Joint Committee On Human Rights Third Report


10 Inquiries into deaths in custody

282. The Article 2 positive duty to protect the right to life implies a duty to investigate any unnatural death of which the State is made aware, including but not confined to deaths in which State agents may be implicated.[281] An effective system of investigation which ensures accountability for unlawful killings is seen as essential to the practical protection of the right to life. Such investigations are particularly vital in cases where there may be State involvement, as the European Commission of Human Rights pointed out in McCann v UK

    A general legal prohibition of arbitrary killing by state authorities would be rendered nugatory if, in practice, there was no mechanism for reviewing the action of the state agents. It must often be the case where state agents have used lethal force against an individual that the factual circumstances and the motivation for the killing lie largely, if not wholly, within the knowledge of the state authorities and that the victims' families are unlikely to be in a position to assess whether the use of force was in fact justified. It is essential both for the relatives and for public confidence in the administration of justice and in the state's adherence to principles of the rule of law that a killing by the state is subject to some form of open and objective oversight.[282]

But the duty to investigate is no less strong in cases involving not the use of lethal force but a negligent failure to protect life. Indeed, as pointed out in chapter 2, the House of Lords in Amin held that such cases of systemic failure may require even more elaborate investigation than cases of deliberate killing by state agents.

283. The procedural obligation which therefore arises under Article 2, to conduct an effective investigation, applies to any unnatural death which occurs in State detention.[283] The European Court of Human Rights has established a number of criteria for an effective investigation which will satisfy Article 2, summarised in Jordan v UK: [284]

  • State initiative. The State authorities must act of their own motion to initiate an investigation into the death, rather than leaving it to the next of kin to bring proceedings.
  • Independence. Those carrying out the investigation must be independent from those implicated in the death. They must be institutionally independent, and must also demonstrate their independence in practice.
  • Effectiveness. The investigation must be capable of leading to a determination of whether the action taken by State officials was justified in the circumstances, to a determination of the culpability of those responsible[285] for the death. This is an obligation of means rather than result, so that steps must be taken to secure all relevant evidence in relation to the death.
  • Promptness. The investigation must take place promptly and must proceed with reasonable expedition.
  • Transparency. The investigation must be open to public scrutiny to a degree sufficient to provide accountability in the circumstances of the case.
  • Family Participation. The next of kin of the deceased must be involved in the inquiry to the extent necessary to safeguard his or her legitimate interests.

284. Within these criteria, the form which the investigation takes may vary. Article 2 need not be satisfied through any one single process. For example, an internal inquiry, though lacking in independence, may contribute towards gathering evidence which may assist the inquest and any subsequent prosecution.[286] In the UK, the Article 2 duty is fulfilled through the inquest system, through systems of independent inquiry, either ad hoc or systematic, and (albeit rarely) through prosecutions. Since Article 2 also requires that the investigation should be at the instigation of the State, rather than any private person, civil proceedings brought by family members do not contribute to Article 2 compliance.[287]

285. Article 13, the right to an effective remedy for breaches of Convention rights, requires that mechanisms should be in place for establishing any responsibility on the part of state bodies or agents for a death, and that the system should allow the next of kin an enforceable right of compensation in respect of the death.[288] Article 13 does not require that an inquiry should be on the initiative of the state, and therefore civil proceedings, which may lead to an award of damages, may be sufficient to satisfy Article 13.

Informing and involving families

286. A death in custody, once it has occurred, requires respect for the rights of the family of the person who has died. During this inquiry we met family and relatives of people who had died in custody, who raised serious concerns about the authorities' response to the death, the information provided to the family, and the extent to which they had been involved in inquiries. Several of the families had been informed of a death in ways that were highly insensitive, and several had been given insufficient information about what had happened, or had been obstructed in their attempts to obtain information. In a number of cases we were told of, parents were informed of the death of a son by telephone. Some families had not been informed of their right to have a medical representative present at the post mortem.

287. We were told by a number of the public bodies responsible for inquiring into deaths in custody of a new emphasis in family liaison in investigations, in the coroners' courts and in the CPS. We welcome these measures, which we discuss further below, and hope that they will lead to changes in practice. We are concerned, however, that in the immediate aftermath of a death, families are not always treated with the respect and consideration that they deserve. All institutions of detention should develop and implement procedures to inform family members of a death promptly and sensitively, to provide them with appropriate support, advise them on how the post-mortem investigation will proceed, and to provide them, promptly, with information on the circumstances of the death and seek agreement with the family on procedures to be used for the return or disposal of the possessions and personal effects of the deceased. Staff members should be trained in effective liaison with families in these circumstances. Contact details of the next-of-kin of detainees should be kept as comprehensively as possible to ensure that they can be informed in as sensitive a way as possible. Wherever possible, staff should visit the family to inform them in person of the death.

Inquests

288. The Inquest is the main forum in which the Article 2 investigatory duty is discharged in the majority of deaths in custody cases in England, Wales and Northern Ireland. The Coroners Act 1988, in section 8(1), requires that an inquest must be held where a death takes place in prison. In practice, an inquest with a jury is held in every case of death in police or prison custody,[289] although there is not always a jury in inquests following deaths in Mental Health Act detention. The Mental Health Act Commission regrets this, pointing out that the presence of a jury can lead to a more detailed examination of the circumstances of the death.[290] Under rule 43 of the Coroners' Rules, a Coroner may make recommendations to any appropriate authority on steps that should be taken to prevent similar deaths.[291]

289. In Scotland, there is no inquest system; initial investigation of deaths is by the Procurator Fiscal, who reports to the Lord Advocate. This is followed by a Fatal Accident Inquiry, a public judicial inquiry, in all deaths in custody cases.[292] The inquiry looks to all the circumstances of the death, including any systemic problems which may have contributed to it.[293]

290. Under the ECHR, a sufficiently thorough coroner's inquest may satisfy the Article 2 procedural requirement of an independent investigation.[294] Whether it does, however, depends on whether, in the circumstances of a particular case, it satisfies all the requirements which have now been spelled out of Article 2, and serves the purpose of being both an effective investigation into the circumstances surrounding the death and capable of leading to the identification and prosecution of those responsible for the death.

291. There are a number of respects in which an inquest may fall short of satisfying the Article 2 duty of investigation. The main problem is the limited purpose and scope of a coroner's inquest under the current legal framework. The relevant legal provisions defining the purpose and scope of an inquest have traditionally been interpreted to mean that the inquest has a narrow fact-finding role, and does not extend to looking at the "broad circumstances" in which the death occurred. This means that, on the traditional approach to the purpose and scope of inquests, systemic neglect was not a proper matter for investigation. In Amin, the House of Lords unanimously agreed that a coroner's inquest would not satisfy the procedural obligation in Article 2 because of the various legal restraints contained in the Coroners Act 1988 and the Coroners Rules 1984. No inquest had been held in the case, because the coroner had adjourned the inquest into the death of the deceased pending the trial of the murder charge against the cell-mate, and then subsequently declined to resume it. In the proceedings the coroner put in an affidavit giving detailed reasons why the constraints to which coroners and inquests are subject would make an inquest an unsuitable vehicle for investigating publicly the issues raised by the case, and the House of Lords accepted that evidence. As Lord Hope put it the coroner is restricted to a simple short verdict.[295] She cannot make recommendations, and many of the issues which still need to be investigated in public would be beyond the scope of her inquest. Lord Bingham noted that it would overcome the problems exposed by this appeal if effect were given to the recommendations of the Fundamental Review (considered below).[296] However, since the implementation of those fundamental changes required legislation, the only alternative in the meantime was to order the holding of an independent public inquiry into the circumstances which led to the death of Mr. Mubarek at the hands of his cell-mate.

