The Justice and Security Green Paper - Human Rights Joint Committee Contents

4  Extending Closed Material Procedures to inquests

The Green Paper proposals

125.  The Green Paper is consulting on whether closed material procedures should be extended to inquests.[60] It proposes that CMPs should be available in inquests on the basis that there have been cases in which coroners have been unable to conclude their investigation, or their investigation has been less thorough and effective, because sensitive material has had to be excluded.

The case for change

126.  The case for change is said to be that in recent years there have been a number of inquests in which sensitive material has been relevant. Although the number of such inquests is acknowledged to be "small" or "very small",[61] and in most of them it has proved possible to deal with the challenges of handling sensitive information by ad hoc solutions, it is said that in some cases coroners have concluded that the exclusion of material means that they have been unable to complete their investigation. It is also said that it is "conceivable" that in future inquests it might not be possible to investigate a death properly. PII is accepted to have been effective in the vast majority of inquests in protecting sensitive material of marginal relevance, but it is claimed by the Government that "in exceptional cases inquests are unable to proceed at all if highly relevant material is excluded because of its public interest sensitivity."[62] Although the numbers of such cases are accepted to be small, it is said that they are likely to include particularly high profile cases. Reform of inquests is therefore said to be warranted "in order to enable more full and comprehensive conclusions."

127.  One of the recent inquests involving sensitive material which the Government has in mind in its Green Paper is the inquest into the London bombings on 7 July 2005. The coroner in that case, Lady Justice Hallett, ruled that she could not hold a closed material procedure. PII applications were used to protect some of the sensitive material, and the coroner therefore could not take account of some of that material. The Green Paper says that the coroner was able to reach a verdict in that case and deliver a comprehensive 'Rule 43 Report', but it comments on the fact that "the Security Service was unable to put all the material before the coroner, and while this did not prevent this inquest reaching its conclusion, the situation may be more challenging in future inquests."

128.  Similar proposals to those contained in the Green Paper with regard to inquests were brought forward by the previous Government, first in the Counter Terrorism Bill in 2008 and then again in the Coroners and Justice Bill in 2009 but were not adopted by Parliament.

Is there evidence of the need for change?

129.  The evidence of a number of witnesses challenged the assertion in the Green Paper that there is any need for change to the current system.

130.  INQUEST and the INQUEST Lawyers Group, for example, recognised that there is a need to achieve a proportionate balance between the need for openness and transparency on the one hand and concerns over sensitive material on the other. However, they argued that the Government has not demonstrated the necessity for change, and that the current legal framework for inquests has, with one narrow exception, proved itself sufficient for dealing with issues of sensitive material. Coroners have found "pragmatic solutions" that properly strike the balance between the need to protect sensitive material and the need to ensure openness and transparency. INQUEST and the INQUEST Lawyers Group provide nine case studies where inquests have involved sensitive material, in which coroners have reconciled concerns over sensitive evidence with transparency. These examples, they argue, demonstrate that the current inquest system already can, and does, cope with even the most sensitive and highly classified material without the need for closed material procedures. They have also compiled a comprehensive list of some 19 practical measures adopted by coroners in practice in order to enable them to deal with sensitive information.

131.  Liberty and JUSTICE also argued strongly that the Government's fears that inquests may be unable to continue because certain sensitive material cannot be disclosed, which was the justification for the previous Government's ill-fated proposals for secret inquests, have proved to be ill-founded in practice. They referred to the inquests into the death of Jean Charles de Menezes and the 7/7 bombings as examples of the success of the coronial system in dealing with sensitive material.

132.  INQUEST's evidence seriously challenges the premise of this part of the Green Paper. It was not aware of a single inquest which had been less thorough and effective because sensitive material had been protected from disclosure by PII. On the contrary, it drew attention to many examples of high profile inquests that have raised highly sensitive issues, in which, thanks to the pragmatic approach taken by the bereaved families and the coroners, a way has been found within the existing legal framework to enable the inquest to perform its function of establishing the truth about how somebody died without any damaging disclosures of sensitive material.[63]

133.  As for whether there have been cases in which coroners have been unable to complete their investigation because of the necessary exclusion of sensitive material, as far as INQUEST was aware, there has only ever been one case which could not be concluded, the Azelle Rodney case in 2005, and that was because of the inadmissibility of intercept evidence. Moreover, even in that case an alternative way forward has been found, in the form of an inquiry under the Inquiries Act 2005, which is due to start in September.

134.  INQUEST's evidence, in summary, was that under the current inquest system coroners can, and do, cope with even the most sensitive and highly classified material without the need for closed material procedures. It therefore could not see any evidence of the need for change and felt that the case for change had not been made out by the Government in the Green Paper.

