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


Memorandum submitted by the Campaign Against Criminalising Communities (CAMPACC)

  The Campaign Against Criminalising Communities has for nine years sought to raise awareness of the devastating effects of counter terrorism legislation on individuals, on communities and on our collective civil liberties. We are concerned about the direction of this Government's legislative programme and the expansion of secret hearings, closed evidence and punishment without accusation or trial. We regard Clause 11 of the Coroners and Justice Bill 2009 as a further example of this trend which threatens to undermine still further civil rights and protections, particularly for victims of state violence.

  Clause 11 would permit the Secretary State to appoint a coroner to sit without a jury, without the public and without the family of the deceased, in any case where the state is allegedly responsible for a death, provided he or she is satisfied that it is in the public interest because of the sensitive nature of the evidence. The dangers of this course are obvious, when one thinks of deaths such as that of Jean Charles de Menezes and Baha Mousa, and the temptation to hold secret inquests to cover up information which is sensitive because it discloses illegality, breaches of human rights or humanitarian law by state agents.

  CAMPACC's constituency comprises communities at the sharp end of anti-terrorist policing—national minorities which have fought for recognition, such as the Kurds, the Tamils and British Muslims. The experiences of these communities are particularly relevant in informing our concerns about the extension of secrecy in inquests into deaths caused by state agents. It is precisely when the state has caused death that the requirements of independent and effective investigation are the most pressing. Public confidence in the rule of law is important; the rule of law itself is fundamentally important.

  When someone is killed by state agents it is either deliberate or accidental. In either case there is a clear and vital public interest in openness. It is vitally important that citizens know what is being perpetrated in their name, and about dangerous operations which cause grave risks, so that there can be proper, informed public debate and lessons can be learned. There are no circumstances imaginable in which an entire inquest needs to be or should be held in secret, as opposed to inquests where some evidence might need to be protected from disclosure to protect important public interests.

CLAUSE 11 AND ARTICLE 2 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS

  It is impossible to see how the clause can be reconciled with the procedural requirements of Article 2 ECHR. Article 2 is recognised as one of the most important rights in the Convention. According to the European Court of Human Rights, it is a "fundamental" right which, together with Article 3, "enshrines one of the basic values of the democratic societies making up the Council of Europe" (McCann v United Kingdom (1995) 21 EHRR 97, ECtHR, para 147).

  The obligation to protect the right to life under article 2, read in conjunction with a state's general obligation under article 1 to secure to everyone within its jurisdiction the rights and freedoms defined in the Convention, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (Ibid; Jordan, McKerr, Kelly v United Kingdom (2003) 37 EHRR 52(shootings of IRA members by British armed forces), inquests were abandoned because of non-disclosure by the Crown of material evidence relating to the deaths, under public interest immunity certificates. The ECtHR held that the lack of information and the non-disclosure of witness statements prior to the witnesses" appearance at the inquest prejudiced the ability of the victims" families to participate in the inquests, contrary to the procedural requirements of Article 2. There must be sufficient public scrutiny of the investigation to ensure genuine accountability, and the deceased's next of kin must be involved in the investigation to the extent necessary to protect their legitimate interests.

  The judgment in Jordan required the UK government to change the procedure by which disputed deaths are investigated. It was followed in Finucane v United Kingdom (2003) 37 EHRR 656, and by the House of Lords in R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653, a case which bears strongly on the proposed legislation. Amin concerned the killing of a young offender, Zahid Mubarek, by his racist cell-mate at Feltham Young Offenders" Institution. Inquiries into the circumstances of the killing were carried out by the Prison Service and the Commission for Racial Equality, in addition to the criminal prosecution of the killer. But these measures did not prevent a breach of Article 2, since the inquiries had effectively been held in private, with no participation by or on behalf of the family.

  In R (Middleton) v HM Coroner for Western Somerset [2004] 2 AC 182 the House of Lords reiterated that "it is of the utmost importance that a complete and accurate picture emerges of the events leading up to a killing by State agents".

SECRECY AND ARTICLE 6 ECHR

  It is not just Article 2 but also the requirement for open justice, a fundamental aspect of fair trials under Article 6, which is engaged. In this context, the European Court of Human Rights has upheld non-disclosure for national security reasons or for the protection of the fundamental rights of others, with the provision of adequate safeguards, in Doorson v Netherlands (20524/92) and in Van Mechelen v Netherlands. But there is a big difference between non-disclosure of some information and holding a whole inquest in secret.

  Already, there are concerns about the way secrecy spreads like a virus and the exceptional quickly becomes the norm in the context of measures of control of those suspected of support for terrorism. It is a matter for concern that the minister is unable to tell Parliament how many PII certificates had been served on coroners in England and Wales seeking non-disclosure of evidence on national security grounds, on the basis that this information is apparently not held centrally (Hansard HC 9.7.08, col 1608W). The International Commission of Jurists Eminent Jurists" Panel February 2009 report, "Assessing damage, urging action" (Feb 09) sees the broadening of the permissible grounds for non-disclosure of materials to suspects as posing dangers to due process principles. The Panel expresses concern (p79) that the reasons for non-disclosure have become less clear, and go beyond the valid requirements of secrecy attached to intelligence work.

  Non-disclosure in context of control order and national security deportation hearings has resulted in extreme prejudice for appellants and to a widespread perception of injustice. The judicial committee of the House of Lords has grappled with these issues in MB and AF (and in the different context of parole board hearings) in Roberts v Parole Board, and concluded that fair trial principles under Article 6 ECHR, which demand a "substantial measure of procedural justice" require disclosure to the person concerned of enough of the case to enable him to meet it.

  The police and security services already benefit from wide judicial discretion to give evidence anonymously or in closed hearings. Allowing this Clause to remain part of the Bill will lead to a decrease in transparency in important public matters and a corresponding increase in alienation of the public.

  We are indebted to barrister Frances Webber for her great assistance on the legal background of inquests.

March 2009





 
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