292. Another problem in relation to Article 2 compliance arises where the inquest is suspended pending a prosecution.[297] If at the subsequent trial there is a guilty plea and therefore no evidence is heard regarding the circumstances of the death, and following the conviction, the inquest is not re-opened, Article 2 will not be satisfied, in the absence of another form of independent inquiry. Families of those who died may be left with many unanswered questions regarding the circumstances of the death.

293. Particular problems of compliance have also arisen in relation to the Northern Ireland inquest system, due in part to delays, and in part to the narrow range of findings open to an inquest under the Northern Ireland system.[298]

THE LUCE REPORT

294. That the purpose and scope of a coroner's inquest under the current legal framework is too narrow to satisfy the procedural obligation in Article 2 in cases concerning system neglect has now been recognised by the fundamental review of death certification and investigation in England, Wales and Northern Ireland ("the Luce Report") published in June 2003.[299] It recommended that the inquest should be the principal means of conducting an Article 2 compliant investigation. The Luce Report made a series of recommendations for reform of the inquest system. Amongst the recommendations were—

—  A broader remit for inquests, encompassing the cause and circumstances of the death and an analysis of whether there were any systemic failings that contributed to it; and whether there was a real and immediate risk to life which the authorities did not take reasonable steps to prevent;

—  The inquiry should extend to whether any regulatory or safety regimes were properly observed;

—  In cases where Article 2 ECHR is engaged, the inquest should remain the main forum of inquiry;

—  There should be a new set of rules on disclosure reflecting a presumption in its favour but containing necessary safeguards;

—  The coroner's office should be required to make contact with the family at an early stage and provide them with information and support throughout the process;

—  There should be regular audits of inquest and investigation timings;

—  There should be a Family Charter for the coroners' courts.

295. The Home Office responded to the Luce Report in a Position Paper of March 2004.[300] It proposed a reorganisation of the coroner and death certification services, with the creation of an office of Chief Coroner for England and Wales, a system of inspections, and an advisory Coronial Council.[301] Consideration is also to be given to a right of appeal from inquest verdicts.[302] The paper makes a commitment to securing better premises for Coroners' Courts, and supports consistent staffing of coroners offices from central funds.[303] It supports the wider scope of inquest verdicts now required in appropriate cases by the House of Lords (see below). The paper also suggests that Rule 43 reports should be more widely disseminated and systematically monitored, and that the recommendations of all such reports, and their implementation, should be reviewed in an annual report of the Chief Coroner.[304] The Home Office paper accepts the recommendations of the Luce report regarding the involvement of families, making a commitment to a family charter to be displayed in all coroners' offices.[305] We welcome the Home Office commitment to implement the Luce Report, in particular the establishment of a Family Charter for the coroners' court. We hope that the commitment to family involvement will be made a reality through full provision of information and documentation.

296. The Home Office paper makes wide-ranging recommendations for the modernisation of the administrative and funding structures of the coroners' courts. It states that a White Paper and draft Bill on reform of the inquest system will be published by spring 2005.[306]

THE INQUEST VERDICT

297. The potential scope of an inquest has been widened by recent decisions of the House of Lords in R v HM Coroner for the Western District of Somerset ex parte Middleton[307] and R v HM coroner for West Yorkshire ex parte Sacker[308] on 11 March 2004. Prior to these judgments, the inquest verdict was confined to identifying the immediate means of death. Its task was to determine "how, when and where the deceased came by his death",[309] which was interpreted as a determination of the immediate cause, rather than the background to and reasons for the death. In Northern Ireland, where inquests issue "findings" rather than verdicts, particular restrictions have applied which, most significantly, have prevented inquests from returning a verdict of unlawful killing. [310]

298. Middleton and Sacker make clear that Article 2 ECHR requires that an inquest jury should be permitted to issue conclusions on the surrounding facts of a case. The power to issue a verdict on "how" the deceased came by his death should be interpreted broadly as meaning "by what means and in what circumstances".[311] This includes, in the case of a death in custody, whether and to what extent systemic failings were a factor in the death. In cases where a traditional short form verdict is not sufficient to establish this, the coroner at his or her discretion should decide on a means to elicit the jury's decision on the key factual issues in the case. The coroner may, for example, invite a narrative verdict or invite the jury to answer a series of factual questions. The form of the verdict should not, however, contain any finding of civil or criminal liability on the part of any named person.[312] The Northern Ireland Court of Appeal has applied the principles set out in Middleton in In Re Jordan,[313] where it was held that, although a verdict of "unlawful killing" remained unavailable to coroners in Northern Ireland, the inquest should be able to consider the background circumstances of a death, and make findings of fact on the actions of agents of the state relating to it.[314]

299. Narrative verdicts will be of particular importance in deaths in custody cases where the causes of death may be complex, for example, where a death may have been self-inflicted but contributed to by neglect, or lack of effective healthcare. As the Home Office position paper, issued prior to Middleton, noted—

    The most effective outcome for inquests would … be a narrative verdict, as current short-form verdicts do not always give an adequate explanation and are used inconsistently. Narrative verdicts can be more helpful and informative than simple verdicts such as "accident" or "misadventure". The latter can be used inconsistently and are sometimes without any clear distinction. They can also imply that no-one was responsible for a death rather than that the death was not intended.[315]

300. Recent inquests into deaths in custody have made use of narrative verdicts to provide a fuller picture of the circumstances of a death and the systemic failings which formed the background to it. The inquest into the death of Terry Doyle recorded a verdict of suicide, contributed to by failures in the prison's system of observation and risk-assessment. The inquest into the death of Joseph Scholes recorded a verdict of accidental death in part contributed to by failure to assess the risks and to take appropriate steps to prevent his death. We welcome the introduction of narrative verdicts in inquest proceedings, as enabling a fuller explanation of the causes of deaths in custody. We emphasise the need for coroners in the exercise of their discretion to make full use of narrative verdicts in deaths in custody cases, in order to provide a full explanation of the case as required by Article 2.

301. The wider scope of inquests in Article 2 cases has resource implications for the Coroners' Courts. In an additional written submission following the Amin case, the Coroner's Society of England and Wales, whilst welcoming the clarification of the law in that case, noted that "judicial decisions do not provide the resources with which to put them into effect. We have grave doubts whether the manpower resources or jury suitable courts are available to deliver the widened scope of inquests required. In some cases they clearly are not".[316] We recommend that the resource implications of the House of Lords' ruling that fuller inquiry and a narrative verdict is required in some inquests where Article 2 is engaged, must be taken into consideration in the Government's response to the Luce report.

