Investigating Deaths in Custody, Where's the Progress?

Helen Shaw examines the issues facing families bereaved by deaths in custody, outlines the current challenges and what needs to change.

Counter-Terrorism Bill 2008 Part 6 – Inquests and inquiries Clause 64 […]
‘8A Certificate requiring inquest to be held without a jury
(1) The Secretary of State may certify in relation to an inquest that, in the opinion of the Secretary of State, the inquest will involve the consideration of material that should not be made public –
(a) in the interests of national security,
(b) in the interests of the relationship between the United Kingdom and another country, or
(c) otherwise in the public interest.
[…] (3) Where a certificate has effect in relation to an inquest, the inquest must be held or (as the case may be) continued without a jury, so that –
(a) if a jury has not been summoned, the coroner must not summon a jury, and
(b) if a jury has been summoned, the coroner must discharge the jury[…]’

When the Counter Terrorism Bill was published on 24th January 2008 there had been no indication that among its controversial proposals would be clauses seeking to amend the Coroner’s Act 1988 to give the Secretary of State extraordinary powers to issue certificates at his or her discretion to hold ‘secret’ inquests, without juries, in any case in which the Secretary of State believes that material will be revealed contrary to the public interest. INQUEST had been in regular and ongoing dialogue with successive ministers in the Ministry of Justice and its predecessors about reform of the inquest system over many years.

Our recent frustration had been about the failure in November 2007 to include a coroner reform bill in the current legislative programme. No indication had been given that such draconian proposals were about to be made and on the morning the Bill was published we received an email announcement from the Ministry of Justice. We immediately wrote to Bridget Prentice MP, Parliamentary Under Secretary of State responsible for coroners, to express our extreme concern that this measure has been introduced without any consultation. This is despite the organisation and members of its Lawyers Group being in regular and ongoing dialogue with ministers and officials about the operation of the inquest system and other proposed reforms.

The proposed amendments would enable some inquests to be conducted at least partly in private, with government vetted coroners and government vetted counsel overseeing the ‘sensitive material’. Bereaved families and their legal representatives, as well as the public at large and the media, would be excluded from the process.

INQUEST is particularly alarmed that the proposals are contained in proposed counterterrorism legislation as this implies that there have been real issues that have arisen in relation to inquests that have involved questions of ‘counter-terrorism’. We are at a loss to identify any such circumstances. The proposals contained in clauses 64-67 of the Bill arose from legal challenges brought on behalf of the family of Azelle Rodney over the admissibility of intelligence evidence. Azelle Rodney died in April 2005 after a police operation in North London – the circumstances surrounding his shooting had nothing to do with counter-terrorism. Azelle was shot seven times after the car he was in was ordered to stop in a ‘hard stop’ after being under police surveillance for over three hours in Edgware, North London. Two men were later convicted for firearms offences. After his death, the Independent Police Complaints Commission (IPCC) conducted an investigation and a file was passed to the Crown Prosecution Service (CPS). In July 2006 the CPS announced that there was ‘insufficient evidence to disclose a realistic prospect of conviction against any officer for any offence in relation to the fatal shooting’. After the CPS decision the family was told by the coroner that the full inquest could not be held because large portions of the police officers’ statements had been crossed out under the Regulation of Investigatory Powers Act (RIPA) 2000, which covers information obtained from covert surveillance devices such as telephone taps or bugs. Lawyers acting for the family of Azelle Rodney threatened to take the Government to court to show that RIPA was in breach of the Human Rights Act 1998. His family have already been told that their case will be subject to the new measures despite them currently being proposals in a Bill that has not even had its second reading in Parliament.

Daniel Machover, solicitor for Susan Alexander, Azelle Rodney’s mother commented that, ‘These proposals mean that ministers and those responsible for intelligence gathering will never be held properly to account for the validity of their tactics. It is a fiasco, bearing no resemblance to a fair system of justice. Presented with the problem of what to do with sensitive material that is relevant to the circumstances of how and why a person was killed by a state agent, the Government proposes to remove the vital democratic accountable layer of a jury and hide away from the bereaved family crucial evidence about the death. My client, Susan Alexander, is distressed that having expected a new law which would finally enable her to see and question the key evidence that led to the police shooting of her son, she will end up being worse off than before.’

Concern about the proposals has already been expressed by JUSTICE and the Law Society and by parliamentarians, including the chairs of the parliamentary Joint Committee on Human Rights and the Justice Committee. The JCHR expressed concern that the proposals could compromise the independence of controversial inquests into the deaths of terrorism suspects in police operations or the deaths of service personnel in Iraq. They branded the inquest plans as ‘astonishing’ especially as they were introduced at a late stage with no time for consultation or pre-legislative scrutiny.

