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


4.  Coroners Reform

Coroners reform as a human rights enhancing measure

1.68 As long ago as 2004, our predecessor Committee pressed the Government to move swiftly to reform the coroners system, highlighting delays, problems and lack of resources in the existing system and criticising the impact of these difficulties on the families of those bereaved by deaths in custody and the ability of the UK to comply with the right to life (Article 2 ECHR).[57] We have recently received evidence that many of these issues and delays are outstanding and getting worse.[58]

1.69 In late 2006, in correspondence with the then Minister, Harriet Harman MP, on the draft Coroners Bill, we welcomed the number of developments in the draft Bill with the potential to enhance the ability of coroners' investigations to satisfy the requirements of Article 2 ECHR for a full and effective investigation, including, a) widening the statutory duty to conduct investigations, including a broad duty to conduct investigations into the death of anyone "lawfully detained in custody", as opposed to the current duty to investigate deaths "in prison" and b) the introduction of new rights of participation and appeal for bereaved families and other "interested parties". We welcomed the proposed introduction of a Charter for bereaved families, a policy objective which our predecessor Committee praised in its report into deaths in custody.[59]

1.70 We welcome the fact that each of these measures has found its way into the Bill or remains part of the Government's overall policy on coroners reform. We regret that it has taken so long for parliamentary time to be found for the Government's proposals. As we explained above, we regret that the issue of reform of the coroners system is having to be dealt with simultaneously with a number of unrelated issues in this 'Christmas-tree' Bill. Witnesses who submitted evidence on this issue to us, although highlighting specific concerns about the Bill, generally welcomed the opportunity for reform of the coroners system.[60] We welcome the long-awaited introduction of the Government's proposals for reform. In so far as the Bill has the potential to support the UK's obligation to protect the right to life, by enhancing the ability of families to discover the truth about the deaths of their loved ones and by increasing the likelihood that public services and others will learn lessons from often tragic circumstances, we consider Part 1 of this Bill to be a human rights enhancing measure.

1.71 An overarching issue raised by the Bill is whether the new statutory framework for coroner's investigations will satisfy the procedural requirements of the right to life (as guaranteed by Article 2 ECHR), which place a positive obligation on the UK to conduct an effective investigation into certain deaths.[61] We consider a number of outstanding significant human rights issues below. These principally relate to measures which undermine the ability of the United Kingdom to meet its obligations to protect the right to life or where we consider that the Government is missing an opportunity to introduce a human rights enhancing measure to support that obligation. We deal with them roughly in order of significance.

1.72 We have raised a number of additional concerns in correspondence with the Minister and have received evidence from a number of witnesses on issues not addressed in this Report. We may return to these issues during the passage of the Bill through the House of Lords.

1.73 We note that the House of Commons Justice Committee has recently reported on the issue of resources in the coroners system and a number of other issues arising from the Bill.[62] Witnesses have also written to us to emphasise that without adequate resources, the reformed system will continue to fail.[63] We do not comment on the issue of resources in this report, other than to reiterate the conclusions of our predecessor Committee that if there are inordinate delays in the system or administrative or other failings arise due to lack of resources, this creates an increased likelihood that the procedural requirements of Article 2 ECHR will be breached when the right to life is engaged and the UK relies on an inquest to provide a prompt and effective investigation of the death.[64]

Duty to investigate

1.74 The Bill imposes a statutory duty on senior coroners to investigate deaths in certain circumstances. These circumstances largely mirror the existing duty,[65] subject to one positive change. The existing duty to investigate deaths "in prison" has been extended to include a duty to investigate cases including deaths "in custody or otherwise in state detention". The Explanatory Notes explain the Government's view that this extension enhances the state's ability to meet its obligations under Article 2 ECHR in relation to a number of cases where the liberty of the subject may have been constrained, for example in cases where persons have died while being detained in a variety of contexts (such as, in prisons, by the police, in court cells, in young offender institutions, in secure training centres, in secure accommodation, under mental health or immigration and asylum legislation). We welcome the new extended duty to investigate deaths in state detention, which is a human rights enhancing measure. However, we are concerned that the only clarification of the scope of this provision is found in the Explanatory Notes accompanying the Bill. We recommend that the Bill is amended to include an interpretative clause which sets out a non-exhaustive list of circumstances when an individual should be considered to be in custody or in state detention.

