The Joint Select Committee on Human Rights Enforcement – Inquest Strand

On 7 March 2018 Katie Gollop QC gave oral evidence to the Joint Select Committee on Human Rights in support of the provision of public funding for families at inquests.  

http://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/

A briefing paper provided to assist the committee, which was prepared by Katie in consultation with some other barristers from Serjeants’ Inn chambers, is reproduced below

All barristers at Serjeants’ Inn Chambers are independent, self-employed, sole practitioners. For that reason, Serjeants’ Inn does not have a collective view and the views expressed here are personal. That said, a number of barristers (including two who sit as Assistant Coroners) have contributed thoughts and/or provided examples of inquests (see the appendix at the end) that inform the question: are human rights being enforced in the coronial justice system?

IF THE DECEASED IS BEYOND JUSTICE, WHY DOES AN INQUEST MATTER?

1. Inquests, properly conducted and where the conclusions are heeded by those with the power to effect change, save lives.
2. They hold organisations and individuals to account publicly. They expose wrongdoing by the state. They identify and record the facts.
3. In so doing, inquests:

1. 1. enable next of kin to understand what happened. And having understood, to grieve.
   2. dispel rumours and conspiracies.
   3. promote public confidence in state agencies – that there was no wrongdoing or that lessons have been learned so no one else will die in the same circumstances.

4. Lives are saved by the inquest:

1. 1. Identifying defective systems, policies and procedures.
   2. Identifying individual and organisational practice that is lacking.
   3. Reporting areas where change is required to prevent future deaths.
   4. Providing publicly available information about the circumstances of deaths so that patterns and clusters can be seen.
      

PURPOSE OF AN INQUEST AND KEY DIFFERENCES BETWEEN AN INQUEST AND A TRIAL

5. The inquest answers four questions about the deceased: who died, where they died, when they died and how they came by their death. It creates a public record of the answers.
6. The coroner and jury (if there is one) are not allowed to determine civil or criminal liability: the coroner’s court is not a court of blame. But criticism can be made in the conclusions reached.
7. The coroner has a duty to report on any actions that may prevent future deaths. The report goes to the organisation with power to take action, there must be a response with a timetable for implementation and reports and responses are sent to the Chief Coroner who publishes them.
8. An inquest is similar to a mini public enquiry. It is inquisitorial and not adversarial. In practice that means there are no “parties” – no prosecution, no defence – rather there are Interested Persons. The Interested Persons can make submissions to the coroner about the law but are not allowed to make submissions about the facts.
9. Since it is the coroner’s investigation, the coroner has greater power over the procedure than a judge conducting a negligence trial. The coroner’s decisions are pivotal at every stage. It is the coroner who decides the scope of the inquest and what issues it will and will not consider, the coroner who collects the evidence and decides which, if any, experts will be instructed and who instructs them and who will give evidence. It is the coroner, not the Interested Persons, who calls the witnesses.
10. There is no “appeal” from a coroner’s decision. The challenge is by judicial review.

ARTICLE 2 INQUESTS

11. Where a death occurs in certain circumstances, Article 2 of the ECHR gives rise to a duty on the state to carry out a thorough, independent and effective investigation into a death.
12. In England and Wales, the principle method for ensuring that that investigative duty is met is the inquest.
13. Article 2 imposes a duty on the state not to take life. It also imposes a positive obligation on the state to put in place systems to protect life – that obligation can be breached by organisations. And it imposes a separate, positive obligation (“the operational duty”) to protect an individual from a known risk; this obligation can be breached by individuals’ actions or inactions (or those of a number of individuals within an organisation).
14. Some situations will automatically require an “Article 2 Inquest” such as (although not exclusively) deaths of those in state custody or following the direct use of force by state agents. An Article 2 compliant inquest will also be required where there is an arguable breach of the state’s operational duty to protect life. Here, the coroner will need to be persuaded that it is arguable that the state was or ought to have been aware of a real and immediate risk to the deceased’s life and that the state failed to take reasonable steps within its powers that might have avoided the risk.
15. An Article 2 inquest usually has a broader scope and is more wide ranging that one where Article 2 is not engaged. It looks not just at how the deceased came by his death but in what broad circumstances. It looks at systems: were they and are they adequate and functioning properly?

