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Deaths in custody: redress and remedies

Roger Bingham, Liberty Human Rights

The investigation of deaths in custody desperately needs radical reform. On 31st March Liberty, along with people whose relatives died in police custody and who have struggled for years since to find the truth, called on the Government to overhaul the entire system from initial investigation, through coroners' courts and on to other remedies. And we argued, in new research, that the current system clearly breaches the right to life as enshrined in the European Convention on Human Rights.

Nearly 700 people have died in police custody or in contact with the police since 1990. Although these figures encompass almost all situations where people die and some form of policing action was involved, they are a cause for the most serious concern.

Government reviews and inquiries are examining the roles of the coroners’ courts, of the CPS in custody deaths, of death certification and so on. But none of these takes an overview of the system as a whole. Liberty's report Deaths in Custody - reform and redress, funded by the Nuffield Foundation, takes this overview: it examines the current systems for investigating all controversial deaths that involve the police.

It finds severe shortcomings in the current systems for investigating and providing remedies after deaths in custody – shortcomings that violate Article 2 of the European Convention on Human Rights, which enshrines the right to life and places a positive duty on the state to secure life. As people in custody have a substantially reduced capacity to take care of themselves and are often particularly vulnerable as a result of physical or mental illness, this duty becomes particularly important: so the state must be presumed to have failed if a person dies in its custody. The state has also failed if it does not investigate the death properly or if it does not prosecute those responsible and at fault.

There is little or no public confidence in the current system. Investigations of custody deaths are ineffective, secretive, slow and insufficiently independent. The authorities involved too often do not take responsibility for their actions and appear defensive. The parallel, overlapping, conflicting and confusing roles of the police, PCA and coroner reduce both the effectiveness of the system and the confidence that others might have in it. Relatives of the deceased are too often excluded and marginalised. To them, the investigation can often appear less a search for truth than an attempt to avoid blame, frustrate disclosure, restrict the remit of the investigation and denigrate the deceased.

Our findings and recommendations are many (21 key recommendations in all); but they include the following.

Deaths in all forms of custody should be investigated independently. We welcome the creation of the Independent Police Complaints Commission, which will investigate police-related deaths – but separate and parallel investigative mechanisms are needed for deaths in prisons, hospitals, immigration detention and other institutions where people are compulsorily detained.

A separate, over-arching ‘Standing Commission on Custodial Deaths’ should also be established. It should bring together findings on police, prison and secure hospital deaths; identify key problems, develop common programmes and research, and promote best practice. It should have powers to intervene in any inquest, to hold a wider inquiry where it sees a consistent pattern of deaths, to insist on access to documents and to summon witnesses.


The inquest system itself has several flaws. It does not provide families or public with what they want – the truth about what happened, as a step to seeing those responsible held liable. There is a lack of transparency – disclosure is not provided as of right, it is not provided early enough and there are too many exceptions allowing material to be kept secret.

The jury’s ability to frame verdicts is too restricted. Verdicts do not identify who is responsible, or provide for accountability and liability. The jury cannot make recommendations. Coroners can, of course; but lessons are not learned from deaths because coroners’ recommendations are not published, monitored or followed up in any systematic way.

The essence of the current inquest system should be retained – along with the expertise developed so far by coroners. But radical improvements are needed if the current system is to tackle problems such as inconsistencies in the adjudication of coroners, in the standards they apply and in their experience (or lack of it) in dealing with controversial deaths.

Our favoured option is to integrate coroners into the civil justice system – replacing them with (or re-appointing them as) district, circuit or High Court judges. The seniority of the judge sitting as a coroner would depend on the seriousness of the case involved. There would be a new right of appeal to the High Court on a point of law (so families and others do not have to rely on judicial review).

Inquests need clearer rules of procedure. The relatives of the deceased should be a formal party with a right to publicly-funded representation (available without means testing, so important are the issues) plus the powers of a party to civil litigation – to cross-examine, to address the jury, and to call witnesses.

The inquest process is in effect adversarial in these cases, but confusingly it still purports to be inquisitorial. The system should be generally adversarial, giving the coroner an adjudicative role (although retaining some inquisitorial powers such as the ability to call witnesses). The usual civil rules of disclosure and legal safeguards should apply.

All controversial deaths in England and Wales should be heard by a coroner and a jury. This will result in fairer inquests and a more open system. However, the inquest should not double up (as it has in the distant past) as the committal stage in the criminal process.

The privilege against self-incrimination should be abolished – so that police officers and others can be forced to give evidence and answer questions in the inquest. But any evidence thus given should not be admissible in any subsequent criminal proceedings against that officer.

Beyond the inquest, further issues arise. There have been very few prosecutions of police officers or others for deaths in custody; no police officer has ever been convicted. Even where a decision not to prosecute is successfully challenged by judicial review, it rarely leadfs to a change in the CPS’ decision. Significant improvements must be made in the prosecution process – but after careful consideration, Liberty has not recommended removing responsibility from the CPS.

