Memorandum submitted by British Irish
Rights Watch
British Irish RIGHTS WATCH (BIRW) is an independent
non-governmental organisation that monitors the human rights dimension
of the conflict and the peace process in Northern Ireland. Our
services are available to anyone whose human rights have been
affected by the conflict, regardless of religious, political or
community affiliations, and we take no position on the eventual
constitutional outcome of the peace process.
We are responding to the Joint Committee on
Human Rights (JCHR) call for evidence about the draft legislative
programme 2008-09. Of particular significance for BIRW is the
draft Coroners and Death Certification Bill. Drawing on 18 years
of work in Northern Ireland, our experience is focussed mainly
on the use of lethal force by the state where the failure to provide
adequate Article 2 ECHR compliant investigations into these deaths
is significant. Our comments, therefore, are framed by that experience.
However, since contentious cases often test systems to their limits,
we hope that our comments will be helpful in other contexts.
The draft Coroners Bill, published for consultation
in 2006, attempted to address the reforms recommended by Professor
Tom Luce in his Fundamental Review of Inquests (2003) (Luce Review).
However, this Bill, unlike the Luce Review, does not apply to
Northern Ireland. We have concerns that, should this Bill become
law then it will be applied to Northern Ireland without appropriate
consultation. Any application of this Bill to Northern Ireland
will fail to take into account the legacy of 30 years of conflict
and the existing deep flaws in Northern Ireland's coronial system.
The Luce review clearly noted the need for these recommendations
to be implement in Wales and Northern Ireland but with suitable
adaptations.[29]
The European Convention on Human Rights imposes
a duty on the state to investigate a death when it has been caused
by the use of force, a violation of Article 2 (right to life).
An inquest is the appropriate place for the state to comply with
the procedural aspects of Article 2. Therefore, any changes to
the coronial system must bear the role of the inquest in the procedural
aspects of Article 2 compliance in mind.
Changes to the coronial system are significant
in the light of the proposals within the Counter-Terrorism Bill
2008, which sought to change the nature of inquests, by the appointment
of special coroners or dispensing with a jury. Although we welcomed
the fact these clauses were removed from the Counter-Terrorism
Bill, we have concerns they may be inserted into the Draft Coroners
and Death Certification Bill. BIRW noted that the clauses undermined
the legitimate expectation of a number of families in Northern
Ireland specifically, but also in England, of receiving an independent,
effective, open and accountable investigation into a death. We
had particular concerns that specially appointed coroners could
be appointed to inquests already open, which would have particular
pertinence in Northern Ireland, causing further delays and secrecy.
For example, in the death of Pearse Jordan, an inquest into his
death was opened in 1995, delayed by the obstruction of the RUC
and later PSNI over the disclosure of documents, the subject of
a ruling at the European Court of Human Rights in 2001 and a House
of Lords judgment in 2007, and may now be further delayed by these
new measures. Some of the measures which were to be introduced
by the Counter-Terrorism Bill are mirrored in the controversial
Inquiries Act 2005, which placed control for inquiries in the
hands of the Secretary of State, undermining any attempts for
such inquiries to be independent or compliant with the European
Convention on Human Rights.
British Irish RIGHTS WATCH would like to highlight
those aspects of the Coroners Bill which we feel give rise to
significant human rights concerns. These are:
Clause 10, Purpose of investigation
BIRW has concerns about the lack of guidance
on where it would be necessary for a coroner to interpret the
purpose of an investigation in compliance with Article 2 of ECHR;
considering the Human Rights Act was enacted only in the last
decade, some corners may be unfamiliar with their obligations.
Clause 12, Action to prevent other deaths
BIRW welcomes the fact that an organisation
which receives a report from a coroner is obliged to respond.
This is particularly pertinent for the security forces and their
use of lethal force, where changes to policy and/or practice,
could prevent further deaths. This enhances the preventative feature
of the inquest system; however, to be truly effective, there is
a need to hold timely inquests so that reports can be relevant
to organisations.
Clause 41, Presence of the public at inquests
The presence of the public at inquests is important;
it is hoped that the Coroners Rules will, where possible, maintain
this principle.
Clause 57, Training and guidance
It is hoped that coroners will be trained in
key human rights issues alongside any other training. This is
particularly pertinent in cases where significant human rights
issues are raised, such as the killing of Jean Charles de Menezes.
Clause 60-61, Appeals to the Chief Coroner
BIRW welcome the appeal procedure available
within the inquest system to "interested persons". We
agree that it is important that the appeals procedure is not misused
by malicious complaints. However, it is important to note that
there is nothing in Bill on the subject of legal aid. If families
are to participate more fully in the inquest system, then there
is a need to provide them with appropriate and accessible legal
representation.
Inspection
BIRW welcome the introduction of an inspection
system for coroners by her Majesty's Inspectors of Court Administration,
which we hope will improve accountability and transparency.
Reporting deaths to the coroner
BIRW welcome the amendment which makes provision
for medical practitioners to notify the coroner of relevant deaths.
However, we draw attention to the Luce Review, which stated that
this power should be extended to professional health care personnel,
members of the care inspectorate, fire service personnel, funeral
staffs, families and others.[30]
Outcome and scope of an inquest
The Bill has not implemented the Luce Review
recommendation concerning the outcome of inquests. Crucially,
the Bill does not provide for an analysis of whether there were
systemic failings which may have prevented the death.[31]
Equally, the Bill does not provide for regulatory bodies or inspectorates
to describe in their reports, any of the coroners recommendations.[32]
Appointment of a lawyer
The Luce Review recommended the appointment
of a lawyer, as Counsel to the inquest, in situations where the
inquest is exceptionally long or complex; this has not been included
in the Bill.[33]
Multiple deaths
The Bill has not implemented the Luce Review's
recommendation that following a disaster leading to multiple deaths,
the inquest should be held by, or at the level of, the head of
the coronial jurisdiction.[34]
Audit
The Luce Review noted the need for all coroner
areas to regularly audit their inquest and investigation timings.[35]
In Northern Ireland, delays to inquests have left families without
an acceptable investigation into their loved ones' death and substantially
undermined confidence in the justice system.
BIRW draw the Joint Committee's attention to
the possibility that this Bill could be applied to Northern Ireland.
As already noted, while we acknowledge there is a need to reform
the coronial system in Northern Ireland, such changes should be
the subject of a separate consultation and should take into account
the number of contentious deaths in Northern Ireland and the historical
failure of the state to adequately address them.
October 2008
29 See Fundamental Review of Inquests (2003),
Professor Tom Luce: Chapter 11, Point 60 Back
30
See Fundamental Review of Inquests (2003), Professor Tom
Luce: Chapter 4, points 2 and 3 Back
31
See Fundamental Review of Inquests (2003), Professor Tom
Luce: Chapter 8, points 30 and 31 Back
32
See Fundamental Review of Inquests (2003), Professor Tom
Luce: Chapter 8, point 34 Back
33
See Fundamental Review of Inquests (2003), Professor Tom
Luce: Chapter 9, point 40 Back
34
See Fundamental Review of Inquests (2003), Professor Tom
Luce: Chapter 10, Point 52 Back
35
See Fundamental Review of Inquests (2003), Professor Tom
Luce: Chapter 11, Point 68 Back
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