Memorandum submitted by Human Rights Watch
We are grateful for this opportunity to set
out Human Rights Watch's concerns with provisions in the Coroners
and Justice Bill 2009 giving the Home Secretary broad scope to
declare an inquest closed to public scrutiny. Human Rights Watch
believes that secret inquests are incompatible with the UK's obligations
to protect the right to life under article 2 of the European Convention
on Human Rights (ECHR). We urge you to recommend that clauses
11-13 be stricken from the bill.
As you know, the provision for closed inquests
was originally brought forward in the Counter-Terrorism Bill 2008.
We outlined our concerns with that proposal in a briefing paper
submitted to this House in July 2008.[37]
Both this Committee and the House of Commons Justice Committee
also raised serious concerns about the lack of independence of
inquests conducted by specially appointed coroners as well as
the limits on the involvement of victims" families.[38]
While we welcome the government's decision to
strike the relevant clauses from the Counter-Terrorism Bill, we
regret that the proposal has been re-introduced, without significant
improvement, to the bill now before you. The proposal remains
contrary to the UK's treaty obligations; it is also unnecessary
and likely to undermine public confidence in investigations of
wrongful deaths where state responsibility must be determined.
Clause 11 (Part I) of the Coroners and Justice
Bill gives the Secretary of State the power to "certify"
an investigation into a wrongful death to prevent disclosure of
sensitive materials or information. She may do so when she is
of the opinion that public disclosure must be avoided in order
to protect national security, the relationship between the UK
and another country, the safety of a witness or another person,
in the interest of preventing or detecting crime, or to prevent
real harm to the public interest (sub-clause 2). The effect of
certification is that such inquests are to be held by a High Court
judge appointed by the Lord Chief Justice without a jury (sub-clauses
3 and 6).[39]
The decision to certify could be challenged under judicial review,
and the bill provides for a 14-day grace period from the time
of certification to allow for such challenges (sub-clause 5).
Finally, clause 11 stipulates that the Secretary of State may
certify an inquest already underway; in these circumstances, the
presiding coroner and jury would be dismissed (sub-clause 6).
Clause 12 gives the Secretary of State sole
power to discontinue certification and stipulates provisions for
summoning a jury to continue the inquest into a death that would
have required a jury inquest had certification not been imposed.
Clause 13 provides for amendments of the Regulation of Investigatory
Powers Act 2000 to allow for the use of intercept evidence in
closed inquests.
Human Rights Watch believes the power to order
closed inquests is incompatible with the UK's international treaty
obligations. Under ECHR article 2, the UK has a positive obligation
to conduct effective investigations of deaths resulting from the
use of force. The European Court of Human Rights has established
that to be effective, an investigation must be independent, take
reasonable steps to collect the evidence necessary to reach a
determination, be carried out with promptness and reasonable expedition,
and be subject to public scrutiny.[40]
The Court recognizes that the degree of public scrutiny may vary
from case to case, and while it has found that limited application
of the public interest immunity system in the UK does not necessarily
violate article 2 obligations,[41]
it has also found that its use has prevented review of potentially
relevant material and therefore prevented an effective investigation.[42]
Moreover, next-of-kin of victims have a right to participate in
the proceedings, a right which must be safeguarded by the process
so that they always have access to the investigation "to
the extent necessary to safeguard [their] legitimate interests".[43]
Giving the Secretary of State a power to order
closed inquests undermines the core requirement that such investigations
be independent. We note that the current proposal improves upon
the one originally included in the Counter-Terrorism Bill 2008,
in that a High Court judge, appointed by the Lord Chief Justice,
would now conduct the certified inquest, rather than a coroner
especially designated by the Secretary of State. We remain concerned,
however, that certification represents an unacceptable intrusion
by the executive branch into investigations that must ultimately
determine state responsibility in a suspicious death. This intrusion
is likely to undermine public confidence in the investigation
and its outcome.
In this context, it is worth noting that the
bill gives the Secretary of State the authority to certify inquests
already in progress (sub-clause 6). As this Committee observed
in your comments on Counter-Terrorism Bill 2008, this means the
provision could be applied to still unresolved cases in Northern
Ireland, to the detriment of the UK's compliance with judgments
of the European Court of Human Rights.
We are further concerned that a system of closed
inquests would deny the next-of-kin a sufficient degree of access
to satisfy their legitimate interests. In its explanatory notes
to the bill, the government states that rules will be adopted
to allow the coroner to appoint independent counsel to represent
the interests of next-of-kin.[44]
This would essentially replicate the seriously flawed system of
special advocates already in place in the Special Immigration
Appeals Commission (SIAC) and control order proceedings. Special
advocates in these proceedings are not able to discuss the evidence
or grounds contained in closed material with the controlee or
take instructions from him. In the context of closed inquests,
it is difficult to see how special advocates could represent properly
the interests of the next-of-kin if they are unable to discuss
with them information directly relevant to how their loved one
died.