Page 2, Line 1, [Clause 1], at the end insert-

"(2A) For the purposes of this section, the circumstances when the deceased should be considered to have been in 'state detention' include:

(a) detention by a constable or other public authority pursuant to statutory or common law powers;

(b) detention or deprivation of liberty pursuant to the requirements of mental health legislation, including the Mental Health Act 1983 and the Mental Capacity Act 2005, as amended by the Mental Health Act 2007;

(c) the placement of a child in secure accommodation;

(d) detention pursuant to immigration and asylum legislation; and

(e) the detention of any person in custody or otherwise detained while he or she is being transported from one place to another.".

1.75 We wrote to the Minister inviting the Government to accept that the state's ability to meet its obligations under Article 2 ECHR would be further enhanced by extending the duty to investigate to cover all deaths in mental health institutions, including deaths of patients who had voluntarily undertaken treatment. We accept the Minister's explanation of the Government's view that extension of the duty to investigate in cases where individuals die naturally in circumstances where they have placed themselves voluntarily and the circumstances of their death were clear would "neither be practical nor be in the interests of bereaved families".[66] We have one outstanding concern, which relates to individuals without capacity who may be deprived of their liberty in residential care homes or hospitals, so-called "Bournewood patients".[67] Individuals in these circumstances are particularly vulnerable, whether resident in a state institution or a private facility. The Government should clarify whether the Bill will impose a duty to conduct an investigation in these cases. We recommend that any illustrative list should make clear that a duty should apply.

Purpose of investigation and matters to be ascertained

1.76 The Bill echoes the traditional view that the purpose of a coroner's investigation will be to ascertain who the deceased was, and how, when and where the deceased came by his or her death.[68] Having so rooted itself, the Bill then goes on to provide that, where "necessary for the purpose of avoiding a breach of Convention rights (within the meaning of the Human Rights Act 1998", the purpose of an investigation includes ascertaining in what circumstances the deceased came by his or her death as contemplated by the House of Lords in R v HM Coroner ex p Middleton.[69]

1.77 We welcome clause 5 to the extent that it seeks to enshrine in primary legislation the principle, recognised by the House of Lords in Middleton, that the focus of an investigation into a death governed by Article 2 of the Convention should be on the circumstances of the death. We welcome this legislative clarification of the law to give better effect to a court judgment in which the court used the interpretative power in section 3 of the Human Rights Act to change the settled interpretation of the meaning of a statutory provision.[70] As the Explanatory Notes state, "the new provision makes the position expressly clear" and "therefore ensures that investigations into deaths under the Bill are compatible with the ECHR as determined by Middleton".[71] This approach recognises that, in the absence of such explicit provision, there is a risk that the investigation - and, therefore, the quest of families seeking adequate answers - might be frustrated by the traditional focus on "how" the deceased came by his or her death.[72]

1.78 One of the primary functions of any effective coronial system should be to prevent the recurrence or continuation of circumstances creating a risk of death or to eliminate or reduce the risk of death created by such circumstances.[73] Inquest argue that the current provisions in clause 5 are too narrowly drawn to fulfil this function in a meaningful way:

We think that clause 5(1) defines the scope of inquests too narrowly. There are clearly important cases involving questions of public health and safety where the Human Rights Act does not apply and where there is a need for a broader inquiry. The existing clause 5 creates a risk that limits will be placed on the nature of the inquiry that will frustrate both the opportunity for the bereaved to get adequate answers as well as the opportunity to prevent future deaths.[74]

1.79 We are concerned that there are cases not necessarily subject to the application of the HRA or the protection of the Convention, but where, if the evidence warrants, it may be necessary for the investigation to ascertain relevant circumstances of the death, for example, a death of a vulnerable person in a private care home; a death in a private work place; a death involving British state agents in circumstances where the HRA does not apply because of date of death (i.e. before the HRA came into force) or location of death (i.e. abroad and outside of the limited extra-territorial scope of the ECHR); a death of a British national abroad not involving British state agents but in circumstances where there is no prospect of adequate investigation by the host state; or deaths involving other circumstances which, if allowed to continue or recur, may result in the deaths of other members of the public.

