Previous Section Back to Table of Contents Lords Hansard Home Page

In another Deepcut inquest into the death of Geoff Gray, members of the family were told by the coroners' office that did not need legal representation, so they

21 Oct 2009 : Column 748

did nothing more than accept that advice. The inquest was over in half a day, during which the bereaved family experienced witnesses being prompted from the public gallery, and there were no disclosure arguments. That is a matter of great concern.

Families that appear at inquests trying to find out what has happened to the deceased person are at a considerable disadvantage if they have no one representing them against the battery of lawyers who are provided by the state not just for the departments involved but also for people who might be implicated. It is quite wrong that they should be in that position.

That is the basis of my argument, but how much would it cost if the provisions set out in my amendment were carried through? The best estimate that we have is from the ministry, which says that the cost of representation at an inquest is about £8,000 a time, and we are dealing with a maximum of 400 cases. I think that the Ministry of Justice itself has suggested that the cost of providing this service would be some £6.4 million, some of which could be recovered under decided cases in the event of a family being successful in recovering compensation as a result of negligence or something else being proved against the department of state. Therefore, the cost of these provisions is not huge.

We come to the question of means-testing. There have been many cases under the present arrangement whereby the Minister in the case of the Army and the Legal Services Commission in the case of the police and the Prison Service have discretion to permit legal aid to be given to bereaved families subject to a means test. Very intrusive investigations have been made, and in some the home of a bereaved family, for example, has been taken into account. In one case, the money that was to be made available to the family as a result of the death of the deceased was also taken into account. We do not think that that is the right way to proceed. If the taxpayer pays entirely for the state departments to be represented, then, for the purposes of equality of arms, one would expect the state to allow the bereaved families not to have to undergo the indignity of means-testing and the taking into account of sums of money which may be very important to them in the position in which they find themselves.

Those are the reasons why all these organisations, fulfilling the demands of the reports to which I have drawn your Lordships' attention, suggest that the only proper way forward is to provide non-means-tested legal aid funds to bereaved families at inquests. That is the purpose of the amendment, and I beg to move.

Lord Bach: My Lords, I hope that the House will forgive me if I rise at this stage. I have spoken to the noble Lord, as he was kind enough to mention, and I am grateful to him, too, for speaking to me at short notice this morning. If the debate has to continue, it has to continue, but perhaps I may say at this stage that in principle we agree that there should be a right to legal aid at inquests into a death in custody or otherwise in state detention of military personnel on active service. In our view, any such legal aid would have to be means-tested, but I am mindful that it would be appropriate to waive that, save in exceptional

21 Oct 2009 : Column 749

circumstances. I add a rider that in the case of any inquest into multiple deaths, it would not necessarily be a good use of public funds to provide representation for each bereaved family.

If the House will give me permission, I shall examine the position further between now and Third Reading, and I shall of course be in touch with the noble Lord, bearing in mind his amendment. Obviously I cannot give any guarantees that I will be able to bring forward a suitable amendment at that point, but I shall certainly do my best.

Lord Hunt of Wirral: My Lords, I simply want to say what a sensible intervention that was from the Minister. I greatly welcome it. I was about to express my support for the amendment, subject to the usual qualifications, but in the light of what the Minister has said, I warmly welcome his intention to consider the matter further.

Lord Ramsbotham: My Lords, as my name is attached to this amendment, perhaps I may echo the words of the noble Lord, Lord Hunt. I very much welcome what the Minister has just said. However, I ask that others, including myself, also be involved in the consultations that take place with the noble Lord, Lord Thomas of Gresford. There are things that I was going to say but will not now be saying because of what has happened, and I think that this matter was going to attract support from all corners of the House, where there are extremely strong views about this issue.

6.30 pm

Lord Thomas of Gresford: My Lords, I welcome the statement from the Minister that we have finally achieved a right to legal aid for bereaved families. I hear what he said about means-testing and that, in appropriate circumstances or in most cases, means-testing would be waived. Our discussions have to centre on the circumstances in which means-testing would not be waived. I certainly welcome anyone's participation in a meeting to work that out.

I say to the noble Lord, Lord Ramsbotham, that had there been time this morning-I had about half an hour's notice-he would have been included in our discussions. On the basis of what the Minister has said, I beg leave to withdraw my amendment.

