found on his body.
A second post-mortem found that Alton died of asphyxia.
The inquest into his death began in January
1998. This is the first death in a private prison resulting from
the use of control and restraint procedures. The inquest jury
recorded a unanimous verdict of unlawful killing on 25 March 1998.
After the verdict seven prison guards were suspended, on full
pay, until a decision on whether to prosecute was made by the
CPS. The case was referred back to the CPS during the inquest,
an unusual step taken by the coroner, but in February 1999 the
CPS refused to instigate criminal proceedings due to "insufficient
evidence". The decision of the DPP not to prosecute again
in May 2000 led to the family seeking redress through judicial
review. Although the case was once again referred back to the
CPS, in January 2002 they announced that charges would not be
brought due to "insufficient evidence" once again[201].
The Police Action Lawyers Group have referred
to "an apparent lack of willingness on the part of the Crown
Prosecution Service and the DPP to prosecute police officers against
whom there is substantial evidence to justify a criminal charge"
(HAC:1998:90). This claim has recently been justified by the findings
of the Butler Inquiry (1999) into the deaths in police custody
of Shiji Lapite and Richard O'Brien, where the initial decisions
made by the DPP not to prosecute the officers concerned were made
in an "unsound" system (Hopkins:1999:7). The Inquiry
was critical of the process of CPS decision making in these cases,
finding it involved unnecessary replication of functions with
no one person taking responsibility for final decisions.
The Inquiry recommended that all cases of death
in police or prison custody be dealt with by the CPS Central Casework
department, that the decision maker in each case be clearly identified,
that the decision maker would be at an appropriate level and that
decisions not to prosecute should be reconsidered after the inquest
(CPS: 1999). Although these current shortcomings were identified
and recommendations were made, it is too early to see any improvements.
On an individual case basis, the Inquiry stated claims of bias
in the Lapite and O'Brien cases were unfounded and the cases had
been dealt with properly.
R v DPP ex parte Manning became the first
opportunity to scrutinize DPP/CPS decision-making following the
Butler Report and the Report of the European Committee for the
Prevention of Torture in 2000 (CPT). In Manning, the High Court
found the DPP's decision not to prosecute any prison officer "unsustainable
in law" after the inquest verdict recorded a unanimous unlawful
killing verdict in March 1998, illustrating that despite the recommendations,
structural problems of the CPS prosecuting these cases remains.
Private Prosecution
1.6 Anyone can bring a prosecution under
s6 Prosecution of Offences Act 1985. The right to bring a private
prosecution against a police officer is not restricted by this
Act. A private prosecution is another way to punish a wrongdoer.
The choice of the charge that is preferred is generally in the
discretion of the private prosecutor and not the magistrate. A
private prosecution is an also option if a wider purpose such
as exposing the failure of the police to investigate an incident,
the failure of the DPP to bring a prosecution, to prevent the
police committing contempt of court, to challenge a prosecutor's
interpretation of the law[202]
or to expose a pattern of malpractice is being sought. One of
the largest obstacles is the expense; no legal aid is available
for bringing a private prosecution[203],
there may also be difficulties in obtaining enough evidence to
meet the criminal standard of proof (Harrison & Cragg:
1995).
JUDICIAL REVIEW
2. The process whereby the High Court supervises
the lawfulness of the actions and decisions of an inferior court,
tribunal, public bodies and individuals who carry out public duties
is known as judicial review. This includes those employed by the
Police and Prison Services and decisions made by the PCA, coroners,
and DPP/CPS.
Judicial Review of Inquests
2.1 With respect to inquests, there are
two kinds of judicial review in the High Court. Firstly, there
is the statutory procedure under section 13 of the Coroners Act
1988[204].
The application of the power to quash depends on whether the court
deems it is "necessary or desirable in the interests of justice"
to call a new inquest[205].
Secondly, an option exists for dissatisfied individuals to apply
for judicial review. [206]An
error of law within the coroner's jurisdiction can be reviewed[207],
meaning that a coroner's verdict can be quashed (Matthew &
Foreman: 1994). However, the reviewing court does not quash
the decision just because the court might have decided it differently.
It is the question of error in the decision making with which
the court is concerned. If no clear error can be found, but the
decision is unsatisfactory, the applicant must proceed under the
statutory power to quash, and not by way of judicial review (Matthew
& Foreman: 1994). Where the court considers that an error
is found, the first remedy is an order quashing the inquisition,
with a further order to hold a new inquest. But the court may
grant relief that falls short of quashing the whole inquisition,
and ordering a new inquestthe only remedy under section
13 of the Coroners Act 1988[208].
2.2 Where the inquisition is quashed under
statutory powers resulting from judicial review, a new inquest
is usually ordered under section 13(1) (a) of the Coroners Act
1988, as in the cases of Keita Craig and John Sambells (Vogt
& Wadham: 2003). In the case Keita Craig who died on 1
February 2000 in Wandsworth Prison, the coroner refused to allow
the jury to consider a verdict incorporating neglect, even though
his recommendations reflected concerns about the care Keita received.
This initial inquest was held during April 2000. Keita was a 22
year-old black male who died within 24 hours of arriving in the
prison. On 13 February 2001 the High Court quashed the verdict
and ordered a new inquest with a fresh jury, held on 3 October
2001. This inquest recorded a verdict of "killed himself
while the balance of his mind was disturbed" and added a
rider that neglect played a part in his death[209].
John Sambells died on 29 January 1998. The first inquest was held
from 25-27 November 1998. The belated disclosure of video evidence
to the family led to the judicial review and the quashing of the
original inquisition. Thus, in the Craig case, his family benefited
by the fact that all the verdicts were open to the jury and in
the Sambell's case, more evidence was disclosed to the family.