1.80 We asked the Minister whether there might be circumstances where a wider Middleton-type investigation into the circumstances of a death might be appropriate, as a human rights enhancing measure, but was not yet provided for on the face of the Bill. In her response, the Minister explained that whilst clause 5(2) only requires the circumstances of a death to be investigated where necessary to avoid a breach of Convention rights, it does not prevent such circumstances being investigated in any other case. As the Minister explained, the scope of a coroner's investigation is a matter of discretion for the coroner, and clause 5(2) merely sets out the minimum requirements.[75] In the Government's view, there was nothing on the face of the Bill to prevent a coroner undertaking a wider investigation into the circumstances of the death in any case where he considered that one was appropriate.

1.81 We welcome the Minister's reassurance that coroners will retain a broad discretion to undertake a wider investigation into the circumstances of a death in cases other than those where one is necessary in order to avoid a breach of Convention rights. Unfortunately, there is nothing on the face of the Bill or in the Explanatory Notes to make clear whether or not it is the Government's intention that coroners should be able to exercise their discretion in this way. Nor is there any indication of the circumstances in which a coroner may wish to exercise his discretion. We recommend the following amendment to the Bill for the purpose of debate.

Page 4, Line 4, [Clause 5], at the end insert-

(-) The senior coroner may determine that the purpose of any investigation shall include ascertaining the circumstances the deceased came by his or her death where

(a) the senior coroner is satisfied that there are reasonable grounds to determine that the continued or repeat occurrence of those circumstances would be prejudicial to the health and safety of members of the public, or any section of it; or

(b) the senior coroner is satisfied that there are reasonable grounds to consider such circumstances in the public interest.

Outcome of investigation

1.82 The Bill enshrines in primary legislation the existing prohibition on any determination by a coroner or jury which is "framed in such a way as to appear to determine any question of (a) criminal liability on the part of any named person or (b) civil liability." These words as currently found in secondary legislation[76] have been held on a number of occasions[77] to have a meaning such that they could not defeat the purpose of an inquest to determine "how" the deceased came by his or her death. As the court in Homberg explained:

It is clear … that the coroner's over-riding duty is to inquire how the deceased came by his death and that duty prevails over any inhibition against appearing to determine questions of criminal or civil liability. Any apparent conflict […] must be resolved in favour of the statutory duty to inquire whatever the consequences of this may be.[78]

Limits on determinations appearing to determine civil or criminal liability apply only to the inquest verdict and an inquest is open to explore facts bearing on criminal and civil liability in so far as they are relevant to their purpose.[79]

1.83 It is not clear from the face of the Bill that the purpose of the investigation, as outlined in clause 5 will continue to have the same or similar priority over the limitation in clause 10(2). We were concerned that coroners might exercise undue caution in their approach to clause 10(2), which could undermine their ability to meet the requirements of Article 2 ECHR in cases where the right to life was engaged. Inquest shared our concerns about the inclusion of the provisions of Rule 42 on the face of the Bill. They consider that the prohibition on verdicts appearing to determine an issue should be removed from coronial law altogether. They have proposed an amendment to the Bill meet their concerns.[80]

1.84 We wrote to the Minister for further information. We welcome the Minister's reassurance that clause 10 - which is concerned with the way that a determination is framed - is not intended to change the current law, or to prevent a coroner or jury considering facts bearing on civil or criminal liability in order to reach a determination. We also welcome the clarification that the Government consider that verdicts such as "unlawful killing" or "death as a result of neglect" should be open to an inquest following clause 10.[81]

1.85 We welcome the Minister's reassurance that the Government does not intend to narrow the scope of the existing law by incorporating in statute the existing limitation on coroners determinations "appearing to determine" civil or criminal liability. However, since clause 5 and clause 10 together will serve to determine the scope of a coroners investigation, we remain concerned that this relationship should be clearly defined. As matters stand, it is not clear how the requirement in clause 10(1) - that any determination should address the purpose of an investigation, by determining how or in what circumstances the deceased came by his death - relates to the prohibition in clause 10(2) against findings that appear to determine civil or criminal liability. Without clarity, there is a risk that the prohibition in clause 10(2) could serve to undermine the very purpose of a coroners investigation as envisaged in clause 5. This could undermine the ability of the inquest to meet the requirements of Article 2 ECHR. We propose the following amendment to the Bill.

Page 5, Line 40, [Clause 10],at the end insert-

(3A) Subsection 2 shall not affect the duty on the coroner to conduct an investigation which meets the requirements of Section 5.