Chair of the Committee, Andrew Dismore MP, said: ‘We are seriously alarmed at the prospect that under these provisions inquests into deaths occurring in circumstances like that of Jean Charles de Menezes, or British servicemen killed by US forces in Iraq, could be held by a coroner appointed by the Secretary of State sitting without a jury. Inquests must be, and be seen to be, totally independent, and in public to secure accountability, with involvement of the next of kin to protect their legitimate interests. When someone dies in distressing, high profile circumstances their family need to see and feel that justice is being done, and where state authorities are involved there is a national interest in accountability as well.’

INQUEST has serious concerns about these far reaching proposals which have been introduced without consultation and have wide reaching consequences. The public will find it difficult to have confidence that these coroneronly inquests, with key evidence being suppressed, can investigate contentious deaths involving state agents independently.

This is the most extreme example of a process of closing down and rolling back the little progress that has been made towards achieving meaningful change in relation to deaths in custody and the inquest system. The number of custodial deaths remains far too high and many cases reveal a horrendous catalogue of failings in the treatment and care of vulnerable people in custody or who are otherwise dependent on others for their care. They raise questions about excessive and inappropriate use of custody for some of the most vulnerable people in society; they also highlight failures to fulfil the state’s duty to protect life. Inquests repeatedly identify the failure to implement existing guidelines on the care of ‘at risk’ detainees.

The hard fought for direction of travel in relation to inquests and investigations into contentious deaths in custody or involving agents of the state has been towards greater openness and accountability. But how much difference has really been made and what are the other challenges we are facing this year?

Following many years of campaigning by bereaved families, lawyers, complainants, police monitoring groups and human rights organisations the discredited Police Complaints Authority was replaced in 2004 with the Independent Police Complaints Commission. The new body was welcomed and everyone involved, whilst retaining a healthy scepticism, hoped that it would make a real difference to the independence and transparency of the investigation of complaints against the police.

Already damaged by the fiasco surrounding the investigations into the circumstances surrounding the death of Jean Charles de Menezes the Commission was dealt another blow in February 2008 with the high profile public resignation of the Police Actions Lawyers Group from its advisory board. Practitioners from PALG cited examples over the years, where members ‘have found themselves inundated with an endless flow of cases where the IPCC has failed to properly handle complaints about police misconduct, ranging from racism, violence and fabrication of evidence, to corruption and even deaths in police custody’. PALG representative Tony Murphy of Bhatt Murphy solicitors commented: ‘It is a source of great disappointment and frustration that the IPCC is failing to deliver anything like the rigorous, independent and inspiring police complaints system that this country has so long deserved. Instead it has instituted and overseen a chaotic system that has allowed complainants’ confidence to be eroded to a new low, by failing to properly analyse or gather evidence, and by unquestioningly accepting the word of police officers. Every effort has been made to raise these concerns with the IPCC over these years to no avail.’

Their stance was supported by the Jean Charles de Menezes Campaign which explained their experience with the IPCC has been ‘characterised by delay, ineffectiveness, poor decision-making and a tendency for the IPCC to bow down to police pressure’. Their experience mirrored that of many others. The family and their legal representative had participated ‘for more than two years of meetings […] for the IPCC’s deliberations to end with the feeblest of conclusions’. A spokeswomen commented on behalf of the campaign that the IPCC’s ‘reports have read like a long-winded apology for the police and they have failed to recommend criminal prosecutions or even disciplinary action for any of the officers involved in the botched anti-terrorism operation that ended with an innocent man being shot seven times in the head’. She added that: ‘in the aftermath of the shooting, it was claimed by Nick Hardwick, chairman of the IPCC, that the Menezes case would be the litmus test of the IPCC as a new body to investigate police complaints. However, the IPCC has done little to address public disquiet about the death of an innocent young man or dispel widespread scepticism about the investigation. It seems to many that Hardwick’s organisation is just as capable of carrying out a whitewash as its predecessor, the discredited Police Complaints Authority.’

INQUEST shares these concerns and has seen a pattern of decision making in cases that has further dented confidence in the process. The IPCC was established in the wake of widespread public distrust of its predecessor, the Police Complaints Authority, and with a commitment to openness and transparency. But it appears that they still have limited understanding of both family and public perception of their processes.

What often goes unmentioned is the high price paid by bereaved families in remaining involved in the lengthy, complicated investigation and inquest process following deaths in all forms of detention or involving state agents. INQUEST deals on a daily basis with some of the most horrendous consequences of detention in prison, in police custody or in psychiatric detention. Families show incredible courage, diligence and persistence to ensure that the disturbing issues surrounding their relatives’ deaths are exposed to scrutiny. Without their participation in the process it is doubtful that many issues of concern surrounding contentious deaths would be explored.

But there are huge obstacles in the way of families effectively participating in these inquests as required by article 2 of the Human Rights Act 1998, not least the continued problems with access to public funding for legal representation. In 2007 the Government rejected outright a recommendation made in Baroness Jean Corston’s report of her review of women with particular vulnerabilities in the criminal justice system that families should have access to non means tested public funding for legal representation at inquests. The result is that families are beginning to withdraw from the inquest process altogether. This undoubtedly suits the government agencies involved as despite the approach of some coroner’s it is invariably the family’s lawyers that ensures the inquest is as thorough as it can be within its existing narrow remit.

