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
OPTION (1): EXTENDING CMPS TO INQUESTS
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.
OPTION (2): MAKING INTERCEPT ADMISSIBLE
IN INQUESTS
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]
OPTION (3): CLARIFICATION OF THE
APPLICATION OF PII TO NATIONAL SECURITY-SENSITIVE MATERIAL IN
INQUESTS
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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