Juries

1.86 The Bill sets out the circumstances in which an inquest must be held with a jury, the composition of an inquest jury, and the number of jury members who should agree on any determinations and findings. First, a jury must be summoned where there is reason to suspect that the deceased died "in custody or otherwise in state detention" and that the death is either "violent or unnatural" or that its cause is unknown. This is a positive clarification of the existing requirement which specifies only death in prison or police custody.[82] Secondly, it requires that a jury be summoned where there is reason to suspect that the death resulted from "an act or omission" of a police officer in the purported execution of the officer's duty. This is a also a welcome clarification of the existing requirement which specifies death resulting from an injury caused by a police officer.[83] Thirdly, in a welcome retreat from the draft Coroners Bill, it maintains the existing requirement for a jury in certain workplace deaths[84]. Fourthly, it retains a wide residual discretion for the coroner to summon a jury in any other circumstances if there is "sufficient reason" to do so, reflecting the current provision which allows such discretion to be exercised for "any reason".[85]

1.87 However, the Bill seeks to remove the existing requirement to summon a jury in cases where the death "occurred in circumstances the continuance or possible recurrence of which may be prejudicial to the health and safety of members of the public or a section of it",[86] and it seeks to reduce the number of members of an inquest jury from 7-11 to 6-9.

1.88 Inquest have raised particular concerns about these restrictions:

We consider that juries are fundamental to the democratic system as they are the only opportunity where the ordinary people, independent of the state, can participate in the judicial system. They have the effect of diffusing power into te community and in cases of contentious deaths are often seen by families as the key safeguard in terms of public accountability.

[…]

We do not accept, as para 90 of the Explanatory Notes states, "that the nature of the inquisitorial task [inquest juries] are required to undertake means that they do not need to be of the same size as juries in the criminal courts.

[…]

We are concerned that any reduction in the number of jurors in inquests will lead to a reduction in the quality of this decision-making…We believe it would be wholly wrong for issues as crucial to the public interest, as for example, the deliberate killing of an civilian by an agent of the state, to be determined by a jury consisting of as few as six members.[87]

1.89 There is nothing in the case law of the European Court of Human Rights that requires the UK to adopt a particular form of inquiry to satisfy Article 2 ECHR. Provided that the relevant investigation complies with the substantive requirements of Article 2 ECHR, states have a wide margin of appreciation to determine the nature of the inquiry. These substantive requirements include that the inquiry must involve a degree of public scrutiny. In England. Wales and Northern Ireland, that degree of public scrutiny has routinely been secured through open inquests and particularly the involvement of juries in the determination of coroners' verdicts. As we have explained previously, in the context of the right to trial by jury, there is a considerable range of views about the precise status and role of the jury in the common law. In our view, the right to trial by jury in England and Wales has a sufficiently important place in our legal heritage to have attained the status of a right at common law, which requires express justification before restrictions are applied. We consider that similar justification should be provided in relation to the restriction of the involvement of juries in inquests.[88] We asked the Minister to explain why the Government considers that it is appropriate to remove the existing provision for compulsory jury inquests in cases where the health and safety of the public may be at risk. The Minister explained that it is rare for juries to be appointed under the existing provision (because of confusion about what it might mean in practice) and that consequently the Government considers that it is no longer needed. In any event, a coroner will have discretion to summon a jury if appropriate in such circumstances.

1.90 We also asked the Minister to explain the nature of the circumstances in which it is envisaged that the coroner's discretion to summon a jury may be exercised, and whether this might include cases where there is reason to believe that a risk to the health and safety of the public was engaged and that a report from the coroner (under paragraph 6 of Schedule 4) might be necessary to eliminate or reduce such a risk.

1.91 The Minister told us that a coroner's discretion to summon a jury is likely to be exercised where it is felt that the public interest in a case was such that the coroner considered that the additional scrutiny and independence of a jury would be beneficial, subject to appropriate guidance issued by the Chief Coroner. This was not likely in the circumstances envisaged in the Committee's question. The Government response to our questions is confusing. On the one hand the Minister indicates that the coroner may exercise his discretion in health and safety cases where a jury may be required, but on the other she explains that it is unlikely that this discretion will be exercised in those cases.[89] The Government response also overlooks the fact that the reasons behind the compulsion in the existing provision are reflected in the recognition within the Bill itself, at paragraph 6 of Schedule 4, that a real public interest is necessarily inherent in any case where there is reason to believe that circumstances creating a risk of other deaths will occur or will continue to exist in the future, such as to require action to be taken to prevent, eliminate or reduce such a risk.