In this sense, judicial review forms a system of checks and balances
on inquests, necessary because of the discretion afforded to coroners.
Judicial Review of Decisions on Prosecution
2.3 Cases where an "unlawful killing"
inquest verdict did not result in criminal prosecution have been
Alton Manning, Richard O'Brien, Shiji Lapite, and Derek Treadaway.
In Lapite the coroner referred the case to the DPP to consider
the verdict of manslaughter against the two officers involved
in the death. The CPS decided not to prosecute. Similarly, in
the case of Treadaway, despite a verdict of "unlawful killing",
no prosecution by the CPS followed. This apparent disparity between
the inquest verdict and the CPS decision-making led the family
members of Richard O'Brien, Shiji Lapite and Derek Treadaway to
bring a joint application for judicial review, which came before
the Divisional Court on 22 July 1997. This resulted in all three
cases being sent back to the CPS for further consideration and
to the setting up of the Butler Inquiry (1999). In O'Brien, three
officers were charged with manslaughter but were acquitted on
29 July 1999, five years after he died.
2.4 In theory, decisions not to prosecute
can be judicially reviewed on the basis that they were made in
breach of the CPS Code or are so perverse that no reasonable prosecutor
could have made them[210].
Yet practice has shown considerable obstacles to exist when challenging
a decision by the CPS not to prosecute. As can be seen from the
outcome of R v DPP, ex P Manning and Another [2002] 3 WLR
463 even the High Court decision that quashed the decision not
to prosecute did not result in a prosecution. The High Court is
most useful in cases where there has been a procedural flaw, such
as when the failure to prosecute was unreasonable or where cogent
reasons were not given. It does not function as a court of appeal.
Judicial review cannot overcome obstacles such as lack of evidence
or difficulties in meeting the standard of proof in criminal cases.
2.5 The reasons behind lack of evidence
and the inability to meet the standard of proof may include the
families are prevented from gathering the necessary evidence or
proof needed. The latter would involve flaws during the investigation,
and the inadmissibility of evidence or witnesses called during
the inquestinquests may use hearsay evidence, whereas the
criminal trial cannotor the different composition of the
jury.
2.6 Even where a review is instituted this
is not a guarantee that the CPS will subsequently make a different
decision, as seen in Manning discussed earlier in this chapter.
Despite the obvious limitations of a judicial review, the actual
process can be helpful in that it frequently exposes more details
as the CPS has to justify its decision in writing and in court,
leading to further disclosure.
ECHR AND OTHER
INTERNATIONAL REMEDIES
3. The Convention for the Protection of
Human Rights and Fundamental Freedoms (ECHR) is an international
treaty that provides basic guarantees of a number of fundamental
human rights. These rights are not a traditional construct of
English law, but the Convention allows individuals and states
to complain about violations. Prior to the Human Rights Act 1998
(see below), it could also be used in English courts to help construe
statutes[211].
Neither the Convention nor any secondary legislation made under
it directly accords individuals any fundamental rights, but some
Articles are applicable to deaths in custody cases.
3.1 Under the rules of Article 25, any "person,
non-governmental organisation or group of individuals" can
bring complaints. The complainant does not have to be European
and age is also irrelevant. They must be within the jurisdiction
of a state that has ratified the Convention and the person, organisation
or group of individuals must themselves be the victims of a violation,
either directly or indirectly. Thus the family of a person who
died during the course of a violent arrest would be indirect victims
of a violation.
3.2 Under Article 26, the Commission considers
complaints about violations when all effective domestic remedies
are exhausted. However, if it is obvious that there is no possibility
of an effective domestic appeal, then the Commission can deem
all domestic remedies exhausted. Thus compensatory damages paid
to a prisoner held for an excess amount of time on remand may
be held to be inadequate[212]
but damages for physical abuse are generally seen as adequate,
unless the violation is a practice that was officially approved
of by the prison administration[213].
Judicial review does not constitute effective remedies if the
relief it grants is insufficient to meet the violation in all
respects[214].
3.3 The procedure for making an application
is straightforward though not a quick one, as applications take
about five years. Under Article 26 the complaint must be made
within six months from the date on which the final domestic decision
was taken. Legal Aid is not available for any part of the case.
However, the Commission can grant its own form of legal aid which
can retrospectively cover the cost of preparing the original application,
as well as any subsequent work in preparing the case and for representation
at any hearing.
3.4 The government has brought in arrangements
for a "no win, no fee" contingency for fees in human
rights cases. If an applicant does win, then legal costs can be
uplifted by up to 100%[215].
However, even successful cases are unlikely to lead to prosecutions
or disciplinary actions against police or prison officers, although
compensation for a death might be available, as shown in the case
study of Christopher Edwards. Cases in the ECHR rarely involve
the disclosure of further information.
Case: Christopher Edwards
Christopher Edwards, who had been tentatively
diagnosed as schizophrenic in 1991, was arrested on 27 November
1994 and taken to Colchester police station. He had been approaching
young women in the street and making inappropriate suggestions.
He was later remanded in custody in Chelmsford Prison, initially
on his own (Edwards: 2002). On 28 November Richard Linford
was placed in the same cell as Christopher Edwards on D landing.
Richard Linford had been arrested for assault. He had a history
of violence, including a previous assault on a cell-mate in prison.
He had been admitted to mental hospital in 1988, and was subsequently
diagnosed as schizophrenic. Sometime during that night Christopher
was stamped and kicked to death by Richard Linford. Linford plead
guilty to the manslaughter of Christopher Edwards by reason of
diminished responsibility. He is currently at Rampton Special
Hospital, suffering from paranoid schizophrenia. The inquest was
closed, following the conviction (Edwards:2002).
