Legislative Scrutiny: Coroners and Justice Bill

Legislative Scrutiny: Coroners and Justice Bill - Human Rights Joint Committee Contents

2. Certified or "secret" inquests

1.12 The bulk of the evidence which we received on the Bill deals with the issue of certified investigations, or the proposals for "secret inquests", in Clause 11. The Government has objected to the categorisation of these provisions as "secret inquest rules", but we consider the description warranted. As Justice explained in their evidence:

The effect of this clause is that in any case where the state is alleged to be responsible for a person's death - for example the killing of Jean Charles de Menezes by Metropolitan Police or the death of Baha Mousa at the hands of British soldiers in Basra - the Secretary of State will be free to appoint a coroner to sit in closed session without a jury so long as he or she is satisfied that it is in the public interest to do so because of the sensitive nature of the material that is likely to be considered.[9]

1.13 We deal with this issue separately from the rest of the Government's proposals on coroners reform as these proposals raise distinct questions about how the Government proposes to reconcile its positive duty under Article 2 ECHR to secure an effective investigation into an individual death; the public interest in preserving national security; and the Government's associated duty to protect the right to life enjoyed by everyone in the UK.

1.14 Clause 11 would enable the Secretary of State to certify an investigation into a person's death where he or she considers that the investigation will concern or involve a matter that should not be made public for certain specified reasons. The Bill also makes provision for the admissibility of intercept evidence in certified inquests.[10] These provisions correspond to earlier proposals withdrawn from the Counter-Terrorism Bill during the last session. We expressed concerns that these earlier proposals would be incompatible with the obligations of the UK under Article 2 ECHR and proposed that they be reconsidered in the context of this Bill.[11] The proposals have been publicised widely, and have been subject to extensive debate in the House of Commons Public Bill Committee. Some press reports suggest that additional safeguards have been introduced since these proposals were withdrawn from the Counter-Terrorism Bill. In our view, for reasons we explain below, the proposals are broadly the same and raise the same concerns.

THE REQUIREMENTS OF ARTICLE 2 ECHR

1.15 It is a significant part of the procedural requirement of the right to life in Article 2 ECHR that where someone dies in circumstances which engage the State's obligations to protect the right to life an investigation must be conducted which is, among other things, independent of the State and the parties, subject to public scrutiny and which provides for the effective participation of the family of the deceased. Broadly, an Article 2 ECHR compliant investigation is (a) initiated by the state; (b) independent of both the state and the parties; (c) effective and prompt; (d) open to public scrutiny and (e) supports the participation of the next of kin. The last of these requirements is important. Bereaved families must be involved in any Convention compliant death investigation to the extent "necessary to safeguard [their] legitimate interest". This may include certain positive obligations on the State, including obligations in respect of legal aid and other procedural requirements.[12]

1.16 These proposals provide for the conduct of at least part of an inquest without a jury and without the participation of the bereaved family, at the instigation of the Secretary of State. A number of witnesses told us that these provisions would breach the requirements for independence, public scrutiny and family involvement.[13] Human Rights Watch told us:

We remain concerned…that certification represents an unacceptable intrusion by the executive branch into investigations that must ultimately determine state responsibility in a suspicious death….Human Rights Watch is convinced that closed inquests under the terms of the Coroners and Justice Bill are incompatible with the UK's obligations under international human rights law. Intrusion of the executive branch into investigations of wrongful deaths does not appear to be necessary in order to protect sensitive material or witnesses and would damage the credibility of inquests and their findings[14]

1.17 Inquest have produced a detailed briefing on the legal implications of this section of the Bill. They stress:

There can be no public scrutiny where core evidence is withheld from the public, and similarly it can never be appropriate for the next of kin to be denied the core facts surrounding the death of a loved one. Again, the element of public scrutiny must be sufficient in order to "secure accountability in practice as in theory" (Jordan and Middleton)[15]

1.18 The Independent Police Complaints Commission (IPCC) has told us that, in its view, the requirements for a sufficient element of public scrutiny and the involvement of the bereaved family to an "appropriate extent" will not be met when "non-jury inquests are held and relevant information is not disclosed to the next of kin or the public.[16]

1.19 The Explanatory Notes explain the Government's view of Article 2 ECHR compliance. They do not directly address the questions of independence or public scrutiny:

[T]he next-of-kin of the deceased must be involved in the procedure to "the extent necessary to safeguard their legitimate interests". Article 2 does not therefore give the public and next of kin an absolute right to be present at all times or to see all of the material relevant to the investigation. The Government considers that the courts are very likely to accept that it is consistent with Article 2 for sensitive material not to be made public or disclosed to the next-of-kin where this is required by a substantial public interest.[17]

