Battling for the truth: the rights of bereaved families
Like no one else, the bereaved search for answers. The inquest process hinders them at every turn. Patchy legal rights, funding and coronial guidance prevent families from fully participating in the inquests of their next of kin. Where the death occurred in police or prison custody, shining a light on all the circumstances surrounding the death can be especially difficult.
Coroners, who oversee inquests, have a duty to ‘ensure the relevant facts are exposed to public scrutiny, particularly if there is evidence of foul play, abuse or inhumanity’ (R v HM Coroner for North Humberside and Scunthorpe (ex parte Jamieson)  QB 1 at 26). A reported rise in the number of deaths in state detention make the performance of this duty more important than ever (see Chief Coroner’s report 30, November 2017 upward trend in deaths in state detention since 2014- there was a 26% rise over 2015.
Article 2 of the European Convention on Human Rights obliges state agencies such as the police and prison service to put in place systems to protect life or to take steps to protect the life of vulnerable individuals at immediate risk of death. When a state agency may be implicated in a death by failing to meet these obligations, an ‘enhanced’ inquest will take place. These require exposure of any Article 2 violations. The participation of bereaved families’ is crucial to this process, as the European Court of Human Rights has recognised.
The investigation stage
In the immediate aftermath of a death in police custody, the IPCC gathers evidence, deciding whether any officers may have committed a crime or should face disciplinary proceedings. Although the family is entitled to comment on the scope of the IPCC’s investigation and to seek assurances that evidence is being preserved, legal advice is needed to fully exert these rights. Most families must apply for funding for legal advice, which can take weeks. The wait can leave families to navigate important early stages of the investigation alone, missing opportunities to have their own expert attend the first post-mortem or to ask for a second post-mortem. Second post-mortems have been instrumental in providing evidence pointing to possible unlawful killings in a number of cases. The IPCC’s long-standing inadequacy in holding the police to account makes it vital that families have their voices heard at this stage, which routinely takes up to a year.
Once the IPCC has sent its findings to the coroner, at least one pre-inquest hearing will be held, followed by the inquest itself. At the hearings, both the family and the relevant police force may act as ‘interested persons’. Interested persons have the right to make applications on a range of matters that the coroner will decide on, such as the scope of the inquest. Making persuasive applications depends on access to expert legal advice and representation. The police will instruct senior lawyers, at public expense. By contrast, bereaved families must undergo an invasive process to obtain exceptional public funding, occasionally going unrepresented. Every member of the deceased’s family is required to provide details of their financial situation. Any family member not wishing to participate must produce evidence to prove this. The process can take weeks, causing delay, upset to the family and anxiety.
None of the Chief Coroner’s guidance focuses on the treatment of bereaved relatives, leaving families dependent on the inclinations of the coroner they are assigned. For example, there is no legal right to produce a pen portrait of the deceased, in which a relative reads a short statement about the deceased’s life. The Right Reverend James Jones’ report, which looked into lessons to be learnt from the Hillsborough inquests, argues that pen portraits should be as of right.
The possibility of reputational damage, future criminal charges and civil claims can make public bodies defensive. Routinely, they close ranks, displaying a lack of transparency and unwillingness to make full and timely disclosure of evidence. The result is a drawn-out process, expensive and draining for bereaved relatives. The Hillsborough inquests illustrate the wasted public money and additional pain caused by institutional defensiveness.
In increasingly adversarial inquests, families must be protected from intimidation tactics. Coroners can fail to intervene to protect the recently bereaved from traumatising experiences. Lawyers acting for the public body can seek to blame family members for the death, bullying them in cross-examination. The need to reign in these tactics goes beyond humanising the process. Inflicting additional pain on the recently bereaved may prevent them from participating in the inquest in a meaningful way, reducing opportunities for key questions to be asked.
Coronial guidance should also emphasise the need to deal robustly with witnesses who appear to be lying, holding back relevant evidence or otherwise obstructing the inquest process. This is especially important where witnesses are employees of the public body where the death occurred and may feel constrained in giving evidence.
