Justice CommitteeWritten evidence from the UK Missing Persons Bureau, part of the National Policing Improvement Agency

Executive Summary

1. It is estimated that approximately 200,000 people were reported missing in Britain in 2009–10 and approximately 2,000 may have been missing for more than a year. As of September 2011, the UK Missing Persons Bureau has approximately 5,500 outstanding missing persons and approximately 1,000 unidentified people, bodies and remains on its database. As seen in the recent Parliamentary Inquiry into support for families of missing people, families find the current procedures regarding presumption of death in England and Wales complex, lengthy and bureaucratic.

2. The Ministry of Justice and the UK Missing Persons Bureau are producing guidance on holding a Coroner’s inquest under Section 15 of the Coroner’s Act 1988. This may assist the families and police in understanding the current remedies available but may not solve the specific issues with current legislation.

3. Issues could be solved by simplifying the current presumption of death procedures in line with Scotland and Northern Ireland and amending the Coroners and Justice Act (2009) so that an inquest may be held in the coroner’s district where the person is registered as missing. The introduction of a “guardianship” or similar order, like that in Australia, would allow families to manage the affairs of a missing person prior to the need for an application for presumption of death.

4. A body or unit such as the Bureau could have the responsibility for reviewing unresolved missing person cases, in order to identify cases where a presumption of death order or s15 application would be relevant. The Bureau should also be notified of all applications under this legislation.

Introduction

5. The UK Missing Persons Bureau, part of the National Policing Improvement Agency (NPIA), is the only UK public body focussed exclusively on missing people. It provides integrated operational services for all missing people in support of law enforcement and other agencies.

6. The Bureau’s role with regards to presumption of death is to provide advice and support to police forces as part of its national coordination function, ensuring consistent and comprehensive support to the public during missing enquiries. It will also signpost enquiries from the police and public to other relevant agencies and NGOs—this is part of the Bureau’s role as the UK national and international point of contact for all missing persons and unidentified bodies cases, and the centre for information exchange and expertise on missing person issues.

Does the current system work effectively?

7. The NPIA estimates that approximately 200,000 people were reported missing to UK police forces in 2009–10. While the majority were found safe and well, 0.2 to 0.9% were found dead within the same year. Data from a number of police forces and academic research suggests that the majority of missing people will be found or will return relatively quickly. Tarling and Burrows (2004) reported that 46% of a random sample of over 1000 cases reported to the Metropolitan Police were resolved within 48 hours. This increased to 92% in one week and 97% in one month. Overall, 99% of cases were resolved within a year.

8. Extrapolating from the estimates above, approximately 2,000 (who go missing each year) will be missing for more than a year; it is not known how many of these people may have died. As of September 2011, the UK Missing Persons Bureau has approximately 5,500 outstanding missing persons and approximately 1,000 unidentified people, bodies and remains on its database. The numbers of grants of leave to swear death (the number of applications/grants of presumption of death orders is not held centrally) appear below:

April 2008/March 2009–17

April 2009/March 2010–16

April 2010/March 2011–14

9. The Missing Persons Taskforce under the previous government was established to improve the multi-agency response to missing people. It proposed that current procedures regarding presumption of death could be simplified. This work continued in the recent Parliamentary Inquiry into Support for the Families of Missing People which highlighted “an absence of clear and informed guidance and support” and “disparity of legal provisions” with regards to the complex legislation surrounding presumption of death. Lack of guidance is not only an issue for families but for legal professionals, police and other agencies too.

10. The police should be able to signpost families of missing people to NGOs such as Missing People or the Citizens Advice Bureaux for advice and guidance on practical, financial and legal issues. Referrals are seldom made because police officers are unaware of or unknowledgeable about existing provisions. While lack of relevant training may be a factor, the complexity of the diverse processes and legislation regarding presumption of death compounds this problem.

11. The legislation of most direct relevance to the Bureau is that of Coroner’s inquests. The Ministry of Justice and the UK Missing Persons Bureau are jointly producing guidance on holding a Coroner’s inquest under Section 15 of the Coroner’s Act 1988. The Bureau considers the criteria for a Coroner’s inquest to be too restrictive. For a Coroner to conduct an inquest there must not only be evidence to suggest the person is dead, but that the death occurred in the Coroner’s district. It is not always possible to provide evidence to this effect (particularly when there is no body or an identified crime scene) and thus many families are denied the opportunity to obtain a death certificate due to this geographic restriction, despite evidence to indicate that their loved one has died.

12. Only a handful of requests for permission to hold an inquest without a body are made each year (twelve or so cases over three years, 2007–09, under Section 15 of the Coroners Act) and are mostly as a result of pressure from family members. The majority of these cases are not missing person cases but are linked to unrecovered bodies eg people lost from ships and unreturned divers. It would appear that, for a variety of reasons, most cases are not notified to a Coroner. This is possibly due to a lack of police understanding about the process.

