Memorandum submitted by Inquest
INTRODUCTION
1. INQUEST is a charity which works with
the families of those who have died in custody. Through our casework
over the last twenty-five years, INQUEST has gained a unique overview
of the inquest system and deaths in custody. We extract policy
issues arising from contentious deaths and their investigation,
and campaign for changes in practice to prevent deaths. Our casework
service informs our research, parliamentary and policy work, and
we are widely consulted by government ministers and departments,
MPs, lawyers, academics, policy makers, the media and the general
public.
2. By helping families to obtain legal representation
to assist them through this long and daunting process, INQUEST
helps families to try to establish the truth about how their relative
died, hold to account those responsible for the treatment and
care of the deceased, and prevent future deaths. In contributing
to that objective, some meaning and purpose can be given to their
loss. This was recognised by Lord Bingham of Cornhill in his judgment
in the Amin case (brought by the family of Zahid Mubarek,
murdered in 2000 by a racist cell mate in Feltham young offender
institution in London):
"The purposes of such an investigation are
clear: to ensure so far as possible that the full facts are brought
to light; that culpable and discreditable conduct is exposed and
brought to public notice; that suspicion of deliberate wrongdoing
(if unjustified) is allayed; that dangerous practices and procedures
are rectified; and that those who have lost their relative may
at least have the satisfaction of knowing that lessons learned
from his death may save the lives of others."[46]
3. INQUEST welcomes the inclusion of the
Bill in the Government's draft legislative programme. It awaits
sight of the current draft; these comments are based on the currently
available draft of the Coroners Reform Bill and the Ministry of
Justice summary, dated 27 March 2008, of the changes made in light
of consultation on the Bill. As the Committee knows, INQUEST is
frustrated by the slow progress of reform, which leaves many families
ill-served by the current system. The Committee will be aware
of INQUEST's evidence to its Inquiry into Deaths in Custody 2004,
where we raised many of our concerns about the investigation and
inquest system. Many of these issues remain unresolved. Indeed,
for many families the situation has deteriorated since then. This
is particularly so for those who are bereaved in circumstances
which engage Article 2 ECHR; there are now unacceptable delays
in hearing such cases. We are concerned that the current system
is not compliant with the principles set out by the ECHR in Jordan.
4. This submission should be read alongside
INQUEST's policy submissions (September 2006) and legal submissions
(October 2006) on the draft Coroners Reform Bill. Many of the
comments and concerns expressed in those documents remain relevant
to the current draft of the Bill, and a copy of those submissions
is attached for ease of reference.
5. On 14 October 2008, the Government announced
that it was withdrawing the proposals for "secret" inquests,
contained in Part 6 of the Counter-Terrorism Bill, but that such
provisions may be included in forthcoming coroners' reform legislation.
INQUEST campaigned against the provisions of Part 6, and welcomes
the decision to withdraw them. It would oppose their introduction
in a similar form in the Coroners' Bill for the same reasons.
INQUEST assumes that the Government would consult further on such
a radical development of the Bill, and will respond if and when
any such amendments are made. We now know that in addition to
the Azelle Rodney case these provisions were also intended to
deal with matters that have arisen in another fatal shooting by
Metropolitan Police—the case of Terry Nicholas. It remains
a very serious concern that these two families are now in a state
of legal limbo, as Article 2 compliant inquests cannot take place
and they are being asked to wait until the Coroners reform legislation
makes its passage through Parliament.
BROADER CONCERNS
The purposes of an inquest
6. As the only official public hearing where
a death in custody is subjected to public scrutiny—in the
absence of a criminal prosecution—the inquest is of crucial
importance in the search for the truth. The inquest is usually
the only opportunity for the family to find out what happened.
The human rights caselaw emphasises the importance of the investigation
of deaths in custody, given that they take place in situations
of dependency on and control by the state. When the state removes
a person's liberty it assumes full responsibility for protecting
their human rights, and for properly investigating any deaths
which occur.
7. The human rights case law has established
consistent minimum standards for the state's duty to investigate
deaths in custody. In Jordan v. UK, the ECtHR set
out the five essential requirements of the investigatory obligation:
independence; effectiveness; promptness and reasonable expedition;
public scrutiny; and accessibility to the family of the deceased.
8. It appears that the Government has not
taken the opportunity of revising the Bill to provide any further
statutory guidance on the purposes of an inquest. INQUEST considers
that this is a missed opportunity. Clause 10 of the Bill simply
divides inquests into those where the narrower Jamieson scope
will apply, and Article 2 inquests where, pursuant to Middleton,
the jury must determine the cause and circumstances of
the death, without any explanation of when Article 2 will apply.
We suggest Part 1, Chapter 1 Clause 1.4 should say "in prison,
following police contact, in Secure Training Centres, in Immigration
Detention Centres, whilst detained under the Mental Health Act
or otherwise lawfully detained and/or in other circumstances that
engage Article 2 ECHR."
