INTRODUCTION

  1.  Liberty welcomes the Joint Committee on Human Rights call for evidence into Human Rights and Deaths in Custody. Liberty published a report in March 2003 Deaths in Custody: Rights and Remedies[171]. There is extensive common ground between the contents of that publication and this submission. Many of the comments made will reflect those in our earlier submission.

  2.  We are not responding to some of the questions on the causes of deaths in custody as we do not have expertise in this area and imagine there are a number of organisations who will be able to provide detailed responses.

PREVENTING DEATHS IN CUSTODY

  3.  We believe a human rights approach to conditions and management of detention can have a significant impact in preventing deaths in prison custody. Human rights are too frequently considered simply in terms of the Human Rights Act 1998. Because of this "human rights" only become an issue when a threshold has been reached. In Article 3 cases the European Court of Human Rights has defined torture as "deliberate inhuman treatment causing very serious and cruel suffering"[172] while in the same case degrading treatment was described by the Commission as ". . . ill treatment designed to arouse in victims feelings of fear, anguish, and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance". Inhuman treatment has been defined by the Commission as ". . . such treatment as deliberately causes severe suffering, mental or physical, which, in the particular situation is unjustifiable." [173]Clearly these are difficult hurdles to overcome and in many cases where a prisoner feels he has been treated in a degrading manner Article 3 will not be engaged.

  4.  However, the majority of suicides and incidents of self harm in prison will not occur as a result of one particular incident that has breached Article 3 but rather the culmination of a series of minor incidents. Education and training in rights and entitlements for prisoners and prison staff will help identify types of treatment which might be "degrading" but do not engage Article 3.

  5.  We believe that a "human rights culture" is best achieved through the creation of a statutory joint Equalities and Human Rights body. The government has already indicated its intention to set up a Single Equality Body through consultation exercises early in 2003[174]. This body will be able to provide advice and assistance to prisoners who are concerned over treatment of the grounds of race, sexuality, religion, gender, disability or age. This will necessarily be limited to those situations where equality is an issue. It would not be able to assist when equality did not feature in a complaint. The inclusion of human rights in the remit of a Single Equality Body will "fill in the gaps" between the differing equality strands and (depending on the remit of such a body) provide greater recourse to prisoners. We are also in favour of the proposal to create a statutory Prisons and Probations Ombudsman with powers to investigate complaints and deaths in prison and approved premises. As with any public body with the power to investigate complaints we would emphasise the importance of relevant and adequate human rights training.

INVESTIGATIONS OF DEATHS IN CUSTODY

  6.  Article 2 ECHR, The Right to Life, is often said to be the most fundamental of Human Rights, the basic pre-condition of the enjoyment of other rights. [175]The first sentence of Article 2(1) emphasises that a persons right to life "shall be protected by law". It has been held that this requires the state not only to refrain from the intentional and unlawful taking of life but also to take steps to safeguard the lives of those within its jurisdiction[176]. In addition the state is required to give appropriate training, instructions and briefings to those agents who may be faced with a situation where death could occur under their control or responsibility. [177]The right has also been identified as extending to taking positive steps to prevent suicides of those in state custody. In Keenan v UK[178] the European Court of Human Rights (ECtHR) stated that obligations under Article 2 extended to a duty to prevent self-inflicted deaths in custody where the authorities were on notice of a "real and immediate risk to life". Similarly not receiving proper medical treatment when the prisoner suffers from an illness could amount to a violation[179], and a failure to communicate relevant information could give rise to an Article 2 violation if this failure results in a person not being adequately cared for. [180]

  7.  The obligation to take positive steps to protect life also requires some form of investigation where death has occurred in a way which engages Article 2 or 3 of the Convention[181]. The lack of an effective investigation will in itself constitute a violation of Article 2. This extends beyond deaths that occur as a result of the actions of those who work for the state to self inflicted deaths in prison[182], and to circumstances that lead to an inmate being placed in a cell with someone who is dangerous[183]. In Jordan v UK[184] and Edwards v UK the ECtHR held that in order to satisfy the requirements of Article 2, any investigation had to satisfy four criteria (the "Jordan criteria"):

—  it must be independent from those implicated in the facts;

—  it must be capable of leading to a determination of whether state agents are liable for the death and/or the identification of those responsible and (if appropriate) their punishment;

—  it must be prompt;

—  it must involve a sufficient element of public scrutiny and must involve the next of kin in the investigative procedure to the extent necessary to protect their legitimate interests.

