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

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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