Does the current system create difficulties for families, and if so, how can these be resolved?

13. It is not the Bureau’s place to set out the experiences of family members of missing people. The Missing People report “Living in Limbo” sets out the financial and practical difficulties of families and Rachel Elias, Alan Smith, Jacqui Hoyland and Peter Lawrence provided powerful testimony regarding their experiences in the recent Parliamentary Inquiry.

14. The Bureau is aware however that families of missing people find the current procedures regarding presumption of death in England and Wales complex, lengthy and bureaucratic. The main difficulties faced are:

the lack of knowledge and understanding and expertise evidenced by police and legal professionals; and

the need to follow different processes to dissolve a marriage and administer a missing person’s affairs.

15. Whilst the Bureau is working with the Ministry of Justice in order to produce guidance that may assist the families and police in understanding the current remedies that are available, this will not solve the specific issues with current legislation; namely its complexity and unnecessary bureaucracy.

16. These issues could be solved by simplifying the current procedures in line with Scotland and Northern Ireland. The introduction of Presumption of Death legislation which would allow families to go to court once to deal with all of their missing relative’s affairs (eg dissolve a marriage, gain approval to administer the estate) would be more efficient both financially and in terms of time. A simplified system would be better understood by legal professionals and other interested/associated parties, and the development of comprehensive and informed guidance would be easier.

17. A third separate but related issue is that families can do little to manage and protect a missing person’s assets until the person has been missing for seven years and a leave to swear death order has been granted. Issues with paying mortgages and bills arise very quickly and banks often refuse to let anyone but the missing person gain access to accounts or amend payment details.

18. This issue could be resolved by the enactment of new legislation, separate but related to presumption of death legislation. Families should be able to apply for a “guardianship” or similar order to gain approval to manage the financial and practical affairs of the missing person until they return (or until the family wishes to apply for a leave to swear death order). This would differ from applying for a leave to swear death order where one is seeking to administer (and not simply manage) a person’s assets. Whilst we appreciate that this is not directly part of the current inquiry, as any such provision would impact on the procedures regarding these cases, and would also require an amendment in current legislation, it is felt worthy of inclusion. The ability to assign a missing person a form of “protected status” such as that given to those who may for mental health reason be incapable of administering their own affairs would enable families to ensure that neither they or their missing relative is unfairly disadvantaged whilst the individual is absent.

What can we learn from the experiences of Scotland and Northern Ireland, which have Presumption of Death Acts?

19. Both Scotland and Northern Ireland acknowledged that their previous systems regarding presumption of death were confusing and complex, “archaic and unsatisfactory” and therefore decided to enact new comprehensive legislation. The Scottish Government’s evidence to the recent Parliamentary Inquiry stated that the law is “operating effectively” and the Northern Irish Assembly consultation document concluded that “The Scottish legislation has worked well over the years and the Department is confident that it provides a sound template on which to base a new piece of legislation for Northern Ireland.”

20. The Bureau proposes that both Acts can provide a basis for corresponding legislation in England and Wales. Any English and Welsh legislation should follow the precedent of any person with an interest being able to apply for a declaration that the missing person is presumed to be dead with the safeguard that the court can “refuse to hear the application if it considers that the applicant does not have sufficient interest in the determination of that application” as in the NI Act.

21. In Scotland and NI, a record or Register of Presumed Deaths is maintained by the Registrar General. This should be stipulated in any English and Welsh legislation due to the obvious benefits of recording such information.

Is there a need for legislative or procedural change in England and Wales? If so, what form should these changes take?

22. The Bureau’s view is that England and Wales should adopt presumption of death legislation similar to Scotland’s and Northern Ireland’s. It seems reasonable for each country in the UK to have a similar presumption of death act. The Irish Law Reform Commission is considering the adoption of a presumption of death act in the Republic of Ireland too and will publish a white paper on the matter in due course.

23. There is also international interest on this subject. The Committee of Ministers of the Council of Europe has called for the supplementation and harmonisation of the legislation on the presumption of death of missing persons in member states (09/12/2009). The Committee cites greater mobility and increased risk and occurrence of terrorist attacks and man-made or natural disasters as reasons for the need for common or compatible legislation.