  8.  The Court of Appeal in R (Amin and Middleton) v Secretary of State for the Home Office[185] unfortunately appears to have taken to view that the Jordan criteria are not binding. It held that Article 2 could not be defined by strict rules and that it is up to domestic courts to decide what is required to determine convention rights on a case-by-case basis, commenting at paragraph 61 "the task of our courts is to develop a domestic jurisprudence of fundamental rights. Drawing on the Strasbourg cases of which by S2 HRA we are enjoined to take account of but by which we are not bound." We feel this approach is flawed for two reasons. It is at odds with House of Lords and Court of Appeal authorities that have warned against departing from clear and recent Strasbourg authority on the basis that it is likely to be overturned in Europe[186]. More importantly, it fails to distinguish between the mandatory terms of the Jordan criteria and the procedural flexibility that is afforded member states in providing safeguards. The ECtHR has indicated on a number of occasions that while the procedure by which due process entitlements are delivered are a matter for individual states, the entitlements themselves are mandatory.

  9.  Because of this Liberty believes that the Jordan criteria are binding on the UK and the cornerstone of any consideration into the manner in which the following state agents carry out investigations.

10.   The coroner's jurisdiction and the inquest

  We are concerned that there is a lack of public confidence in, and understanding of, the inquest system. According to the Coroners Act 1988, the coroner's inquest is inquisitorial. In cases inquiring into deaths in police or prison custody the coroner must sit with a jury. The coroner is under a duty to ensure that a balanced and representative picture of evidence is available in court. As the system is inquisitorial rather than adversarial it has fundamental differences to the criminal and civil courts. This can create problems, especially for the relatives of the deceased, as to the function, transparency and effectiveness of the system. For example, there are no parties to the hearing and there are no formal allegations or proceedings. Instead the jury will listen to the evidence and may ask questions, as may the coroner. After evidence has been given only the coroner can address the jury as to the facts and any legal representative will not be able to make a closing statement as would happen in a criminal case. After summing up the evidence the coroner will set down for the jury those verdicts he considers available and relevant. For a verdict of suicide or unlawful killing the standard of proof is to the criminal level, for all other verdicts the civil standard applies. Importantly, no verdict may determine any form of criminal or civil liability. Once a verdict has been reached the coroner has the power to report the case to an appropriate authority with a view to action being taken. However this recommendation does not have to be made public and the parties do not have a right to be consulted or even to see the report.

  11.  The difficulty for the family of the deceased is how to make sense of inquest proceedings. It may be quite easy for a lawyer to understand how a verdict of unlawful killing does not apportion blame or lead to criminal liability but relatives do not. The family wish to find out "the truth" and where appropriate see the prosecution of those responsible. Achieving both these aims might not be possible as the compelling of evidence precludes that evidence being used in criminal proceedings, as this would breach the self-incrimination provisions in Article 6. However, we believe much can be done to make the coroners system more compatible with the Jordan criteria. If finding the truth is of paramount importance then the privilege against self-incrimination could be abolished so that police and prison officers could be forced to give evidence and answer questions at the inquest. Any evidence would of course not be permissible in any subsequent criminal proceedings.

  12.  Generally inquests need clearer rules of procedure. The relatives of the deceased should be made a formal party to proceedings and have a right to representation. They should also have the powers of a party to civil litigation—to cross examine, to address the jury and to call witnesses. The inquest system should be generally adversarial and the coroner should have an adjudicative role (while retaining the power to call witnesses for example). The usual civil rules of disclosure should apply to the inquest. There should be a review of existing verdicts which should include a verdict indicating negligence or a failure of a duty of care. Properly interested persons should have a right to legal representation. This should not be means tested due to the importance of such case and the public interest. The small number of cases involved would not mean this was a significant drain on the public purse. There should be a right to appeal to the High Court on a point of law. Making the inquest system similar to the civil courts procedure will make the process more familiar, comprehendible and acceptable to the families of the deceased.

