Comment: Coroner system is unfit for purpose
Helen Shaw, co-director of INQUEST
The Electoral Reform Society is a voluntary organisation that campaigns for a better democracy, particularly through changes to our electoral system.
|  |
Find more Opinion Formers in this category:
Plans for secret coroners' inquests must be dropped immediately, according to the joint committee on human rights.
|  |
With the sun shining, news that two million people are now out of work had the effect of sharpening MPs' minds. |  |
Monday, 23, Mar 2009 12:00
By Helen Shaw
Last week the justice secretary brought forward hastily drafted amendments aiming to quell disquiet about the draconian proposals for secret inquests ahead of the Commons report stage of the coroners and justice bill. This has dominated the important parliamentary process of scrutinising long awaited government proposals for reform of the inquest system. Although the amendments are welcome and an indication that the government is listening to widespread criticism, they do not go far enough.
The question still remains: why do we need these measures at all? The new clause still specifies a broad swathe of criteria that would possibly lead to an inquest being held partly in secret. Certifying an inquest on the basis of "preventing or detecting crime" could be used in the large number of cases where there is police surveillance or other covert operations, issues that can normally be addressed by other measures such as anonymity or screens, as occurred in the inquest into the death of Jean Charles de Menezes. Similarly, given the ability to use alternative measures under the current law, there should be no need to certify the inquest simply because of the need "to protect the safety of a witness or other person". What does "relations with another country" mean either? Is this intended to ensure that inquests into the deaths of military personnel cases that have raised tensions with the US would in future be heard in secret? Political sensitivity or embarrassment can not in a democratic society be a reason for a secret hearing.
Although the High Court judge appointed as a coroner to sit in these certified cases would determine whether or not to summon a jury and what other measures would deal with the sensitive material, the bill remains silent on many important matters. Questions remain about who would be excluded from the inquest and for how long. Despite verbal assurances that these would only be "partially secret", there is nothing in the legislation that specifies that to be the case. Described by officials as an enabling piece of legislation, we do not want the law to enable those with an interest in secrecy to be able in the future to lobby for inquests that currently take place without these measures.
Many parliamentarians, including the Joint Committee on Human Rights, the House of Commons Justice Committee and the House of Lords Select Committee on the Constitution have been vocal in their opposition. Serious concerns have also been raised by the Northern Ireland Human Rights Commission, INQUEST, Liberty Justice and the Royal British Legion.
Despite these eleventh hour amendments, the government has still failed to justify the case for certification and we hope MPs will vote today to remove these draconian measures in their entirety alongside ensuring that the measures to reform the inquest system are strengthened.
INQUEST has been proud to be associated with the process that has led to this bill finally being considered by parliament. As the only organisation that works directly with families bereaved after contentious deaths INQUEST contributed to the Fundamental Review of Coroner Services in 2003, the Joint Committee on Human Rights Inquiry into Deaths in Custody in 2004 and the Constitutional Affairs Committee inquiry into reform of the coroners system in 2006. The government's stated objective was to put the bereaved at the heart of the process and the bill makes progress in remedying what has historically been an unnecessarily distressing situation for the families of the deceased.
But there remains no room for complacency. The proposed legislation retains several defects of principle and practice in its current form which, if not eliminated or modified cause significant concern.
It would be a proud achievement if society has a Coroner Service that makes an important contribution to death prevention. A recurring theme common to virtually every family with whom we have journeyed through the coronial system is simple: an unswerving desire that other families should not have to suffer the often preventable ordeal which they have had to endure.