24. If a person is thought to have died, the Scottish and Northern Irish Acts allow for declarations of presumption of death at any time (it is assumed that the court decides what is sufficient evidence to indicate that the person is dead.) For other cases however, the missing person must have “not been known to be alive for a period of seven years”. This is a considerable length of time to wait to manage person’s estate. If the time requirement was omitted from the Act, the court would have the responsibility of deciding whether the declaration is premature or whether further enquiries should be undertaken. Safeguards could be put in place to ensure fairness and penalties introduced for fraudulent or inappropriate claims. The removal of any time constraint is supported by ACC Phil Thompson (the retiring Association of Chief Police Officers,lead for missing persons). The Committee of Ministers of the Council of Europe (cited above) also suggests that:

if the death can be taken as certain, there should preferably be no waiting period;

if the death of the missing person is likely due to the circumstances of the disappearance, the maximum waiting period for lodging a complaint should preferably be one year (at the most); and

if the death is uncertain, the maximum waiting period should preferably be seven years.

25. The consultation in Northern Ireland considered that some spouses may want to administer their loved one’s assets and remain married but decided that “it is undesirable for a person to be recognised as dead for some purposes but not others”. A “guardianship” or similar order, as discussed earlier, may be able to alleviate this concern, as it would allow families to manage their loved one’s affairs for many years until they felt ready to apply for presumption of death. This provision would enable a nominated individual (the next of kin or a legal representative) to manage the practical affairs of the missing person as soon as necessary (with restrictions and safeguards) without the need to register the person as presumed dead. Safeguards would obviously need to be in place, particularly in cases where it is suspected that the applicant may be involved in the disappearance. It would therefore be preferential for it to be possible to nominate an independent impartial party to manage the missing person’s affairs in their best interests.

26. This is not a wholly novel proposition. In Australia with its comparable criminal justice and coronial systems it is possible to appoint a trustee or set of trustees to manage a missing person’s affairs after 90 days if all reasonable efforts have been made to find the person. The process of application is free and the appointment made by the Australian equivalent of the Court of Protection.

27. The best forum for declarations of presumed death in England and Wales may be the civil court or Coroners court. There are more civil courts and therefore this may be the most efficient way. However, given that the responsibility for deaths in England and Wales sits with Coroners, it may make more sense for the presumption of death procedures to fall within their remit. Whilst any procedural amendments of this kind are likely to increase the work of the Coroners court, it is unlikely that a change in legislation would result in an unmanageably large volume of cases as the majority of missing people return very quickly; the number of long term missing persons is low. Also, the charity Missing People reports that only 171 people have been presumed dead in Scotland since the introduction of the legislation.

28. The Bureau also recommends amending the current legislation regarding the holding of an inquest without a body (s15 of the Coroner’s Act) to remove the seemingly arbitrary geographic restriction. In missing person cases, where there is no body, surely the location where they were resident and where they were last known to be alive is of more relevance, and could be used as a manner in which to determine which Coroner has primary responsibility. It is already possible to transfer responsibility for an inquest, and therefore this could be used should the body be located in other Coroner’s jurisdiction.

29. It was suggested in the Parliamentary Inquiry that the cost of enacting new legislation might be outweighed by the benefits. The infrastructure is already in place to effect the new legislation and the number of applications made is unlikely to be high. Moreover, families would only need to go to court once which would save court time and reduce legal costs. Lord Boswell also suggested an indirect cost saving through reduction in benefit payments as at present some people may have to apply for benefits because they are unable to access their loved one’s assets.

30. If new legislation is enacted, it might be prudent to give a body the responsibility of reviewing long term missing person cases or cases where someone is believed to be dead, in order to identify those where a presumption of death order or a s15 application would be relevant. The NPIA is being phased out; however, the natural home for this function would be the Bureau until the detail of the policing landscape is specified. The Bureau would need powers to action further investigation by police forces and could act as a gatekeeper to the process.

31. The Bureau would also like to see a national referral system where the Bureau is notified of all applications for presumption of death. This would enable the Bureau to review the case (eg ensure it is recorded on the database and search the database for any unidentified bodies/remains/people matching the missing person’s description). If a body is found in this way, a presumption of death declaration would be unnecessary.

Recommendations for Action

32. England and Wales to enact presumption of death legislation similar to that of Scotland and Northern Ireland including provisions for a register of presumed deaths.

33. The UK Missing Persons Bureau should be notified of all applications under this legislation to enable searching of the UK database.

34. The introduction of a “guardianship” or similar order that would enable a nominated individual to manage the practical affairs of the missing person as soon as necessary without the need to register the person as presumed dead.

35. Amendment to the current Coroners and Justice Act (2009) advising holding the inquest in the coroner’s district where the person is registered as missing, unless there is strong evidence to suggest that the body is within another jurisdiction.

36. A body or unit such as the Bureau to have responsibility for reviewing unresolved missing person cases, in order to identify those cases where a presumption of death order or s15 application would be relevant.

September 2011

Prepared 16th February 2012