In July 1995, a private, non-statutory inquiry
was commissioned, reporting on 15 June 1998. It concluded that
Christopher Edwards and Richard Linford should not have been in
prison and in practice they should not have been sharing a cell.
It found "a systemic collapse of the protective mechanisms
that ought to have operated" to protect Christopher Edwards.
The applicants were advised that there were no civil remedies
available to them in the light of the findings of the inquiry.
On 25 November 1998, the CPS maintained their previous decision
that there was insufficient evidence to proceed with criminal
charges.
Christopher's parents lodged an application
with the European Court of Human Rights on 14 December 1998. They
alleged that the authorities failed to protect the life of their
son. On the 14 March 2002, the ECHR in the case of Paul and
Audrey Edwards v the United Kingdom (no 46477/99) held unanimously
that there had been a violation of Article 2 (right to life) as
regards the failure to conduct an effective investigation; no
separate issue arose under Articles 6 (right to a fair hearing)
or 8 (right to respect for private and family life); and that
there had been a violation of Article 13 (right to an effective
remedy).
Under Article 41 (just satisfaction) of the
Convention, the Court awarded the applicants £20,000 pounds
for non-pecuniary damage and £20,000 for legal costs and
expenses. However, despite the ruling that they were entitled
to an effective investigation into Christopher's death, the request
for an independent inquiry still has not yet been met and the
Edwards' continue to lobby the Government (Edwards:2002).
THE HUMAN
RIGHTS ACT
1998
4. It now appears that the incorporation
of the European Convention of Human Rights by the Human Rights
Act (HRA) 1998 may have a fundamental impact on the inquest system
(Thomas et al:2002). The HRA requires coroners to have regard
to Articles 2 to 12 and 14 of the ECHR and to read and give effect
to all (as far as possible) their statutory powers in a manner
that is compatible with convention rights[216].
As a public authority, the coroner's decisions will be subject
to appeal if they act in a manner that is incompatible with the
convention, except when the wording of a statute necessitates
it. [217]The
Convention has more precise requirements than UK domestic law
regarding the effectiveness of inquiries following a death in
custody and as such has already been the source of a fundamental
review of inquest law[218].
Range of an Effective Inquiry
4.1 Under the HRA the scope of the inquest
is changing as the investigation focuses on the planning and organisation
of the state agency that provided the place of death, as well
as those allegedly directly responsible for the death. [219]Therefore,
the interpretation of the "how" in Rule 36 Coroners
Rules now includes individual actions and systemic deficiencies.
Now in cases where the circumstances of the death relate to Article
3, the inquest has to consider those circumstances in so far as
they have a contributing link to the death[220].
Under Article 8, the coroner may be forced to put the interests
of private and family life first. Although the inquest remains
inquisitorial, the burden of proof is now on the state to provide
adequate explanations for injury or deaths in custody[221].
This results in shift from the original ambit of coronials (Thomas
et al: 2002).
4.2 Thus, to be considered an effective
investigation the focus must be upon those allegedly directly
responsible for the death, and the planning and organisation of
the state agency or operation that provided the context in which
the death took place. An effective inquiry cannot be limited to
the cause of death. Where appropriate, it must also indicate those
who were responsible (Jordan v UK, paragraph 107). Hence
Coroners' Rule 42 forbidding returning a verdict that "appears
to determine an issue of criminal liability on the part of a named
person or civil liability" may not meet the state's duties
under Article 2[222].
4.3 Although Article 13 is not a right directly
expressed in the HRA, it is relevant to the redress provided by
section 8the provision of just and appropriate remedies
(Thomas et al 2002). In Keenan it was found that the requirement
to show pecuniary/dependency loss as the basis for a civil action
under the Fatal Accidents Act 1976 denied the right to an effective
remedy. Later, the ECtHR cited Keenan in Jordan v UK to
show the necessity for the original inquest to provide an adequate
inquiry focussed upon causation and responsibility. While in R
v DPP ex p Manning and Melbourne it was held that where
an unlawful killing inquest verdict was given, the expectation
is that a criminal prosecution follows. In the absence of a criminal
prosecution, the DPP is required to give reasons in order to show
that there are concrete reasons for acting contrary to the expectation
of Article 2[223].
Prior to the HRA, this was not the case[224].
Independence
4.4 When a death occurs in custody, the
independence of an investigation is crucial. In Wright and Bennett
at paragraph 60(2) the High Court held that the dependence of
the coroner on the prison's chief medical officer did not amount
to a sufficiently independent inquiry. R (Nicholls) v HM Coroner
for Liverpool saw the refusal of the coroner to call
any other medical witness except the Forensic Medical Examiner
whose conduct was being challenged was held not to be a sufficient
inquiry[225].
4.5 Although a PCA investigation into alleged
police misconduct is not considered an impartial and independent
tribunal[226],
other ways exist to challenge the independence of the system via
challenging the investigative process. As coroners rely on police
officers to make the bulk of their inquiries, an interested party
should to be allowed to examine the investigating officer about
their independence and impartiality (Thomas et al: 2002).
Legal Aid and Disclosure
4.6 Under the Convention the investigation
into a death must allow the family to have effective access to
the investigatory process[227]
and in Jordan v UK, the Court held that necessary involvement
included the provision of legal aid to enable adequate representation.
4.7 Under the Convention all state institutions
have a duty to disclose material in order to assist "a proper
and effective examination" of Article 2 issues[228].
A failure of a Government to comply may ". . . reflect negatively
on the level of compliance by a respondent state . . . but may
also give rise to the drawing of an inference as to the well foundedness
of the allegations"[229].
