Human Rights Act 1998: levelling the playing field in inquests
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Marc Bloomfield
Adam Straw QC and Professor Leslie Thomas QC analyse the importance of the Human Rights Act 1998 in coronial law to coincide with the independent review of the Act.
The Human Rights Act (HRA) 1998 is under threat. In December 2020, the government announced the Independent Human Rights Act Review, with a mandate to consider ‘the relationship between domestic courts and the European Court of Human Rights (ECtHR)’ and ‘the impact of the [Act] on the relationship between the judiciary, the executive and the legislature’. A call for evidence on the HRA 1998 closed on 3 March 2021 and the report is expected this summer.
Inquests are a good barometer of the impact of the HRA 1998 on our domestic legislation. Without the Act, the modern inquest, with disclosure, legal aid funding and accountability, would not exist. This article examines what the HRA 1998 has done for coronial law.
There are times when it is important to reflect and assess just how important inquests are as a method of investigation into sudden and unexpected deaths in England and Wales. We expect accountability from the people in power whose decisions created the environment in which needless deaths occur. If deaths are not properly investigated, then the authorities cannot be held to account. It should be obvious why the investigation of deaths is central to a democratic and free political system. We expect the following:
The state will carry out a timely investigation, so that evidence is not lost, memories do not fade, and families can have answers without having to wait for years.
The investigation will be carried out fully and properly.
Equality of arms, ie, that the parties should be starting on a level playing field. The bereaved family should have the same opportunity to participate in the proceedings, put forward evidence and arguments, and question witnesses as is given to the agents of the state involved in the death.
The state will provide adequate disclosure of the evidence in its possession.
Until the passing of the HRA 1998, many of those expectations were not met by inquests. There was no right to legal aid, there was a lack of fairness, there was no right to disclosure, and there was no equality of arms between different interested persons in an inquest. Further, the scope of the inquest was narrow. In R v HM Coroner for North Humberside and Scunthorpe ex p Jamieson [1995] QB 1, the Court of Appeal took a narrow view of the task of an inquest. They were to decide ‘by what means’ the deceased came by their death, but not ‘in what circumstances’. The inquest’s purpose was not really to hold the state to account.
The situation was changed by the European Convention on Human Rights (ECHR) after it was directly incorporated into English law by the HRA 1998. ECHR article 2 is not simply a right not to be killed; it also imposes positive obligations on the state. There are three main positive obligations:1See, for example, R (Skelton and Skelton) v Senior Coroner for West Sussex [2020] EWHC 2813 (Admin) at paras 50–63.
the ‘systems duty’ – the duty to have an adequate system to protect life;
the ‘operational duty’ – in some circumstances, where the state knows or ought to know that there is a ‘real and immediate risk’2See Osman v UK (2000) 29 EHRR 245 at para 116. to someone’s life, it may have a duty to take reasonable measures to protect them; and
the ‘investigative duty', which applies where a person dies at the hands of the state, or in other circumstances that engage the state’s responsibility.
Undoubtedly the biggest driver of change in inquests in the past 20 years has been the ECtHR case law following the implementation of the HRA 1998.
In McCann and others v UK App No 18984/91, 27 September 1995; (1996) 21 EHRR 97, the ECtHR crystallised the idea that article 2 – the right to life – is not just about whether the state kills you; it is also about what it does after you have been killed. The court said article 2 requires ‘that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the state’ (para 161).
In Jordan v UK App No 24746/94, 4 May 2001; (2003) 37 EHRR 2, the ECtHR elaborated on the standards that have to be met by an article 2 investigation. It held that the persons carrying out the investigation must be independent from those implicated in the events. It held that the investigation must be ‘effective’, in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances and to the identification and punishment of those responsible. It held that the authorities must take the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eye-witness testimony, forensic evidence and, where appropriate, an autopsy. And, very significantly, it held that an effective investigation requires that the ‘next of kin of the victim must be involved in the procedure to the extent necessary to safeguard [their] legitimate interests’ (para 109).
In R v HM Coroner for the Western District of Somerset and another ex p Middleton [2004] UKHL 10; [2004] 2 AC 182; May 2004 Legal Action 36, the House of Lords accepted that in order to comply with article 2, the role of coroners where a person had died at the hands of the state needed to change. They said that compliance with the investigative obligation ‘must rank among the highest priorities of a modern democratic state governed by the rule of law’ (para 5).
