Article 2 and combat immunity – where next after Al-Skeini and Susan Smith?

British_soldier_during_Operation_Desert_ShieldR(Long) v Secretary of State for Defence [2014] EWHC 2391 (Admin) – read judgment

When will a court order an inquiry into the deaths in combat of soldiers serving overseas? Following recent judgments of the English and Strasbourg courts extending the application of the European Convention on Human Rights to zones of armed conflict overseas in certain circumstances, the question is likely to arise frequently over the coming years. In R(Long), the Divisional Court strongly endorsed the doctrine of combat immunity and appeared to set its face against the recent rise in claims against the MoD by soldiers deployed abroad and their next of kin.

This claim involved the deaths of six military police, who were murdered by an armed mob in Majar-al-Kabir, Iraq on 24 June 2003. They were visiting an Iraqi police station and, contrary to standing orders, did not have an iridium satellite telephone with them. The Oxfordshire Coroner had previously held an inquest into the deaths, which opened in 2004 and closed with an unlawful killing verdict on 31 March 2006. He dealt with the lack of effective communications equipment in a Rule 43 report (now a Report to Prevent Future Deaths), but it could not be said in the circumstances that, had they had a radio, their lives would have been saved. As the coroner said, the only person who might have been able to help them in time was the commander of a nearby paratroop patrol and he thought it possible that “had he endeavoured to help, I would be holding an inquest into the deaths not of six brave men but of 18” – [49].

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How not to get a pre-inquest review wrong

Coroners-CourtBrown v. HM Coroner for Norfolk [2014] EWHC 187 (Admin) - read judgment

This is the sad tale of a young woman aged 31 dying in mysterious circumstances where the inquest went off entirely on the wrong footing. Joanne Foreman was not a diabetic but lived with a young boy who was. It was suspected that on the night before she died she had drunk heavily and then injected herself with insulin. The inquest proceeded on this basis. Nobody told the expert that the paramedics had taken a blood glucose from Joanne, which was entirely normal.  Once this was known, it was obvious that the court would quash the findings at inquest and order a new inquest.

But the case contains powerful guidance from the Chief Coroner (sitting as a judge on this decision) about how to conduct the pre-inquest review.

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Reporting restrictions at courts martial: the need for a structured approach – Simon McKay

Royal-Marine-video-012Marines A & Ors v Guardian News and Media & Other Media [2013] EWCA Crim 2367 – read judgment

On 15 September 2011 a patrol of Royal Marine Commandos were involved in an incident, which resulted in one of them, referred to as “Soldier A”, shooting dead an armed but seriously wounded Taliban fighter. Evidence of the shooting emerged later and five members of the patrol were eventually charged with murder. The charges against two of them were later dropped but the three remaining marines were tried for murder before the Court Martial. On 8 November 2013, Soldier A was found guilty of murder.

Quite apart from this extraordinary facts, the trial was unusual for another reason: publication of the identity of each of the defendants was prohibited at the commencement of the proceedings by an assistant Judge Advocate and later the Judge Advocate General (each of the judge’s in the court martial who considered the issue are referred to throughout as “judge”). The Court Martial Appeal Court (essentially the Court of Appeal Criminal Division sitting under a different name) was later invited to review the orders in respect of reporting restrictions. This was linked to the release of video footage and photographs relied on by the prosecution during the case.

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National Security trumps disclosure of Litvinenko secret documents, rules High Court

LitvinenkoSecretary of State for Foreign and Commonwealth Affairs v Assistant Deputy Coroner for Inner North London [2013] EWHC 3724 (Admin) read judgment

1 Crown Office Row’s Neil Garnham QC and Neil Sheldon acted for the claimant in this case (the Secretary of State for the FCO). They had no involvement in the writing of this post.

The Foreign Secretary successfully appealed against an order for disclosure of secret documents to the Inquest for the death of former KGB spy Alexander Litvinenko

The Foreign Secretary  in February 2013  issued a certificate of Public Interest Immunity (PII), on the grounds of national security and/or international relations, to prevent the disclosure of a representative sample of Government documents  relating to the 2006 poisoning. In May 2013 the Coroner for the Litvinenko Inquest (Sir Robert Owen) partially rejected that certificate and ordered the disclosure of gists of material relating to some of the key issues surrounding the death(read ruling). In this judgement, a panel of three judges of the High Court unanimously quashed that ruling.

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You can’t be disabled when you’re dead – a footnote to R (Antoniou)

hospital

A somewhat curious additional point arises out of the case of R (Antoniou) – see my earlier post for the main issue – in which the court decided that Article 2 ECHR does not require an independent investigation into deaths in state detention prior to a coroner’s inquest. There was therefore no obligation to ensure that there was an independent investigation into the suicide, or death resulting from self-harm, of a mentally ill person detained under Section 3 of the Mental Health Act 1983. There is such an investigation when a prisoner commits suicide. The Claimant thought this smacked of discrimination against the mentally disabled. The Court disagreed – on the somewhat surprising ground that you can’t be disabled once you’re dead.