Amendment 15 withdrawn.

Clause 10 : Determinations and findings to be made

Amendment 16

Moved by Lord Ramsbotham

16: Clause 10, page 5, line 38, leave out subsection (2) and insert-

"(2) A determination under subsection (1)(a) shall not affect the criminal or civil liability of any party and shall not be admissible as evidence of proof of criminal or civil liability in any subsequent legal proceedings; but an inquest is not inhibited in the discharge of its functions by any likelihood of liability being inferred from the facts that it determines in accordance with subsection (1)(a) or any recommendations that it makes."

21 Oct 2009 : Column 750

Lord Ramsbotham: My Lords, we move now to another part of the Bill which addresses the outcome of investigations. I refer to another Bill that addresses the issue of deaths in prison-the corporate manslaughter Bill. This House voted for the Prison Service to be included in that legislation and said that any managerial failure that resulted in death should be subject to the conditions of that legislation.

The issue in an inquest is responsibility for death and not liability; it is not up to the inquest to establish that. Currently there is a prohibition on inquests naming persons publicly. Although we think that that prohibition should be retained, a coroner or a jury should be free to describe acts or omissions by the particular public service-and I admit that I speak mainly from experience of prisons-responsible for that death. That emphasises the responsibility aspect of inquests. To protect the parties who might be criticised, the Bill should contain a clause that underscores the fact that a determination of the inquest should not affect anyone's criminal or civil liability and that a determination should not be admissible as evidence in any subsequent legal proceedings. In other words it would distance the matter from further action once responsibility has been laid.

It is difficult entirely to separate an inquest from all the duties on the state to learn about how deaths have occurred. In its briefing to us on this matter, Inquest has said that Scotland has a much better system. Under its fatal accident inquiry procedures, the sheriff is allowed to determine, among other things, where and when the death and any accident resulting in the death took place; the cause or causes of the death and any such accident; the reasonable precautions, if any, whereby the death and any accident resulting in the death might have been avoided; the defects, if any, in any system of working which contributed to the death or any accident resulting in the death; and any other facts relevant to the circumstances of the death.

In an earlier debate we discussed the fact that something that might be applicable in England and Wales was not applicable in Scotland. I have always thought it inexplicable that such clear direction and definition should be available in Scotland but not in England and Wales. I would certainly like to see that in any improved legislation, which this is.

There is also a debate as to whether a coroner may or may not use judgmental words such as "serious" or "unreasonable". Frankly, that debate is probably not worth having, because the various checks and balances that have been put in place have moved us on from that. All that is needed is merely a clear statement from a coroner that something has happened and that someone is responsible.

On investigations, and bearing in mind our previous brief discussion on the representation of families, I have always been concerned about the attendance of families at inquests. Frequently, they do not know anything other than that a relative has died. They expect an inquest to be an inquiry. They think that they will learn far more than they otherwise might. That is not a fault of the coronial system; that is a fault of the prison system, which does not pass on sufficient information. It is important that the coroners bear in mind the possibility that the families appearing

21 Oct 2009 : Column 751

before them are not as well informed as they might expect, or as well informed by the state as they might expect them to be. The families will always expect more to come out. The naming of names is prohibited but I believe that families will feel better served by the system if it is possible to name the acts or omissions that might have contributed to the death. And that is one of the intentions of the Bill. I beg to move.

Lord Alderdice: My Lords, my name is attached to this amendment and I wish to give support to what the noble Lord, Lord Ramsbotham, has said. In a sense we are returning to territory similar to that which we discussed under Amendment 3 and Clause 5 regarding the coroner's grounds for exploration, expansion and expressing his or her findings. One needs to be careful about other legal interventions, but it seems strange that a coroner-in making his or her inquiries about why a death occurred, what contributed to it and what could have been done to prevent it and, indeed, to avoid other deaths-should be discouraged from venturing into that terrain. This amendment seeks to open up that ground. As the noble Lord, Lord Ramsbotham, said, that should not be a matter of great difficulty, because the situation in Scotland is pretty much the same as that described in these amendments. We need families to feel that there has been proper inquiry and investigation and that the outcome is stated as fully as possible in accordance with the requirements of all the legal processes, whether criminal or civil. My colleagues and I wish to express our support for the amendment.