ARE ARTICLE 2 RIGHTS ENFORCED?

16. Not always. Broadly there are three reasons.
17. First, coroners are making wrong decisions about whether the inquest should be Article 2. They often make the decision at an early stage and at a hearing where the next of kin is not represented. That means the only legal submissions the coroner hears are made by Interested Persons who want to keep the focus as narrow as possible. Without access to legal advice, it is almost impossible for next of kin to understand the significance of Article 2 or the law on the issue. If they make submissions, those submissions are unlikely to be on point. If the family don’t understand the significance of Article 2, they are unlikely to challenge the decision that the inquest should not be Article 2. If a coroner makes a decision that an inquest is not Article 2, s/he often fails to review that decision and unrepresented families do not know that they can ask again. Lawyers are used to “pushing back” and renewing submissions. Unrepresented next of kin assume that the coroner must be right and give up as soon as the coroner is against them.
18. Second, lack of representation of next of kin at Article 2 inquests. Unrepresented next of kin in the unfamiliar environment of a coroner’s court, surrounded by lawyers, raw with grief, tired, emotional, unused to assimilating large amounts of written information and formulating questions, are at a disadvantage. And the inequality of representation looks and feels unfair.
19. It is often the questioning of the next of kin’s representative that exposes state wrongdoing, poor practice, systems failures. Without next of kin representation, there is a real risk that rights are not enforced and wrongdoing, poor practice and systems failures are not identified.
20. Third, even when represented, next of kin often don’t judicially review bad decisions. Judicial review is too difficult, expensive, uncertain and often unfunded and there is insufficient time between making the application and getting it into court, and the start of the inquest. So erroneous decisions stand and rights are not enforced.

REPRESENTATION

Next of Kin Representation

21. An Article 2 compliant inquest requires “effective” participation of the next of kin. There is no statutory right to representation at inquest. Does effective participation mandate that the state pays for representation at inquest?
22. On rare occasions, it does not. Representation will add little where:

a. The circumstances of the death are straightforward.

b. There has already been a full and open reliable, independent investigation (or more than one) which lays bare all the facts and which has reached conclusions agreed by all Interested Persons.

We need to work towards a society in which the coroner can rely heavily on the investigations undertaken by the state prior to inquest. See below.

 

23. The default position should be that representation of next of kin at an Article 2 inquest is paid for by Legal Aid.

The Benefits of Next of Kin Representation

24. There are considerable benefits if the next of kin are represented. Procedural hearings are smoother and quicker, irrelevant questions are avoided, the coroner is assisted by next of kin legal submissions so the full range of case law is drawn to the court’s attention and there is greater balance. In a non-paragraph 22 inquest where next of kin have protected characteristics to do with race or disability, the next of kin will often struggle more than in other tribunals where the emotional factors are less potent. It is difficult for coroners to liaise directly with next of kin in the absence of other Interested Persons for reasons of fairness. It is difficult and sensitive for the coroner to explore such issues with the next of kin at a court hearing which is open to the public and attended by all the other Interested Persons.
25. And, arguably, representation of next of kin is necessary to comply with the Equality Act 2010 and its Codes. That legislation does not have legal force in itself but Courts are required to take it into account.

Representation of Other Individual Interested Persons

26. Many individuals whose actions are scrutinised often have access to representation through their employing organisation or professional indemnity.
27. Sometimes there are individuals who may be criticised who have no access to funds for representation. For example, a professional who has been dismissed from an organisation that would otherwise have represented their interests.
28. Any individual or organisation that might be criticised should be represented.
    

Exceptional Funding from Legal Aid for Next of Kin – Is this System Working?

29. Some exceptional funding applications are refused when they should be granted. The only remedy against a refusal is judicial review. Legal Aid for judicial review is very limited. And the judicial review is forbidding to a litigant in person.
30. The application process for exceptional funding is slow and often, literally, inaccessible. I am told that it can take an experienced solicitor (longer for a non-lawyer) at least two days, if the system doesn’t crash, to upload an application form onto the computer. Then it can be days before the information is considered and a decision given.
31. Where a coroner will not adjourn, the slow pace of the process to decide whether to grant exceptional funding means that a decision is not made until the inquest is up and running.
32. Rightly or wrongly, the perception is that the process for applying for exceptional funding and the slow pace are deliberate and that the purpose is to deter applications and thereby conserve the Legal Aid budget. The more cynical view is that the state’s aim in minimising next of kin representation at inquest is to avoid public criticism of state bodies and thus avoid having to make compensation payments.