1.20 We asked the Secretary of State for details of any legal authority to support its position that the proposals are likely to be compatible with Article 2 ECHR. The Government reply refers to various cases from both the European Court of Human Rights and the UK domestic courts which the Government considers supports its position. Each of the cases deal with the recognition of the court that certain material may be withheld from family members (for example, sensitive material in police reports or the identity of a particularly sensitive witness). We accept that the right of the bereaved family under Article 2 ECHR only extends to "the extent necessary to safeguard their legitimate interests". However, in each of the cases on which the Minister relies, the court was referring to its own analysis that Article 2 ECHR did not necessarily require a family to be provided with a particular piece of information or to a specified individual's identity in a particular case. This is a far cry from providing compelling authority that a blanket procedure that would allow the Secretary of State to instigate a special process whereby the only possible result could be exclusion of the family and the public from a part of the inquiry would be compatible with Article 2 ECHR. We consider that there remains a significant risk that the proposed scheme will operate in a way which is incompatible with Article 2 ECHR.

1.21 The Explanatory Notes accompanying the Bill identify a number of additional reasons or safeguards which the Government considers supports its view that these proposals will be compatible with the right to life. We examine these below.

SCOPE

1.22 The Secretary of State will be able to certify an investigation for the following reasons:

in order to protect the interests of (i) national security, (ii) the relationship between the United Kingdom and another country; or (iii) preventing and detecting crime;

in order to protect the safety of a witness or other person; or

otherwise in order to prevent real harm to the public interest.

The option to certify in order to protect the interests of the prevention or detection of crime or to protect the safety of a witness or other person has been added since the proposal for secret inquests were removed from the Counter-Terrorism Bill. The public interest test remains very broad, albeit with the addition that the reason must be to prevent 'real harm' to the public interest. The ability to certify to protect a relationship with another country could, for example, have enabled a certificate to be issued in respect of an investigation into the death of UK armed forces personnel as a result of friendly fire by allies (see for example, the recent inquest into the death of Lance Corporal Matty Hull, who died after a "friendly fire" incident involving a US pilot).

1.23 Witnesses raised concerns about the scope of the reasons for certification. Liberty told us:

It is concerning that the rationale and scope for an already controversial proposal has been widened in this way.[18]

1.24 The British Legion raised a particular concern about the implication of certified inquests in order to meet the diplomatic objections of third countries:

As long as Clause 11 remains in the Bill, we regret that it may not be possible to dislodge the perception that crucial evidence will be heard behind closed doors. Additionally, the grounds for certification, as defined, seem to suggest the objection of another country and/or diplomatic relations will be placed above the need for a grieving family to find the truth.[19]

1.25 We asked the Government for further information. The Minister explained that the Government was "looking again" at the criteria and that earlier changes had been designed to meet concerns that the earlier "public interest" test had been overly broad. The Minister explain that the third reason, based on "real harm" to the public interest, is necessary as a catch-all provision where the other grounds may not apply:

Clause 11(2)(c) is intended to capture any circumstance not captured under the provisions in Clause 11(2)(a) or (b). For that reason, it is not possible to provide a firm example of the type of case that would fall within this provision. Inquests which are subject to certificate are likely to be very rare and it is accepted that paragraphs (a) and (b) are likely to cover most scenarios where an investigation may need to be certified. However, it is never possible to fully anticipate all the circumstances that might arise.[20]

1.26 We note that the Government had intended to tighten up the grounds for certification, but consider that the changes have not significantly altered the very broad scope of the original proposals. In the light of the fact that the right to life is so clearly engaged in this case, we are alarmed by the Government's concession that a broad public interest test has been deployed "just in case" a future unforeseen concern might arise.

SAFEGUARDS

1.27 In the Explanatory Notes, the Government outlines a number of additional safeguards which it considers will protect the interests of families and other interested parties:

that Coroners rules will enable the coroner to appoint independent counsel to the inquest (as existing rules provide) and the Government envisages that this counsel would act like a special advocate and would be responsible for testing the evidence presented;

rules will make clear that persons may be present for those parts of an inquest which do not deal with sensitive material; and

the certification decision will be open to judicial review.[21]

1.28 We note that the Government consider that the public and bereaved families are likely to be able to attend any part of an inquest where sensitive information is not considered. We consider the issues of special advocates and judicial oversight below.

