Memorandum submitted by the Royal British
Legion
INTRODUCTION
The Royal British Legion welcomes consideration
being given by the Joint Committee on Human Rights to the issue
of compatibility of the Coroners and Justice Bill with UK human
rights obligations. We are also grateful for the decision of the
Committee to invite the comments of relevant stakeholders to assist
its legislative scrutiny of the Bill.
The Royal British Legion welcomed publication
of the Coroners and Justice Bill and believes it provides opportunities
for significant improvements to coroner governance, particularly
with the introduction of a Chief Coroner. We hope that the Bill
will strengthen the Inquest process and that provisions such as
the Charter for the Bereaved People will further encourage the
involvement of bereaved families.
However, the Bill also contains proposals that
cause concern for the Legion on behalf of families of deceased
Armed Forces personnel, particularly the provision for military
inquests without a jury.
We believe the Bill offers the opportunity to
go further, to ensure that comprehensive investigations take place,
where required, and that bereaved families have full confidence
in the system.
In July 2008, the Royal British Legion and the War
Widows Association held an event with bereaved Service families
to discuss how support for families could be improved. Many of
the points outlined in this submission were first raised at this
event.
BACKGROUND
The Royal British Legion ("the Legion")
was founded in 1921 to provide charitable welfare assistance to
those who had served in the Armed Forces, their widows and dependents.
This work continues today. The Legion has around 400,000 members
and in 2008 we delivered over 100,000 welfare services. In any
year around 150 service personnel lose their lives while serving
in the Armed Forces. Since the beginning of Operation HERRICK
and TELIC over 320 Armed Forces personnel have been killed fulfilling
their duty to the nation in these theatres.
In September 2007, the Legion launched a campaign
calling on the nation to "Honour the Covenant" with
the Armed Forces and veterans. The campaign included a pillar
calling for improvements to the support available for bereaved
Armed Forces families.
One of the main issues facing bereaved families
in early 2007 was the lengthy delays some people were experiencing
before an inquest was held. The campaign highlighted the need
to quicken the process and the specialist nature of military inquests.
Additional resources have been placed at both the Oxfordshire
and Wiltshire and Swindon Coroners to help speed the inquest process
and avoid backlogs.
In the recently released Command Paper "The
Nation's Commitment; Cross-Government Support to our Armed Forces,
their Families and Veterans", the Government reported:
"Over the last two year, the Government
has made significant changes to the support we provide to families
which have to go through the painful experience of an inquest.
These include making extra resources available to the coroners
who are faced with a considerable extra workload, in order to
minimise backlogs, and encouraging the transfer of cases to a
coroner nearer to where the families live".
The campaign also aimed to improve the information,
support and advice provided to families; there has been some progress
here as well. The Ministry of Defence (MOD) and the Ministry of
Justice (MOJ) have produced improved information for bereaved
families and made changes to the procedures within the MOD.
The Coroners and Justice Bill provides an opportunity
for further improvements to be made, particularly opportunities
for improvements in relation to the governance structure for Coroners,
the introduction of new duties for employers to report actions
taken on coroner recommendations to prevent future deaths and
further involvement and information for families.
CLAUSE 11 CERTIFIED
INVESTIGATIONS
The Legion expressed its reservations over "secret
inquests" when proposals were first put forward in the context
of the Counter-Terrorism Bill. We recognise that the Government
has responded to criticism and the proposals in this Bill have
been modified. However, the Bill still gives the Secretary of
State power to certify investigations to be held without the public,
without the jury and without the involvement of the family of
the deceased.
We consider with comments already made by the
JCHR regarding shortcomings of the Bill and its concerns that
a certified inquest would not meet standards required under Article
2 of the Convention.
We note that the Northern Ireland Human Rights
Commission has drawn attention to the weight placed by the European
Court of Human Rights upon the role of the bereaved family in
defining standards for protection of life. According to one expert:
"The Court views the protection of the legitimate
interests of the next-of-kin as a driving aspect to the workings
of all accountability mechanisms".