Is the Next of Kin Representation Gap Being Filled and Who Is Paying?

33. Not enough. Lawyers act pro bono. And we have the unedifying spectacle of the bereaved being forced to rely upon crowd funding.
34. There are plenty of Article 2 inquests where the next of kin ought to be represented but are not.
35. Where next of kin are represented but don’t fund that expense themselves, representation is usually via a no win no fee agreement in anticipation of a future claim for compensation for negligence or breach of the deceased’s human rights.
36. Those agreements aren’t always available. Where the deceased is an unmarried adult with no financially dependent children, the amount of compensation a Court would award is so little (funeral expenses and generally, less than £5,000 for the deceased’s pain and suffering) that the costs of bringing a claim are too high.
37. And representation on a no win no fee basis incentivises the advocate to uncover evidence of negligence. That in turn often leads to an adversarial atmosphere.
38. Where next of kin are represented at inquest by an advocate who has entered into a no win no fee agreement, if the claim is subsequently settled or succeeds at trial then some of the inquest costs can be recovered as part of the civil claim and will be paid by one or more state actors. So the cost is transferred from the Legal Aid fund to the state agency eg the NHS/prison service. The cost to the state actually increases as the costs recovered as part of a civil claim can now be claimed at private rates that exceed the fixed legal aid rates.
39. Some public bodies are settling claims before the inquest starts solely in order to avoid paying the next of kin’s legal fees at inquest. Where the amount of compensation is small, that may make commercial sense even if there is no viable claim. Those costs should not be a factor in deciding how other public funds are spent and would not be, were Legal Aid available.

MULTI-AGENCY DEATHS = MULTIPLE INVESTIGATIONS AND DUPLICATION OF STATE RESOURCES

40. Currently, where there is multi-agency involvement, a single death can generate a plethora of state investigations eg Serious Untoward Investigation by the NHS Trust, a PPO report (Prisons and Probation Ombudsman) and an IPCC/IOPC report.
41. Currently, these investigations tend to be followed by an inquest, often lengthy and expensive, which covers some or all of the same ground. So there is enormous duplication of taxpayers’ money in a way that does not always increase the quality of justice or add value in terms of what is learned to prevent future deaths.
42. The inquest is not the only mechanism for enforcing Article 2 rights. Thorough, reliable, fair and independent internal investigations by state agencies prior to inquest should leave little for the coroner to do.
43. But the reality is that we are not there yet. Many NHS Trusts take their disclosure obligations seriously and produce high quality, independent Serious Untoward Investigation reports which identify failures in care and defective systems. But not all of them do.
44. The nature of non-disclosure is that it is hidden and only comes to light through a process of public questioning of witnesses under oath. Generally, the questions that expose non-disclosure and inadequacies in investigations are put by the representative of the next of kin rather than the coroner.
45. Services that used to be provided by the state directly are increasingly contracted out. We have private prisons and private healthcare providers inside prisons. In the community, we have medical and mental health advice and treatment delivered on behalf of the state by private companies. An inquest puts these companies in conflict with themselves: they want to learn lessons but they also want to avoid public criticism because public criticism gives them a problem when it comes to contract renewal.
46. Further, state agency investigation reports have the limitation, from an Article 2 inquest perspective, that they focus on the internal workings of that agency in isolation. So each of them leaves out of account what is often the single most important factor (or at least one of them) leading to a multi-agency death namely deficient inter-agency communication.
47. If an agency’s investigation does consider interagency working, it is often from a partisan perspective. That will be for a variety of reasons: ignorance (due to lack of opportunity for a multi-agency communication to share information), pressure to report quickly, practical difficulties and – given that there may well be a compensation claim in the background – a conscious or unconscious desire to spread the culpability and thereby the cost.
48. In terms of both identifying how a multi-agency death occurred and preventing future such deaths, the Coroner is the spider at the centre of the state systems web.
49. All that said, in principle, there should be a way of limiting the current, costly duplication.
50. One possibility would be a certification process. Legal Aid for next of kin representation could be made contingent on a recommendation of the coroner certifying that Legal Aid be granted on one or more prescribed grounds: complexity, multi-agency involvement and so on. A condition of the recommendation would be that there were relevant matters for the inquest to consider that had not yet been adequately investigated.
51. Such a system should have the beneficial effect of improving the openness and quality of state agency investigations.
52. And where a coroner did not recommend Legal Aid for the next of kin, the expectation would be that representation of state agencies would, for the same reasons be unnecessary and so be at low cost.