PRODUCTION AND DISCLOSURE OF DOCUMENTS TO FAMILIES

302. One difficulty with the current system relates to disclosure of documents. Failure to disclose relevant documents to families in advance of the inquest was one of the reasons for non-compliance with Article 2 in Jordan v UK. Pre-inquest disclosure of documents to relatives of the deceased now takes place, but is on a voluntary basis only.[317] Although policy is to disclose documents and information to the greatest extent possible without compromising the inquest, INQUEST, Doughty St Chambers, and the Mental Health Act Commission all pointed in their evidence to delays or obstruction in the disclosure of documents.[318] The Luce report recommended that the rules of disclosure should reflect a presumption in favour of disclosure, subject to certain safeguards.[319] Where the disclosure of documents has been granted, it is the policy of the Court Service to recover expenses incurred in photocopying by levying a charge of £1.10 + VAT per sheet. This policy does not take into account reductions of cost as a result of improvements in reproductive print technology and appears in conflict with the goal of equality of access. For disclosure to the family to support real and effective participation in the inquiry, as required by Article 2, it must be thorough, prompt and affordable. We recommend that the fullest possible disclosure should be made to the family well in advance of the inquest. We recommend the Court Service review its arrangements for levying disclosure charges with a view to providing a free or at least an affordable alternative for bereaved families.

303. Furthermore, the Coroner has no statutory power to compel production of documents at the inquest. The Luce report recommended that coroners should be given express powers to obtain any document, statement or report.[320] We recommend that Coroners should have statutory power to compel the production of documents.

DELAYS AND RESOURCES

304. The Article 2 obligation to hold a prompt investigation is at risk of breach due to significant delays in the inquest system. INQUEST cite delays of more than two years in a number of recent deaths in custody cases.[321] There are particularly acute delays in the Northern Ireland inquest system, due largely to the practice of waiting until all other investigations and inquiries are concluded, before proceeding with the inquest.[322] As the CAJ point out in their evidence, such delays are particularly disturbing in cases where systemic failings are in issue, and may remain unaddressed pending the inquest.[323] We note that the Northern Ireland Court Service has recently begun a consultation process on reform of the Northern Ireland Coroners' System.[324] Where the inquest is the means by which the Article 2 duty of investigation is satisfied following a death in custody, then significant delays may breach Article 2, which requires that an investigation into a death be prompt. We are concerned that current delays may in some instances lead to breaches of Article 2. We emphasise the need for the reviews of the coronial system, both in England and Wales and in particular in Northern Ireland, to address delays in the system.

305. Another practical problem which may have real consequences for Article 2 compliance is lack of resources. The funding provision for coroners' offices is complex and variable, with the main sources of funding being police authorities and local authorities.[325] Written evidence from Doughty St Chambers, and INQUEST, points to a serious problem of lack of resources in the coroners' courts. Doughty St Chambers annexed to their written evidence an affidavit of the coroner in the Amin case, Alison Thompson, which contains an account of the resources problems affecting her office, and notes that—

    The extent of funding and staffing varies enormously between jurisdictions in England and Wales. The Borough provides no secretarial nor administrative staff for the Coroner and there is no IT facility for the 12 Coroner's offices who still use manual typewriters.

306. Such examples of under-resourcing are a matter of particular concern given the reported delays in inquest proceedings. We emphasise the need for the government response to the Luce report to address the adequate resourcing of coroners' offices in order to ensure Article 2 compliance.

LEGAL AID AND FAMILY PARTICIPATION

307. Effective family participation in the inquest is likely to depend on the availability of legal assistance. Following the case of R (Khan) v Secretary of State for Health[326] in 2002, new regulations were introduced governing the grant of legal aid to families of the deceased in inquest proceedings. Under the new regulations, the Legal Services Commission may, where it considers it equitable to do so, request the Secretary of State to disapply the normal eligibility limits for legal aid. The Legal Services Commission is required to have particular regard to the Convention rights in deciding whether to make such a request.[327]

308. In many cases, it appears that, under the new regulations, funding for legal representation for families at inquests continues to pose a problem. INQUEST have raised concerns that the new system is not uniformly applied across different LSC offices. INQUEST argue that the LSC have misinterpreted the construction of Article 2 in R (Khan) v Secretary of State for Health, to confine the requirement of legal aid to "exceptional" cases. They argue instead for the application of a form of merits test which would grant legal aid based on a likelihood of a finding that state agents were implicated in a death, directly or indirectly.[328]

309. Lack of funding for families' legal assistance is a matter of particular concern for families, given that funding for legal representation at the inquest is generally available to any state employees implicated in the death.[329] The Luce Report recommended that funding for legal representation should be available to families in all cases where a public authority is also legally represented. The Home Office has not undertaken to ensure this, though it has undertaken to give further consideration to "finding an equitable and affordable formula that will provide relatives and others affected by an inquest with the level of legal support they need".[330] Participation of the next-of-kin in the investigation into a death in custody is an essential ingredient of Article 2 compliance. We recommend that, in all cases of deaths in custody, funding for legal assistance should be provided to the next-of -kin.

Investigations of deaths in police custody

310. Investigations of deaths in police custody in England and Wales are now the responsibility of the Independent Police Complaints Commission (IPCC), which was established under the Police Reform Act 2002 and began work in April 2004. A more robust system of independent investigation applies in Northern Ireland under the Police (Northern Ireland) Act 1998 which established the Police Ombudsman for Northern Ireland. In Scotland, consultation is underway on the establishment of an independent policy complaints body.[331] As the IPCC stressed in its evidence, its role is not only to conduct and oversee investigations but also to act as a guardian of the investigations system as a whole. In pursuit of this it will "set standards, inspect performance, identify and spread best practice and ensure the appropriate lessons are learnt at both a national and local level when mistakes are made".[332]

311. The Police Reform Act provides a statutory framework for independent inquiries into deaths in police custody which are capable of full compliance with Article 2 ECHR. Inquiries may be carried out by independent investigators employed by the IPCC, with powers to enter relevant premises, and require the production of evidence.[333] Provision is also made in the legislation for full involvement of family members and other appropriate persons.[334] However, the application of the Act in practice, and the resourcing of the IPCC, are crucial to achieving Article 2 compliance.

312. Although the 2002 Act provides a framework for an independent investigation, there remains no assurance of an independent investigation in every case. Following a death in custody, the IPCC has four options: to investigate the death itself; to manage a police investigation; to supervise a police investigation; or to allow an unsupervised police investigation.[335]

313. The IPCC made clear to us that it did not yet have the capacity to independently investigate all cases of deaths in police custody where Article 2 might apply.[336] They calculated that in order to do so they would need 160 investigators; at the time of giving evidence they had 72. With this level of staffing, the IPCC envisaged that—

    … there may be circumstances surrounding a death in custody which would suggest an independent investigation but which the IPCC would decide to manage or supervise. Where police officers are used for investigations the IPCC will need to determine whether they are taken from the force that is being investigated or from an external force.[337]

314. The IPCC's criteria for investigations envisage that an investigation will be either conducted or managed by the IPCC in most but not all death in custody cases. Where the investigation concerns "a death or serious injury that has occurred as a consequence of either a positive or a negative action by a person serving with the police"[338] then it is likely that the investigation will be conducted or managed by the IPCC.