1.92 The Government's justification for removing the requirement for a compulsory jury inquest in cases where the health and safety of the public, or a section of the public, is at issue is not clear. We recommend that the Bill is amended to reflect the existing legal position unless a clear argument against doing so is provided. We propose an amendment for the purposes of debate.

Page 4, Line 31, [Clause 7], at the end insert-

"(d) that the death occurred in circumstances the continuance or possible recurrence of which is prejudicial to the health or safety of the public or any section of the public."

1.93 We also asked the Minister further to consider whether public confidence in the outcome of any relevant inquest, and in the process as a whole, will be diminished by a reduction in jury numbers from between 7 and 11 to between 6 and 9, particularly in cases where Convention rights were engaged, and if not, why not. [90]

1.94 The Minister told us no concerns had been raised about this issue in public consultation, but did not provide any further justification. We share the concern of Inquest that no clear justification has been provided for the proposed reduction in numbers for inquest juries. The comparison with criminal trials provided in the Explanatory Notes is difficult to understand.

1.95 We are not persuaded that the Minister has provided adequate justification for the proposed change. We recommend that clauses 8(1) and 9(2) be amended to maintain the existing provision to the effect that the minimum number of members required on a jury is seven and the maximum is eleven. We propose an amendment for the purposes of debate.

Page 4, Line 41, [Clause 8] leave out "six, seven either or nine" and insert "not less than seven nor more than eleven"

Page 5, Line 17, [Clause 9] leave out paragraph (a) and insert-

"(a) the minority consists of not more than two, and"

Powers to gather evidence and to enter, search and seize relevant items

1.96 The Bill makes provision for enhanced investigatory powers for coroners, including enhanced powers of search and seizure as well as powers to summon witnesses and compel the production of all relevant documents or other material. It also makes new provision for enhanced powers of search and seizure.

1.97 Our predecessor Committee recommended that the coroner should be granted similar powers of compulsion in its report on deaths in custody.[91] In short, we agree with their view that enhancing the investigatory powers of the coroner will support his ability to conduct an independent and effective investigation into a death. Satisfactory safeguards must be in place for the protection of the rights of those involved in a investigation to respect for privacy (Article 8 ECHR) and the right to a fair hearing (Article 6 ECHR). We return to this issue, below.

1.98 In principle, we welcome the proposals to extend the compulsory powers of the coroner as a human rights enhancing measure.

1.99 In order to support their effective participation in an inquiry, interested parties must be able to secure full and effective disclosure of materials relevant to the inquest. This has been an issue of controversy in recent years. Our predecessor Committee made recommendations in relation to the need to secure more effective disclosure to bereaved families in deaths in custody cases (not least, they recommended that copying costs should be set at a realistic level). We wrote to the Minister to ask whether evidence obtained using compulsory powers would be disclosed to interested parties.[92] We welcome the Minister's confirmation that material gathered under these powers may be disclosed to interested parties, depending upon the nature of the material and its relevance to the investigation, subject to provision in associated secondary legislation. However, the Minister has asserted that these powers will not be used to require one interested party to disclose material to other interested parties, on the basis that it would be inappropriate in an inquisitorial process.[93]

1.100 The participation of any interested party in the investigation will necessarily be contingent upon access to all relevant material, and such participation on the part of the deceased's next of kin to the extent necessary to safeguard their legitimate interests is an essential part of an effective investigation in the context of a death governed by Article 2. We welcome the Government's recognition that evidence obtained using compulsory powers will be subject to the ordinary rules of disclosure in the coroners rules (which will be covered in secondary legislation under this Bill). However, we consider that the Government has missed an opportunity in this Bill to ensure that the disclosure rules will be applied in a way which will support the rights of bereaved families to effective participation. In addition, we regret that draft coroners rules are not available for scrutiny.