ARE THERE ALTERNATIVES TO LEGAL AID FOR NEXT OF KIN?

The Coroner Asks Questions On Behalf Of The Next of Kin

53. Some argue that since the Coroner’s duty is to enquire into the death fully and fearlessly, it is the coroner’s duty to ask all of the relevant questions the next of kin would want to ask and therefore, the next of kin need no representative.
54. In principle and in practice this is problematic:

a. The coroner is a judicial office holder and part of the state apparatus. In an Article 2 inquest where the state has been or may have been responsible for a death, the state’s investigation will not be independent if the judge is also expected to be the mechanism whereby the next of kin participate in the investigation.

b. If the judge enters the arena of asking questions to enable to proper participation of the next of kin and if the conclusions are critical of the state, the investigation will not be seen to be fair by the other Interested Persons or the public.

c. Being a judge and not an advocate, the coroner cannot discuss the evidence as it unfolds with the next of kin and of course cannot take their instructions.

d. There is an obvious inequality of arms.

Counsel to the Inquest

55. In a public enquiry, all questions are put through the Counsel to the Inquiry. But participants are still represented by lawyers who can suggest questions to be put and make submissions. Even if inquests were conducted on similar lines, there would be more not less expense.

No Representation Permitted

56. This would be a radical way of levelling the playing field. At present coroners have no power to restrict representation of Interested Persons and the removal of legal representation would probably mean that the Article 2 investigation was not effective.

SUGGESTIONS FOR BETTER RIGHTS ENFORCEMENT AT INQUEST

Coroners

57. The service provided by coroners remains local with the attendant problems identified by the Chief Coroner in his fourth annual report (dated November 2017 – see paragraphs 14 to 17 in particular). That means that the selection of coroners is not standardised. Even though the decisions they have to make can be more difficult, the selection process to become a coroner is less rigorous than the selection process for Crown and County Court Judges. They do not have access to the high quality judicial training that judges undergo. And, of course, some coroners are not lawyers.
58. Quality is variable despite mandatory annual training. Some coroners are very good and some are really very bad indeed. Because the only challenge available is judicial review, the bad ones are not challenged enough. The coming initiative of appraisal may help but it is new and not a substitute for rigorously selected and trained legally qualified coroners who are centrally funded and within the judicial family.
59. Coroners are isolated. Unlike judges, they do not sit in a building with lots of other judges who they can go and consult with during the lunch break or at the end of the day.
60. They are underfunded and under resourced.
61. They are under increasing pressure to get through inquests quickly. With that pressure comes a temptation to keep the focus as narrow as possible and that means avoiding a finding that Article 2 is engaged.

Disclosure

62. This continues to be problematic.
63. Templates that list the documents that must be sent to the Coroner by: the prison, hospital, care home, local authority etc should be made available to Coroners. That will probably result in an increase in their work load as they sift through material that may not be relevant. But it would help prevent late, selective or non-disclosure.

Experts

64. Experts should be instructed by the coroner.
65. Coroners should not use experts or expert reports obtained by an Interested Person.
66. All Interested Persons should be:

a. Permitted to make representations on the letter of instruction;

b. Permitted to propose written questions to be answered by the expert prior to the inquest.

Rules of Evidence

67. These could be tightened so that leading questions are not put to witnesses by their own professional representative. Coroners should be more robust about preventing repetitious and aggressive questioning. Questions should not be put in front of juries that are unsupported by any evidence or outside the scope of the inquest. Finally, questions that juries are asked to answer in order to provide the inquest’s conclusions should not go beyond the inquest’s proper scope.

APPENDIX – EXAMPLES OF ARTICLE 2 INQUESTS WHERE HUMAN RIGHTS

HAVE AND HAVE NOT BEEN ENFORCED

Psychiatric Death

Unrepresented parents. Trust fully represented.

