This submission sets out Human Rights Watch's concerns with provisions in the Coroners and Justice Bill 2009 giving the Secretary of State broad scope to declare an inquest closed to public scrutiny.  Human Rights Watch believes that secret inquests are incompatible with the UK's obligations to protect the right to life under article 2 of the European Convention on Human Rights (ECHR).  We urge you to strike clauses 11 and 12 from the bill.

Public accountability of state agents is the hallmark of a democratic society, and this is all the more paramount where the most fundamental right, the right to life, is concerned.  The obligation to ensure independent investigations into wrongful deaths and bring those responsible to justice must be carried out with the utmost transparency.  

The proposal for closed inquests represents a troubling expansion of governmental authority to impose state secrecy. They come at a time of growing concern about the conduct of the security services in the context of countering international terrorism.  Those allegations, which have already led to a recommendation by the Attorney General that the police initiate a criminal investigation, and a decision to publish the interrogation rules by the security services, underscore the need for greater transparency and accountability. 

As you know, the provision for closed inquests was originally brought forward in the Counter-Terrorism Bill 2008.  We outlined our concerns with that proposal in a briefing paper submitted to this House in July 2008.[1]  Both the Joint Committee for Human Rights and the House of Commons Justice Committee raised serious concerns about the lack of independence of inquests conducted by specially appointed coroners as well as the limits on the involvement of victims' families.[2]  The government withdrew the provision from the Counter-Terrorism Bill before it was submitted to a vote in the House of Lords.

The proposal for closed inquests was re-introduced, without significant improvement, to the Coroners and Justice Bill.  The amendments introduced by the government at a late stage in the House of Commons do not resolve the fundamental problems with the proposed procedure.  It remains contrary to the UK's treaty obligations; it is also unnecessary and likely to undermine public confidence in investigations of wrongful deaths where state responsibility must be determined.

Clause 11 of the Coroners and Justice Bill gives the Secretary of State the power to "certify" an investigation into a wrongful death to prevent disclosure of sensitive materials or information. She may do so when she is of the opinion that public disclosure should be avoided in order to protect national security, the relationship between the UK and another country, the safety of a witness or another person, or in the interest of preventing or detecting crime (sub-clause 1).  The Secretary of State must be of the opinion that it is necessary for the inquest to be held without a jury to avoid public disclosure. 

The effect of certification is that such inquests are to be held by a High Court judge appointed by the Lord Chief Justice (sub-clause 2).  The decision to certify could be challenged under judicial review, and the bill provides for a 14-day grace period from the time of certification to allow for such challenges (sub-clause 4).  The High Court judge appointed to oversee the inquest has the authority to determine whether the inquest should be held with or without a jury (sub-clause 6), and this decision is subject to an appeal to the Court of Appeal.[3]  Jury inquests already underway may be certified; in these cases, the jury would be dismissed if the High Court judge rules that the inquest should proceed without a jury (sub-clause 8). 

Clause 12 provides for amendments of the Regulation of Investigatory Powers Act 2000 to allow for the use of intercept evidence in closed inquests. 

Human Rights Watch believes the power to order closed inquests is incompatible with the UK's international treaty obligations.  Under ECHR article 2, the UK has a positive obligation to conduct effective investigations of deaths resulting from the use of force. The European Court of Human Rights has established that to be effective, an investigation must be independent, take reasonable steps to collect the evidence necessary to reach a determination, be carried out with promptness and reasonable expedition, and be subject to public scrutiny.[4] The Court recognizes that the degree of public scrutiny may vary from case to case, and while it has found that limited application of the Public Interest Immunity certificate system in the UK does not necessarily violate article 2 obligations,[5] it has also found that its use in some cases has prevented review of potentially relevant material and therefore prevented an effective investigation.[6] Moreover, next-of-kin of victims have a right to participate in the proceedings, a right which must be safeguarded by the process so that they always have access to the investigation "to the extent necessary to safeguard [their] legitimate interests."[7]  

Giving the Secretary of State a power to certify inquests undermines the core requirement that such investigations be independent.  We note that the current proposal improves upon the one originally included in the Counter-terrorism Bill 2008, in that a High Court judge, appointed by the Lord Chief Justice, would now conduct the certified inquest, rather than a coroner especially designated by the Secretary of State.  We also note that the government's recent amendments give the judge the final authority to rule whether certification requires that the inquest be held without a jury.  We remain concerned, however, that certification represents an unacceptable intrusion by the executive branch into investigations that must ultimately determine state responsibility in a suspicious death.  This intrusion is likely to undermine public confidence in the investigation and its outcome. 

In this context, it is worth noting that the bill gives the Secretary of State the authority to certify inquests already in progress. As the Joint Committee on Human Rights observed in its comments on Counter-terrorism Bill 2008, this means the provision could be applied to still unresolved cases in Northern Ireland, to the detriment of the UK's compliance with judgments of the European Court of Human Rights.

We are further concerned that a system of closed inquests would deny the next-of-kin a sufficient degree of access to satisfy their legitimate interests.  In its explanatory notes to the bill, the government states that rules will be adopted to allow the coroner to appoint independent counsel to represent the interests of next-of-kin.[8]  This would essentially replicate the seriously flawed system of special advocates already in place in the Special Immigration Appeals Commission (SIAC) and control order proceedings.  Special advocates in these proceedings are not able to discuss the evidence or grounds contained in closed material with the controlee or take instructions from him.  In the context of closed inquests, it is difficult to see how special advocates could represent properly the interests of the next-of-kin if they are unable to discuss with them information directly relevant to how their loved one died.