1.101 We also asked the Minister for some further information on the relevant safeguards for the rights of individuals involved in the investigation. We welcome the Minister's reassurance that the compulsory powers extended to the coroner will not require any individual to produce any evidence which would expose him or her to criminal liability.[94]

1.102 In our correspondence on the draft Coroners Bill with the Minister's predecessor, we made clear our concerns that safeguards similar to those applied to the compulsory powers of the police in Part II of the Police and Criminal Evidence Act 1984 should be specified on the face of the Bill to ensure adequate protection for the right to respect for private and family life (Article 8 ECHR). We wrote again to ask the Minister why these safeguards are not on the face of the Bill. The Minister explained that the equivalent to some of the safeguards provided in PACE will be provided in the coroners regulations under clause 33(3)(g) and (h) of the Bill. The Government considers that this degree of detail is "more suited" to secondary legislation. We have previously expressed our disagreement with Government over whether safeguards in respect of compulsory powers, and in particular, powers of search and seizure, should be provided in primary legislation.[95] We agree that some degree of detail may be left to secondary legislation, but consider that the substance of the relevant safeguards should be provided in primary legislation. We are concerned that draft regulations setting out the proposed safeguards which will accompany the compulsory powers of the coroner will not be available for scrutiny during the passage of the Bill.

Power to report if risk of future death

1.103 The Bill creates a power for the senior coroner at the end of an inquest to make a report to a person the coroner believes may have the power to take such action with a view to preventing such deaths in the future. Although this power is similar to powers currently held by coroners under rule 43 of the existing coroners rules, the new statutory power will include an express duty on the person receiving the report to provide a response.[96]

1.104 This power has the potential to enhance the ability of the state to comply with its positive obligation to take appropriate steps to safeguard the lives of those within its jurisdiction (Article 2 ECHR). However, schedule 4 does not provide a mechanism for ensuring that reports are made, recorded or disseminated. There are no sanctions proposed for failure to respond to a report when one is made. We wrote to the Minister to ask for an explanation of whether these powers could be strengthened, to enhance the ability of the UK to protect the right to life by disseminating positive information and recommendations designed to improve safety and reduce unnecessary risks to life.

1.105 The Minister told us that a formal mechanism, including the possibility of sanctions for failure to respond was unnecessary "following the success of amendment in July 2008 to the current corresponding provision in rule 43 of the Coroners Rules 1984".[97] The Minister explained that it was the Government's view that practice so far indicated that "coroners and the persons to whom they send their reports take their responsibilities very seriously". He went on to explain that all of the reports submitted since July 2008 have had "at least an interim response". Unfortunately, Inquest suggest that, in their experience, rule 43 (as amended) has not been as successful as the Minister suggests:

Despite the best endeavours of these coroners and juries there is abundant evidence that their recommendations and findings have often vanished into the ether, undermining the investigation and inquest process.[98]

1.106 We do not have adequate information to assess whether last year's amendments to Rule 43 have been sufficiently successful to obviate the need for a further formal mechanism for collating, monitoring and disseminating coroners' reports, or any further provision for sanctions. The changes to Rule 43 have been in force for such a short period of time that the experience of their operation may not be as useful as the Minister suggests. In the light of the potential value which coroners' reports may provide in allowing lessons to be learnt from often tragic circumstances and in avoiding unnecessary risk to life, we recommend that the Government reconsider whether more formal arrangements for the treatment of coroners' reports should be included on the face of the Bill.

1.107 The Minister has explained that secondary legislation under Clause 33(3)(i) will make further provision requiring copies of reports and responses to be sent to interested parties and to the Chief Coroner. Provision will also be made in secondary legislation for wider publication. We regret that no draft regulations dealing with the proposed treatment of coroners' reports have been produced to assist parliamentary scrutiny.

Legal aid

1.108 In our correspondence with the Minister on the draft Coroners Bill, we highlighted the availability of legal aid for bereaved families as an important consideration for the purposes of facilitating their effective participation and ensuring compliance with Article 2 ECHR. Our predecessor Committee recommended that funding for legal assistance should be available for families in any case involving a death in custody.[99] During the second reading debate on the Bill, the Lord Chancellor explained that the Government would consider amendments to the Bill for the purpose of broadening access to legal aid for bereaved families. He made the following qualification, explaining the Government's views:

The reason why successive Governments have resisted a general provision to make representation or legal aid available in inquests is that they are civil, inquisitorial inquiries. They are not judicial proceedings, and they work very differently even from other civil proceedings.[100]

1.109 During the Public Bill Committee debates on the Bill, the Minister, Bridget Prentice MP, also indicated that the Government would look again at the provision of legal aid to assist bereaved families participating in inquests.[101]

