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

Memorandum submitted by Inquest


  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.


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.


  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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