The article 2 investigative duty can also apply more widely to deaths for which the state bears responsibility in a broader sense. The ECtHR in Öneryıldız v Turkey App No 48939/99, 30 November 2004; (2005) 41 EHRR 20 found a breach in respect of a disaster caused by a poorly maintained municipal rubbish dump, and in Budayeva and others v Russia App Nos 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, 20 March 2008; (2014) 59 EHRR 2; September 2008 Legal Action 30 in respect of failure to protect people from a natural disaster. Also, in the Grenfell Tower Inquiry, it has been accepted that article 2 is engaged in respect of the fire.
Equality of arms
Disclosure
Equality of arms means procedural fairness – in short, that the parties to a legal proceeding should be starting on a level playing field. At the hearing, each party should have the opportunity to call witnesses and question the other’s witnesses. Neither should be put at a procedural disadvantage.
In Jordan, the ECtHR was very critical of the inquest process in Northern Ireland. It said, about the non-disclosure of witness statements:
The previous inability of the applicant to have access to witness statements before the appearance of the witness must also be regarded as having placed him at a disadvantage in terms of preparation and ability to participate in questioning. This contrasts strikingly with the position of the [Royal Ulster Constabulary] who had the resources to provide for legal representation and full access to relevant documents. The court considers that the right of the family of the deceased whose death is under investigation to participate in the proceedings requires that the procedures adopted ensure the requisite protection of their interests, which may be in direct conflict with those of the police or security forces implicated in the events (para 134).
This was a step forward, as a recognition that families were at a major disadvantage in the traditional inquest process. Bereaved families in inquests have now been given a right to disclosure of key documents under Coroners (Inquests) Rules 2013 SI No 1616 r13.
Legal aid
Another way in which the HRA 1998 has brought greater equality of arms in inquests is with the provision of legal aid. Prior to October 2000, there was no legal aid.
When a bereaved family has no legal aid, this can be devastating for that family at such a sensitive time. A bereaved family member quoted in the charity INQUEST’s February 2019 briefing, Now or never! Legal aid for inquests, said:
We had to do everything ourselves. We had no lawyer at the inquest. Those three weeks were the most terrifying thing I’ve ever done in my life. I had to cross examine witnesses, it was absolutely terrifying, and they had lawyers. There needs to be a level playing field; a family member should never be put through that (page 6).
This needs to be contrasted with the funding to which the state has access. State institutions are usually concerned to protect themselves from reputational damage and civil liability, so, in virtually every case, the institution implicated in the death will be represented at the inquest. But the bereaved family of the deceased are often not legally represented at all.
From November 2001, the lord chancellor, under the Access to Justice Act 1999, began to fund legal representation at inquests. This measure was to bring inquests in line with the UK’s obligations under the ECHR. The position was improved by the Court of Appeal case of R (Khan) v Secretary of State for Health [2003] EWCA Civ 1129; [2004] 1 WLR 971; May 2004 Legal Action 14, in which the Court of Appeal held, exceptionally, that the lack of legal aid for the bereaved family of a child who died in hospital had breached the state’s obligations under article 2. It said:
[T]he inquest will not be an effective one unless Naazish’s family can play an effective part in it. The evidence shows … that they are in no fit state to play that part themselves (para 74).
From 1 December 2003, the new regulations (Community Legal Service (Financial) Regulations 2000 SI No 516 (as amended) reg 5C) gave the lord chancellor power to waive the means test. From then on, families could, exceptionally, get legal representation at an article 2 inquest. Accordingly, the system improved. It is still far from perfect, and arguably the provision of legal aid could go further, but there was a definite improvement compared with the pre-HRA 1998 position. Today, an article 2 inquest is more expansive and fairer than a normal (domestic) inquest and is the primary means by which the state carries out its investigative obligation. None of this would have been possible without the HRA 1998.
Conclusion
Before the HRA 1998, the families of the deceased had few rights in an inquest. They had no automatic right to disclosure and no access to legal aid, while the institutions responsible for the death were often represented by a high-powered legal team. The jurisprudence of the ECtHR, and its implementation in the UK, has helped to put bereaved families on a more level playing field. There is still much more to be done – in our view there should be automatic, non-means-tested legal aid for the family in article 2 inquests – but the progress that has occurred would not have happened without the HRA 1998.
 
1     See, for example, R (Skelton and Skelton) v Senior Coroner for West Sussex [2020] EWHC 2813 (Admin) at paras 50–63. »
2     See Osman v UK (2000) 29 EHRR 245 at para 116. »

About the author(s)

Description: Adam Straw - author
Adam Straw QC is a barrister at Doughty Street Chambers, London.
Description: Leslie Thomas QC - author
Professor Leslie Thomas QC is a barrister at Garden Court Chambers, London.