1.110 Against this background, we wrote to the Minister to ask for further information. The Minister confirmed the Government's commitment that appropriate funding should remain available in the future, together with the greater opportunities for accessible family participation as set out in the Charter. The mode of such funding is currently by way of means tested grants made exceptionally for inquests where it is necessary to enable a coroner to conduct an effective investigation, under Article 2 ECHR, or where there is a significant wider public interest in the applicant being represented. The Minister made clear the Government's intention that such funding must remain means-tested to protect the limited resources of the legal aid budget. The Minister's response did not acknowledge her earlier commitment to reconsider the current position.

1.111 Inquest and the British Legion are among the witnesses who have written to us to highlight the difficulties facing bereaved families who seek to access legal aid:

At present there is no automatic right to non means-tested public funding for families who are thrown into an inquest process through no choice of their own. Although funding for representation is available in "exceptional" cases those representing families have to make lengthy, complicated, intrusive and time consuming applications to the Legal Services Commission for the little funding they received. Many families are excluded from such support simply by virtue of the fact that they have their own home, even if this does not mean in real terms that they have substantial disposable income to spend on legal fees.[102] (Inquest)

Many families could simply require advice on the inquest process, its purpose or the role of coroners, while some might need representation during the inquest itself. While Legal Aid may be provided in exceptional circumstances, experience would suggest that the 'exception' is too narrowly drawn, that decisions are subject to demoralising delay, and that bereaved families resent being means-tested for what, in all conscience, should be their right to effective representation.[103] (British Legion)

1.112 Both organisations highlighted that in cases involving public authorities, those authorities will generally be represented and their legal costs will be met from public funds. Both also argue that in most cases involving allegations of failure on the part of a public authority, the authority will generally instruct their representatives to engage in "extraordinary efforts" in "damage limitation".[104]

1.113 We are concerned by the evidence which we have received on the difficulties faced by families who seek legal assistance and representation to support their effective participation in an inquest where their loved one has died. Article 2 ECHR does not require legal aid to be provided in all cases. However, Article 2 ECHR will require legal aid to be provided where it is necessary to ensure that next-of-kin participation is effective. This may include legal aid for representation throughout an inquest. Evidence appears to suggest that current legal aid rules are being applied in a way which fails to recognise when legal aid may play an integral role in supporting effective participation for many families and that, in many cases, families are faced with unrealistic choices based upon the current application of the means testing rules. We welcome the undertaking of the Secretary of State and the Minister to look again at these rules. We recommend that the Government make a concrete commitment to an independent review of the current system for assessing access to legal aid and other funding for bereaved families to access legal advice and assistance, preparation and representation at an inquest.

1.114 We suggest the following new clause for inclusion in the Bill which would ensure that the Government commissioned such a review and reported its conclusions to Parliament.

Review of access to legal aid in inquests

To move the following clause-

"(1) The Secretary of State shall, within one year after the date on which this Act receives Royal Assent, lay before both Houses of Parliament a report on access to legal aid and other funding for bereaved families in relation to inquests.

(2) The report under subsection (1) shall be prepared by a person appointed by the Secretary of State following consultation with

(a) the Lord Chief Justice; and

(b) such other persons as the Secretary of State shall consider appropriate to consult."


57   Third Report of Session 2003-04, Deaths in Custody, Chapter 10 Back

58   Ev 50. However, contrast Ev 72, where the British Legion acknowledge that some improvements have been made in respect of military inquests, but suggest that there is still significant room for improvement. Back

59   Third Report of Session 2004-05, Deaths in Custody, para 295. Correspondence on the draft Coroners Bill is available on the JCHR website: http://www.parliament.uk/parliamentary_committees/joint_committee_on_human_rights/jchrls06_07.cfm#DCB  Back