315. Where, following a death or serious injury resulting from contact with the police, Articles 2 and 3 ECHR may be engaged, the criteria note that—

    The IPCC, as a public authority under the Human Rights Act 1998, has an obligation to determine a form of investigation that is an effective independent investigation that does not have any hierarchical or institutional connection with those implicated in the events.

316. The guidance takes the view that either an investigation conducted by the IPCC, or an investigation managed by the IPCC and conducted by an external police force, would satisfy the Article 2 requirement of independence. It allows the IPCC to take into account the competing demands for resources in its casework, in considering what form the investigation may take, so long as those competing demands do not compromise its human rights obligations.[339] These obligations, however, can only be fulfilled to the extent that the IPCC has sufficient investigators to fulfil them.

317. The IPCC was optimistic that this under-resourcing was temporary. Nevertheless, it was stressed that lack of resources created both administrative problems, and problems for the public perception of independence which could affect the credibility of the IPCC system as a whole.[340] The IPCC expressed particular concern that, as a result of the current heavy reliance on investigations by external police forces, police officers were frequently "criss-crossing the country" to investigate each other. This the IPCC judged to be wasteful of resources, and a potential threat to independence and the perception of independence, where, as had happened in certain cases, two police forces found themselves simultaneously investigating each other.

318. The controversies surrounding the investigation into the death of Kebba Jobe, shortly after the IPCC's establishment, illustrate the problems that may arise if the under-resourcing of the IPCC continues beyond its start-up phase. The initial decision to allow an internal investigation by the Metropolitan Police, followed by transfer of the investigation to an external police force, was criticised by INQUEST.[341] However, the case was later taken over for investigation by the IPCC. The IPCC made clear that they would have preferred to have investigated this case independently from the start, but that in the early months of the organisation's operation it had not had the capacity to conduct the investigation itself. They accepted the legitimate concern of the family and agreed that such a case would be the subject of direct investigation by the IPCC, now that the organisation was operating at full capacity.

319. We are concerned that Article 2 compliant independent investigations following deaths in police custody may be limited by resource constraints on the IPCC. The strong statutory basis of the police investigation system, and its capacity to comply with Article 2 ECHR, will be undermined if the IPCC cannot employ sufficient investigators to carry out its statutory mandate appropriately.

POWERS

320. Where the IPCC conducts an independent investigation, its investigators may make use of a full panoply of investigative powers. Investigators have powers of entry onto police premises, and powers to seize and retain relevant documents or evidence.[342] Chief Officers of Police have a duty to provide documents or information required by IPCC investigators.[343] The Secretary of State may also order the use of surveillance or of covert human intelligence sources for IPCC purposes.[344] These powers may also be exercised by police investigators where the IPCC manages or supervises an investigation.

FAMILY LIAISON

321. The IPCC has adopted a policy of disclosure of the investigating officer's report to the family, subject to a harm test. The presumption in the IPCC system is to be that all relevant information will be disclosed to the family, "unless there are very exceptional reasons" why this should not happen. Family liaison officers have been appointed and trained: the IPCC was "trying to inculcate the culture in the organisation where responding sensitively and appropriately to the needs of the family is at the forefront of all our thinking from the first".[345] Our own discussions with families of those who have died in custody have highlighted the need for investigating authorities to communicate effectively and fully with families from the outset. We welcome the priority being given to family liaison by the IPCC.

CO-OPERATION WITH THE CPS

322. Part of the importance of the investigation process to Article 2 compliance is its capacity to attribute responsibility for a death where this may be appropriate, and to provide evidence which may lead to prosecutions of those responsible. This is facilitated by close co-operation between investigators and prosecutors. A recently agreed protocol between the Crown Prosecution Service and the IPCC is intended to facilitate early and continued involvement of the CPS in the investigation. The procedures agreed under the protocol aim to ensure early CPS advice on legal and evidential issues in any investigation, whether undertaken by the IPCC itself, or managed or supervised by it. The protocol provides that early consultation and advice will always be considered in deaths in custody cases.[346] The DPP stressed to us that under the new protocol his office would be "working with the IPPC in the closest way from the start of these investigations".[347]

323. The protocol is also designed to integrate family involvement into the investigation and the work of the CPS. Following a death in police custody, the IPCC is to notify the CPS of the case at the earliest possible date, so that, where the case may lead to a prosecution, a CPS lawyer can make early contact with the family to brief them on the CPS's role.[348] The CPS and the IPCC family liaison officer are then to meet with the family.[349] This is the first in a series of meetings specified by the protocol, designed to keep the family fully informed of the investigation process and decisions on prosecution. The IPCC investigator and CPS lawyer nominated to the case are to make early contact and together will identify the issues in the case and consider the likely offences and potential lines of inquiry.[350]

324. The protocol's effective operation depends on the development of good working relationships between the IPCC and the CPS, and both the DPP and the IPCC expressed confidence in this system. More assertive statutory powers for the IPCC, such as the power to recommend a prosecution, were not regarded as necessary by either organisation. The IPCC took the view that its close working relationship with the CPS would be the best guarantee of achieving prosecutions in appropriate cases.[351] The DPP similarly considered that such a power "would not work because of the nature of the relationship between us which is going to be determined by the protocol"[352] although he stressed that the CPS would be happy to receive the views and recommendations of the IPCC in relation to prosecutions in any particular case.[353] We welcome the new protocol between the IPCC and the CPS and hope that it will be used to the full to support prosecutions in appropriate cases.

THE LIMITS OF THE IPCC MANDATE

325. The IPCC has pointed to a number of apparent gaps in its jurisdiction, which mean that, for example, it cannot investigate incidents where police detainees are harmed having been passed on to the custody of the court service or to private undertakings working on behalf of the court service.[354] The IPCC also lacks the power to investigate the actions of immigration staff.[355]

326. These gaps illustrate the limitations of a sectoral approach to investigations of deaths in custody. This approach means that investigations are organised with reference to the institution responsible for custody, rather than with reference to the nature of the harm. Deaths occur in all forms of state custody and carry the same Article 2 obligation to investigate. The gaps in the jurisdiction of the IPCC suggest that a more integrated approach to investigations of deaths in custody may be required.

327. Such an integrated approach can most immediately be pursued through joint work between the IPCC and other agencies, in particular the Prisons Ombudsman, an aim which the IPCC agreed was important to pursue.[356] We recommend that the Home Office should work with the IPCC to identify any gaps in its jurisdiction, in particular where such gaps may cause problems for Article 2 compliance, and that amendment of the IPCC mandate should be considered to close these gaps.

328. The IPCC and the Prisons and Probation Ombudsman should establish procedures for co-operation and information sharing so as to develop best practice in their work on deaths in custody.

Inquiries into deaths in prison

329. Since 1 April 2004 the Prisons and Probation Ombudsman has been responsible for conducting independent inquiries into all deaths in prisons, probation hostels and immigration detention in England and Wales. The transfer of the investigations function from the Prison Service to the Ombudsman was designed to comply with the requirements of an independent investigation under Article 2 of the Human Rights Act. Initially the Ombudsman's investigatory function will be exercised on a non-statutory basis and, pending legislation, the Ombudsman will have no powers to compel the production of evidence.