The strategy of persisting in trying to broaden the scope of inquiry at inquests, supported by detailed knowledge of other cases and an experienced network of lawyers, has ensured the details of many deaths in custody are made public. INQUEST has consistently worked alongside families to build up relationships of trust, respect and compassion so that the families feel empowered and engaged in a complex legal process. INQUEST remains committed to campaigning for change to the current system to ensure that families can participate with equality in the inquest process.

Running through INQUEST’s work are concerns about the lack of accountability and failure to learn lessons to prevent similar deaths by taking follow up action on inquest and investigation outcomes across custodial institutions. We worked with others to successfully achieve amendments to the Corporate Manslaughter and Homicide Act 2007 to ensure it would apply to deaths in detention. The Government attempted to present the current mechanisms of investigation and accountability as sufficiently robust. Parliament disagreed and this was further underlined when the Forum on Deaths in Custody published its annual report in September 2007 in which the number of deaths in all forms of custody in the preceding year were officially collated and published centrally for the first time.

But the Forum does not have the capacity to research deaths in custody, to collate and analyse jury findings and coroner’s reports or to monitor the implementation of recommendations arising from inquests or investigation reports. It cannot call to account and recommend action against those institutions and individuals who fail to take action. In May the Government conceded that the Forum’s powers and resources were insufficient and made a commitment to reviewing and strengthening the current arrangements.

INQUEST has proposed a properly resourced independent overarching standing commission on custodial deaths with statutory powers to address the complexity and breadth of issues that arise. We are currently working on the proposal in more detail. The idea has sparked interest and support from a wide range of policy makers and practitioners. In the concluding remarks of the report of the Zahid Mubarek Inquiry, Mr Justice Keith commented: “The death of Zahid Mubarek was just one of the many deaths in custody which occur every year […] there are lessons to be learned from every death in prison. That is why bodies such as INQUEST, which provides legal advice and support to the friends and families of those who die in custody, have been pressing for a standing commission on deaths in custody.” During the parliamentary Joint Committee on Human Rights Inquiry into deaths in custody (2003-2004), the then chair Baroness Jean Corston, also expressed interest in exploring the proposal further. Their principal conclusion was that there was a need for ‘a central forum to address the significant problem of deaths in custody’ and that a permanent ‘cross-departmental expert task force on deaths in custody’ should be established.

A standing commission on custodial deaths could:

bring together the experiences from the separate investigation and inspection bodies where shared features of the deaths go beyond the remit of specific government departments, state and custodial agencies;
identify key issues and problems and monitor the outcomes and progress of investigation and inquest findings;
look at serious incidents of self-harm or near deaths in custody where there is a need to review and identify action to be taken to prevent similar incidents;
develop policy and research, disseminate findings where appropriate and encourage collaborative working with best practice established in one institution being promoted in the other institutions;
act as a check and balance on the investigation bodies themselves;
play a key role in the promotion of an ethos of human rights promoting measures to prevent or minimise the risk of future violations of article 2 of the Human Rights Act;
have an active interventionist role and be empowered to hold a wider inquiry into broader thematic issues as well as issues of democratic accountability and redress over systemic management failings that fall outside the scope of the inquest;
be empowered statutorily to intervene in individual inquests or court cases where appropriate as an interested party particularly where there is no traceable or interested next of kin.

The principal advantage of the standing commission over existing remedies is that its power and scope would not be limited to individual deaths in custody. Its focus could also contribute to wider policy considerations as many of the deaths are part of a pattern which impact on policies on drug and alcohol use, homelessness, mental health, crime prevention, combating racism, penal policy and policing. It is clear from INQUEST’s monitoring and analysis of deaths in custody that understanding why these deaths occur requires an examination of their broader social and political context.

The continuing problems with the current systems of investigation highlight the importance of the work of INQUEST. As a small under-resourced voluntary sector organisation providing both a casework service to bereaved people and working with and on behalf of bereaved families for changes: to the inquest and investigation process; to reduce the number of custodial deaths; to improve the treatment and care of those within the institutions where the deaths occur; and to the treatment of bereaved people, there has never been a greater need for our service but at the same time never greater pressure on our limited resources. Sadly despite our high profile and our ability to influence, this is not matched by an ability to attract funds and your support is of vital importance to the organisation. We would urge everyone who supports our work to find a way to demonstrate that support by: becoming a regular financial supporter of INQUEST; making a donation; joining the INQUEST Lawyers Group; taking out a subscription to our journal Inquest Law; or all four.

Helen Shaw is a Co-Director of INQUEST. See: www.inquest.org.uk

This article can be found in the print edition of Socialist Lawyer number 49, April 2008.