Special advocates

1.29 There is no express provision on the face of the Bill for special advocates to be available to represent the interests of bereaved families in a certified inquest. The proposal by the Government falls far short of the requirement that such special advocates be appointed. Currently, the coroner may appoint independent counsel to act as an adviser to the inquest. This counsel acts in the interests of the inquiry, not the interests of any individual party. His or her overriding duty is to the coroner, unlike a special advocate whose duty is to the individual whose interests he or she is appointed to represent.[22] In the context of an inquest, a number of individual interested parties may be represented. For example, in a case involving a death in custody, the interested parties may include the police authority, a prison authority, the Prison Service, the Justice Secretary and the bereaved family. This in turn may lead to a conflict of interest if an individual counsel were expected to represent all their interests in a balanced way.

1.30 We asked the Government how the proposals in the Explanatory Notes might help bereaved families (and if this was an important safeguard, why shouldn't it be provided on the face of the Bill). The Minister explained that it would be open to the coroner to appoint multiple counsel to assist the inquest and that "if counsel to the inquest performs the task of testing the evidence diligently then Article 2 will be satisfied and it is not necessary for a special advocate to be provided." The Minister emphasised the Government's view that Article 2 ECHR would be satisfied even if the coroner chose not to appoint a counsel to assist the inquiry in this way.[23] The Government has not explained fully how the ability of the coroner to appoint counsel to the inquest will assist the participation of bereaved family members in certified inquests. There remain a number of difficulties with the Government's proposal in the Explanatory Notes that counsel for the inquiry act 'as special advocate', including how the counsel would resolve any potential conflict of interest between individual interested parties and whether counsel would need to be approved by the Secretary of State if they were not special advocates with appropriate security clearance. In our view, if the family of the bereaved are to be excluded from any part of the inquest, it is vital that they be represented in the closed proceedings by a special advocate whose function is to represent the interests for family.

Certification and Judicial Review

1.31 In order to issue a certificate, the Secretary of State may certify an investigation if he or she is "of the opinion" that the investigation will involve a matter that should not be made public for any of the reasons set out above. There is no requirement that the Secretary of State should have reasonable grounds for his or her opinion. The Secretary of State may not certify an investigation if, in his or her opinion, other measures would be adequate to prevent the matter being made public. Again the Secretary of State is not expressly required to have reasonable grounds for his or her conclusion. In correspondence, the Minister accepted that the opinion of the Minister must be "honestly held and must rest on a reasonable basis" but told us that "we do not feel that it is necessary to state this on the face of this Bill as this precedent already exists in other legislation and the Minister's decision would be tested on this basis at any judicial review."[24] The Bill makes provision for the Secretary of State to notify individuals of his or her decision to issue a certificate. A certificate will not have effect until 14 days after it is issued or, if judicial review proceedings are initiated, until they are concluded. We have considered precedents similar to those cited by the Government in previous reports.[25] We believe that this formulation will change the degree of scrutiny to which the Minister's decision will be subject on judicial review.

1.32 In debates on the Bill, the Justice Secretary has argued that the potential to apply for a Public Interest Immunity (PII) certificate in an inquest would not meet the Government's concerns. He notes that the State can simply discontinue a prosecution in the event that a PII claim is rejected by the criminal court, but that option to discontinue is not available in the context of the inquest process. We asked what the Government would do if judicial review led to a certificate being overturned, and why this would not pose the same problem which the Government considers would be associated with an application for PII. The Minister merely told us that the Government would seek leave to appeal to the Court of Appeal.

1.33 We consider that the same problem which the Secretary of State has identified in relation to a claim for public interest immunity clearly exists in respect of these proposals. On judicial review, the Secretary of State's decision to certify an inquest may be overturned. The only real distinction, in our view, would be the basis for the review of the Secretary of State's decision to certify, which we consider may be less rigorous than in cases concerning applications for public interest immunity. [26] Human Rights Watch share this concern:

Human Rights Watch consider the grounds for certification…to be overly broad and likely to render judicial challenges virtually impossible to win.[27]

1.34 We do not consider that the Government has provided a satisfactory justification for its view that there is no need to set out, on the face of the Bill, a requirement that the Minister's view be honestly and reasonably held. Despite the Government's assertion that the judicial oversight proposed is adequate, we are concerned that Clause 11 is designed with this purpose in mind: to secure greater protection for information which the Government considers should not be disclosed in the public interest without the rigorous scrutiny which would be applied by the court on an application for PII, where the onus clearly rests on the Secretary of State to persuade the coroner, and if necessary, the court, that there are good reasons why certain information should not be disclosed.[28]

1.35 Where a certificate is issued, an investigation must be conducted by a High Court judge nominated by the Lord Chief Justice and the inquest must be held or, if already begun, continued, without a jury. The earlier Counter-Terrorism Bill proposals would have enabled the Secretary of State to appoint a coroner from a list of approved coroners. We strongly criticised this lack of independence in our report on the Counter-Terrorism Bill.[29]

1.36 We welcome the decision to remove the power for the Secretary of State to appoint a coroner to hear a certified inquest. We are concerned however that the proposals have been amended in a way which widens their scope without introducing any additional significant safeguards.