Military deaths, particularly deaths overseas
and deaths associated with military engagements frequently involve
issues of national security and relations with military allies
in other countries. The challenges of providing an effective investigation
do not start in the Coroner's inquest. It is therefore more important
that the proceedings of the Inquest must be demonstrably open
and transparent to the bereaved family.
As long as Clause 11 remains in the Bill, we
regret it may not be possible to dislodge the perception that
crucial evidence will be heard behind closed doors. Additionally,
the grounds for certification, as defined, seem to suggest the
objection of another country and/or diplomatic relations will
be placed above the need for a grieving family to find the truth.
ABSENCE OF
INSTITUTIONAL OVERSIGHT
In light of public over deaths in military barracks,
the "Deepcut Review" published in March 2006
recommended the introduction of a Commissioner to receive unresolved
complaints from soldiers and their families about issues regarding
their welfare, to investigate complaints, to supervise responses
to complaints and to report annually to the Minister of State
for the Armed Forces.
In 2008 the first Service Complaints Commissioner
(SCC) was appointed. The Commissioner has no powers of investigation—only
to refer matters raised to the chain-of-command and to review
the conduct of the investigation once it has been completed. The
Commissioner has also stated that complaints from families regarding
deceased service personnel are outside the remit of the office,
as the individual is no longer serving. This provision fails to
provide assistance for families who wish to pursue a complaint
for independent investigation into military processes following
a fatality, remembering that self-inflicted and other non-combat
deaths are included.
While membership of the Armed Forces requires
some restrictions to the rights of individuals who serve, such
restrictions must be proscribed by law and strictly proportionate.
There may be no limitation upon the protection of the rights of
life.
The investigation of military deaths lacks independent
oversight or the pattern of checks and balances established to
cover the police and prison services. Is it also true that the
MOD is the employer, the investigator, the prosecutor and holder
of all documentary evidence.
— the military has no independent ombudsman
or complaints commissioner, such as the Independent Police Complaints
Commission, with effective powers of investigation;
— overseas military deaths are not
subject to investigation by an independent civilian police force;
— evidence given at a military Service
Inquiry (formerly the Board of Inquiry) is not admissible as evidence
at a coroner's inquest;
— there is no military equivalent to
the HM Inspectorate for Prisons and Police;
— monitoring of training establishments
by the Adult Learning Inspectorate instigated following the Deepcut
investigation ceased after two years;
— absence of a public interest defence
to protect military whistle-blowers from victimisation; and
— limitations on the investigatory
powers of the Health and Safety Executive (HSE).
CLAUSE 7 WHETHER
A JURY
IS REQUIRED
The Legion believes that the investigation of
some sudden deaths in military service must be subject to the
same protection as that available for a death in a prison or police
station.
The absence of independent oversight; issues
of isolations and vulnerability, potential abuse of authority,
access to weaponry, military codes of silence, confinement in
barracks—all speak to the dangers of military life and the
requirement for additional protection.
Since the issue of public confidence and serving
the interests of bereaved families must be paramount. The Legion
would like to see a legislative requirement for an inquest to
be held before a jury where a death has occurred in military service
during military training or where the individual was under the
age of 18. We believe that in these cases it can be argued that
military personnel are owed an additional duty of care as they
are effectively in the care of the state.
LEGAL REPRESENTATION
FOR BEREAVED
SERVICE FAMILIES
At the July 2008 event organised by the Royal
British Legion and War Widows Association for bereaved families
of service personnel, a participant group was asked to discuss
legal representation and advice at the event. The group was a
mixture of those who had legal representation at inquest and those
who had not. The following is a summary of points raised:
— There needs to be a detailed and
independent legal guide on inquests for families.
— Families would like information and
advice from an independent person—not the MOD.
— The MOD bring a large number of barristers
to proceedings, this is intimidating for a lay person and can
make it impossible for a lay person to find answers to their questions.
— The lack of legal representation
for families creates a "them and us" feeling.
— There was a lack of advice and funding
for legal representation.
— Legal representation should be an
automatic right for families.
— Families want advice independent
of the MOD.