Significant changes in the legal framework governing inquests into deaths that raise questions of state and corporate accountability were made in principle to the investigation and inquest process following implementation of the Human Rights Act 1998 (HRA). However, the reality is that bereaved families and their legal teams have been the driving force behind securing practical applications for these changes, and for making the HRA and its associated rights under the European Convention on Human Rights (ECHR) a functioning reality. In particular, we have worked with families and lawyers to press for a more purposeful interpretation of the core rights, a broader scope of inquiry and the opportunity for the delivery of more meaningful verdicts by juries. The use of narrative verdicts in particular has been a tool for enhancing the participation of the jury in the analysis of systemic failure, and as such is a crucial expression of democratic accountability and aids the prevention of unnecessary future deaths. Many of these inquests have informed change to policies and practices, but there is undoubtedly more work to do in this important area.
The coronial system is a failing, fragmented service. In its current manifestation there is no other conclusion but that the system is unfit for purpose. The coroners who preside over it operate with no compulsory training; there is little meaningful accountability; and a postcode lottery service exists with good practice dependent on the approach of individual coroners rather than agreed quality standards with inspection and auditing against rigorous and transparent standards. In short, there is an unanswerable case for urgent and substantial reform and there is much in the bill that begins to address these problems.
The legal rights of bereaved families in the proceedings are artificially and unnecessarily restricted, and their current place within it is anomalous and inadequate since the rules governing an inquest create a structure where the inquiry is not for them. Consequently, the administrative framework is not directed at their full inclusion in the process. There is inadequate provision of information and support to bereaved families facing inquests at all stages which affects their capacity to participate effectively in the inquest process.
This has been recognised by the government and addressed partially in the draft Charter for Bereaved People published alongside the bill. But the Charter alone, without accompanying reform to ensure funding for legal representation, mandatory disclosure of information, (proposals currently missing from the bill), and a fully accountable Coroner Service, will make it difficult for families to enforce the rights outlined and transform them from paper rights into genuine expressions of our community's commitment to enhanced standards of care, decency and justice.
The system is especially ill-equipped to deal with deaths which involve questions of state or corporate accountability – and this is precisely where such rights are most necessary. A well-funded, professional coronial system with a properly extended remit and decent powers can have a crucial role in preventing deaths and act as an essential hallmark of democratic accountability. The United Kingdom has by virtue of its international treaty obligations a high duty to vindicate the article 2 ECHR, the right to life. The European Court has made plain how that obligation should be expressed procedurally:
The Court considers that the State's obligation under Article 2 § 1 of the Convention to carry out an effective investigation arises independently of the position taken by the victim's relatives. The fact that there has been no request for particular lines of inquiry to be pursued or items of evidence obtained cannot relieve the authorities of their duty to take all possible steps to establish the truth and ensure accountability for deaths caused by agents of the State. Furthermore, an investigation will not be effective unless all the evidence is properly analysed and the conclusions are consistent and reasoned. [Nachova v Bulgaria].
The irony is that in the coronial courts of England and Wales it has been consistently incumbent upon the families of the bereaved - those with the least power, authority, resources and access to information - to drive the search for truth after a death in the care of the state. It is a remarkable testament to the families we have worked with that through their quiet dignity, moral courage and simple persistence time and again the truth about the death of their loved ones has been slowly and painstakingly revealed. This process has been too haphazard and inconsistent, and the opportunity must be taken to effect lasting change.
Helen Shaw
Helen Shaw has been the co-director of INQUEST, an organisation which provides advice and support to bereaved families and their lawyers following contentious deaths, particularly in detention, since 1994. She has played an active role in a significant number of high-profile deaths in custody cases and writes regularly and undertakes policy, research and consultancy work on the strategic issues raised by contentious deaths, their investigation, the treatment of bereaved people and state accountability. Joint editor of Inquest Law, the journal of the INQUEST Lawyer's Group, she is also co-author of the book Unlocking the Truth: Families' Experiences of the Investigation of Deaths in Custody (2007). Previous publications include How the inquest system fails bereaved people (2002) and Inquests - An Information Pack for Bereaved People and their Advisers (2004). Helen is also a non executive member of the non departmental public body the Human Tissue Authority and chair of the charity British Irish Rights Watch.
The views expressed in politics.co.uk's comment pages are not necessarily those of the website or its owners.