Secret Inquests

On 15 May 2009 the Justice Secretary, Jack Straw MP, announced that clauses 11 and 12 of the Coroners and Justice Bill 2009 would be removed. The proposals, which made provision for the Secretary of State for Justice to ‘certify' an inquest involving determination of state responsibility in respect of a death in order to withhold sensitive information from the public and from the deceased's family, had been widely criticised. The amended Bill is now due for consultation by a House of Lords Committee on 9 June 2009.

Secret inquests were first proposed in the Counter-Terrorism Bill 2008. The justification for the proposals centred on only one previous intercept case and the provisions were removed from the Bill following arguments that they were incompatible with and disproportionate to the UK's obligation under Article 2 of the European Convention on Human Rights (ECHR). The Article contains a positive obligation on the state to conduct effective investigations into deaths resulting from the use of force.

The provisions relating to secret inquests were inserted, in a similar form, into the Coroners and Justice Bill 2009, clauses 11-13. No consultation was carried out in respect of the inquest proposals prior to the introduction of the Bill. The government continued to rely on one intercept case where an existing measure, PII (Public Interest Immunity), was used to prevent the material being disclosed to the public. The government did not seek to argue why the existing measures available to prevent disclosure, including the power of the court to hold part of the proceedings in camera and restrict access by the media, as well as PII, were inadequate.

Clause 11 sub-clause 2 contained the grounds which justify certification, including preventing real harm to the public interest, protecting national security, and protecting the relationship between the UK and another country. The effect of certification would have been that the inquest was to be conducted by a High Court Judge appointed by the Secretary of State, without a jury. The deceased's next-of-kin would have had no access to the protected information and would have been represented by a Special Advocate.

The government proposed amendments to clauses 11 and 12 in March 2009 to the effect that the Secretary of State would now have to be ‘satisfied' that the inquest would contain matters which should not be made available to the public and that it must be ‘necessary' to hold the inquest without a jury in order to prevent the information being made public. The amendments did not seek to alter the rights of the deceased's next-of-kin.

There has been substantial criticism of the justification for and effect of the proposals. Organisations such as Liberty, INQUEST and Human Rights Watch have campaigned to have clauses 11-13 removed from the Bill.

The central argument against the effect of secret inquests is that they are incompatible with Art 2 of the ECHR. Decisions of the European Court of Human Rights have determined that, in order for the state to discharge its obligations under Article 2, investigations which determine state responsibility in respect of a death must be independent, subject to public scrutiny, and must allow next-of-kin of victims to have a right to participate in the process to the extent necessary to safeguard their legitimate interest.

It has been argued that the provisions offended all of these requirements. Although the amendments put forward by government in March 2009 gave the appointed High Court Judge a limited discretion to disclose certain information to a jury for the purposes of conducting an effective inquest, he had no right to disclose any of the information to the public or the next-of-kin. The Secretary of State's decision that certain information should not be disclosed could only have been challenged by way of judicial review. It was argued that the grounds used to justify non-disclosure were too broad and subjective, making certification almost impossible to challenge effectively.

A further criticism related to the lack of rights afforded to the victim's next-of-kin. Once an inquest had been certified then the next-of-kin have no right to attend or participate in the inquest. Despite removal of clauses 11-12, campaigners continue to argue for further rights for next-of-kin, including wider access to Legal Aid.

The amended Bill is now due to be discussed by a House of Lords Committee on 9 June 2009. Campaigners continue to advocate amendments to tackle delays in the inquest system and to ensure that more information is provided to bereaved families. By removing the proposals relating to secret inquests, however, the government will hope to have eased the progress of the Bill through Parliament.