In the recent ruling on the abrogated policy
of indefinite detention for foreign terrorism suspects, A and
Others v. the United Kingdom, the European Court of Human Rights
took the unequivocal view that special advocates could only perform
their role effectively when detainees were provided sufficient
information about the allegations against them, and able to give
meaningful instructions to the advocate.[45]
Proceedings in which the decision to uphold or maintain detention
were based solely or to a decisive degree on closed material,
and that material was not disclosed to the detainee, are to be
considered unfair.
Human Rights Watch considers the grounds for
certification, as enumerated above, to be overly broad and likely
to render judicial challenges virtually impossible to win. The
ill-defined concept of "public interest," in particular
when linked to the goal of protecting the UK's relationship with
another country, gives rise to concerns that the interests of
justice might be sacrificed to avoid diplomatic tensions.
The government has not made a convincing case
that closed inquests are necessary. Indeed, the draft legislation
does not require the Secretary of State to consider certification
as "necessary", only that no other measures would be
"adequate" to prevent disclosure of sensitive material.
Human Rights Watch acknowledges that there may be legitimate reasons
for limiting disclosure of certain materials relevant to the inquest.
Indeed, UK law already provides for this through Public Interest
Immunity (PII) certificates, and the power of the court to hold
part of the proceedings in camera, restrict access to the media,
and adopt special measures.
The government has argued that PII certificates
are not a satisfactory alternative to closed, non-jury inquests
because an inquest must go forward whether PII is granted or not
(whereas in criminal proceedings, the Crown Prosecution Service
can choose to halt prosecution in order to protect sensitive material
and sources). It is equally true, however, that an inquest would
have to proceed in the event judicial review led to certification
being quashed. In this case, the coroner presumably would avail
him or herself fruitfully of the existing measures outlined above.
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 the inquests and their findings. We therefore urge
you to recommend that clauses 11-13 be stricken from the Bill.
February 2009
37 Human Rights Watch, Briefing on the Counter-Terrorism
Bill 2008, Second Reading in the House of Lords, July 2008, http://www.hrw.org/en/reports/2008/07/01/briefing-counter-terrorism-bill-2008 Back
38
JCHR, "Counter-Terrorism Policy and Human Rights (Tenth Report):
Counter-Terrorism bill", Twentieth Report of Session 2007-08,
14 May 2008, http://www.publications.parliament.uk/pa/jt200708/jtselect/jtrights/108/108.pdf,
paras. 115-119; House of Commons Justice Committee, "Counter-Terrorism
Bill", Third Report of Session 2007-08, March 20, 2008, http://publications.parliament.uk/pa/cm200708/cmselect/cmjust/405/405.pdf,
para. 5. Back
39
Under the current Coroners Act 1988 and the draft Coroners and
Justice Bill, jury inquests are required for all deaths in custody
or state detention, and the death was violent or unnatural or
the cause is unknown; for all deaths resulting from an act or
omission of a police officer or member of a service police force
in the purported execution of his or her duties; and where the
death was caused by accident, poisoning or disease which must
be reported to a government department or inspector. Coroners
Act 1988, Section 8(3); Coroners and Justice Bill, Clause 7(2)
and (3). Back
40
European Court of Human Rights, Hugh Jordan v the United Kingdom,
Judgment of 4 May 2001, no. 24746/94, ECHR 2001-III, paras. 105-109;
McKerr v the United Kingdom, Judgment of 4 May 2001 no.
28883/95, ECHR 2001-III, paras. 144-148; Finucane v the United
Kingdom, Judgment of July 1 2003, no. 29178/95, Reports of
Judgments and Decisions 2003-VIII, paras 68-71. Back
41
European Court of Human Rights, Hugh Jordan v the United Kingdom;
McCann and Others v the United Kingdom, Judgment of 27 September
1995, Series A, no. 324. Back
42
European Court of Human Rights, McKerr v the United Kingdom,
Judgment of 4 May 2001, ECHR 2001-III no. 28883/95 paras 150-151. Back
43
European Court of Human Rights, Hugh Jordan v the United Kingdom,
para 109; McKerr v the United Kingdom, para. 148; Finucane
v the United Kingdom, para 71. Back
44
Coroners and Justice Bill Explanatory Notes, para 804. Back
45
Ibid, para 220. Back
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