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In August we commented on the risk that long-awaited reform of the coronial system would be shelved by the Ministry of Justice, arguing that the wait for promised reforms had left relatives of the dead in legal limbo.
To the dismay of campaigners, the new office of the Chief Coroner for England and Wales has fallen victim to the “bonfire of the quangos“.
The latest statistics on “rule 43 reports”, where coroners make reports to prevent future deaths, show that deaths in custody account for 11% of reports made, up from just over 6% in the twoprevious reporting periods.
Since July 2008 coroners have had a wider power to make reports to prevent future deaths and a person who receives a report must send a response within 56 days.
Patel, R (on the application of) v Lord Chancellor [2010] EWHC 2220 (Admin) (27 August 2010) – Read judgment
The wife of the purported ringleader of the ‘7/7’ London bombings has failed in her judicial review of the Lord Chancellor’s decision to refuse her funding for legal representation at the inquest into the bombings.
Ms Sumaiya Patel, the former wife of Mohammed Sidique Khan, had her initial application for funding to the Lord Chancellor refused. She sought a ruling from the High Court to quash that decision.
It has long been accepted that the coroners’ courts, which investigate tens of thousands of deaths per year, are in urgent need of reform. But long-awaited changes are now under threat from Ministry of Justice budget cuts, leaving relatives of the dead with an inconsistent system of varying quality. This arguably places the state in breach of is obligations under human rights law.
A death is referred to a coroner when there is reasonable cause to suspect that it was violent or unnatural, or if the cause is unknown. In 2009, just under half of around 460,000 deaths were reported to the coroner, and 31,000 inquests were then opened. Inquests are rarely out of the news; for example, today calls were renewed for an inquest into the death of David Kelly. In the absence of obvious negligence or suspicious circumstances triggering a criminal investigation or compensation claim, inquests are often the only chance for relatives to get to the bottom of how a person died.
R (Humberstone) v Legal Services Commission [2010] EWHC 760 (Admin) – Read case
Part 2 of Matthew Hill’s feature on the duty to investigate deaths under human rights law (read Part I).
A recent High Court decision (see previous post) concerning the funding of a party at a coroner’s inquest has highlighted the importance of distinguishing between the two different types of investigative duty that arise under Article 2 ECHR.
It is argued in this post that imprecise terminology and a failure to appreciate that Article 2 is engaged in Jamieson as well as Middleton inquests has confused this area, and that the learned judge in R (Humberstone) v Legal Services Commission [2010] EWHC 760 (Admin) erred by eliding the investigative duties and the case-law from which they emerged.
Silih v Slovenia (2009) 49 E.H.R.R. 37 – Read judgment, McCaughey and Quinn’s Application [2010] NICA 13 – Read judgment
This is Part I of Matthew Hill’s feature. Click here for Part II.
A recent decision of the Strasbourg Court has reopened the issue of the State’s obligation to investigate deaths under the European Convention on Human Rights, leaving a tension between the European Court’s view and that of the highest UK court.
In Silih v Slovenia (2009) 49 E.H.R.R. 37, the European Court looked again at the question of whether the investigative obligations under Article 2 ECHR have retrospective effect in domestic law. A majority of the Court held that Slovenia’s failure to provide an effective independent judicial system to determine responsibility for the death of a patient receiving medical treatment violated Article 2 even though the death itself took place before the Convention came into force in that state.
The details of the forthcoming wide-ranging public inquiry into British complicity with “rendition” and torture abroad have been announced by the Prime Minister.
He also announced the public release of guidance, formerly secret, on the questioning of suspects overseas, and that a new committee is to review the use of secret evidence in court proceedings.
The statement can be read in full here. Contrary to some reports, the new inquiry is to be judge-led. It will be headed by Sir Peter Gibson, a retired Court of Appeal Judge, who amongst other things headed up the Omaghbombingintelligence review in 2008, and currently is serving as the Intelligence Services Commissioner, a post which involves reviewing actions taken by the Secretary of State under the Intelligence Services Act 1994 and the activities of British intelligence.
Even if technically obiter, it is suggested that the reasoned decision of the majority of the Supreme Court in Smith is likely to be regarded as binding in practice, if not in strict theory.
This is a postscript to Adam Wagner’s post this morning on the UKSC decision in R (Smith) v. MOD (see our post summarising the decision or read the judgment), commenting on the debate as to the authority of the judgment of the majority on the jurisdictional issue.