Where a prisoner commits suicide, or dies as a result of self-harm, there will be an independent investigation from the outset. Any death in prison or in probation custody is automatically referred immediately to the Prisons and Probation Ombudsman for independent investigation. The Independent Police Complaints Commission performs a similar role for deaths in police, immigration or Customs & Excise detention. There is no equivalent independent investigator of deaths in mental health detention, which are investigated by the hospital where they occurred. The Claimant said this distinction discriminates between people who are mentally disabled and those of sound mind.

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1940 Soviet massacre outside reach of European Convention, rules Strasbourg

Trzy_krzyze-1Janowiec and Others v Russia (Applications nos. 55508/07 and 29520/09)read judgment

The European Court of Human Rights (ECtHR) has held that it had no competence to examine complaints relating to the adequacy of Russia’s criminal investigation into events that had occurred prior to the adoption of the European Convention on Human Rights (ECHR) in 1950: namely the Katyń Massacre of 1940.

The applicants were relations of 12 victims of the Katyń Massacre. They had been executed by the NKVD together with over 20,000 other former Polish Army officers, government officials, and landowners. A criminal investigation into the deaths ran from 1990 until 2004 when the Chief Military Prosecutor decided to discontinue ‘Criminal Case no. 159’ on the grounds that any alleged suspects were dead.

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Coroners inquest enough to satisfy Article 2 in mental health suicide case

hospitalR (Antoniou) v (1) Central and North West London NHS Foundation Trust; (2) Secretary of State for Health; (3) NHS England [2013] EWHC 3055 (Admin) - read judgment

Where a patient, detained in hospital under Section 3 of the Mental Health Act 1983, takes their own life, Article 2 imposes procedural obligations on the State to investigate the circumstances of the death. These obligations are fulfilled by a coroner’s inquest. Unlike in prison and police station deaths, there need not be any independent investigation system prior to the inquest stage, and nor does Article 2 require one.

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Damning indictment of police actions surrounding death of Azelle Rodney

Azelle RodneyOn 5th July 2013, the report of the inquiry into the death of Azelle Rodney was published. Mr Rodney was a 24-year-old man who was shot dead by a Metropolitan Police officer on 30th April 2005. Mr Rodney was the rear seat passenger in a vehicle driven by an acquaintance of his and was unarmed.

After the Metropolitan Police had brought the vehicle to a halt, a firearms officer, described as ‘E7’ in the inquiry’s report, shot Mr Rodney 6 times without warning with a Heckler & Koch assault rifle. The fifth and sixth of these shots were a military-style ‘double tap’ to Mr Rodney’s head and would have been fatal. E7 then briefly paused before shooting Mr Rodney a further two times in the head. These shots would also have been fatal.

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Mid Staffs Inquiry report: Human rights abuses need human rights solutions – Sanchita Hosali

Stafford hospital report over deaths

This guest post is by Sanchita Hosali, Deputy Director at the British Institute of Human Rights. A number of 1 Crown Office Row barristers represented parties to the Inquiry, none of whom has contributed to this post.

Hundreds of people have died; others have been starved, dehydrated and left in appalling conditions of indignity, witnessed by their loved ones. Surely this is what Chris Grayling, Justice Secretary, had in mind when he recently cautioned to need to “concentrate on real human rights”?

Yet the rights, legal accountability, and practical benefits of the Human Rights Act are rarely mentioned in discussions about the shocking failures of care such as those featured in today’s Public Inquiry Report in events at Staffordshire Hospital between 2005-2008.

As Mr Francis makes clear, what happened at Staffordshire Hospital was a breach of basic rights to dignity and respect, and what is needed now are stronger lines of accountability and culture change which places patients at the heart of healthcare. Human rights speak to the fundamental standards that the Report says are needed to achieve this transformation in care.

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Identity of social workers may be published following fostering bungle

question-mark-face Bristol City Council v C and others [2012] EWHC 3748 (Fam) – read judgment

This was an application for a reporting restriction order arising out of care proceedings conducted before the Bristol Family Proceedings Court. The proceedings themselves were relatively straightforward but, in the course of the hearing, information came to light which gave rise to concerns of an “unusual nature”, which alerted the interest of the press.

Background

After family court proceedings decided that child A was at risk of violence from her father, an interim care order was implemented and A was moved to foster carers. However some time afterwards the local authority received information from the police suggesting that someone living at the address of A’s foster carers had had access to child pornography. A also told social workers that another member of the foster household (also respondent to this action) had grabbed her around the throat. As a consequence police and social services visited the foster carers, informed them of the concerns about pornography, removed all computers from the house and moved A to another foster home. On the following day the male foster carer was found dead, having apparently committed suicide. Continue reading

High Court refuses to condemn US drone strikes

military-drone-spy-008R (Khan) v Secretary Of State For Foreign & Commonwealth Affairs [2012] EWHC 3728 (Admin) (21 December 2012) – Read judgment

In this unsuccessful application for permission to apply for judicial review, the Claimant sought to challenge the Defendant’s reported policy of permitting GCHQ employees to pass intelligence to the US for the purposes of drone strikes in Pakistan.  The Claimant’s father was killed during such an attack in March 2011.

