Joint Committee On Human Rights

Joint Committee On Human Rights Written Evidence

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 inquest—the 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 inquest—inquests may use hearsay evidence, whereas the criminal trial cannot—or 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 8—the 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 commonality—black 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 society—socially, 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 hospitals—arguably 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