330. In written evidence to the Committee, NGOs including the Howard League for Penal Reform and Inquest raised some concerns about the Ombudsman's new role, arguing that the Ombudsman would not be sufficiently independent of Government, that he would need significant additional resources, that he did not have experience of on-the-ground investigations and that there might be conflict between the Ombudsman's wider investigatory role and the management of deaths in custody. Inquest also raised concerns about information provision to families in two early ad hoc investigations into deaths in custody conducted by the Ombudsman, and about the reliance on prison service investigators in these inquiries. The Ombudsman rejected these criticisms in oral evidence.[357] Mr Shaw stressed that his office would give priority to family liaison in its inquiries into deaths in custody.

331. In both written and oral evidence we were overwhelmingly met with concern that the Prisons and Probation Ombudsman was still not on a statutory footing, and that this would undermine the independence, and perception of independence, of inquiries into deaths in custody. In oral evidence the Ombudsman said that he believed all of his responsibilities should be backed up by legislation, and that: "The judgement as to whether or not an investigation of mine has met Article 2 or not is not a matter for me but for the courts, but my own feeling is that in itself it manifestly does not".[358] He added that, even with a statutory basis, Ombudsman investigations alone would not necessarily meet Article 2, but would supply an Article 2 compliant investigation in combination with the inquest, where evidence could be tested in public hearings.[359] Mr Shaw also said that he agreed with the Howard League's evidence that the Ombudsman's appearance of independence was undermined by being sponsored by the Home Office, and said that "I think one of the very important benefits of independent investigations of deaths is to enhance public confidence and I have not the slightest doubt that public confidence would be still further enhanced were I to enjoy a basis in statute."

332. Mr Goggins agreed that the Prisons and Probation Ombudsman should be on a statutory footing and that this could be accomplished as soon as possible. However, no timescale for legislation has been provided. As a matter of priority parliamentary time should be set aside to bring in legislation giving a statutory basis to the Prisons and Probation Ombudsman, and providing him with investigatory powers equivalent to those of the Independent Police Complaints Commission. Until such a statutory basis is provided, investigations by the Ombudsman are unlikely to meet the obligation to investigate under Article 2 ECHR.

333. The Northern Ireland Human Rights Commission raised a concern that, since the remit of the Ombudsman did not extend to Northern Ireland, there was no provision for independent investigations of deaths in prison in Northern Ireland.[360] The CAJ also pointed to a potential breach of Article 2 where deaths in prison were investigated either by prison investigators or by the police.[361] The Ombudsman confirmed to us in oral evidence that there was a gap in the system in this regard. In September 2004 the Northern Ireland Office announced the establishment of a new office of Prisoner Ombudsman for Northern Ireland.[362] We welcome the decision to appoint a Prisoner Ombudsman for Northern Ireland, but we note that no express provision has been made for the Ombudsman to investigate deaths in prison custody. We recommend that the Prisoner Ombudsman for Northern Ireland should have statutory powers to conduct independent investigations into deaths in prison custody in Northern Ireland, in line with the powers of the IPCC and with the powers exercised on a non-statutory basis by the Prisons Ombudsman of England and Wales.

334. Inquest suggested that there was a need for investigations into deaths in custody to address the significance of sentencing policy and the role that the courts play when making decisions about sentencing. We noted above (see paragraphs 108 to 113) problems with ensuring that judges and magistrates were in possession of reliable information about alternatives to custodial sentencing and the vulnerability of individual offenders committed to prison. We recommend that investigations into deaths in custody should address whether non-custodial options had been available and whether the sentencing court had ascertained whether the person they sentenced was at risk of suicide.

Inquiries into deaths in Mental Health Act detention

335. Mental Health Act detention is now anomalous in lacking a framework for systematic independent investigations into individual deaths in custody, equivalent to those that now operate under the IPCC and the Prisons and Probation Ombudsman. Where a death occurs of a person detained under the Mental Health Act, then, in addition to an internal inquiry by the Health Authority, there is provision, under the Health Service Guidelines,[363] for independent inquiries to be established; however such inquiries are "fairly infrequent".[364] Currently, such inquiries do not have investigatory powers to require the attendance of witnesses or the production of documents. The Inquiry into the Death of David Bennett recommended that these guidelines should be reviewed to provide such powers, to require involvement of the family, and to require the inquiry to address any ethnic issues relevant to the case.

336. The MHAC reviews deaths in psychiatric detention, although the review stops short of a full investigation, and is geared towards learning lessons for systemic improvement and good practice from individual cases, rather than finding the cause of death in the individual case. It does not (nor does it seek to) provide a full, Article 2 compliant, inquiry. The MHAC deliberately does not seek to replicate the work of NHS inquiries. In its review, the Commission obtains information from the service provider and the coroner, and it attends the inquest, where it may have "properly interested person" status and may ask questions. The Commission writes to the service provider with the results of the review of the case, sometimes making recommendations for changes to practice.

337. The MHAC was not wholeheartedly supportive of an independent inquiry system. They took the view that—

    A balance needs to be struck between holding independent inquiries where there is cause for specific concern and holding inquiries in every case irrespective of whether inquiries can be of use.

338. However they suggested that there might be a role for the new Commission for Health Audit and Inspection (CHAI) in conjunction with the National Patient Safety Agency (NPSA) in developing a "flexible response system" of inquiries, with inquiries being held into the most controversial cases, such as those involving restraint. Mr Ladyman told us that the situation in regard to inquiries into deaths in MHA detention was "not starkly anomalous" and that the Department of Health was confident of Article 2 compliance.[365]

339. We are not assured that Article 2 standards are met in relation to all deaths of detained patients, in particular where the inquest is not sufficiently thorough to itself satisfy Article 2. The inquest may not be equipped to sufficiently inquire into the background to the death, including for example the issues of systemic racism that were unearthed in the David Bennett inquiry. In such circumstances Article 2 compliance depends on the establishment of an independent inquiry under the Health Service Guidelines. Prosecutions are very rare.

340. Where an independent inquiry into a death of a detained patient is established, its nature, procedures and scope may vary widely. There appears to be no consistency in the formality or informality of the proceedings, the extent to which the inquiry is held in public, or the extent to which the family may be involved. This inconsistency risks leaving Article 2 rights unprotected. Given the many concerns surrounding deaths in Mental Health Act detention, discussed above, and in particular concerns about lack of accurate information on the circumstances and causes of such deaths, and the possibility that some deaths may be inaccurately recorded as the result of "natural causes", consistent and reliable investigation of these deaths should be a priority. In our view there is a case for a permanent investigatory body, with some level of overview of all cases, rather than ad hoc investigations in a few cases, in order to support Article 2 compliance. Since the case for such a body has been accepted in relation to police detention (with the establishment of the IPCC) and prison and immigration detention (with powers of inquiry, albeit for the moment on a non-statutory basis, allocated to the Prisons Ombudsman) we can see no reason why deaths amongst this particularly vulnerable group of detained people should not be subject to a similar safeguard.