The failings at each stage of the investigation system for deaths in custody must be tackled as a matter of urgency. We hope that each of the relevant reviews will take on board the research we have done; but we urge the Government, too, to take the more over-arching look at reform of the system that is clearly needed.

How important is change in this system? The numbers of cases needing independent investigation answer the question clearly enough – and so do the individuals involved.

Christopher Alder's death in 1998 led - after a lengthy fight - to the prosecution of five police officers. The trial collapsed in 2002. Liberty is now taking the case to the European Court of Human Rights; this month, the police re-opened disciplinary proceedings against five officers involved. At the launch of this report – almost exactly five years on from Christopher’s death – his sister Janet spoke of the “numerous unanswered questions and the lack of explanations by any agency. ... Until truth, transparency and admission are given, there are going to be more deaths in police custody, more deaths in prison, more deaths in psychiatric hospital".

Christopher Edwards' death in prison and his parents' eight-year battle for the truth culminated in a historic European Court victory last year. The UK was found to be in breach of (inter alia) its Article 2 duty to protect Christopher's life and to investigate fully after his death.

His mother Audrey Edwards described how "the official legal process of police investigation, inquest and trial had run its course but none of those involved [in the death] had been called as witnesses to be questioned in public, and as a result we knew virtually nothing".

She criticised Essex police’s "secretive, self-protective approach ... through refusing to allow some key officers to appear before the multi-agency inquiry, to refusing to release copies of the PCA report”. The PCA, she added, “appeared to give higher priority to negotiating an agreement with Essex Police than to revealing the full facts".

"The European Court ruled last year that not only had Christopher been denied his right to life but that we had been denied our right to both an effective investigation into Christopher's death and a remedy through the UK legal system ... We sincerely trust that the Government is now giving urgent thought to changing the nature of investigations into deaths in custody to overcome the defects the European Court found in our case".

These are the human realities behind the systemic failings highlighted by Liberty’s report. There is too often a defensive posture instead of a search for the truth; too often agencies use legal means to prevent disclosure of documents which could be disclosed. We hope that review teams and Government departments alike will consider the findings of this report, and that it will help achieve some positive change.

The report was funded by the Nuffield Foundation and the Civil Liberties Trust. The Advisory Board overseeing the research was chaired by Vera Baird, QC MP. It included leading lawyers and academics, and representatives from the Police Complaints Authority, Association of Chief Police Officers, Police Federation, Home Office, Crown Prosecution Service, Prison Service, Inquest and other key organisations.

Deaths in Custody: redress & remedies (Greta Vogt & John Wadham) is available from Liberty, 21 Tabard Street, London SE1 4LA or at www.liberty-human-rights.org.uk



Overall conclusion and recommendations

The system for investigating deaths in custody needs fundamental reform. In particular:

  • The dominant link with the police in investigations must be broken
  • Every death in custody must be investigated as a possible homicide
  • All custody deaths must be investigated independently. The IPCC must be in charge of the investigation into police custody incidents; a reformed and more independently-organised prison ombudsman system should be in charge of the investigation into prison deaths; and an equally independent system must be created for deaths in psychiatric hospitals
  • An over-arching standing commission should be created to learn lessons from deaths in any institution in which a person has been detained; to monitor progress on preventing deaths and recommendations from inquests; and to spread good practice
  • Liberty re-emphasises that, in the long term, the majority of investigating personnel in the IPCC must not be police-related: the ratio of non-police to police must be at least 3:1.

Further:

  • Coroners should have a more judicial role, ..adjudicating over an adversarial process – but they should some inquisitorial powers (e.g. to call witnesses)
  • There must be a protocol with guidelines in an aim to streamline inquests
  • There must be a right to legal representation: means testing for legal aid in inquests concerning deaths in custody should be abolished
  • Relatives of the deceased should have the rights of a formal party to civil litigation
  • The inquest must be more accessible, language must be simplified, and a designated person must be assigned responsibility for the welfare of the family and for explaining the process
  • The inquest jury must be retained for all inquests into controversial deaths
  • The jury must have more powers
  • Recommendations must be a regular component of the inquest verdict. These must be published, their implementation must be monitored, and a publicly accessible database must be created
  • Pre-inquest disclosure must be compulsory
  • The process must be speedier
  • The role of the Attorney General in giving fiats as a preliminary to overturning inquest decisions should be abolished
  • CP performance must be improved – possibly through creating a separate, specialist deaths in custody unit reporting directly to either the Director of Public Prosecutions or the Attorney General
  • Coroners could be integrated into the civil justice system. A new right of appeal to the High Court of points of law should be established
  • The privilege against self-incrimination should be abolished – but evidence thus given should not be admissible in any subsequent criminal trial
  • There should be a presumption in the Code for Crown Prosecutors that a prosecution will follow a verdict of unlawful killing, subject to the evidence test
  • Clearer procedures and monitoring are needed for the work of forensic pathologists
  • A Chief Coroner or President of Coroners could help implement monitoring, raise standards, ensure regular training, publish guidance on good practice and deal with complaints.


   
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