Death in Custody

Inquests, Family Participation and State Accountability

Jo Easton

• Publisher: Emerald Publishing Limited
• Year: 2020
• ISBN:
  9781839090271
• Topic: Sozialwissenschaften
• Subtopic: Tod in der Soziologie

Death in Custody considers the participation of bereaved families in an inquest following a death in custody. It looks at the legal frameworks governing participation, as well as relevant theories of justice, participation, procedural fairness and grief theory. Interviews were carried out with people with personal experience of complex inquests, including bereaved family members.
Participation can provide families with redress and allow them to represent the deceased, as well as being an important part of their grief process. It also helps to ensure a fair process, which has a positive impact on accountability and legitimacy. Family participation improves accountability by maximising the chance of achieving the right outcome via scrutiny, therefore identifying failures. Families also brings balance to the process, provide vital information about the deceased as well as helping to ensure that lessons are learned that will prevent future deaths.
Death in Custody shows that procedural justice theory is relevant for participation in processes investigating human rights violations. It includes key recommendations on how to ensure participation can be fair and effective.

Part 1

The Law

The first part of this book sets out the relevant law in respect of both the overarching European Court of Human Rights (ECtHR) and domestic legislation for England and Wales. It includes two chapters describing the overall human rights legal framework as well as the domestic law governing inquests following a death in custody. This part sets out the positive legal protections currently in place in relation to families participating in such inquests, as well as gaps where families cannot rely on the law to ensure participation.

Article 2(1) of the European Convention on Human Rights (ECHR) emphasises that a person's right to life shall be protected by law. In 1978, the ECtHR found that Article 2 of the ECHR not only prohibits the State from taking life but also places on it a positive duty to protect life.¹ This protective aspect to the right to life has been re-affirmed and expanded upon through numerous decisions of the ECtHR: elucidating on when and what steps must be taken by a State to protect life. In 1995, the ECtHR found in McCann that in order to protect life, the State is required to ensure there is a proper investigation into any deaths caused by the use of force by State agents.² Any investigation must be ‘independent, prompt, contain a sufficient element of public scrutiny, and be capable of leading to a determination of whether State agents are liable’.³ The investigation must consider not just the actions of agents of the State but also the planning and organisation of the operation governing those actions. European case law has since clarified that situations where a death may have resulted due to a failure on behalf of the State to protect life should also be investigated; this includes deaths in State custody. The ECtHR has also laid out certain minimum requirements which are necessary for an investigation to be seen as compliant with Article 2; including the fact that there must be an opportunity for a bereaved family to participate in the process.

In domestic law, the inquest system is the process which investigates deaths in custody, unless criminal proceedings have fully looked into all relevant factors. Therefore an inquest is the legal process that ensures Article 2 requirements are met. The inquest system is an ancient system; the law which governs the system has evolved over hundreds of years, but in relation to deaths in custody, it is clear that domestic protections should meet ECtHR standards. It is therefore necessary to set out both ECtHR and domestic law, as well as highlight any diversions between the different jurisdictions that might illustrate potential challenges to ensuring compliance with Article 2 requirements.

Chapter 1 sets out how Article 2 has evolved from protecting life to requiring an investigation in certain situations where there is possible State involvement either in causing a death or failing to take adequate steps to protect life. Chapter 2 then looks at the specific domestic legal framework relating to the inquest system, especially for deaths that occur in custody. It also considers relevant legal requirements which relate to the purpose of an inquest, the role of bereaved families and specific rights that exist to allow their effective participation. But before that, the development of both European and domestic law in relation to Article 2 and the legal requirements around investigations into deaths in custody are discussed in the next chapter.

¹Association X v United Kingdom (1978) DR 14 (European Commission (Plenary)).

²McCann v United Kingdom (1996) 21 EHRR 97 (European Court of Human Rights).

³McCann v United Kingdom (1996) 21 EHRR 97 (European Court of Human Rights), para 201.

Chapter 1

Requirement to Investigate Deaths in Custody

1.1 Introduction

This is the first chapter setting out the relevant law relating to deaths in custody. As Article 2 of the European Convention of Human Rights (ECHR) is the primary legal framework governing the requirements in place relating to investigations following a death in custody, this chapter looks at the evolution of Article 2 in European law as well as how domestic law has developed, both in response to European law and as a distinct jurisdiction.

