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

Memorandum submitted by the Royal British Legion


  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.


  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.


  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.


  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).


  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.


  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.


  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.


  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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