In the recent ruling on the abrogated policy of indefinite detention for foreign terrorism suspects, A and Others v. the United Kingdom, the European Court of Human Rights took the unequivocal view that special advocates could only perform their role effectively when detainees were provided sufficient information about the allegations against them, and able to give meaningful instructions to the advocate.[9] Proceedings in which the decision to uphold or maintain detention were based solely or to a decisive degree on closed material, and that material was not disclosed to the detainee, are to be considered unfair.  

Human Rights Watch considers the grounds for certification, as enumerated above, to be overly broad and likely to render judicial challenges virtually impossible to win.  We welcome the elimination of the expansive "real harm to public interest" basis for certification.  However, the grounds of national security and protection of the UK's relationship with another country remain ill-defined, with the latter basis giving rise to concerns that the interests of justice might be sacrificed to avoid diplomatic tensions.  It is also unclear how challenges to certification under the judicial review procedure could be effective if family members, for example, have no information about the material that certification is designed to protect.

 

The government has not made a convincing case that closed inquests are necessary.  Human Rights Watch acknowledges that there may be legitimate reasons for limiting disclosure of certain materials relevant to the inquest, subject to the qualifications in the jurisprudence of the European Court of Human Rights referred to above.  Indeed, UK law already provides for this through Public Interest Immunity (PII) certificates, and the power of the court to hold part of the proceedings in camera, secure enforceable confidentiality agreements, restrict access to the media, and adopt special measures for witnesses.  The government has been able to identify only one case in which the inquest is stalled, in the government's view, due to the lack of a certification procedure.

The government has argued that PII certificates are not a satisfactory alternative to closed, non-jury inquests because an inquest must go forward whether PII is granted or not (whereas in criminal proceedings, the Crown Prosecution Service can choose to halt prosecution in order to protect sensitive material and sources).  It is equally true, however, that an inquest would have to proceed in the event judicial review led to certification being quashed or the High Court judge determined that the inquest could proceed with a jury.  In these cases, the judge presumably would avail him or herself fruitfully of the existing measures outlined above.

Human Rights Watch is convinced that closed inquests under the terms of the Coroners and Justice Bill are incompatible with the UK's obligations under international human rights law.  Intrusion of the executive branch into investigations of wrongful deaths does not appear to be necessary in order to protect sensitive material or witnesses, and would damage the credibility of the inquests and their findings.  Martin Scheinin, UN Special Rapporteur on the protection of human rights and fundamental freedoms while countering terrorism, recently pressed governments to "reduce to a minimum the restrictions of transparency founded on concepts of State secrecy and national security."[10]  We urge you to support this principle and strike clauses 11-12 from the Bill.


[1] Human Rights Watch, Briefing on the Counter-terrorism Bill 2008, Second Reading in the House of Lords, July 2008, https://www.hrw.org/en/reports/2008/07/01/briefing-counter-terrorism-bill....

[2] JCHR,"Counter-Terrorism Policy and Human Rights (Tenth Report): Counter-Terrorism bill," Twentieth Report of Session 2007-08, May 14, 2008, http://www.publications.parliament.uk/pa/jt200708/jtselect/jtrights/108/..., paras. 115-119; House of Commons Justice Committee, "Counter Terrorism Bill," Third Report of Session 2007-08, March 20, 2008, http://publications.parliament.uk/pa/cm200708/cmselect/cmjust/405/405.pdf, para. 5.

[3] Under the current Coroners Act 1988 and the draft Coroners and Justice Bill, jury inquests are required for all deaths in custody or state detention, and the death was violent or unnatural or the cause is unknown; for all deaths resulting from an act or omission of a police officer or member of a service police force in the purported execution of his or her duties; and where the death was caused by accident, poisoning or disease which must be reported to a government department or inspector.  Coroners Act 1988, Section 8(3); Coroners and Justice Bill, Clause 7(2) and (3).

[4] European Court of Human Rights, Hugh Jordan v. the United Kingdom, Judgment of 4 May 2001, no. 24746/94, ECHR 2001-III, paras. 105-109; McKerr v. the United Kingdom, Judgment of 4 May 2001 no. 28883/95 , ECHR 2001-III, paras. 144 - 148; Finucane v the United Kingdom, Judgment of July 1 2003, no. 29178/95, Reports of Judgments and Decisions 2003-VIII, paras. 68 - 71.

[5] European Court of Human Rights, Hugh Jordan v. the United Kingdom; McCann and Others  v. the United Kingdom, Judgment of 27 September 1995, Series A, no. 324.

[6] European Court of Human Rights, McKerr v. the United Kingdom, Judgment of 4 May 2001, ECHR 2001-III no. 28883/95 paras. 150-151.

[7] European Court of Human Rights, Hugh Jordan v. the United Kingdom, para. 109; McKerr v. the United Kingdom, para. 148; Finucane v the United Kingdom, para. 71.

[8] Coroners and Justice Bill Explanatory Notes, para. 804.

[9] Ibid., para. 220.

[10] Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, U.N. Doc. A/HRC/10/3, February 4, 2009, para. 75.