A relative of the deceased may be able to claim a violation of
Article 3 for mental distress and anguish resulting from the authorities
responses to and treatment of them in relation to their inquiries[230].
Article 6 protects a person's "civil rights and obligations".
However, it does not directly apply to coroner's courts because
the inquest procedure does not involve the determination of a
person's civil rights and obligations. As such, the stated requirements
of an effective inquiry provides only the basic standards of justice
and fairness.
4.8 Recently the court in R (on the
application of Bentley) v HM Coroner for the District of Avon[231]
noted that the decision in ex p Peach, is out of step with
contemporary practice and cannot be used to prohibit all advanced
disclosure. In a death in custody, a coroner will need to forward
convincing reasons for refusing disclosure (except in relation
to statements that he intends to read). The movement away from
ex p Peach was also seen in ex p Leatherhead. Compliance
under Articles 2, 3 and 8 means pre-inquest disclosure should
be instituted on a legal basis[232].
4.9 Since the first deaths in custody have
come to light in the UK, it has been argued that there is a lack
of natural justice and procedural fairness in the inquest system[233].
The obligation stemming from Article 2 for an investigation into
a deprivation of life by agents of the state is relevant[234].
In Australia, cases considering the equivalent application of
natural justice principles have come to the opposite conclusion.
There, individual police officers were seeking pre-inquest disclosure
in circumstances where a prisoner's treatment was controversial[235].
Case: Paul Wright
This case has been included as it shows the
limitations to the remedies available even after the Human Rights
Act 1998. Paul, 33, died at Leeds Prison in 1996 from asthma (Liberty:
2001). He was serving three-and-a-half years for fraud, drugs
and driving offences. At the inquest held on 29 April 1997, the
Prison Service apologised for the death. The inquest verdict was
death by natural causes. A civil suit for damages was settled
out of court in November 2000, after the Home Office admitted
liability.
A police inquiry into deception, wilful neglect
and manslaughter by Dr Singh, the prison doctor, ended without
charges. An initial plea for an independent inquiry was rejected
by the Home Secretary. But in June 2001 an application was made
in the High Court (Liberty: 2001) by his mother and aunt alleging
that the Secretary of State for the Home Department was in breach
of Article 2 (right to life), Article 3 (inhuman and degrading
treatment) and Article 8 (privacy and family life). The application
was upheld and on 27 June 2001 the Home Secretary was ordered
to institute an independent public investigation within three
months. This meant that the inquiry took place more than five
years after Paul's death. It was the first public inquiry into
a death in custody ordered by a judge under the HRA 1998.
The guilt of any one person involved was not
established as the inquiry only sought the medical facts of the
death. Published on 11 July 2002, the report stated that Paul
died from an asthma attack following months of "substandard"
medical treatment at the prison. A key issue at the inquiry was
the role of the prison doctor, Dr Singh. Under the Tribunals and
Inquiries Act 1992, inquiries into prison deaths are non-statutory
meaning that anyone giving evidence does so voluntarily. The non-appearance
by Dr Singh has left the Wright family concerned that the Inquiry
failed to answer key questions, as they were unable to establish
individual responsibility for the death (Liberty: 2002; Wainwright:
2002).
5. In this report we have seen how the remedies
available to families seeking answers or some form of redress
in death in custody cases overlap. This interaction between remedies
can have certain advantages, for example, allowing for progressive
(if piecemeal) disclosure of facts about deaths in custody that
may have been withheld at earlier stages. Such disclosure within
one forum may in turn assist relatives to pursue other forms of
redress more effectively. Similarly, the availability of legal
aid in some areas, such as for civil legal actions, may alleviate
to some extent the denial of such assistance before inquests.
However, these different remedies often involve families a long
and expensive route through the legal system. They will initially
start at the inquest but due to its traditional limited scope
often are forced to journey through criminal prosecutions, private
prosecutions, civil actions and finally end up seeking redress
under the Human Rights Act or through the European Courts. It
is only the latter that now holds out the potential for forcing
the UK Government to consider more fundamental reform of the whole
system of remedies to deaths in custody.
5.1 The significance of this issue for black
and ethnic minority communities does not lie in the disproportionate
number of their members who die in custodial situations alone
but rather because deaths in custody demonstrate wider discrimination
felt by these communities in the criminal justice system and society
at large. This research has shown how members of black and ethnic
minority communities share many of the same problems as families,
relatives and supporters of other victims of custodial deaths
when it comes to attempting to find redress through existing legal
remedies.
5.2 As expected, it was found that the existing
remedies for deaths in custody are inadequate and need to be reformed,
and that there is a need to give greater consideration to the
ways in which these different mechanisms interact with one another.
This paper started with the proposition that reform directed solely
at the existing remedies is not sufficient to meet the wider political
concerns of the black and ethnic minority communities. This in
turn led to the second part of the research question, of what
potential role there may be for a Royal Commission on Deaths in
Custody in the UK?
THE POLITICS
OF DEATHS
IN CUSTODY
IN AUSTRALIA
AND THE
UK
6. In the UK the official reaction has tended
to be one of denial of responsibility and an attempt to blame
individuals for their own deaths, thereby diminishing state accountability.
It not untypical for a death in custody to be immediately followed
by stories being leaked to the press concerning the drug taking,
psychotic behaviour, immigration status, super human strength,
size, and height of the victims, images which are often linked
at least sub-consciously with their race. This can be seen in
the UK as far back as David Oluwale's manslaughter case in 1971,
where the trial judge called him "a menace to society, a
nuisance to the police and a frightening apparition" (IRR:1991:6).
