The importance of the Human Rights Act 1998 in coronial law

In this post, Professor Leslie Thomas QC (of Garden Court Chambers, and Goldsmiths Visiting Professor of Law and Gresham College, Professor of Law) assesses the importance of the Human Rights Act 1998 for bereaved families after a sudden and unexpected death. He shows how the Act has enhanced the rights of bereaved families, helping to put them on a more level playing field.

Inquests are an important method of sudden and unexpected death investigations in England and Wales. We expect accountability for 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 is submitted that it should be obvious why the investigation of deaths is central to a democratic and free political system. We expect the following:

• First, we expect that the state will carry out a timely investigation. So that evidence is not lost, or memories fade. Families can have answers without having to wait for years. 
• Second, we expect that any investigation carried out is full and proper. 
• Third, we expect equality of arms. This means 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.
• Fourth, we expect the state to provide adequate disclosure of the evidence in its possession.

Until the passing of the Human Rights Act (HRA) 1998, many of the above 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 parte 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”. So 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) once directly incorporated into English Law by the HRA. 

For example, 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:

• 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” to someone’s life, it may have a duty to take reasonable measures to protect them.
• The “investigative duty”. This 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 the past 20 years has been the European Court of Human Rights’ (ECtHR)case law following the implementation of the HRA. 

In 1995 in McCann v United Kingdom (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. 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.” 

In Jordan v United Kingdom (2003) 37 EHRR 2, the ECtHR elaborated on the standards that had 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 required that the “next of kin” of the victim “must be involved in the procedure to the extent necessary to safeguard [their] legitimate interests.” 

In R (Middleton) v HM Coroner for Western Somerset [2004] 2 AC 182, 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”. 

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 Oneryildiz v Turkey (2005) 41 EHRR 20 found a breach in respect of a disaster caused by a poorly maintained municipal rubbish dump, and in Budayeva v Russia (2014) 59 EHRR 2 in respect of failure to protect people from a natural disaster. So, too, in the Grenfell Tower inquiry it has been accepted that the Article 2 is engaged in respect of a tragic fire. 

Equality of arms

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, they should each have the opportunity to call witnesses, and question the other’s witnesses. In short, 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.”

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 rule 13 of the Coroners (Inquests) Rules 2013.

Legal Aid 

Another way in which the HRA has brought greater equality of arms in inquests is with the provision of legal aid for inquests. Prior to October 2000 there was no legal aid for inquests.

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 on legal aid 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.”

This needs to be contrasted with the funding that the state has access to. 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 the Home Department [2004] 1 WLR 971 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:

“…the 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.”

From 1 December 2003, the new regulations gave the Lord Chancellor power to waive the means test. So 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 to 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.

Conclusion

Before the HRA, 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 the bereaved families on a more level playing field. There is still much more to be done – in my 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.