13.   Investigations by the Prison Service

  Liberty is in favour of the proposal to create a statutory Prisons and Probations Ombudsman (PPO) with powers to investigate deaths in prison and approved premises. We are particularly pleased to see that the PPO will investigate all deaths whatever the apparent cause. We do have some concern that the PPO will be able to decide on the level of investigation required. For example when a prisoner has died due to "natural causes" we would still want to see adequate investigation as death by natural causes does not preclude the possibility of clinical oversight or negligence. We also support the proposal that the PPO should be able to require witnesses to attend an interview and respond to questions about the death. However, as mentioned above, this will certainly preclude the use of such evidence in subsequent criminal proceedings. As the new body has not yet come into being we do not propose to comment in greater detail other that to say that the consultation process into the setting up of the PPO seemed to have taken care to ensure that Article 2 considerations and the Jordan criteria had been taken into account. However, the consultation document did not consider the issue of resources, possibly because it was not felt to be appropriate at that point. Placing the investigation of deaths in prison custody onto a statutory footing is an important step to take and we hope it is successful. It is vital that sufficient resources are made available to the PPO to ensure this. It is important not to underestimate the resources needs for a proper, thorough and effective investigation which complies with the requirements of Article 2.

14.   Investigations by the IPCC

  Liberty has been involved in and supportive of the setting up of the Independent Police Complaints Commission. We are optimistic that the IPCC will bring a public confidence in the independence of complaints against the police that the Police Complaints Authority never enjoyed. As the IPCC will not come into operation until April 2004 we can only base our comments on the proposals as they currently stand. We are members of the Police Complaints Programme Board and have been sent a discussion paper relating to the role of the IPCC in the investigation and supervision of complaints. We are pleased to see this paper recognises the importance of Article 2 obligations at paragraph 4.1, "It is now settled law that Article 2 of the European Convention on Human Rights contains a requirement that an effective and independent investigation be undertaken into any death involving agents of the state . . . Any failure on the part of the IPCC to provide an effective investigation of death, for example in police custody could give rise to a successful Article 2 challenge".

  15.  While we feel that the IPCC has the potential to act in a manner that will satisfy Article 2 obligations we are concerned about the resources available. The IPCC has stated that it believes that 364 investigators will be required to match the previous police investment in terms of investigator days. However, when the IPCC begins work on 1 April 2004 it will have 70 investigators, approximately one fifth of the number required. This number will increase with the further appointment of 70 investigators anticipated by September 2004 but it will be several years before the IPCC has the number it regards as necessary. Indeed there is no guarantee that it will ever be given a sufficient number of investigators.

  16.  This is of particular concern, as the Police Reform Act 2002, which set up the IPCC, does not guarantee independent investigation even in the case of deaths in police custody. Paragraph 6.5 of the investigations discussion document states, "After a few days of independent investigation of a death in custody it may be recognised that the facts have been fully established, the truth of the matter has been determined and there is no longer a need for public concern or IPCC independent investigation. At such a stage any outstanding investigative responsibility could be handed to the police force concerned under the continued management or supervision of the Commission". We would question the impact on the deceased's relatives of an independent commission handing control back to the local force in any situation. Given the current availability of investigators there must be the concern that any decision would by necessity be resource driven. When we have raised these concerns we have been reassured by the IPCC that they would not allow resources to dictate decisions inappropriately and we have no reason to dispute this. Bearing in mind the Jordan requirement of independence from those involved it is vital that the IPCC do not take any such decision lightly.

17.   Criminal Prosecutions

  It is in this area where the greatest concerns lie. As a decision to prosecute is usually taken before an inquest has opened it can be extremely difficult for the family of the deceased if no decision to prosecute is taken, but a subsequent inquest indicates that a crime may have been committed. The coroner can refer a case to the CPS if he comes across a criminal offence or if the jury returns a verdict of unlawful killing, but in practice this is rare. The closeness of the relationship between the CPS and other state agents can be seen as a problem. In practice, no police officer has ever been convicted of any of the homicide offences following a death in custody. Since 1990 there have been eight deaths in custody where inquests have returned unlawful killing verdicts. Seven of these were preceded by and followed by CPS decisions not to prosecute.