9. The Explanatory Notes to the Bill indicate
that the Government will deal with the applicability of Article
2 in guidance notes. There is no indication of what guidance will
be given, or whether there will be consultation on the terms of
such guidance. INQUEST's concerns about the relegation of vital
issues to secondary legislation or non-statutory guidance are
addressed separately below.
10. The Bill also continues to lack any
acknowledgment of the broader purposes of an inquest, including
the important public safety function of identifying the lessons
to be learned from a death. That function is explicitly part of
the State's Article 2 investigative obligation as it has been
developed in the caselaw of the European Court of Human Rights.
INQUEST's suggestions as to the appropriate wording for such statutory
acknowledgment are set out in its legal submissions of October
2006
The funding of the system
11. INQUEST continues to emphasise that,
regardless of the legal framework governing the inquest system,
the system can only function fairly and effectively if sufficient
resources are provided at all stages of the process: both to the
coronial system, and to the families of those who have died in
custody.
12. Currently, there is a stark inequality
of funding as between the families of the deceased and the State
institutions concerned in a death in custody. Adequately funded
representation for families is vital, both for the sake of the
families concerned, and also in order to fulfil the broader public
interest of ensuring that the evidence is thoroughly explored
in order to identify the full causes and circumstances of the
death, and to ensure that lessons can be learned for the future.
As the Committee itself has recognised, as well as other parliamentarians
such as Tom Luce and Baroness Jean Corston, without public funding
families cannot effectively participate in the inquest process.
Such participation is an essential component of Article 2 compliance.
13. It is unclear what funding the Government
intends to provide to families who wish to pursue an appeal to
the Chief Coroner, pursuant to the mechanism contained in clauses
60 and 61 of the Bill. It is vital that adequate funding be provided
for that purpose, as well as for representation at the inquest
itself: otherwise the appeals mechanism will be primarily of assistance
to State bodies, rather than to families.
14. Equally vital is the provision of adequate
resources for Coroners, for the Chief Coroner, and for bodies
such as the Prisons and Probation Ombudsman and Independent Police
Complaints Commission. The inquest system currently functions
with long delays, resulting from a combination of delays in investigations
by the PPO/IPCC, and delays in coroners being able to case manage
complex cases and list them for hearing. The importance of appropriate
accommodation for coroners is considered separately below. Particularly
in complex cases, coroners often face delays in obtaining adequate
accommodation from the local authority. Delays in holding inquests
increase the distress of the family and delay the learning of
lessons from the death. It will be important that the new appeals
mechanism also be adequately funded, in order to ensure that this
does not introduce a further element of delay into the system.
15. The current Bill is silent on the issue
of resources. INQUEST would welcome a statutory commitment to
the provision of (a) appropriate representation for families;
and (b) sufficient resources to allow coroners and the Chief Coroner
to conduct proceedings in a timely fashion.
The use of secondary legislation
16. On a number of issues, including the
applicability of Article 2 and the procedure which will apply
in such cases, the Government has indicated its intention to deal
with relevant matters through secondary legislation and non-statutory
guidance. INQUEST is concerned about dealing with important matters
through such mechanisms. As this consultation process demonstrates,
primary legislation is subject to the detailed scrutiny of Parliament
and of non-governmental organisations, while secondary legislation
and non-statutory guidance is not. Further, relegating important
issues to secondary legislation or guidance can undermine their
importance. On issues such as the procedure to be adopted in an
inquest engaging Article 2, the fulfilment of the State's treaty
obligations is at stake, as well as the vital interests of those
concerned. INQUEST considers that such issues ought to be dealt
with in primary legislation.
Learning lessons from deaths
17. There are a number of developments in
this area: these include the establishment of the Forum for the
Prevention of Deaths in Custody. However, INQUEST believes that
more remains to be done in ensuring that lessons are learned from
deaths in custody. It has long argued for the establishment of
a Standing Commission on Deaths in Custody, to provide independent
scrutiny of the implementation of changes required by coroners'
reports, narrative verdicts and the reports of other relevant
bodies (such as the PPO, IPCC and Prison Inspectorate). It welcomes
the fact that coroners' reports are now to be gathered centrally
by the Chief Coroner. However, it considers that there remains
a need for an independent body to ensure that the numerous agencies
which can be involved in a contentious death in custody, and affected
by such recommendations, take effective action in response to
the findings of coroners, juries, and other investigations.
Deaths in psychiatric detention
18. INQUEST remains concerned that there
is still no body which carries out independent investigations
into deaths in psychiatric detention. Those detained there are
effectively in custody in the same way as those detained in prison
or by the police, in the same type of closed environment. They
have complex needs, with a high rate of suicide and self-harm.