Article 2 of the ECHR protects an individual's right to life. Substantial European case law has established distinct duties on a State under Article 2, described in this book as substantive and procedural duties. Substantive duties on the State are not to take life and take reasonable steps to protect life; the author further distinguishes this latter subset of substantive duties to protect life as administrative and operational duties. Administrative duties are systemic in nature and seek to ensure that appropriate procedures and systems are in place; operational duties relate to protecting an individual or individuals in a specific situation and relate to proactive steps that the State must take in individual situations to protect life. Procedural duties arise from the substantive duties and require a State to ensure causes of death are investigated thoroughly. An investigation must ensure the State has not failed in relation to its substantive duties to not take life and protect life in certain situations. The purpose of any investigation is to also ensure that lessons are learnt to prevent future deaths. Procedural duties are therefore linked to identifying how deaths occur and, in appropriate cases, who should be held liable for the death. So in all cases of sudden and unexpected death, the State must ensure there are systems in place to investigate cause of death – the systems can include criminal and civil justice jurisdictions.

However, in cases where there is possible State liability for a death, case law has established what can be called an enhanced procedural or investigative duty, which sets up additional requirements beyond merely ensuring a criminal or civil justice system is in place to investigate a death. This enhanced procedural duty requires the State to initiate the investigation following a death (so a civil case brought by non-State party would be insufficient), and allow family participation in the investigation. As yet, there is a gap in case law so it is not clearly established which situations should engage this enhanced procedural duty. For example, a natural death in custody does not trigger the enhanced procedural duty unless there is reason to suspect State failures contributed to the death.¹ However, this author sees this as a potential gap in accountability, as even if cause of death is known as natural causes, it can be difficult to judge whether lack of poor medical care might have been a contributory factor.² So without an investigation, State failures might not be identified and without evidence of State failures, an enhanced investigation is not required. Although case law is clear that sudden or unexpected deaths in custody will always require an enhanced investigation which is State-initiated with the opportunity for family involvement, it can be difficult to identify whether a death is unexpected without investigation. So there may be cases where there are State failings which are not being identified due to the lack of enhanced investigation.

This chapter will set out the evolution of Article 2 through case law, including the legal protections in relation to family participation in an Article 2 inquest. And as domestic law evolved distinctly from (although taking account of) European jurisprudence, European and England and Wales jurisprudence are considered separately. Under England and Wales law, an inquest is the primary route by which Article 2 enhanced investigative duties are discharged. An inquest is opened within days of a death but then is adjourned to allow other jurisdictions (including criminal, civil and disciplinary proceedings) to take precedence. In relation to deaths that occurred in custody, a coroner must then decide whether other processes have adequately investigated the death; if there remain unanswered questions, the inquest is reopened. It is here that a coroner must ensure Article 2 requirements have been met. An example would be a murder in prison, where a criminal case identified and punished the killer but further questions about possible systemic failings in the prison would need answering.³

1.2 Evolution of Article 2 of the European Convention on Human Rights

Article 2(1) of the ECHR states:

Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.⁴

Over the last 30 years, the ECtHR has developed extensive jurisprudence on the nature of the rights established by Article 2: specifically, the responsibilities that it imposes on States. Article 2 sets out two substantive requirements for States: first, the duty not to take life except where permitted by law, and, second, the duty to take reasonable steps to protect life. The duty to not take life is sometimes referenced as a negative obligation as it relates to actions the State cannot take or situations when the State cannot use force.⁵ The duty to protect life is considered to be a positive obligation as it relates to steps States must actively take to prevent death.⁶ This second substantive duty has evolved in ECtHR judgments to create distinct obligations to prevent deaths in certain situations as well as a duty to investigate deaths to ensure anyone responsible for the death is held to account (a procedural obligation).

In general, the substantive duties relate to actions a State should take prior to any death occurring: the State must take steps to ensure force is only used when ‘absolutely necessary’ and if there is a proven duty of care; the State should take steps to prevent death. The procedural duty relates to actions the State must take following a death: a State must provide a system of investigation allowing any culpability for the death to be established. This obligation was originally considered to only be engaged following a possible sub...