  18.  The Attorney General recently undertook a review of the role of the CPS in relation to custody deaths. He was "impressed by the conscientiousness of the CPS lawyers . . . making the decisions" and found "that they had done so diligently"[187]. However he also accepted that the families of the deceased held no confidence in the decisions. Even if the CPS is acting in a diligent manner there is a clear perception problem. While we are not convinced that there is a justification for setting up a new body, or transferring responsibility to another body such as the IPCC, we believe that there is a need for improved performance of the CPS. For example, a special unit could be directly responsible to the Director of Public Prosecutions and separate from the rest of the CPS. Certainly there needs to be enhanced scrutiny of the decision making process. There should be a statutory requirement to give full reasons behind a decision not to prosecute. Families must be informed throughout the decision making process and during the prosecution itself. An amendment to the Code for Crown Prosecutors could create a presumption that a prosecution would be in the public interest—although this would clearly have to be rebuttable to avoid cases proceeding when not relevant. Certainly all deaths in custody should be initially investigated as homicides so that the principal aim is to secure evidence.

19.   Civil proceedings

  Although a civil action is primarily taken in order to obtain damages, there are distinct advantages over the inquest process for the relatives. As claimants they will be in control of the process and, as disclosure rules are more robust, they will have greater access to documents. As they will be represented, they will also have the chance to call and cross-examine witnesses. Unfortunately, a plaintiff can generally bring an action only if they were in some way dependant on the deceased[188]. It may also be considered unsatisfactory, as a successful civil action has never been followed by a criminal prosecution, and even if successful there is unlikely to be any disciplinary action.

  20.  A possible improvement to the current situation would be reform of the current civil action provisions, including more recognition (financially and in eligibility of persons) for death in custody cases. As mentioned earlier, the inquest system would benefit from greater similarity to the civil process and it is arguable that the inquests could even be incorporated into the civil system. As well as overcoming many of the problems faced by relatives of the deceased (as identified earlier) it would provide the possibility of a "remedy" (albeit in civil law).

21.   Other avenues

  Public enquiries are not a useful remedy. They are time consuming, expensive and usually only arise after considerable public pressure. We would like to see the inquiry process become less ad hoc, but rather being incorporated into an official part of the examination into deaths in custody. To this end Liberty strongly recommends the creation of a separate, over arching, Standing Commission into Custodial Deaths. Its remit would cover deaths both in prison and police custody as well as other institutions such as reception and detention centres for asylum seekers. There are many common concerns that arise with deaths in different custodial settings and separate bodies prevent these concerns being addressed on a more holistic basis. The mandate of such a commission would be to bring together the experiences from the separate investigative bodies which deal with police, prison, hospital deaths and others. While it would not have any investigative role, it should have the power to hold a wider enquiry in circumstances where there was a consistent pattern of deaths. Except when conducting enquiries we do not believe the commission would need substantial resources.

September 2003

172   Ireland v United Kingdom (1979-80) 2 EHRR 25. Back

173   Greek Case 12 YB 1. Back

174   "Equality and Diversity: The Way Ahead" and "Equality and Diversity: Making it happen". Back

175   R v Secretary of State for the Home Department, ex p Bugdaycay (1987) AC 514. Back

176   Osman v UK (1999) 29 EHRR 245. Back

177   McCann v UK (1995) 21 EHRR 97. Back

178   (2001) 33 EHRR 38. Back

179   McFeeley v UK (1981) 3 EHRR 161, R (Wright and Bennett) SSHD (2002) HRLR 1. Back

180   Edwards v UK (2002) 35 EHRR 19. Back

181   McCann v UK. Ibid 7. Back

182   Keenan v UK (2001) 33 EHRR. Back

183   Edwards v UK Ibid 10, R (Amin and Middleton) v SSHD (2002) 3 WLR 2002. Back

184   (2001) 33 EHRR 38. Back

185   (2002) 3 WLR 505. Back

186   R v Secretary of State for the Environment ex parte Alconbury (2001) 2 WLR 1389, R (Anderson) v SSHD (2002) 2 WLR. Back

187   Summary of Conclusions: paragraph 6.1. Back

188   Unless there is a surviving course of action such as negligence in which case they do not have to be dependant. Back