The Joint Committee on Human Rights has recommended the establishment
of an independent body to carry out such investigations—"there
is a case for a permanent investigatory body with some level of
overview in all cases rather than ad hoc investigations
in a few cases in order to support Article 2 compliance"—but
this recommendation has not been implemented.
COMMENTS ON
SPECIFIC PROVISIONS
OF THE
BILL
19. These comments focus on the changes
announced by the Government on 27 March 2008. INQUEST's comments
on the provisions of the Bill which remain unchanged are set out
in its previous submissions, attached.
Clauses 5 and 6: deaths abroad
20. INQUEST welcomes the removal of the
proposed restrictions on the circumstances in which coroners would
need to investigate deaths occurring abroad. Many controversial
deaths occur abroad. While inquests into deaths abroad can raise
practical problems, there was no principled reason to place those
deaths into a special category. The removal of these provisions
also removes the risk of families being denied an inquest in the
UK because of the holding of an ineffective investigation in the
country in which the death took place.
21. The new amendments are also to be welcomed
in addressing the practical problems which individual coroners
can face in obtaining evidence into deaths abroad, by requiring
the Chief Coroner to assist in such cases, if requested. Again,
such assistance can only be meaningful if the Chief Coroner's
office has sufficient resources to allow it to carry out the necessary,
and sometimes time-consuming, liaison with the authorities of
the jurisdiction in which the death took place. It is to be hoped
that the Chief Coroner will develop protocols for ensuring international
co-operation in such cases.
Clause 12: action to prevent other deaths
22. In advance of the passage of the Bill,
the government has amended Rule 43 of the Coroners Rules to provide
equivalent powers (by the Coroners (Amendment) Rules 2008, 2008/1652,
which came into force on 17th July, along with guidance for coroners
issued by the Ministry of Justice).
23. INQUEST welcomes the revised Clause
12 of the Bill. The requirement for recipients of coroners' reports
to respond, and the central collection of such reports, is to
be welcomed. Previously, there has been real concern—by
both coroners and families—that coroners' recommendations
can be disregarded, or dealt with on a case by case basis without
taking an overview of patterns and common issues.
24. It is to be hoped that these changes
will also standardise coroners' practice on Rule 43 reports, which
has differed widely across jurisdictions, including on the vital
issue of whether such reports may be disclosed to the family.
Clauses 13 and 14: juries
25. On juries, the draft Bill previously
removed the requirement that work inquests into workplace deaths
are held with a jury, and reduced the number of jurors on an inquest
jury to between 5 and 7 people. The revised Bill retains jurors
for work place deaths and revises the jury number to between 7
and 9.
26. INQUEST welcomes these amendments. Deaths
in custody may be the core case where the public scrutiny of a
jury is essential to ensuring accountability. However, many deaths
at work also occur in a closed environment lacking in transparency,
and may raise equally important questions of institutional responsibility.
INQUEST also welcomes the increase in the number of jurors, but
remains concerned that the proposed numbers are significantly
fewer than in a criminal trial, despite (a) the complex task which
inquest juries perform, and (b) the importance of ensuring that
controversial deaths are scrutinised by a cross-section of society.
Clause 33: accommodation for coroners
27. INQUEST is concerned that the relevant
local authority is required only to provide the accommodation
which it thinks appropriate. There is no consistent standard which
those facilities must meet. The Government's notes to this revision
make it clear that there is no intention to provide dedicated
coroners' courts in all jurisdictions, and that the practice of
coroners hiring facilities on a case by case basis will continue.
28. In INQUEST's experience, the lack of
suitable permanent facilities, and the need to hire space in town
halls, Crown Courts, conference centres etc, contributes to the
delays in holding inquests in complex cases. Such facilities also
frequently lack appropriate, private space for families. This
leads to families having no private space in which to meet with
their legal representatives and to be away from other witnesses
(who may be closely concerned in the death). When suitable rooms
are available, families are often expected to pay to use them.
Presumably the accommodation currently provided is considered
appropriate by the local authorities concerned. There is nothing
in the Bill to require a higher standard of provision. Without
the application of objective standards, it appears unlikely that
local authorities will choose to devote greater resources to the
issue.
Clauses 60 and 61: appeals
29. INQUEST welcomes the decision to define
the list of decisions which can be appealed. It appears that the
Bill remains silent on the legal test which the Chief Coroner
will apply to such appeals: whether appeals will involve a re-hearing
of the point, or a judicial review test. INQUEST considers that
a re-hearing would be more appropriate, since the application
of a Wednesbury-type test would not provide sufficient
scrutiny of coroners' decisions. It is vital that the Chief Coroner
be enabled to determine appeals expeditiously, to ensure that
appeals do not contribute to further delay in the hearing of inquests.
October 2008
46 R. v. Secretary of State for the Home Department,
ex parte Amin [2003] UKHL 51, para. 31. Back
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