Lord Hunt of Wirral: My Lords, as always, the noble Lord, Lord Ramsbotham, puts a very persuasive case. I appreciate the points made by the noble Lord, Lord Alderdice, and I can see the advantage in seeking to do what he says-to set out what an inquest can and cannot do in relation to findings that could be said to relate to criminal or civil liability. In defence of the Minister-not that he ever needs defending-Clause 10(2) clearly states:

"A determination under subsection (1)(a) may not be framed in such a way as to appear to determine any question of-

(a) criminal liability on the part of a named person, or

(b) civil liability".

That seems right. The determination of criminal or civil liability for an act or omission on the part of an individual is a matter for separate courts, not the coroner's court. I would not want to see the risk arise of a trial-possibly, given the circumstances, a very serious trial for murder or manslaughter-being prejudiced by findings at a coronial inquest that is, according to Clause 5, an investigation into who the deceased was and how he came about his death. The blame element-who is liable-is a matter for other courts that apply different rules. I understand the reference made to the position in Scotland, and I share the resolve to ensure that an inquest gets to the bottom of the facts surrounding a death. Everything that can be done to seek out the truth should be done. However, I am cautious about the amendment because I am wary of allowing findings of fact to stray into comment upon matters that properly lie with another court. I am glad that we have had a chance to debate this, and I am looking forward to the Minister's reply.

21 Oct 2009 : Column 752

Amendment 17, which makes clear that Amendment 16 should not prevent a description of the circumstances surrounding a death, reinforces the criteria that are to be looked at in Clause 5. I expect that we are going to hear from the Minister that that premise is upheld in the Bill, as it should be. I hope that he will be able to reassure us on the correct role of different courts and the independence of coronial inquests.

Lord Bach: My Lords, I am grateful to noble Lords who have spoken. We are concerned that these amendments might take the coroner system down the road of expressing opinion and possibly even attributing blame and assigning civil or criminal liability. That is not the purpose of a coroner's investigation and, in our view, that position should remain. The purpose of the investigation is to establish facts and responsibility, where appropriate; it is not to attribute blame or to decide matters of legal liability. As the noble Lord, Lord Hunt, said a minute ago, that is and must remain a matter for the civil and criminal courts.

I remind noble Lords of a perhaps somewhat painful memory. Noble Lords who have spoken to this amendment might be surprised to hear that, until the mid-1970s, coroners and their juries were not prevented from making reference to criminal liability.

Lord Thomas of Gresford: My Lords, I once appeared in a case in which the coroner's jury sent my client to the assizes on a manslaughter charge. Various procedures were brought into effect, and the Director of Public Prosecutions became involved, but, in the end, no evidence was offered. It was quite something for a young man to be sent by a coroner's jury for trial.

Lord Bach: My Lords, I imagine that it was also quite a moment for his counsel. The case that I was going to refer to was not the noble Lord's well known case, but another quite well known case, back in 1975, when a coroner's jury named the missing and-I should say it properly-noble Lord, Lord Lucan, as guilty of the murder of his children's nanny. There was widespread concern about that, so a possible repeat was prevented by the Criminal Law Act 1977, which excluded the question of criminal liability from the matters to be determined by an inquest. The purpose of Clause 5 is therefore to ensure that the coroners system remains based on an inquisitorial process charged with finding fact rather than apportioning blame or determining liability.

The prohibition on framing a determination that may appear to determine criminal liability on the part of a named person or to determine civil liability is to ensure that the proceedings are fair. An individual or body who might be identified as liable would not have been afforded the safeguards to enable them to defend such a conclusion, as they have no right to call evidence.

6.45 pm

Lord Alderdice: My Lords, the emphasis is on the word "determine" whereas the problem in the clause is the word "appear". The question is not whether the coroner would make a determination of this kind. The problem is that the clause states that he should not

21 Oct 2009 : Column 753

appear to make such a determination. Appearance, like beauty, can be in the eye of the beholder, and it can push back considerably how far a coroner may be tempted to go. He is likely to drive far away from the edge of the cliff rather than near to it. If the clause stated "to determine", we would not be having this debate. The issue at heart is that it states "appear to determine".

