Some provisions in this vast, unwieldy Bill threaten to undermine still further civil rights and protections, particularly for victims of state violence.
The Coroners and Justice Bill, which had its second reading in the House of Commons on 26 January 2009, is a massive hotchpotch which deals with child pornography, defences to homicide charges and other miscellaneous criminal justice matters as well as with inquests. It attempts to put the law of inquests into modern statutory reform, and for that it has been welcomed by campaigning groups such as INQUEST. But its clauses on secret inquests and on sharing personal information have sparked grave concern, as these proposals perfectly illustrate the drift into a surveillance society in which government officials are entitled to collect and share any and all personal information on us, while shrouding their own operations in secrecy in a policing state.
Clause 11 of the Bill seeks to reintroduce plans for secret inquests, first proposed in the Counter-Terrorism Bill and thrown out in October 2008 by the House of Lords. It provides that the Secretary of State may certify an investigation into a person’s death, on grounds of national security, diplomatic relations, for the prevention or detection of crime, to protect the safety of a witness or third party, or on general public interest grounds. The effect of certification is to allow a coroner (who, in a ‘certified’ inquest, would have to be a High Court judge) to hold the inquest without a jury and to exclude parties (including family members of the deceased) from hearing the secret evidence.
The coroner would have the power to appoint ‘independent counsel’ (who is clearly not independent, as he or she is appointed by the coroner) to test the secret evidence so as to protect the interests of the deceased and next of kin. A similar system in ‘control order’ cases and in the Special Immigration Appeals Commission, where courts rely on secret evidence to justify deportation to torture states or intolerable restrictions on liberty, has led to huge frustration and constant litigation, and prominent QCs have condemned the special advocate system as legitimising unaccountable and oppressive executive decisions.
Azelle Rodney’s death
Currently, inquests must be held with a jury if a death occurred in prison, police or other state custody, or where death resulted from an injury caused by a police officer on duty. The reluctance of the government to disclose sensitive material has caused massive delays to inquests such as that of Azelle Rodney, who died after being shot six times by armed police in Edgware, north London on 30 April 2005. In August 2007, coroner Andrew Walker, sitting at Hornsey in north London, announced he could not proceed with a full inquest into Mr Rodney’s death because of a large number of redactions – passages crossed out – in police officers’ statements. The redactions were made under the 2000 Regulation of Investigatory Powers Act (RIPA), which covers information obtained from covert surveillance devices such as telephone tapping or bugs. The proposals would enable intercept evidence to be heard by the coroner – but not by the next of kin or the public.
Speaking in December 2007, Azelle’s mother Susan Alexander expressed her belief that the planned changes would enable her finally to see all the evidence collected by the Independent Police Complaints Commission (IPCC). She said: ‘For a long time now I’ve been very frustrated and upset by not being able to see vital evidence about the police shooting of my son … Now that the government agrees that this evidence shouldn’t be withheld from bereaved families like ours, I hope all concerned can act quickly so the evidence is disclosed with minimum delay. None of Azelle’s friends and family can come to terms with his death until everything is out in the open and a full inquest has taken place. Azelle has not had justice and without justice there can be no accountability.' Following the Privy Council’s recommendation in February 2008 that RIPA’s absolute ban on intercept evidence be abolished, and the prime minister’s apparent support for their recommendation, there were grounds for optimism that a more open approach to intercept evidence was on the way. These hopes, so far as inquests are concerned, have been dashed. It does not appear that Azelle’s family will be any the wiser about his death under this Bill – the likelihood is that they, and the public, will be excluded from the inquest, which will be held without a jury. As INQUEST pointed out in its April 2008 briefing on the similar provisions in the Counter-Terrorism Bill: ‘Deaths in custody raise important issues of state power and accountability. In a free and democratic society, deaths in state custody should be subject to particularly close public scrutiny. For this reason it is imperative the inquest system is open and transparent so that justice is seen to be done and public confidence in state bodies is upheld … [the] Clause would give the Secretary of State a key decision making role in the very inquests where the state’s actions require most scrutiny and amounts to excessive political interference in the inquest system.’
Its briefing on the 2009 Bill is even more trenchant, arguing that ‘The proposals amount to a fundamental attack on the independence and transparency of the coronial system in England and Wales; are fundamentally flawed; disconnected from legal principles and have come about without any consultation.’
A further matter of concern is the omission from the Bill of any provision for regular funding of families’ representation at inquests involving deaths in custody. Currently, funding is available only on an exceptional basis, which, as INQUEST points out, means lengthy and frequently intrusive investigations into the means of bereaved families, adding to their distress and grief. The funding gap leads to gross inequality, as police, prison officers and other state officials have banks of expensive lawyers to protect them at inquests and to seek to deflect blame on to the deceased. It also breaches the government’s obligations under European human rights law to ensure that bereaved families have a full opportunity to participate in investigations into deaths at the hands of the state.
Investigation and witness anonymity orders
Another matter of concern arises from the Bill’s provisions for ‘investigating anonymity orders’ and ‘witness anonymity orders’ for those with information useful to police relating to gun and knife crimes in the context of street gangs. These provisions will give police and prosecutors the right to apply to a court for the identity of key witnesses to be kept secret throughout that person’s entire life. Any breach will be punishable by up to five years in jail. The clause is the government’s response to a House of Lords judgment in June 2008 quashing a conviction where the witnesses were anonymous. Justice minister Maria Eagle said she hoped witnesses would feel able to give evidence as a result of the changes. But as the House of Lords acknowledged, in upholding the importance of the common law right to confront one’s accusers, where evidence is received under a ‘veil of secrecy’, the door is left ‘wide open to mendacity, falsehood, and partiality’. The grant of permanent anonymity to informants raises the spectre of wrongful convictions on anonymous evidence motivated by spite or by racism.
Clause 152 of the Bill seeks to remove all limits on the use of personal information – including medical, financial and employment records, communications data, by officials. The clause would amend the Data Protection Act so as to allow ministers to make ‘Information sharing orders’ enabling sharing with other agencies and use of information for purposes other than the original one, if this serves a ‘relevant policy objective’. As campaigning group NO2ID says, the clause blows a hole in the data protection legislation. It would permit data swapping between government and the private sector, and with foreign governments. Everything recorded anywhere would potentially be accessible to any official body. In the words of NO2ID, ‘This single clause is as grave a threat to privacy as the entire ID Scheme.’ The clause has been condemned by, among others, the British Medical Association, which say that the data-sharing provisions could deter patients from seeing doctors, GeneWatch, Liberty and the British Computer Society, and is likely to be mauled by the House of Lords, whose Constitution Committee recently expressed concern over the growth of the surveillance society.
INQUEST Briefing on the Coroners and Justice Bill 2009 (pdf file, 116kb)