By doing that, the victim can be blamed and when many months or
even years later, the truth does start to emerge, the waters have
been so muddied that the public cannot see the victim beyond their
immigration status, criminal record or their drug or mental health
problems.
6.1 In Australia, the setting up of the
Royal Commission into Aboriginal Deaths in Custody (RCIADIC) in
1987 represented a major departure from this individualised response
to deaths in custody. Of course, the Royal Commission was the
product of a Labor Government under increased pressure about its
public image, both nationally and internationally. Cynically,
one could argue that the Royal Commission was established precisely
in order to deflect this criticism in the build up to the Australian
Bicentenary in 1988. It has been noted that Royal Commissions
traditionally have the role of managing potentially conflictual
issues in society within a seeming democratic consensus, rather
than being a real stimulus for political and social change (Thomas:
1982; 1994).
6.2 However, despite some of its harsher
critics and more specific failings, the RCIADIC has presented
a somewhat different experience. More than a decade after it reported,
its findings and recommendations are still a talking point among
Aboriginal organisations, the media, academics, and the general
public. Moreover, the Commission, by extending its Letters Patent,
went beyond the normal expected parameters of such bodies and,
by doing so, raised awareness of issues such as systemic failures
and the over-policing of certain communities (McDonald: 1999).
It has, in turn, helped to collectivise the response to deaths
in custody in Australia. Government and Aboriginal organisations
have established dozens of bodies responsible for the monitoring
and reporting upon the implementation of the Royal Commission's
recommendations, such as the various Death Watch Committees, the
National Deaths in Custody Monitoring Unit in Canberra, and MUNNCI
(national coronial database) in Melbourne. These have provided
the Australian system with at least some transparency and consistency.
The Commission has furthermore provided a framework for Aboriginal
activism in the field of human rights campaigns, criminal justice
campaigns and Aboriginal self-determination (McDonald: 1999).
6.3 By contrast, in the UK there has never
been an official recognition of black deaths in custody being
a collective problem of the criminal justice system or society
at large. The Home Office report by the Police Research Group
(Leigh et al 1998) treated deaths in custody as a technicality
of the way individual detainees were treated, without any recognition
of the wider concerns raised by campaigning groups and members
of the black community. The language of the report was tentative,
and didn't call for radical change.
6.4 The earlier Home Office study by Ingram,
Johnson and Hayes (1997) again focussed on self-inflicted deaths
in police and prison custody. However, many of the recommendations
and findings were not innovative or new. Most had already been
discussed in depth by other UK academics, such as Liebling and
Ward (1994) and Towl (1996; 1999). Thus, suicide and "deliberate
self-harm" (DSH) prevention has tended to dominate official
discussion on deaths in custody in the UK.
6.5 The nearest the UK has come to achieving
official recognition of a collective responsibility for deaths
in custody has been the MacPherson Report (1999) which arose,
of course, out of a different issue altogether. In similar circumstances
to those that led to the establishment of the RCIADIC in Australia,
the MacPherson Inquiry was a political response by a newly-elected
Labour Government in the UK to growing national and international
pressure over black victimisation and the failure of the police
to investigate crimes against members of ethnic minority communities
effectively. Like the RCIADIC, the MacPherson Inquiry extended
its remit beyond the specific case of the racist murder of Stephen
Lawrence to examine (albeit much more briefly) wider issues of
race and criminal justice. Both reports reached similar conclusions
regarding the existence of "institutional racism", of
how (in the words of the RCIADIC) racist presumptions are frequently
"embodied in ostensibly neutral procedures"[236]
Although it dealt with it only tangentially, the MacPherson Report
did at least acknowledge deaths in custody and the need for effective
redress as a major concern of the ethnic minority communities.
6.6 More generally, the issues the Royal
Commission uncovered in Australia relating to Aboriginal deaths
in custody were startlingly similar to those in the UK surrounding
black deaths in custody. In Australia and the UK the number of
blacks deaths in police and prison custody are disproportionate
to their percentage in the population but not to their proportions
of arrestees or the prison population. This points to another
commonalityblack over-representation in the criminal justice
system (Simes & Goodman: 2002:20, ABS: 2002).
6.7 In both Australia and the UK, governments
have traditionally used the over-representation of ethnic minorities
in the criminal justice system as a means of rationalising the
high incidence of Aboriginal/black deaths in custody. This line
of rationalisation was reflected, for example, in the 1998 Home
Office study on deaths in custody in the UK. By contrast, the
Royal Commission in Australia not only concluded that Aboriginal
people are more likely to die in custody because they are over-represented
in custody[237],
but went on from this to link such over-representation to the
disadvantaged and unequal position in which Aboriginal people
find themselves in the societysocially, economically and
culturally. In the UK, there has never been such official recognition
of the need to reduce the incidence of black arrests and imprisonment
as a means to addressing the issue of black deaths in custody.
6.8 Unfortunately, the political and legislative
trend in both Australia and the UK in recent years has been away
from de-criminalisation and the reduction in the use of imprisonment.
Rather, there has been a distinct shift toward a greater emphasis
on the use of criminal sanctions and deterrence. These measures
particularly impact on black people because of their greater likelihood
of a prior offending history. Much the same can be said of the
likely adverse impact on black imprisonment of current shifts
in criminal justice and sentencing policy in the UK to target
so-called "persistent offenders" (Bridges 2001: 71).
6.9 Given this common shift toward greater
use of imprisonment, it seems highly unlikely that the incidence
of custodial deaths in either Australia or the UK will be significantly
reduced. The statistical evidence from Australia is that any reduction
in deaths in police custody are likely to be more than matched
by increases in prison deaths. In this context, the issue of deaths
in custody is likely to remain a major focus of political concern
for ethnic minority communities in both countries, as will the
effectiveness of the official remedies available to them.