Lord Bach: My Lords, I do not think that we are attempting to change the law in this regard. This is what the law has been since 1977, and it has worked reasonably well. Undoubtedly a coroner has occasionally appeared to suggest that he or she might have made a certain finding, but, in the vast majority of cases, coroners know precisely what their role is and we are not suggesting any change to it. We think that, as far as this matter is concerned, the present system works fairly well, which is why we are resisting the amendment.

Lord Thomas of Gresford: My Lords, I shall give the Minister an example. In my part of the world, the coroner frequently returns a verdict of pneumoconiosis in respect of miners who have died many years after they were down the pit. That might appear to determine civil liability. The wording concerns my noble friend.

Lord Bach: My Lords, the problem with going further than that and making some kind of determination of civil liability is that the person who is identified as liable, or who may appear to be identified as liable, has no right to call evidence or to address the coroner or the coroner's jury on the facts. Evidence may not have even been disclosed to him in advance. We do not think that this amendment is a sufficient safeguard.

It is clear that a coroner must explore facts bearing on criminal and civil liability and ensure that relevant facts are fully and fairly investigated. Factual conclusions on such matters may be recorded, but in a way that does not infringe Clause 10(2). A finding that there was a failure to act in a particular way does not appear to determine a question of civil liability and would therefore be acceptable. Conclusions of a factual nature directly relating to the circumstances of death are not prohibited.

In relation to Amendment 17, some of the matters these amendments touch on are matters that are far more suited to coroners' reports to prevent future deaths than to any findings or determinations a coroner or a jury might make. A coroner could quite properly and legitimately give his or her views on such matters in any report to prevent future deaths. We place great store on these reports, which are currently made under Rule 43 of the Coroners Rules. The noble Lord, Lord Hunt, asked me where this is to be found; it is under paragraph 6 of Schedule 5, as strengthened by the Government's amendments.

We understand the reasons why these amendments were tabled but, in the light of what I have said, I invite the noble Lord to withdraw this amendment.

Lord Ramsbotham: I am grateful to all noble Lords who have taken part in this debate and to the Minister for his reply. My understanding has always been

21 Oct 2009 : Column 754

responsibility, yes; liability, no. That is what I was seeking to enshrine. The Minister mentioned that the inquest is inquisitorial. It is not always seen as inquisitorial, particularly by families who take part. They see it as very adversarial. They are always at the back of what I am saying because this is at the heart of the Bill. They are as anxious as anyone else to find out precisely what has happened and who may have been responsible for any contributory negligence.

However, in view of all that the Minister has said, I beg leave to withdraw the amendment.

Amendment 16 withdrawn.

Amendment 17 not moved.

Schedule 1 : Duty or power to suspend or resume investigations

Amendment 18

Moved by Lord Tunnicliffe

18: Schedule 1, page 119, line 25, after "(c. 52)" insert "(or section 70 of the Army Act 1955 (3 & 4 Eliz. 2 c. 18), section 70 of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or section 42 of the Naval Discipline Act 1957 (c. 53))"

Lord Tunnicliffe: My Lords, the provisions on coroners, investigation anonymity orders, witness anonymity orders and the treatment of convictions in other EU member states include various references to a service offence. This term is defined by reference to the Armed Forces Act 2006, which repeals the existing service disciplinary Acts. That definition is too narrow, and these technical amendments are principally designed to ensure that it is sufficiently broad for those purposes. I beg to move.

Amendment 18 agreed.

Amendment 19

Moved by Lord Alderdice

19: Schedule 1, page 120, line 11, leave out "an exceptional" and insert "a good"

Lord Alderdice: My Lords, the amendment relates to the part of Schedule 1, on page 120, that largely replicates Section 16 of the Coroners Act 1988, save that it dictates that a coroner can refuse to adjourn an inquest when there are parallel criminal proceedings only when there is an exceptional reason to do so. At present, the test is that there is a good reason not to adjourn. We are really not all at clear about the rationale for this change. When we suggested changes in the previous debate on this, the Minister said that it was working perfectly well. We wonder why there is a change, so our amendment would leave out "exceptional" and reinsert "good", as it currently is. I beg to move.

Next Section Back to Table of Contents Lords Hansard Home Page