It may be worth bearing in mind the weight likely to be accorded by any lower court to the views of the majority of a 9 judge constitution of the Supreme Court. Even if not technically binding, it is hard to imagine any judge at first instance, or even the Court of Appeal, having the courage to depart from the reasoned views of the majority on this point, unless arising in some unforeseen or unusual factual context.
It is possible that yesterday’s controversial Supreme Court decision on human rights on the battlefield was merely an academic exercise and therefore not binding on future courts.
There has been significant commentary and conjecture over the decision in R (Smith) v Secretary of State for Defence & Anor (see our post or read the judgment). The Supreme Court seemed to have decided by a 6-3 majority that the Human Rights Act did not apply once a soldier stepped out his or her base, therefore reversing a previous decision by the Court of Appeal that it did.
But the most interesting comments from a legal perspective have been on the question as to whether the decision was in fact binding. Adrian O’Neil QC picked up the point in an interesting commentary piece on the UK Supreme Court Blog.
R (Smith) v Secretary of State for Defence & Anor [2010] UKSC 29 – Read judgment
The Supreme Court has ruled by a 6-3 majority that the Human Rights Act does not apply on the battlefield and soldiers are not automatically entitled to inquests arising from deaths in foreign conflicts.
The case related to Private Jason Smith, a member of the Territorial Army who died from heatstroke in Iraq in 2003.
The decision has come as a relief to the Ministry of Defence. In recent years, coroners have been highly critical of the armed forces’ protection of soldiers on the battlefield, and this case had the potential to open up the Government to a series of claims for compensation by soldiers and their relatives. However, the Supreme Court has (narrowly) taken the view that the Human Rights Act 1998 was not designed to apply in such cases.
We have been alerted to a 1-day seminar organised by Lexis Nexis on Inquest Law and the latest changes including those introduced by the Coroners & Justice Act. The seminar is on Wednesday 22 September 2010 in central London.
We posted last week on the duties to investigate deaths imposed on states under Article 2 of the European Convention on Human Rights, particularly in the context of public inquiries and inquests.
The seminar includes a comprehensive-looking agenda, including a session on The State’s duties under Article 2 ECHR: The Human Rights Act and inquests, run by Hugh Southey QC of Tooks Chambers.
Lord Saville has already come under significant criticism for the time and money which has been swallowed up by the Bloody Sunday Inquiry. Future public inquiries could now be under threat as new Justice Secretary Ken Clarke has accused the Lord Saville of allowing the process to get “ludicrously out of hand“.
The Saville Inquiry Report was published yesterday and can be downloaded here, a summary here and a good analysis here. Lord Saville’s long-awaited inquiry into the Bloody Sunday killings of 30 January 1972 was set up to investigate the events surrounding a march in Derry when 29 protesters were shot by British soldiers, leading to 13 deaths. The Inquiry has been widely criticised prior to its findings.
Recent weeks have seen considerable media attention paid to the role of inquests and their increasing significance for relatives of the deceased.
Article 2 of the European Convention on Human Rights, providing legal protection for everyone’s right to life, in some circumstances requires investigation into a death such as an inquest. It places a duty upon the state to ensure the investigation is properly conducted. This may entail providing funding, such as legal aid given to relatives so they may be represented at the hearing.
On 1 May 2010, The Times published “How coroners have become the public voice of grieving relatives” which considered the trend in recent years for coroners to take a role similar to that taken by a chair of a public inquiry. Frances Gibb wrote that David Ridley, a coroner in an inquest for two soldiers killed in Afghanistan, made comments which will give some comfort to grieving relatives. Only two days earlier, another coroner, David Masters, “castigated US authorities’ failure to cooperate in an investigation into the “friendly fire” deaths of three British soldiers”.
Sir William Gage, the Chairman of the Baha Mousa Public Inquiry, has refused an application by participants in the Inquiry to compel the Ministry of Defence (MoD) to disclose advice produced by the former Attorney General, Lord Goldsmith.
The MoD claimed legal professional privilege in respect of the Attorney-General’s Advice of 2003 on the application of the European Convention of Human Rights (ECHR) to the British Army’s operations in Iraq during the Iraq war.
The Inquiry, which has been ongoing since July 2009, aims to investigate and report on the circumstances surrounding the death of Baha Mousa by the British Army and the treatment of those detained with him, in particular where responsibility lay for approving the practice of conditioning detainees by any members of the 1st Battalion, The Queen’s Lancashire Regiment in Iraq in 2003.
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In August we commented on the risk that long-awaited reform of the coronial system would be shelved by the Ministry of Justice, arguing that the wait for promised reforms had left relatives of the dead in legal limbo.
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