The Claimant alleged that by assisting US agents with drone strikes, GCHQ employees were at risk of becoming secondary parties to murder under the criminal law of England and Wales and of conduct ancillary to war crimes or crimes against humanity contrary to international law.  The Claimant sought declaratory relief to that effect and also sought a declaration that the Defendant should publish a policy addressing the circumstances in which such intelligence could be lawfully disseminated. [paragraph 6]

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Religion, Inquiries, Judicial Review

three-fingersWith apologies for the boring title, here are three quick things.

First, the Government’s consultation on Judicial Review changes ends on 24 January 2013, so you have just over two weeks to respond. As with some previous consultations, I will be collating responses on the blog so please feel free to email them to me. My most recent thoughts are here: Quicker, costlier and less appealing: plans for Judicial Review reform revealed

Secondly, the European Court of Human Rights is to rule next Tuesday 15 January on four key cases involving discrimination and religious rights. The full background is here:  Religious freedom in UK to be considered by Strasbourg Court and you can watch the entire hearing here. We will, of course, be covering the judgment in full.

Thirdly, in November 1 Crown Office Row hosted a mock trial on the topic of public inquiries and inquests at which a number of 1COR barristers, including me, spoke. The podcast of the event is now online and you find it here and also below the page break. You can also download the handout, which includes a number of very useful skeleton arguments for the mock trial, here.

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No article 2 inquest over 14-year-old overdose death, despite failings

Methadone

Kent County Council, R (on the application of) v HM Coroner for the County of Kent (North-West District) & Ors [2012] EWHC 2768 (Admin) – read judgment

The High Court – including the new Chief Coroner – has held that the enhanced investigative duty under Article 2, the right to life, is not engaged in an inquest into the death of a 14 year old boy, despite “many missed opportunities” for intervention by social services being identified.  

Another sad case on when and how the enhanced investigative duty under Article 2 ECHR is engaged. EB, a troubled 14 year old, died of a methadone overdose in November 2009.  He was known to the claimant’s social services department, who were the subject of criticism in a serious case review following his death.  The review found that there had been “many missed opportunities” to intervene, but felt that:  “It cannot be concluded that a different approach … would have prevented [EB]’s death, but there is a possibility that there may have been a different outcome.”  The council have since apologised unreservedly to the family.

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The 21st Century Coroner

The Coroners and Justice Act 2009 has created the office of Chief Coroner, plucked at the very last minute from the Coalition’s ‘bonfire of the quangos’.  On Friday, the first Chief Coroner, His Honour Judge Peter Thornton QC, delivered The Howard League for Penal Reform’s 2012 Parmoor Lecture.

Six weeks into his post, Judge Thornton presents a frank exposition of the challenges facing the system he now heads, sets out what he considers to be its purpose, and charts its remarkable genesis.

Coroners have, it seems, occupied for the best part of a millennium a peculiar pocket of public life, adapting their function and purpose over time in a manner not always understood by those working outside the system, or even by they themselves.  From the Articles of Eyre to the 2009 Act, via Robin Hood and Richard the Lionheart (the latter does not come out well), the Chief Coroner describes how ‘crowners’, as they were originally known, have evolved from lay magistrates or collectors of fines, to the judges they are today. Continue reading

Holding the State to Account: Public Inquiries and Inquests seminar – 8 November 2012

Public Inquiries and inquests have dominated the headlines recently, with members of One Crown Office Row appearing in many of them, including: 

  • The Leveson Inquiry into the ethics of the press
  • The Mid Staffordshire NHS Foundation Trust Public Inquiry
  • The Baha Mousa Public Inquiry
  • The Al-Sweady Public Inquiry
  • The 7/7 Inquests
  • The Victoria Climbié Inquiry.

On 8 November 2012 One Crown Office Row will be hosting a mock trial and panel discussion on this important subject. The event will draw on the latest case law concerning the scope of Article 2 investigations, the grounds for a public inquiry, and the test for re-opening inquests.

The speakers will be Neil Garnham QC, Jeremy Hyam, Richard Mumford, Caroline Cross, Adam Wagner and Matthew Hill .

The full flyer for the event is available here (PDF).

There are still a few places remaining to attend this event.  If you are currently practising within the field of public and administrative law and/or inquests and would like to attend please contact Charlotte Barrow, Marketing Executive at One Crown Office Row  (events@1cor.com) stating your name and organisation. Places will be allocated on a first-come-first-served basis.

CPD has been applied for and debate, drinks and snacks will of course follow.