60   See for example, Ev 50 and Ev 71. Back

61   We discuss the requirements of Article 2 more closely in paragraph 1.15, above. Back

62   Second Report of 2008-09, Coroners and Justice Bill, HC 185, paragraphs 5 - 7. Back

63   Ev 50 Back

64   Third Report of Session 2004-05, Deaths in Custody, Chapter 10 Back

65   Coroners Act 1988, Section 8(1) Back

66   Ev 1 and Ev 11 Back

67   Pursuant to Section 4A Mental Capacity Act 2005, Schedule 1A Back

68   Clause 5(1) Back

69   [2004] 2 All ER 465 para 35. See Clause 5(2). Back

70   Section 3(1) HRA provides: "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights." Back

71   EN para. 796. Contrast the Home Office's refusal to amend the control orders legislation in light of the House of Lords use of s. 3 HRA to reinterpret it in Re MB: see for example, Government's Response to JCHR Report on Counter Terrorism Bill. Twenty fourth Report of 2007-08, Counter-Terrorism Policy and Human Rights, Government Responses to the Committee's Twentieth and Twenty-first reports and other correspondence, HL Paper 127, HC 756, Appendix 1. Back

72   "How" being understood not in the ordinary meaning of the word "how" but as the "means by which" the deceased came by his or her death following a series of controversial cases in the 1980's and 1990's, culminating in R v HM Coroner for North Humberside ex p Jamieson [1995] QB 1) Back

73   As already recognised in paragraph 6 of Schedule 4 of the Bill itself and elsewhere. See for example the recommendations of the Report of a Fundamental Review 2003 (Cm 5831, Chapter 8, p89); the relevant domestic legal authority, including R (on the application of Amin) v. Secretary of State for the Home Department [2004] 1 AC 653 at para 31; R (on the application of Takoushis) v. HM Coroner for Inner North London [2006] 1 WLR 461, paras 39, 43 to 47; Inner West London Coroner v Channel 4 Television Corpn [2008] 1 WLR 945, para 7 and 8); and section 4(7) of the Fatal Accidents and Sudden Death Inquiry (Scotland) Act 1976) which allows the investigating Sheriff in Scotland to determine, amongst other things, (a) where and when the death and any accident resulting in the death took place, (b) the cause or causes of the death and any such accident, (c) the reasonable precautions, if any, whereby the death and any accident resulting in the death might have been avoided, (d) the defects, if any, in any system of working which contributed to the death or any accident resulting in the death, and (e) any other facts which are relevant to the circumstances of the death. Back

74   Inquest, Briefing on the Coroners and Justice Bill 2009, February 2009, paragraph 26. Back

75   Ev 12 Back

76   Rule 42 of the Coroners Rules 1984. Back

77   R v HM Coroner ex p Jamieson [1995] QB 1. Back

78   R v Coroner for East Sussex ex p Homberg (1994) 158 JP 545 Back

79   R v HM Coroner for North Humberside ex p Jamieson [1995] QB1 and (1994) 3 All ER 972 Back

80   Inquest, Briefing on the Coroners Bill, February 2009 Back

81   Ev 12 Back

82   Section 8(3)(a)-(b) of the Coroners Act 1988. Back

83   Section 8(3)(b) of the Coroners Act 1988. Back

84   Section 8(3)(c) of the Coroners Act 1988. Back

85   Section 8(34) of the Coroners Act 1988. Back

86   Section 8(3)(d) of the Coroners Act 1988. Back

87   Inquest, Ibid, February 2009, paragraphs 32, 41, 43. Back

88   Second Report of Session 2006-07, paragraphs 5.8 - 5.10 (Fraud (Trials without a Jury) Bill) Back

89   Ev 12 Back

90   Ev 12 Back

91   Third Report of 2004-05, Deaths in Custody, paragraph 303. Back

92   Ev 17 Back

93   Ibid Back

94   Ev 17 - 18 Back

95   See for example, Twentieth report of 2005-06, paragraphs 2.41 - 2.49 (Compensation Bill); Eighth Report of 2003-04, paragraph 4.28 (Housing Bill). Back

96   The provisions in Rule 43 were enhanced in 2008, pending the introduction of this Bill. One of the existing changes includes guidance from the Ministry of Justice which indicates that it intends to produce a regular bulletin on the substance of Rule 43 reports. Back

97   S.I. 2008/1652. Back

98   Inquest, Second Reading Briefing, February 2009, paragraphs 74 - 78. Back

99   Third Report of 2004-05, Deaths in Custody, paragraph 309 Back

100   HC Deb, 29 Jan 2009, Col 28 Back

101   PBC, 10 Feb 2009, Cols 204-205. Back

102   Inquest, Second Reading Briefing, February 2009, paragraph 101. See also Ev 51 and 54. Back

103   Ev 74 Back

104   Ibid Back


 
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