341. It is important that any such investigatory body should have powers to require the attendance of witnesses. The absence of such a power would significantly hamper the ability of inquiries to provide, to the family in particular, a full picture of the circumstances of the death, and could inhibit allocation of responsibility for the death in appropriate cases, a problem which was highlighted in evidence to us. The report of the Inquiry into the death of David Bennett noted with regret that, since it had no power to require witnesses to attend, the inquiry had been unable to secure the attendance of a number of witnesses, although it did not in that case consider that the absence of witnesses had deprived the inquiry of essential information.[366]

Prosecutions of police or prison officers

342. Article 2 ECHR imposes a duty to provide an independent investigation which is capable in an appropriate case of leading to the identification and punishment of those responsible for a death. It does not require a prosecution in every case, in particular where a death is not deliberately inflicted, but may require prosecution in certain cases where the public policy issues are sufficiently serious, where the State is implicated in the death.[367] It requires an efficient judicial system allowing, in appropriate cases, recourse to the criminal law[368] and effective deterrent criminal law provisions, supported by law enforcement machinery.[369] Thus the Article 2 duties to protect the life of vulnerable individuals, and to investigate deaths, requires a substantive criminal law that can form the basis for prosecutions where appropriate; an investigatory system that will unearth evidence to support prosecutions where appropriate; and a prosecutorial system that will allow for consistent and independent decision-making on whether prosecutions should be brought.

THE ARTICLE 2 DUTY ON THE CPS AS A PUBLIC AUTHORITY

343. The Attorney General's Review of CPS practice in death in custody cases considered whether there should be express reference in the Code for Crown Prosecutors to Article 2 ECHR, and concluded that such reference was not necessary.[370] It was also concluded that there was no necessity to alter the Code to further emphasise the particular public interest considerations which may arise in death in custody cases.

344. A recent decision of the administrative court suggests that Article 2 does not require the DPP to consider whether the investigation at the inquest might have been inadequate.[371] We do not see how this can be considered to be compatible with the obligation on the State under Article 2 to conduct an effective investigation. However the court did go on to note "we do not exclude the possibility that even at the final stage the [DPP] may want to suggest further enquiries, the results of which may help him to reach a satisfactory conclusion."

345. The DPP saw his office as having an important though closely defined role in discharging the State's Article 2 obligation to investigate following a death in custody. He said—

    Our duty is to give all the advice that we can to the police to ensure that they have the benefit of the best legal advice in conducting investigations. … We do work closely with the police now in these investigations and our responsibility is to play a part in seeing that those investigations are properly serviced legally.[372]

346. Asked whether the CPS would intervene where it considered an investigation was being conducted inadequately to secure appropriate prosecutions in the case, Mr McDonald replied—

    I cannot imagine a case of the gravity that these cases represent where if the prosecutor felt there was an omission that had some legal implications he or she would not point it out. In fact, they would be under a duty to point it out and would do so.[373]

347. The CPS also stressed the importance of their giving early legal advice to investigators, and of there being procedures in place which allowed them to do so.[374] Such procedures were in place in respect of investigations under the authority of the IPCC (though we were not told of any similar procedures in relation to investigations of deaths in other forms of custody).

348. The rarity of prosecutions of police or prison officers following deaths in custody has raised concerns of bias, and diminished confidence in the CPS on the part of families of those who have died in custody. INQUEST pointed out in evidence that since 1990, of nine cases[375] where there has been an unlawful killing verdict returned at the inquest into a death in custody, in only one case was there an (unsuccessful) prosecution following the verdict.[376] Families' distrust of CPS decisions was made clear at two private meetings with members of the Committee.[377]

349. The DPP told us that—

    From January 2002 to May 2004 there were 97 cases assembled by the prosecution authorities in which potential prosecutions were thought to be on the cards. Five of these were prosecuted. These were our strongest and best cases and every single one resulted in an acquittal. Since 1999 there have been four other defendants prosecuted by the prosecuting authorities following deaths in custody—three police officers and one doctor—all acquitted.[378]

350. The DPP agreed the lack of prosecutions in these cases was "a litmus public confidence issue for [the CPS] and for the State itself"[379] He noted however that, in the experience of the prosecuting authorities, it was rare to discover evidence that a criminal offence had been committed. Even where some such evidence existed, it was often difficult to establish causation. The elements of gross negligence manslaughter, in particular, were difficult to establish. It required proof that the breach of the duty of care constituted more than a minimal cause of death, a difficult point on which there could often be expert disagreement, and that the breach of the duty of care was so serious as to amount to criminal gross negligence, which was also a high threshold to reach.[380]

351. The PCA in evidence were cautious about drawing conclusions from the dearth of prosecutions.[381] They pointed out that there had also been relatively few unlawful killing verdicts in inquests following deaths in police custody. Even in cases where there was an unlawful killing verdict, there could be evidential problems in mounting a prosecution where police officers exercised their right to silence. The Police Federation stated that they did not give any advice to police officers not to assist an inquiry, though they stressed that police officers must enjoy the same rights against self-incrimination as anyone facing prosecution.[382]

352. Mr McDonald emphasised the need for transparency in the CPS's procedures—

    transparency is absolutely essential because unless people can see what we are doing we are not going to acquire the level of public confidence that we need in this area.[383]

ATTORNEY GENERAL'S REVIEW OF THE CPS

353. CPS practice in deaths in custody cases has recently been reviewed, in the Attorney General's Review of the Role and Practices of the CPS in Cases Arising from a Death in Custody. Measures decided upon as a result of the review included—

354. The review also considered whether the perception of bias of the CPS justified removing deaths in custody from its remit, and allocating the decision on whether to prosecute in these cases either to an independent panel of lawyers or to a new body. It concluded that this drastic action could not be justified. In order to ensure greater oversight of the decision on prosecution, however, it was decided that the Director of Public Prosecutions should personally review all decisions on deaths in custody cases. Liberty, in written evidence, suggested that a special unit could be established within the CPS, directly responsible to the DPP.[384]

355. The DPP provided us with an account of the measures taken in response to the Attorney General's review. These include training of additional lawyers, widening of the pool of counsel to advise on deaths in custody cases; use of case management plans; briefing of the DPP on all deaths in custody cases; and regular meetings with and information to families. We welcome the measures taken in response to the Attorney General's review, and stress in particular the importance of thorough and prompt information provision to families.

356. There appears to be a practical difficulty in gathering sufficient evidence to support a prosecution for manslaughter in deaths in custody cases.[385] It may be, as has been suggested to us by the PCA,[386] that in relation to deaths in police custody, the new powers of the IPCC to require the production of evidence will provide a better evidential basis for prosecutions. The recent protocol between the IPCC and the CPS should also provide a basis for effective evidence gathering that is targeted towards supporting prosecutions. As regards deaths in prison, immigration detention and Mental Health Act detention, however, these new procedures are still lacking. There appears to have been no joint working between the CPS and the Prisons Ombudsman, in relation to the investigation of deaths in prison or in immigration detention, in contrast to the procedures for close co-operation that have been developed between the CPS and the IPCC.[387] Similarly, there are no procedures for co-operation between the CPS and the ad hoc or internal investigations that occur following deaths in Mental Health Act detention. These are highly significant omissions in the law enforcement machinery for investigating and prosecuting deaths in custody.