REFORMING REMEDIES
IN DEATHS
IN CUSTODY
CASES
Initial Investigations
7. For many years the main criticisms surrounding
deaths in custody has been the lack of independence regarding
police and prison investigations. At present in the UK the PCA
investigate deaths in police custody, meaning that the police
investigate themselves. The police also conduct an investigation
when a death occurs in prison custody. This investigation often
runs parallel to the Prison Service's own internal investigation.
For a coroner to fully investigate how and why a person died in
custody, the initial investigation is crucial. However, this investigation
is currently conducted by the police and the coroner's officer,
a seconded police officer. As the coroner relies so heavily on
the information received from these sources, a persistent criticism
has been that the Coroners Court itself is not independent as
it is dependent on the police. Similar criticisms lay at the heart
of some of RCIADIC's key recommendations on coronial investigations
into deaths in custody in that country.
7.1 Over recent years, a significant impetus
for reform of the system for investigating complaints against
the police has developed. The European Committee for the Prevention
of Torture (CPT) has criticised the lack of "independence
and impartiality" of investigations into complaints against
the police (CPT:2000:17). Both the MacPherson Report (1999) and
the Butler Inquiry (1999) called into question the legitimacy
of the current investigation system for serious complaints against
the police. These criticisms resulted in the Police Reform Act
2002 and the establishment of the Independent Police Complaints
Commission (IPCC), which is due to come into operation in April
2004. A major question mark remains as to whether the IPCC will
be able to establish a reputation for the independence and robustness
of its investigations, especially where a death in custody occurs.
Nor are there any plans as yet to establish a similarly independent
body to investigate deaths in prison or other forms of custody.
Disclosure and Representation
7.2 Two issues which cannot be separated
from either the lack of independence of initial investigations
of deaths in custody or the ineffectiveness of inquests are the
lack of disclosure to and adequate representation of families
of those who have died. Despite recent pledges towards a more
open system, any internal investigation statements taken from
witnesses are the property of the Prison Service as are documents
collected in the course of the PCA investigation. The coroner
has no powers to order pre-inquest disclosure. Thus, in reality,
pre-inquest disclosure remains a voluntary act by both the Police
and Prison Service.
7.3 The need for representation of families
of those who have died in custody is not limited to appearances
before inquests. Not only is there a need for such representation
to be available early enough to enable adequate preparation prior
to the inquest, but representation for families from the very
beginning of investigations of deaths in custody may be an important
element in enhancing the independent status of those investigations.
Family representatives can serve to counter adverse publicity
about the victim and to raise further issues for investigation.
In this respect, it is important that some mechanism is established
to identify lawyers who are sufficiently expert in dealing with
deaths in custody and to put families in touch with them as soon
as a death in custody occurs. Needless to say, such representation
should be made available throughout free of charge and regardless
of the means of the families concerned.
Inquests
7.4 The coronial system in the UK has many
deficiencies when dealing with a death in custody: the undue influence
of the police over the coronial process, the major delays in holding
an inquest, the lack of independence of coroners and the coronial
organizations, the broad and vague powers of coroners, and the
barriers to the effective participation of relatives. The core
issues of accountability, independence, fairness and efficacy
are identical.
7.5 The current inquest system does not
provide an effective remedy for families as they want to find
out the truth surrounding the death in custody and would like
to see those responsible to be held liable. Furthermore, the coronial
process itself is flawed. It is not an open, transparent system
as disclosure is not a right, it is dependent on goodwill, it
is not provided early enough and there are many exclusion clauses
preventing full disclosure. Death in custody inquests are formally
inquisitorial but adversarial in practice, with both sides with
much to lose, and this serves to confuse the unprepared family
participants. Coroners do not have sufficient powers to be genuinely
independent and lack the skills, training, and independent support
necessary to conduct investigations into a death in custody.
7.6 It is essential for public confidence
that the strong link between the coroner and the police must be
removed. Every death in police custody should be investigated
as a potential homicide by the new IPCC, which must not be police
dominated. As for prison deaths, more independence could be achieved
if the Prison Ombudsman were given the power to investigate and
publish their reports into all prison deaths. In order to assist
the grieving families, guidelines should be developed to speed
up the inquest process and full and prompt pre-inquest disclosure
made mandatory. It is inconceivable that bereaved families are
still subject to delays of over a year in trying to find out how
a loved one has died.
7.7 The jury is too confined in their ability
to frame verdicts and they cannot make recommendations and do
not name those responsible. The verdicts do not necessarily lead
to any form of legal liability creating a lack of consistency.
The author recommends that the jury power to add riders should
be reinstated. A further reform the researcher advocates is the
reinstatement of the coroners' ability to commit someone for trial[238].
At present the inconsistency between "unlawful killing"
verdicts and coroners' inability to name individuals responsible
and commit them to trial is a major deficiency, as the expectation
that a criminal prosecution will follow such a verdict is rarely
met.
7.8 This lack of consistency is reinforced
as coronial findings and recommendations are not published, monitored
or even followed up. Riders have been abolished. In order to reduce
this inconsistency, coroners' recommendations should be part of
the inquest verdict; their recommendations should be published
and monitored. There needs to be some official mechanism for holding
the authorities to account for acting upon coroners' recommendations,
as it is not enough that the media can draw attention to and cause
embarrassment to government agencies if recommendations are ignored
and another death follows[239].
