Professor Leslie Thomas KC and Emma Snell explain the necessity of a new guide from JUSTICE and INQUEST to Achieving Racial Justice at Inquests and provide an overview of its contents.
In February 2024, JUSTICE and INQUEST published
Achieving Racial Justice at Inquests: A Practitioner’s Guide. Developed by an advisory group of experienced practitioners, academics and people personally affected by the inquest process, it is designed to equip lawyers and coroners with the tools to recognise, raise and investigate issues of race and racism as they arise in deaths in custody cases.
As it stands, such issues are rarely addressed during inquests, despite evidence of disparities in both the number of deaths of Black and racialised people in state custody, and the prevalence of violence and neglect in these deaths. Our evidence-gathering showed that there is a shared desire among legal professionals and bereaved family members to navigate these issues effectively. However, several barriers remain.
Our guide hopes to address these by providing practical guidance for lawyers and coroners on recognising, raising, evidencing and investigating issues of race and racism at inquests. Below we outline the issues underpinning the creation of the guide, and why we believe it to be an important resource for those involved in the inquest process. We explore the guide's contents and the scope for its use beyond inquests into deaths in state custody.
Interrogating the issue
Black and racialised people suffer some of the most ‘violent, neglectful and contentious deaths’ at the hands of the state.
1I can’t breathe: race, death & British policing, INQUEST, 20 February 2023, page 6. See also Deaths of racialised people in prison 2015–2022: challenging racism and discrimination, INQUEST, 12 October 2022. This is reflected in INQUEST’s casework and monitoring over the past 40 years, and in numerous reports, reviews and public inquiries.
2See Achieving Racial Justice at Inquests: A Practitioner’s Guide, annex 1: ‘Government and supranational recognition of the role of racism in state-related deaths and mistreatment’, page 64. However, despite this, issues of race and racism remain conspicuously absent from inquests into the deaths of Black and racialised people in state custody.
3See Achieving Racial Justice at Inquests: A Practitioner’s Guide, pages 7–8, and I can’t breathe: race, death & British policing, pages 19, 52, 56 and 116.Lawyers consulted during the development of the guide, and during work previously conducted by INQUEST
5I can’t breathe: race, death & British policing. and JUSTICE,
6JUSTICE’s 2020 working party, When Things Go Wrong: the Response of the Justice System. identified several possible barriers to raising issues of race and racism at inquests. First, there remains a deep-rooted discomfort with raising such issues. Some lawyers were concerned that representations concerning race would not be well-received by coroners or juries.
Another barrier identified was a lack of awareness of the institutional and structural dimensions of racism, and how this can play out in deaths in state custody. Lawyers who are not aware of these dimensions may struggle to articulate effectively the role that racism has played in a death. Similarly, without an appreciation of structural and institutional racism, coroners may struggle to see the relevance of race in cases where there is no evidence of explicit, interpersonal acts of racism (such as the use of racist language) by the state agent or agents involved.
However, these limitations should not deter lawyers from raising race and racism where appropriate. The omission of race from representations perpetuates the failure of the legal system to acknowledge and address the role of racism in deaths in state custody. Not acknowledging or exploring race or racism at inquests potentially obscures racist practices, attitudes and cultures within the state institutions where these deaths take place. It makes issuing recommendations to address them impossible. The result is that they go unaddressed, increasing the risk that Black and racialised people will continue to die in similar circumstances.
In addition, raising issues of race and racism can assist the fact-finding function of an inquest. In many cases concerning Black and racialised people, failing to raise issues of race and racism will mean that a crucial part of the picture is ignored. This undermines the ability of an inquest to establish the truth about the death and offer a measure of catharsis for bereaved families,
7Per para 7.1 of the explanatory memorandum to the Coroners (Inquests) Rules 2013 SI No 1629, one of the policy objectives of the Coroners and Justice Act 2009 was ‘to put the needs of bereaved people at the heart of the coroner system’. The Court of Appeal in Chief Constable of West Yorkshire Police and others v Dyer and others [2020] EWCA Civ 1375 recognised that, given this policy objective, the need for family members to achieve catharsis is an important matter to be considered by coroners (see para 101). who may be acutely aware of the role racism played in the death of their loved one.
Lawyers have a responsibility to raise issues of race and racism where they arise and must be able to approach such issues sensitively and without reticence. We hope our guide will contribute to building a supportive environment for raising and addressing issues of race and racism, and ensure a more inclusive and just inquest process.
Recognising, raising, and evidencing issues of race and racism
Our guide includes a range of information and practical guidance for lawyers and coroners seeking to raise or investigate issues of race and racism at
European Convention on Human Rights article 2 inquests into deaths in state custody. It also contains checklists to assist practitioners in navigating these issues.