357. A reliable system which allows for prosecutions of the responsible officials where their action may amount to criminal conduct is essential to public confidence in the prosecution system and in systems of detention. It is also important to the protection of Article 2 rights in a number of respects. First, the failure of an investigation to result in prosecutions where there has been clearly criminal conduct on the part of State officials may breach the Article 2 duty of investigation in that particular case. Second, the effect of repeated failures to prosecute is to signal tolerance of conduct, whether negligent or deliberate, which causes deaths in custody. An effective system of prosecutions is an essential element of a system that prevents deaths in custody. The difficulties in obtaining evidence to support prosecutions following deaths in custody need to be addressed by strong evidence gathering-powers and close co-operation between the CPS and the police or other investigating authorities. We recommend that CPS lawyers should work closely with investigators from the office of the Prisons and Probation Ombudsman, and from any independent or internal inquiry into a death in Mental Health Act detention, to advise on evidential and procedural matters.

OFFENCES RELATING TO DEATHS IN CUSTODY

358. One question not within the remit of the CPS review was whether there should be changes in the substantive criminal law to either create new criminal offences, or to alter the grounds for conviction of existing offences in death in custody cases.

359. The European Court of Human Rights has held that if the infringement of the right to life is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal law remedy in every case.[388] The Court has also held, however, that under certain circumstances the procedural obligation to protect the right to life by setting up an efficient judicial system requires there to be recourse to the criminal law in relation to the death, even where the death has not been caused intentionally.[389] This obligation is based on the more general obligation under Article 13, and requires an adequate and effective domestic remedy in respect of the violation alleged allowing the appropriate national authority both to deal with the substance of an arguable complaint and to grant appropriate relief for the said violation.

360. Where the procedural obligation in Article 2 applies, the state must in certain circumstances put in place effective criminal law provisions to deter the commission of offences against the person.[390] A number of factors have been held to be relevant to whether, in the circumstances of a particular case, Article 2 requires the setting up of a criminal law mechanism: e.g. the nature of the sector of activities in which the complaint arises, the number and status of the authorities with obligations and duties under the relevant regulations, the number of people likely to be affected by the risk in question, and the seriousness of the consequences of the carelessness in question.[391] Applying those criteria, in our view deaths in custody are likely to be seen as cases in which a domestic remedy which could merely result in an award of compensation cannot be considered to be an avenue of redress capable of discharging the state's obligation to set up a criminal law mechanism commensurate with the requirements of Article 2. Article 2 therefore requires the state to ensure that recourse to the criminal law in respect of such deaths is possible in its domestic legal system.

361. Currently the most common offence that is relevant in a death in custody case is gross negligence manslaughter. The offence requires it to be established that the defendant owed the deceased a duty of care not to expose the deceased to a risk of death that a reasonable person would have foreseen; that he or she was in breach of that duty; that the breach was more than a minimal cause of death; and that the breach of duty was serious enough to be characterised as gross negligence. As the PCA noted, it can be very difficult to clearly establish causation, even where a breach of duty has been established.

362. Consideration could be given to creating a new offence, modelled on the offence of "causing or allowing the death of a child or vulnerable adult" created by section 5 of the Domestic Violence, Crime and Victims Act 2004. Under this section, an offence is committed by an adult member of a household where a child dies at the hands of another member of the household and the first adult knew or ought to have known of the risk to the child, but did not take reasonable steps to protect the child. Based on this model, there could be an offence of "causing or allowing the death of a person in State custody". The offence would be committed if a person died in custody, in the presence of one or more members of staff, in circumstances where the member of staff knew or ought to have known that there was a serious risk of significant physical harm to the detained person and failed to take reasonable steps to protect the detainee from that risk. This would assist in bringing a prosecution, for example, where a detainee dies following the use of control and restraint, in the presence of a number of police officers, but where there is insufficient evidence to attribute the death to one or more particular officers. We recommend that consideration be given to introducing an offence of causing or allowing the death of a person in State custody.

363. An offence of the type considered above would be less effective in situations where a death from neglect arose from deficiencies in the system (for example in the provision of healthcare) rather than the negligence of an individual officer. In such cases, although there might be a clear breach by the State and by the relevant public authority of a prisoners' Article 2 rights, it might be both difficult and inappropriate to prosecute an individual low-level officer working within the constraints of an overcrowded or under-resourced system.

364. In these circumstances, an offence of corporate manslaughter, for which the police force, prison service or health authority could be held liable, could provide an appropriate vehicle for establishing criminal responsibility for the death. Currently, prosecutions for corporate manslaughter are difficult to bring, because of the common law requirement to identify a single person who, as the "controlling mind" of the corporation, caused the death. Corporations can be prosecuted for gross negligence manslaughter, but only if such a prosecution can be brought against an individual who can be identified with the corporation, such as a director. It is widely accepted that because of the state of the law on corporate manslaughter in the UK, it is only in the case of a small corporation that there is any realistic chance of a conviction for gross negligence manslaughter. It is therefore particularly difficult to bring successful prosecutions for corporate manslaughter against public authorities such as the police or prison service or a health authority. A Law Commission report of 1996, and a subsequent Home Office consultation paper of 2000 both accepted that the current law on corporate manslaughter was deficient for this reason and proposed the creation of a new offence of corporate killing.[392] A draft Bill is expected to be published shortly along the lines suggested in the consultation paper, although it is not yet clear whether this new offence will apply to public bodies.

365. The Law Commission proposed an offence of corporate killing in the following terms—

(1) A Corporation is guilty of corporate killing if—

(a) a management failure by the Corporation causes a person's death and;

(b) that failure constitutes conduct falling far below what can reasonably be expected
of the corporation in the circumstances.

(2) For the purposes of subsection (1) above—

(a) there is a management failure by a corporation if the way in which its activities are
managed or organised fails to ensure the health and safety of persons employed in or
affected by those activities; and

(b) such a failure may be regarded as a cause of a person's death notwithstanding that
the immediate cause is the act or omission of an individual.

(3) A corporation guilty of an offence under this section is liable on conviction on indictment to a fine.

366. We understand that a draft Bill on this topic is shortly to be published. We recommend that an offence of corporate killing be made applicable to public bodies such as police forces, the prison service and health authorities, in order to provide adequate legal protection for the right to life against careless killing by public bodies, as required by Article 2.