If a public inquest database were available and easily accessible
families would not feel so left out. They would be aware of the
options available to them and how the system actually works. Additionally,
if the post of an inquest welfare officer, employed by the coroner,
was created to liase and explain the process to families, this
would help to create a more independent and less confrontational
system.
7.9 In order to strengthen the role of the
coroners' court and create a more consistent system, a Chair/Head
of Coroners should be created to maintain standards, ensure regular
training, provide good practice guidelines and deal with complaints.
The final and perhaps most important recommendation to emerge
from the research into coronials into deaths in custody is that
legal representation should be a right for families without means
testing. The importance of such a recommendation cannot be overstated.
The undue stress that families are put through in trying to secure
financial assistance at such a traumatic time is unforgivable.
7.10 There are currently attempts afoot
to institute reforms of the inquest system. Dame Janet Smith is
investigating the role and function of investigations in the Shipman
Inquiry. The Final Report is due in 2004. The Home Office launched
a Fundamental Review of the Coroner's System[240]
in 2001 as a result of the Alder Hey and Marchioness Inquiries.
The results were published in June 2003. The report recommended
that public judicial inquiries be held in all death in custody
cases where the death did not arise from natural causes. It does
not, however, support coronial verdicts implying either criminal
or other liability.
7.11 As yet Ministers are still considering
their response to the recommendations made. The HRA 1998 s3 affects
the potential to reform coroners' courts in a number of ways.
In particular, the limited remit of the coroner's inquiries may
need to undergo significant changes, in order for the "how,
where and when the deceased came by his death" in the Coroners
Act 1988 s11(5) (b) to have the potential to provide for an adequate
and effective inquiry. This is because the word "how"
potentially no longer excludes a consideration of individual actions
and systemic failures. Furthermore, the introduction of the HRA
means that coroners are now obliged to put the interests of family
and private life in a primary position as directed by Article
8 of the ECHR (Thomas et al 2002). In general terms the
HRA 1998 may enable coroners to rewrite the Coroners' Rules, but
this would be a prolonged exercise conducted on an individual
case basis.
Criminal Prosecutions
7.12 At the moment criminal prosecution
remains the most appropriate action for holding individual people
to account for a death, but such actions are doomed to fail without
a reform of the whole investigative process. To date, in both
countries there has been no successful criminal prosecutions following
a black death in custody. Since 1990 there have been eight deaths
in custody where inquests returned unlawful killing verdicts in
the UK, all of which were followed by CPS decisions not to prosecute.
The CPS decisions were successfully challenged using judicial
review in four of these cases (O'Brien, Lapite, Manning and Alder),
two of which eventually resulted in unsuccessful prosecutions
(O'Brien and Alder). Although the Butler Inquiry (1999) was set
up to examine the decision-making process of the Director of Public
Prosecutions in relation to deaths in custody, it did not itself
result in any new prosecutions or significant changes. Lastly,
the Attorney General and the Director of Public Prosecutions have
begun a review of the role of the CPS in deaths in prison or police
custody. It reported in July 2003 and was limited to key aspects
of the CPS role .It did not reopen or reconsider individual cases.
WOULD A
ROYAL COMMISSION
SATISFY ARTICLE
2?
8. In 1991 the Institute of Race Relations
proposed the establishment of a Royal Commission to investigate
all deaths in custody based on their limited knowledge of the
RCIADIC at the time. This paper set out to investigate the feasibility
of this proposal when set against an analysis of what the Australian
Royal Commission achieved and the potential for reform under the
Human Rights Act 1998.
8.1 One of the clear lessons to be drawn
from the Australian Royal Commission is that such a body is inappropriate
for the detailed investigation of individual death in custody
cases. Not only did the RCIADIC become bogged down in the controversy
and procedural manoeuvring that is bound to surround such investigations,
but a permanent body with such a remit could well hamper the reform
of existing remedies and the development of investigative expertise
in the police, prisons and secure hospitalsarguably where
greater expertise is most needed. Also, even if the establishment
of a standing Commission guaranteed greater investigative independence,
its very existence would limit the progress of creating independence
in other institutions, such as the new IPCC. The Institute of
Race Relations originally proposed that a Royal Commission would
only become involved in individual cases in an appellate capacity,
following an inquest. However, the past decade has seen a significant
development of judicial review as a means for challenging the
findings of inquests and the inadequate working of existing remedies,
such as criminal prosecutions. The advent of the Human Rights
Act 1998 has a potential for further strengthening such challenges
in the future.
8.2 What of the wider political impact of
the Australian Royal Commission? As argued earlier, it proved
for a period to be a stimulus for both government action and wider
political organisation around the issue of deaths in custody.
However, its effect in terms of influencing governments in Australia
has now largely dissipated with the advent of much harsher "law
and order" policies. Arguably, the experience in the UK following
the MacPherson Report holds out similar lessons.
8.3 If the analysis presented here leads
to scepticism about the potential for a Royal Commission in the
UK, there may nevertheless be a role for a differently constituted
permanent review body on deaths in custody. Such a body would
need to include representation of community and other interest
groups and it certainly should not seek to displace them. While
there should be a statutory requirement on all custodial and investigative
bodies to notify the review body immediately that deaths (and
possibly serious injuries) in custody occur, its function should
not be to oversee or interfere with the existing processes of
investigation of such cases. It might, however, have a role in
assisting families in the immediate aftermath of deaths, such
as in maintaining a register of lawyers expert in dealing with
deaths in custody cases and putting them in touch with families
through organisations such as INQUEST.
8.4 The primary role of the review body
would come after the investigation and inquest into deaths in
custody had been completed. One of the more important and lasting
changes brought about by the Royal Commission in Australia was
the setting up of the National Deaths in Custody Monitoring Unit
in Canberra and the MUNNCI (national coronial database) in Melbourne.