Part 1 of the guide raises awareness about racism in the institutional settings where the majority of deaths in custody occur: immigration and mental health detention; police custody; and prison. The section explores how institutionally racist practices shape Black and racialised people’s engagement with these systems, and sets out statistics highlighting disparities in the treatment of Black and racialised people by the state, compared with their white counterparts. It also underscores the impact of racial stereotyping and provides examples of how this can contribute to the deaths of Black and racialised people in state custody. By contextualising the deaths of Black and racialised people, we intend to enable lawyers and coroners to better recognise when and how race might have played a role in a particular death. In addition, by raising racial awareness, we hope to foster greater sensitivity to the needs of bereaved families and reduce the risk of the inquest process itself becoming a vehicle for racism.
Part 2 of the guide offers guidance on how to navigate a case involving the death of a Black or racialised person in state custody. Emphasising the importance of recognising and addressing biases that might influence lawyers’ perspectives, it provides a roadmap for engaging with bereaved families about the possible role of race or racism in a case. Further, this section reminds lawyers of some of the challenges they may face in raising issues of race and the need to develop creative strategies to overcome them.
Parts 3 and 4 provide practical guidance on raising and evidencing issues of race and racism at inquests. Drawing on domestic and Strasbourg case law, part 3 outlines strong legal reasons why coroners should, and sometimes must, investigate issues of race and racism. It sets out arguments that can be run to encourage the coroner to investigate these issues and to draw inferences regarding the role of race from surrounding facts. Meanwhile, part 4 equips practitioners with a toolkit for identifying and evidencing issues of race and racism within a case. This includes a list of probing questions to unearth relevant surrounding facts, and guidance on the use of statistical data, reports and expert witnesses to evidence racism.
Finally, part 5 provides specific guidance for coroners. Achieving racial justice at inquests relies both on lawyers raising issues of race and racism, and on coroners investigating such issues. Among other things, this section provides further detail on why coroners might choose to exercise their discretion in favour of investigating race and racism. This will also be useful to lawyers looking to assist the coroner in making this decision.
Wider application
While the focus of our guide is to provide advice and information to lawyers and coroners in the context of inquests into deaths in state custody, we also recognise that there are many instances of state-related deaths outside the state custody context that raise significant issues of racism.
For instance, maternal mortality rates for Black women are nearly four times higher than for white women, and disparities also exist for women of Asian and mixed heritage.
8Black maternal health. Third report of session 2022–23, HC 94, House of Commons Women and Equalities Committee, 18 April 2023, para 1, page 3, and Marian Knight et al (eds), Saving lives, improving mothers’ care: lessons learned to inform maternity care from the UK and Ireland confidential enquiries into maternal deaths and morbidity 2019–21, MBRRACE-UK, October 2023, page 7. A 2022 rapid review commissioned by the NHS highlighted pervasive ‘stereotyping, disrespect, discrimination and cultural insensitivity’ in Black and racialised women’s experiences of maternal healthcare.
9Dharmi Kapadia et al, Ethnic inequalities in healthcare: a rapid evidence review, NHS Race & Health Observatory, February 2022, page 13. In addition, the death of two-year-old Awaab Ishak following prolonged exposure to mould underscores how racism can manifest in the housing context. A review by the Housing Ombudsman found that Awaab’s family and other residents were subject to ‘wholly unacceptable’ assumptions about refugees and asylum-seekers.
10Housing Ombudsman special report on Rochdale Boroughwide Housing, Housing Ombudsman Service, page 9.Most of the learning in our guide can be applied equally to these and other contexts where race may be a significant factor, particularly where it is arguable that the death could trigger an article 2 inquest.
Furthermore, we anticipate that this guide will be a valuable resource for lawyers and investigators in other post-death investigations, such as those undertaken by the Independent Office for Police Conduct or the Prisons and Probation Ombudsman. Part 3 of the guide not only concerns inquests, but also outlines the circumstances under which preliminary investigations may be legally required to include issues of race and racism within their remit.
While our guide primarily concerns racism, other identity characteristics, such as mental ill-health, disability, age and gender, can also play a role in deaths in state custody. Our guide encourages practitioners and coroners to adopt an intersectional perspective, emphasising the need to consider how other characteristics can exacerbate the risks to Black and racialised people in state custody.
Achieving racial justice requires addressing all forms of injustice. In adopting the recommendations outlined in our guide, we trust that the way is paved for a more equitable and just legal system. By acknowledging and addressing issues of race and racism at inquests, we not only honour the memory of those who have tragically lost their lives in state custodym but also take a crucial step towards dismantling systemic injustices.
Furthermore, by fostering a legal environment where discussions of race are welcomed and valued, space is created for marginalised voices to be heard and for meaningful change to occur. Ultimately, we hope that the impact of this guide extends beyond individual cases, contributing to a broader movement towards racial justice within our society. Let us collectively embrace this guide, fostering creativity in its application and commitment to its continual improvement, for it serves as a mere starting point for practitioners and coroners to raise and investigate discriminatory practices in whatever form they take.