Defensive attitudes all too often spill over into the area of lesson learning. Preventing Future Deaths reports are made when a coroner believes that action should be taken to prevent future fatalities. The reports identify the coroner’s concerns about a public authority’s behaviour, recommending areas where action may be required. Public authorities often fight the reports tooth and nail. As a matter of public interest, public bodies should not argue against the production of these reports.
Families who have been through the inquest process testify that a sensitive and engaged coroner makes the process less traumatic and alienating. The breathtaking thoughtlessness and lack of empathy police officers can display when dealing with the bereaved is well documented. It must be countered by coronial guidance that stresses the need to engage with families in a sensitive manner.
In his recent report, the Chief Coroner signalled a move towards making bereaved families central to the coronial process. He suggests that where public bodies use public funding for representation, families should also be funded. This does not go far enough. In practice, most families whose loved one has died in custody eventually obtain funding. It is the demeaning and slow application process that must be abandoned. Instead of paying public servants to process the applications, non-means tested funding should be granted as of right. The earlier families obtain advice, the better they will engage in the process. Additionally, as Revered Jones’ report recommends, there must be an ‘end to public bodies spending limitless sums providing themselves with representation which surpasses that available to families’.
There is enormous public interest in throwing light on cases involving deaths in custody. In part, this is due to anxiety over institutional racism as a possible contributory factor in the disproportionate number of BAME individuals who die as a result of force or restraint by the police. Drawing on the disquiet caused by these deaths, Dame Elish Angiolini QC’s independent review calls for deaths in custody to be investigated with the same urgency of murder inquiries. The review suggests a specialist Deaths and Serious Injuries Unit be created, indicating that ‘fundamental change in how such cases are investigated, supervised and resourced’ is necessary. The review’s recommendation that the Unit be staffed by officers from a non-police background is telling.
Holding misconduct hearings
Despite a number of inquests delivering ‘unlawful killing’ verdicts or highly critical narrative conclusions, few officers face suspension or dismissal when they have been involved in a death in custody. Achieving accountability requires dramatic reform of the police misconduct hearings system.
In police misconduct hearings, the odds are stacked in favour of officers. Officers routinely have the opportunity to confer with one another prior to giving their first account of events. Only very recently has there been a change in the law requiring that misconduct hearing chairs be legally qualified and independent of the police.
The family of the deceased do not have party status in misconduct hearings, their role is as observer. They are unable to effectively question officers involved in the death. If they wish to ask a question, they must submit it to the chair, who will give the police an opportunity to argue that the question should not be asked. Follow up questions cannot be asked without this process being repeated. Clearly, officers have ample opportunity to craft answers in advance.
Families’ lack of status at misconduct hearings means they are not entitled to see the evidence. Applications for the disclosure of evidence to families are regularly refused by the police. This hinders families’ ability to ask informed questions or follow the evidence, limiting the process of holding officers to account.
For a culture change, knowledge of the aftermath of a death in custody from the viewpoint of the bereaved family, needs to seep through the police profession. For this to happen, the voices of bereaved families must be heard at misconduct hearings. Relatives of the deceased should be entitled to see evidence and be given reasonable time to cross-examine officers without interruption. They must be given publicly funded legal advice and representation in connection with all gross misconduct hearings.
Where there has been a death in custody, police misconduct hearings are unlike any other disciplinary procedure. Deaths in custody involve serious public policy values including the protection of the vulnerable and checks on abuses of power. There are strong public interest grounds for ensuring that lesson learning permeates the police profession; lives are at stake.
Daniel Machover and Kate Maynard
Daniel an Kate are partners at the law firm Hickman Rose. Kate specialises in actions against the Ministry of Justice and police, representing bereaved families at inquests into deaths in custody and representing victims of crime failed by the justice system. Daniel specialises in civil litigation on behalf of people who have suffered wrongs at the hands of the criminal justice system. He is co-chair of INQUEST