The coroner appeared to respond to the family as if they were just irritating, pushy people and the coroner’s expert was not critical of the Trust.

Eventually parents directly instructed a specialist inquest barrister privately who wrote a submission on Art 2. The family could not afford to pay the barrister to come to a pre-inquest review but used the submissions to persuade the coroner that the scope should be widened. Without that, the inquest would have had a very narrow remit.

The barrister acted on a CFA having introduced the parents to clinical negligence solicitors.

The inquest was hard fought by the Trust who would not admit to doing anything wrong. The Trust did not disclose important documents that came to light during the hearing.

The inquest conclusion was one of neglect.  The conduct of the Trust staff was such that the day after the inquest ended, the coroner reported a Trust staff member to the police to investigate perjury in the course of their inquest evidence.

Prison Cell Death

Inquest arising from the death of a rough sleeper. Prior to his arrest he had spent several hours on the street in freezing conditions.  He was too drunk to have been taken into custody and should have gone straight to hospital. When taken into custody there was no medical assessment of him. He was placed in a cell and then not checked with adequate frequency. Records had been falsified to show checks that never took place. He died in his cell.

The only representation was a friend of the deceased who attended court and tried to raise some concerns. The Coroner conducted the inquest at speed and made no real criticism of anyone. This was not how the process should have worked.

S135 Warrant Death (police power to take a person to a place of safety for mental health assessment)

Deceased was a paranoid schizophrenic who stabbed himself fatally during the execution of s135 warrant. Case involved three state actors: NHS trust, who discharged him early, local authority, and the police. Family unrepresented.

The deceased’s brother was highly educated and exceptionally articulate. He made some excellent points about poor organisation / preparation in the execution of the warrant. But when challenged about the relevance of these points by the coroner, he backed down immediately. An opportunity was lost to improve effective planning of the execution of these warrants.

Multi-Agency Death

Fatal stabbing of a young man with two young children at a supported living home for vulnerable adults with mental health problems who were all incapable of living alone. On the night, the killer made multiple 999 calls to the police who attended but had no knowledge of the background. One call was aggressively handled.

Local authority, supported living company, mental health trust, police, call handler all separately represented (call handler represented pro bono as dismissed from employment prior to inquest).

Placement at the home was made and funded by the local authority. The company that ran the home had previously housed the killer at a different placement where he had exhibited bizzare behaviour and been diagnosed with psychosis. The company did not pass that information on to the local authority or the home where the deceased was stabbed. In the weeks before the stabbing, the killer demonstrated an obsession with the deceased, made false allegations that the deceased was harassing him and contact the police multiple times. The mental health trust made the wrong diagnosis and there was no follow up. The home assumed the killer was attending his GP when that was not the case.

The killer’s plea to manslaughter on the ground of diminished responsibility was accepted by the Crown so that there was no criminal trial.

The local authority understood a safeguarding investigation but objected to disclosure of the report to the Interested Persons and the coroner agreed not to disclose it.

The coroner refused to say this was an Article 2 inquest even though it was arguable that the local authority and home ought to have known that the killer posed a real and immediate risk to the deceased’s life.

Disclosure was hugely problematic and it was only through repeated representations by the next of kin’s barrister that GP and psychiatric records and statements were produced.

Next of kin initially unrepresented but then engaged solicitor and counsel under a no win no fee agreement. Application for injunction to stay the inquest refused. Multiple applications made. Despite the fact that the coroner had set a narrow scope, the jury understood all of the issues and made detailed findings critical of several state agencies so the conclusions were Article 2 compliant.

The inquest concluded in early 2017 but civil litigation is ongoing.

Two cases where the lack of representation made no difference

Prison Death

Death of a Polish man in HMP Woodhill.

HMP Woodhill has had, until recently, the highest self-inflicted death rate in any UK prison.

The coroner is passionate about exposing failures and ensuring accountability. It was for this reason that the absence of Mr P’s family, let alone unrepresented, made no matter.

NHS Death

Death of an 8 month old from meningitis. Hospital and about 6 doctors represented separately. Huge failings in care identified in an extensive internal investigation and highly critical expert evidence.

Family not represented and no need to be with the amount of cross fighting which exposed all deficiencies in care.