135.  The Coroners' Society of England and Wales, on the other hand, in its response to the Green Paper, accepted the Government's prediction that security issues are likely to arise more frequently in inquests in the future and generally supported the idea of enabling CMPs to be used for part or all of an inquest. INQUEST, however expressed surprise that this was the view of the Coroners' Society.[64] It was not consistent with the conversations INQUEST has had with coroners about these issues, including when the previous proposals for secret inquests were brought forward. Coroners have proved resourceful and pragmatic in the huge range of measures that they have developed so that sensitive material can be dealt with in inquests to the satisfaction of all concerned, and INQUEST therefore doubted whether the view expressed by the Coroners' Society of England and Wales was representative of coroners generally. In a supplementary memorandum INQUEST reported that a number of coroners have expressed surprise that any response was made by the Coroners Society as they do not respond as independent judicial officers to policy consultations, and there has been no formal internal consultation about the matter amongst members of the Coroners Society.

136.  When we put to the Secretary of State INQUEST's evidence that, under the current system, coroners both can and do cope with even the most sensitive and highly classified material without the need for closed material procedures, he did not appear to contest it.[65] He agreed that it is usually the case that they do, and he praised the way in which all the parties in the 7/7 inquest had managed to agree a way in which they could proceed to everybody's satisfaction. He agreed that such common sense agreement is optimal in every case. He acknowledged that "in some of the most difficult cases, such as those involving service personnel and families, it is normally possible to establish a perfectly good process by which the rights of everybody are respected, a proper inquest is held, but, again military intelligence or secure information is not compromised." When we pressed him to give some actual examples where coroners have not been able to overcome the problems posed by sensitive materials, he referred tentatively[66] to there being "quite a lot of inquests that have been adjourned for many years" in Northern Ireland, but rested his case mainly on the possibility of such a case arising in the future:

Sooner or later there will be a case that tests this [...] We have to consider whether or not we are going to anticipate whether a case might arise sooner or later where we have the same difficulty.

137.  The most the Secretary of State was able to say was that, under the current system, there can be "no guarantee" that a proper investigation can be held without compromising sensitive information. The Government therefore appears now to accept that so far there has not been a case in which the coroner has been unable to deal satisfactorily with the problems which have arisen as a result of the involvement of sensitive material.

138.  We do not consider that the Government has produced any evidence to demonstrate the need to introduce fundamental changes to the way in which inquests are conducted. There is no evidence of cases in which a coroner's investigation has been less thorough and effective because sensitive material has had to be excluded, and there appears to be only one case in which a coroner has been unable to conclude the investigation, and that appears to have been due to the inadmissibility of intercept evidence. In our view, the burden of the evidence is clear that coroners have proved resourceful in devising ways of ensuring that full and effective investigations can take place notwithstanding the relevance of sensitive material to central issues in the case.

139.  To the extent that the evidence shows that inquests may not be able to be completed because of the inadmissibility of intercept, and that there is scope to produce greater consistency of practice between different inquests, there may be a case for some much less fundamental reform of inquests than that proposed in the Green Paper.

The reform options


140.  The Green Paper puts forward as one option for change an amendment to the Coroners Rules to allow the coroner to have a closed material procedure for part or all of an inquest, and to provide for families to receive 'gists' of sensitive material and be represented by Special Advocates when sensitive material is presented to the inquest.[67]

141.  The Green Paper acknowledges that inquests must satisfy the minimum requirements imposed by Article 2 ECHR in relation to any death in which it appears that agents of the state are or may be in some way implicated, including, for example, deaths in custody, or where a person has been killed by a state agent. Where Article 2 ECHR applies, it requires the involvement of the deceased's next of kin and a greater degree of public scrutiny.

142.  INQUEST and the INQUEST Lawyers Group were opposed to the use of CMPs in inquests because of the particular importance of openness and transparency in inquests: they would effectively exclude bereaved families from participating in inquests and would therefore run contrary to the need for openness and transparency which is recognised in the case-law on the right to life in Article 2 ECHR. That case-law imposes a positive obligation on states to ensure that investigations into certain deaths, including deaths in custody or involving state agents, meet certain minimum standards: the investigation must be and be seen to be independent and effective, the next of kin need to be involved and that there must be a sufficient element of public scrutiny. In INQUEST's view, introducing CMPs into inquests would make it impossible to meet those requirements because the family would be excluded.[68] It would also be highly damaging to public confidence in the inquest process, which would undermine its important function of allaying suspicion that there has been wrongdoing that has been covered up.[69] Liberty and JUSTICE similarly believe that CMPs are entirely unsuitable for inquests, for similar reasons.