Part of the function of a national review body on deaths in custody
in the UK would be to replicate the role of these organisations
in this country in respect of death in custody cases, in particular
collating information on the findings and recommendations of all
investigations and inquests into deaths in custody. But it should
also go beyond such a monitoring role and seek to draw out specific
lessons for future policy in this field. Its advantage over existing
remedies is that its remit and recommendations would not be confined
to the circumstances on any one individual death or even to one
particular form of custody, but rather it could seek to draw out
policy lessons across the full range of cases and custodial situations.
It could also serve as a body to review periodically the Government
and authorities' implementation (or lack of it) of recommendations
of inquests or the review body itself. One could envisage the
publication of its annual reports as providing a major focus for
a wide range of groups campaigning for reform in relation to deaths
in custody.
8.5 Of course, no commission or review body
can serve to guarantee reform or as a substitute for political
action around such issues as deaths in custody. The issue of deaths
in custody will not disappear due to the underlying spectre of
racism and current trends in criminal justice policies, such as
the drive against "persistent offenders" in the UK.
Unless there is a fundamental shift in societal attitude towards
ethnic minorities and criminal justice issues (including immigration)
then despite the attempts at reforming individual parts of the
system, the number of deaths in custody will continue to rise
in line with the growing incarceration of members of ethnic minority
communities.
25 September 2003
201 The Guardian 26 March 1998; INQUEST press
release 26/1/98. Back
202
R v Lemon [1979] AC 617. Back
203
In a successful prosecution the award for costs may not cover
the full cost of the prosecution and collection of evidence. Back
204
Section 13 of the 1988 Coroners Act, re-enacting section 6 of
Coroners Act 1887 (as extended by section 19 of the Coroners (Amendment)
Act 1926). Back
205
R v Divine, ex parte Walton [1930] 2 KB 29, 379, applied
in R v South London Coroner, ex parte Thompson, The
Times, 9 July 1982, DC. Back
206
Since 1977, Rules of the Supreme Court (RSC) Ord 53. Back
207
Anisminic v Foreign Compensation Commission [1969] 2 AC
147, HL, concerned a statutory tribunal, not a Coroner's court,
but is applicable since R v Surrey Coroner, ex parte
Campbell [1982] QB661. Back
208
For example inaccuracies in the coronial may be amended, or deleted
a paragraph. Back
209
Hptt://inquest.gn.apc.org/caseupdater.html Back
210
R v DPP, ex p C [1995] 1 Cr App R 136. Back
211
R v Sec State Home Dept ex p Brind and Others [1991] 1
AC 696. Back
212
DR 56/62. Back
213
DR 20/184. Back
214
DR 42/171. Back
215
Conditional Fee Agreements Order 1995 SI No 1674. Back
216
Human Rights Act 1998 section 2 and 3. Back
217
Ibid section 6. Back
218
See in particular R (Wright and Bennett) v SSHD [2001]
EWHC Admin 520; R (Amin) v SSHD [2001]. EWHC Admin 719;
R (Middleton) v HM Coroner for Western Somerset and SSHD,
14 December 2001. Back
219
McCann v UK at paragraphs 200-201 and 212-214, Jordan
v UK at paragraph 101-109, R (Amin) v SSHD at paragraphs
27 and 75. Back
220
Assenov v Bulgaria 28 EHRR 652 paragraph 117; R v (Wright
and Bennett) v SSHD. Back
221
Salman v Turkey, paragraph 100; Cackici v Turkey, paragraph
85; Selmouni v France, paragraph 87. Back
222
For example in cases such as R (Middleton) v HM Coroner for
Western Somerset and SSHD, 14 December [2001] DC where prisoner
has hung himself after staff failed to recognise he was a suicide
risk. Back
223
R v DPP ex p Manning and Melbourne [2000] 3 WLR 463, paragraph
33. Back
224
R v DPP ex p C [1995] 1 Cr App R 136; R v DPP ex p Treadaway. Back
225
[2001] EWHC 922. Back
226
Govell v UK (Application 27237/95); [1999] EHRLR 121 and
Khan v UK [2000] 8 BHRC 310. Back
227
R v DPP ex p Manning and Melbourne [2000] 3 WLR 463; R
(Amin) v SSHD [2001] EWHC Admin 719; R on the application
of Wright v Home Secretary [2002] HRLR1. Back
228
Cackici v Turkey, 31 EHRR 133, paragraph 85; Tanrikulu
v Turkey 8 July 1999 (Application 23763/94) paragraph 70. Back
229
Timurtas v Turkey 33 EHRR 121, paragraph 66. Back
230
Cakici v Turkey (2001) 31 EHRR 5 paragraph 98. Back
231
[2001] EWHC Admin 170. Back
232
Jordan v UK, paragraph 109. Back
233
R v HM Coroner for Hammersmith ex p Peach [1980] 2 WLR
497, 504; R v HM Coroner for Lincolnshire ex p Hay [1999]
163 JP 667, 675-6. Back
234
McCann v UK paragraph 150. Back
235
Annetts v McCann (1990) 65 ALJR 167. Back
236
Wootten, H Report into the Death of Clarence Alec Nean (1991:72). Back
237
National Report, Volume 1 at 1.3.3. Back
238
Removed under the Criminal Justice Act 1977. Back
239
Chief Commissioner of Police v Hallenstein [1996] 2VR 1
at 21. Back
240
The Coroners Review Team's terms of reference included: considering
the most effective procedure for identifying the deceased, for
establishing and certifying the medical cause of death, and having
regard to proposals for a system of medical examiners. Back
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