281   McCann v UK (1996) 21 EHRR 97; Ergi v Turkey (2001) 32 EHRR 18; Yasa v Turkey (1999) 28 EHRR 408 Back

282   McCann v UK, op cit., para. 191 Back

283   Edwards v UK, op cit., para. 74 Back

284   Jordan v UK (2003) 37 EHRR 2, paras 105-109  Back

285   ibid., para. 107: The investigation must be: "capable of leading to a determination of whether the force used in such cases was or was not justified, and to the identification and punishment of those responsible".  Back

286   Ev 86 Back

287   Jordan v UK, para. 105 Back

288   Edwards v UK, paras. 96-102  Back

289   Ev 86, para. 10 Back

290   Ev 117 Back

291   See for example, the report into the Death of Mr Roger Sylvester, op cit., See also Ev 136-139 Back

292   in the majority of other cases a Fatal Accident Inquiry is held only at the discretion of the Lord Advocate Back

293   Fatal accident and Sudden Death Inquiry (Scotland) Act 1976 Back

294   McCann v UK, op cit., para. 162 Back

295   McCann v UK, op cit., para. 64 Back

296   ibid., para. 33 Back

297   This was the context in which breaches of Article 2 were found in Edwards v UK, McKerr v UK, and in the Amin case. Back

298   Ev 73-80 Back

299   Death Certification in England, Wales and Northern Ireland, Report of a Fundamental Review, Cm 5831, HMSO, 2003 ("The Luce Report") Back

300   Home Office, Reforming the Coroner and Death Certification Service, A position paper, Cm 6159, March 2004 Back

301   The Luce Report, paras. 45-52  Back

302   ibid., para. 53 Back

303   The Luce Report, paras. 55-59  Back

304   Reforming the Coroner and Death Certification Service, A position paper, Cm 6159, March 2004, para. 76 Back

305   ibid., para. 25 Back

306   ibid., Annex 3 Back

307   R v HM Coroner for the Western District of Somerset ex parte Middleton [2004] UKHL 10 Back

308   R v HM Coroner for West Yorkshire ex parte Sacker [2004] UKHL 11 Back

309   Section 11(5)(i) of the Coroners Act; Rule 36 (1)(b) of the Coroners Rules Back

310   Ev 78 Back

311   Middleton, op cit., para. 35  Back

312   ibid., paras. 36-37  Back

313   [2004] NICA 30 Back

314   The Court of Appeal considered that if the jury is entitled to make findings of fact and reach conclusions of fact on the central issue in this case, namely, whether the force used was unjustified, a verdict of "unlawful killing" is unnecessary. Para. 36. Back

315   Home Office, Reforming the Coroner and Death Certification Service, A position paper, Cm 6159, March 2004, para. 74 Back

316   Ev 139 Back

317   Home Office Circular 20/1999 Back

318   INQUEST (First Report of Session 2003-04, op cit, Ev 95); Doughty Street Chambers (ibid., Ev 87); Mental Health Act Commission, (ibid., Ev 117) Back

319   The Luce Report, p. 105 Back

320   The Luce Report, p. 74 Back

321   Ev 144 Back

322   The Luce Report, p. 209 Back

323   First Report of Session 2003-04, op cit., Ev 76 Back

324   Northern Ireland Court Service, Consultation Paper, The Coroners Service of Northern Ireland: Proposals for Administrative Redesign, February 2004 Back

325   Home Office, Reforming the Coroner and Death Certification Service, A Position Paper, Cm 6159, March 2004, para. 16. Local Authority funding is provided through the Office of the Deputy Prime Minister, although policy responsibility for the coroner service is with the Home Office, and the Coroners Rules are the responsibility of the Department of Constitutional Affairs (para. 17). Back

326   [2003] EWCA Civ 1129 Back

327   The Community Legal Service (Financial) (Amendment No.2) Regulations 2003 Back

328   Ev 149-150 Back

329   ibid Back

330   Home Office, Reforming the Coroner and Death Certification Service, A position paper, Cm 6159, March 2004, para. 75 Back

331   Scottish Executive, News Release, Next Steps on Police Complaints, 24/06/2004 Back

332   Ev 109, para. 5 Back

333   Police Reform Act 2002 Sections 17-18  Back

334   Police Reform Act 2002 Sections 20-21  Back

335   Police Reform Act 2002 Schedule 3, para. 15.4  Back

336   Q 450 Back

337   Ev 111 Back

338   IPCC criteria for investigations para. 18 See www.ipcc.gov.uk  Back

339   ibid., para. 22 Back

340   ibid Back

341   Ev 146 Back

342   Police Reform Act 2002 Section 17 Back

343   Police Reform Act 2002 Section 18 Back

344   Police Reform Act 2002 Section 19 Back

345   Q 454 Back

346   Protocol between the Crown Prosecution Service Casework Directorate and the Independent Police Complaints Commission, July 2004, para. 5.1, www.cps.gov.uk Back

347   Q 16 Back

348   Protocol between the Crown Prosecution Service Casework Directorate and the Independent Police Complaints Commission, July 2004, para. 9.3 Back

349   Protocol between the Crown Prosecution Service Casework Directorate and the Independent Police Complaints Commission, July 2004, para. 9.7 Back

350   Protocol between the Crown Prosecution Service Casework Directorate and the Independent Police Complaints Commission, July 2004, para. 9.6 Back

351   Q 461-462  Back

352   Q 16 Back

353   Q 20 Back

354   Q 465 Back

355   Q 465 Back

356   Q 463 Back

357   Q 129 Back

358   Q 112 Back

359   Q 124 Back

360   Ev 122 Back

361   Ev 78 Back

362   NIO Press Release, 21 September 2004 Back

363   Health Service Guideline (94)27 Back

364   Norfolk, Suffolk and Cambridgeshire Health Authority, Independent inquiry into the death of David Bennett report, December 2003, p. 62 Back

365   Q 218 Back

366   Norfolk, Suffolk and Cambridgeshire Health Authority, Independent inquiry into the death of David Bennett report, December 2003, op cit, p. 16  Back

367   Oneryildiz v Turkey, App No 48939/99 18/06/02 Back

368   Calvelli and Ciglio v Italy, App No 32967/96 17/01/02 Back

369   Kilic v Turkey, App No 22492/93 28/03/00 Back

370   A Review of the Role and Practices of the CPS in cases arising from a Death in Custody, July 2003, para. 8.152 Back

371   R (Rowley ) v DPP [2003] EWHC 693 (Admin) Back

372   Q 23 Back

373   Q 25 Back

374   Q 28 Back

375   First Report of Session 2003-04, op cit., Ev 89. Since this evidence was received there has been one further unlawful killing verdict, delivered on 29 October 2004 by the second inquest into the death of Mr Harry Stanley in 1999.The unlawful killing verdict in the inquest into the death of Roger Sylvester was quashed by the High Court on 26 November 2004. Back

376   Following an unlawful killing verdict, the DPP is obliged as a matter of public law to reconsider any decision not to prosecute. The positive obligation to investigate under Article 2 probably goes further, and requires the DPP to consider whether an adequate investigation has been carried out or some further investigation is needed: see para.344 above. Back

377   The Committee met with bereaved families on 19 May 2004, and attended a screening of the film 'Injustice' by Ken Fero on 5 February 2004 Back

378   Q 12 Back

379   Q 12 Back

380   Q 12 Back

381   Q 397 Back

382   Q 446 Back

383   Q 37 Back

384   First Report of Session 2003-04, op cit., Ev 105 Back

385   Minutes of Evidence taken before the Committee, Wednesday 19 May, Prosecution Policy, HL Paper 151, HC 619-I, Q 12 Back

386   Q 398 Back

387   Q 38 Back

388   See for example, Calvelli and Ciglio vItaly [GC], no 32967/96, ECHR 2002-I at para 51 (held that in the specific sphere of medical negligence the positive obligation to set up an effective judicial system may be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts). Back

389   See Oneryildiz v Turkey App No 48939/99 18/06/02 para. 90 Back

390   ibid., para. 91 Back

391   ibid., para 93 Back

392   Based on a recommendation of the Law Commission, Report No. 237, Legislating the Criminal Code: Involuntary Manslaughter (1996) Back


 
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