143.  The proposal to extend CMPs to inquests also runs counter to the current trend towards greater openness and transparency in relation to inquests, in keeping with the requirements of Article 2 ECHR. The Green Paper does not mention the fact that during the recent 7/7 inquests the Government challenged the coroner's decision that she did not have the power to hold a closed material procedure, but the High Court held that there is no power in the Coroners Rules to hold closed hearings, nor do coroners have an inherent jurisdiction to do so.[70]

144.  We do not accept that the Government has made out the case for extending closed material procedures to inquests, for the reasons given above. We have serious doubts about whether such a change could be introduced compatibly with the positive obligations on the State in Article 2 ECHR, in particular the requirements that the family will be sufficiently involved and that there be sufficient public scrutiny. Such a fundamental departure from the way in which inquests are currently conducted requires compelling justification. Yet the Government has not produced any evidence to substantiate its claims in the Green Paper that in some cases coroners have concluded that the exclusion of material has left them unable to complete their investigation.

145.  In fact, it seems that with only one exception concerning the admissibility of intercept material, coroners have reached full and comprehensive conclusions without resorting to CMP. Indeed, it is hard to imagine an inquest raising more sensitive issues than the 7/7 inquest, in which one of the issues was whether the intelligence services had failed to take adequate action to prevent the attacks. Yet the coroner in that case succeeded in finding a way to conduct and complete a full, thorough and effective investigation, without a closed material procedure, in a way that is acknowledged to have been satisfactory to all parties. As the Secretary of State himself acknowledged, the Government was satisfied that national security was not going to be compromised and all the parties involved were able to have a proper hearing of sufficient of the issues for everybody to feel it had been handled properly.[71]

146.  The Secretary of State in evidence argued that the 7/7 inquest could not be treated as typical, because the only families involved in the process were the families of the victims not the families of the perpetrators, which, he implies, made reaching agreement between the parties much easier because of the reasonableness of everybody involved.[72] In other cases, he argued, the families of the bereaved may be hostile to the authorities and the Government less prepared to risk disclosure to them of sensitive material. We do not find this to be a persuasive argument. As INQUEST's evidence demonstrates, many inquests take place in the context of public suspicion and mistrust about what has actually incurred in relation to a contentious death (inquests into deaths in custody or "friendly fire" deaths are obvious examples), yet the Government has not been able to identify any actual examples of inquests in which the coroner has been unable to overcome the problems posed by sensitive material.


147.  The exception acknowledged by Inquest is where RIPA material has been directly relevant to the circumstances of a death. It concludes that the only real problem that needs addressing is the admissibility of intercept in inquests.[73]


148.  INQUEST and the INQUEST Lawyers Group have very usefully gathered together a comprehensive list of the different practical measures that coroners have adopted in order to allow their investigation to continue in cases where national security-sensitive material is relevant to the issues.

149.  They suggest that there be a co-ordinated national effort to collate information about the practical measures developed by coroners under the current legislative framework and publicise them to all coroners so that best practice can be shared. They suggest that the Chief Coroner (when appointed) could use his or her powers to issue guidance to coroners about the ways in which interested parties are able to participate in investigations which involve sensitive material, and that some of these practical arrangements could even possibly be codified in new Coroners Rules.

150.  We endorse the suggestions made to us by INQUEST and the INQUEST Lawyers Group as measures falling short of the introduction of closed material procedures into inquests which would address some of the Government's concerns in the Green Paper.

60   Green Paper, paras 1.47-1.50 and 2.10-2.19. Back

61   Para. 2.10. Back

62   Para. 2.10. Back

63   Evidence of Helen Shaw, INQUEST, Q163. Back

64   Evidence of Helen Shaw, INQUEST, Q167. Back

65   Evidence of Rt Hon Kenneth Clarke QC MP, Q214. Back

66   "I speak in ignorance, so do not give great weight to this evidence." Back

67   Green Paper, para. 2.15. Back

68   Evidence of Helen Shaw, INQUEST, Q165. Back

69   Ibid, Q 166. Back

70   R (on the application of the Secretary of State for the Home Department and The Security Service) v Assistant Deputy Coroner for Inner West London [2010] EWHC 3098 (Admin). Back

71   Ibid. Qs 216 and 218. Back

72   Ibid Qs 194, 214 and 216. Back

73   Evidence of Helen Shaw, INQUEST, Q168. Back

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Prepared 4 April 2012