ARE THE PROPOSALS NECESSARY?

1.37 The Explanatory Notes explain the Government's view that these proposals are necessary to ensure that investigations go ahead in cases where disclosure may cause public interest or national security concerns:

Article 2 requires not only an independent and effective investigation of the circumstances of the death but also requires the State to provide a means of properly protecting the interests of the deceased's family. Proceedings at a coroner's inquest are not, at present, considered to be sufficient to meet Article 2 obligations in such cases since the inquest must be held with a jury but the material cannot be disclosed to the jury members or to the public or interested persons.[30]

1.38 The law as it currently stands allows the Coroner to sit in camera on the grounds of national security (a very rare occurrence in any event), to rule on a claim of Public Interest Immunity (PII) (a more frequent occurrence), to seek appropriate and enforceable undertakings of confidentiality from interested persons, to order reporting restrictions, and to order special measures for witnesses (including anonymity and provision to give evidence by video link) where necessary. In the past, these measures have been used to deal with a number of highly difficult, contentious and sensitive inquests, for example, De Menezes, the "Nimrod" deaths and "friendly fire" deaths.

1.39 During Public Bill Committee proceedings, the Minister was asked to explain how many cases had been affected by the absence of the proposed 'certified' investigation procedure. The Minister explained that there had been two cases which had been affected.[31] We asked for confirmation of the cases which have been affected by the absence of this procedure. The Minister has since confirmed one case has been affected, involving a police shooting, which has been stalled because material which is relevant for the purposes of the inquest cannot be seen by the coroner or the jury that is required to determine the facts of the death. Another possible case has since been resolved, as the Coroner has concluded that it would be possible to have an Article 2 ECHR compliant inquest without disclosure of the sensitive material concerned.[32] Inquest said:

This means as far as we are aware there is only one case, that of Azelle Rodney, on which the Government is basing these highly contentious proposals.[33]

1.40 The IPCC, which investigates all deaths involving contact with the police, wrote to tell us:

The IPCC does not therefore believe that there is any evidence to support the view that there is any requirement for a non-jury inquest for deaths following police contact other than when intercept evidence is an issue. [34]

1.41 We consider that, in the light of the importance of an open, transparent investigation for the purposes of Article 2 ECHR, the justification for the introduction of proposals which give the State significant power to direct or control the manner in which evidence is produced before the inquiry must be substantial. Proposals which involve the State in this process and enable the exclusion of the public and bereaved family members must be subject to close scrutiny. We take the view that, in order to be compatible with Article 2 ECHR, any proposals must be no more than necessary and accompanied by adequate safeguards, including provision for adequate judicial oversight. We are bolstered in our view by the recent report of the UN Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, which categorically urges States:

to reduce to a minimum the restrictions of transparency founded on concepts of State secrecy and national security. Information and evidence concerning the civil, criminal or political liability of State representatives, including intelligence agents, for violations of human rights must not be considered worthy of protection as State secrets.[35]

1.42 We are not satisfied that a case has been made for the broad provisions under Clauses 11-13, and we would recommend that they be deleted from the Bill. We recommend the following amendments to the Bill:[36]

Page 6, Line 1, Leave out Clause 11

Page 7, Line 1, Leave out Clause 12

Page 7, Line 18, Leave out Clause 13

9 Ev 55 Back

10 Clause 13 Back

11 Thirtieth Report of 2007-08, Counter-Terrorism Policy and Human Rights: (Thirteenth Report): Counter-Terrorism Bill, HL Paper 172, HC 1077 paragraphs 112 - 121. Back

12 Jordan v United Kingdom (2003) 37 EHRR 2, para 109, R (Khan) v Secretary of State for Health [2004] 1 WLR 971. Further explanation of the scope of the Article 2 ECHR duty can be found in our predecessor Committee's report on deaths in custody. See Third Report of Session 2004-05, Deaths in Custody, HL 15-I, HC 137-I, Chapter 10. Back

13 See for example, Ev 47, Ev 42-43. Back

14 Ev 47 Back

15 Inquest, Second Reading Briefing, February 2009 Back

16 Ev 49 Back

17 EN, paragraph 803 Back