In the Media

Whitehall's concessions over secret inquests are a mixed bag

PUBLISHED March 26, 2009

Can a secret inquest ever be justified after a person has died at the hands of the state? Or does the government deserve some credit for limiting the likelihood that future inquests will be held behind closed doors? That was a key issue that divided MPs as they spent two days this week debating the government?s Coroners and Justice Bill.

As originally drafted, clause 11 of the bill would have permitted a secretary of state to ?certify? an investigation into a person?s death if the minister thought it involved a matter that should not be made public for certain specified reasons. Those reasons were not confined to issues of national security but are broad enough to cover ?preventing or detecting crime?. There was also a ?catch-all? reason, allowing an inquest to be certified ?in order to prevent real harm to the public interest?.

A ?certified? inquest would have to be conducted by a High Court judge, sitting without a jury. The judge would be required to exclude all participants from the inquest apart from those specified in the coroners? rules.

Why was the government seeking such a wide power? It was not needed for numerous inquests on British troops killed by ?friendly fire? in Iraq and elsewhere. It was not needed for the inquest into the deaths of 14 servicemen killed when a Nimrod surveillance plane crashed over Afghanistan in September 2006. It was not needed for the inquest that returned an open verdict into the police shooting of Jean Charles de Menezes.

The only case so far in which a coroner has found it impossible to complete an inquest involved the death in 2005 of Azelle Rodney, who was also shot dead in London by police officers. They were acting on intelligence, apparently based on intercept evidence. But the Regulation of Investigatory Powers Act 2000 makes it unlawful for even the existence of specific intercept evidence to be disclosed to a coroner, let alone to a jury or the public at large.

So the Coroners Bill provided an exception permitting disclosure to a judge who would be brought in to sit in private as a coroner. But article 2 of the Convention on Human Rights requires an investigation by the state into a death caused by agents of the state. The European Court has ruled that this investigation must be open to public scrutiny ? and must involve next of kin to the extent necessary for their legitimate interests to be safeguarded.

Ministers argue that article 2 does not require sensitive material to be disclosed to the next of kin when there is a substantial public interest in withholding it. But last week the Parliamentary Joint Committee on Human Rights said that keeping back a particular name or fact was a ?far cry? from saying that it was compatible with article 2 to exclude the family and public from an entire inquest. There was a ?significant risk? that the government?s proposals were inconsistent with the Convention on Human Rights.

The Joint Committee?s report was approved by its members on 17 March. On the same day, justice minister Bridget Prentice announced a number of concessions ? but too late for the committee to take them into account.

Some were little more than window-dressing. The secretary of state would have to be ?satisfied? ? rather than merely of the opinion ? that a secret inquest was necessary. The catch-all provision covering ?real harm to the public interest? would be dropped.

But other concessions had more substance. The government?s initial proposal would have left the judge-coroner with little or no discretion. As I pointed out in January, the whole point of appointing someone as senior as a High Court judge was surely to ensure that the right decision was taken on whether the inquest should be public.

The government seems to have come round to this way of thinking. ?It would no longer follow automatically from the issue of a certificate that the inquest would be held without a jury,? Prentice told her opposite number, Dominic Grieve, last week. The judge might decide to sit without a jury and exclude outsiders from part of the inquest. Alternatively, the judge might sit with a jury while ensuring that certain evidence was kept from the press, public or relatives.

Best of all, perhaps, the judge might decide that the inquest could fulfil its obligations under article 2 without the jury hearing evidence about the sensitive matters. That was the course adopted in January by the assistant deputy coroner responsible for the inquest into Terry Nicholas, yet another man shot in London by police officers.

A further concession announced by the justice minister last week was that decisions taken by a judge sitting as a coroner would be subject to appeal. But appeals work both ways; I suspect this was intended to safeguard organs of the state against a judge who might take too liberal a view of disclosure.

One proposal in the bill that has received far too little public attention is the sentencing council it would create. The Conservative MP Edward Garnier argued this month that ?resource guidelines? to be published by the new council would prevent courts from sentencing offenders to prison or ordering expensive community sentences if there was no money left.

Maria Eagle, the minister, firmly denied that the government was seeking to fetter judicial discretion by introducing a US-style sentencing ?grid?. She announced a number of amendments last week intended to ensure judicial flexibility. But it was not clear whether these would satisfy the judges? understandable concerns.