— Documentation was difficult—full
of legal jargon and confusion caused by redaction.
— Lack of communication between regiments
and MOD, caused more difficulty getting answers.
— Families stated that they were "left
to help yourself".
— Access or the need for legal representation
was not mentioned by any contacts with the MOD.
— Legal representation would help deal
with enquiries from the media, particularly in cases of single
fatalities, where family groups were not formed.
— One family member had applied for
legal aid, but been turned down.
— Families couldn't even apply for
legal aid unless special dispensation had already been awarded.
The Deepcut Review conducted by Nicholas Blake
QC considered the issue of legal advice an representation for
families during the inquest process. His recommendation was:
"As part of the Military Covenant with the
soldier, the MOD should ensure that the family of a deceased soldier
have access to legal advice and, where appropriate, legal representation
prior to, and during, the inquest of FAI (Fatal Accident Inquiry)".
The need for independent legal advice is apparent,
and the first step should be for the Government to fund an independent
legal advice for families. This could be piloted as an independent
service delivered through the voluntary sector or within the SCC
office. Advisers should be independent of the Government, but
funding should be provided from the Treasury for this purpose.
The issue regarding legal representation is
not as clear, and the costs involved could be significant. However,
it is worth noting that there is a system in play for legal fees
to be paid in exceptional cases, through the legal aid system.
It is also worth highlighting that the hourly rates under the
legal aid system are capped.
No family would question the model of the inquisitorial
regime established for the Coroner's Court. But an investigation
that throws up Article 2 issues concerning protection of the right
of life, a death in an army training establishment or a death
on military service overseas—all to frequently is met with
what appears to be extraordinary efforts by the MOD to engage
in damage limitation, restrict the public inquiry and defend the
status quo.
Many families could simply require advice on
the inquest process, its purpose or the role of coroners, while
some might need representation during the inquest itself. While
Legal Aid may be provided in "exceptional" circumstances,
experience would suggest that the "exception" is too
narrowly drawn, that decisions are subject to demoralising delay,
and that bereaved families resent being means-tested for what,
in all conscience, should be their right to effective representation.
INVESTIGATION BY
ANOTHER CORONER
Bereaved relatives have welcomed the removal
of barriers that have prevented inquests being held somewhere
accessible to their extended family and friends. We hope that
agreement may soon be reached with the Scottish government over
legal measures to permit a Fatal Accident Inquiry in Scotland
to investigate a military death overseas.
But families are also concerned that the body of
expertise built up, in particular by the Oxfordshire and Wiltshire
and Swindon coroners should not be dissipated. The coroners in
these two jurisdictions have established centres of excellence,
unmatched in Europe. Their dedication and courage has won widespread
admiration and inspired coronial staff in their commitment to
meet the needs of the bereaved.
We have concerns regarding the need for knowledge
of the military when carrying out an investigation into a Service
death. This is particularly important where a fatality occurs
in a theatre of operations.
We believe that a specific training course should
be established by the Chief Coroner for military inquests, and
only coroners that have completed the training should accept referrals
from coroners in repatriation areas. The only alternative to this
is for the Coroners and Justice Bill to include the ability for
coroners to specialise in particular fields, this would allow
coroners to become specialists in military inquiries. The systems
should be flexible enough to change as operational commitments
alter.
CORONERS RULE
43
The Legion welcomes recent legislation to provide
for the post-inquest recommendations of the coroner to be made
to the Secretary of State under Coroners Rule 43 and the requirement
for a response within 56 days.
However, we do not believe such a measure alone
is sufficient. Information about the Rule 43 recommendations and
responses to them should be collected centrally and made publicly
available. Trends should be analysed and indications of persistent
or systemic failure be reported in the Chief Coroner's annual
report.
We believe consideration should be given to
the establishment of a mechanism that would, in the last resort,
empower the Coroner to summons a person who has failed to provide
an adequate response to a Rule 43 recommendation within the prescribed
period. We also believe that the instrument should allow for the
introduction of an Advisory Committee on Military Deaths to monitor
the progress of coroner recommendations to the MOD.
February 2009
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