Law: The real test of human rights

Our Learned Friend
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The Independent Culture
WE NOW have a government that says it is committed to human rights and is bringing in a Human Rights Bill. One sure test of human rights is whether the investigation of those who die at the hands of the state is thorough and independent. That did not happen in South Africa under apartheid - remember Steve Biko? - or in some Latin American nations.

So what happens in England? Deaths in custody, including those resulting from the use of force - such as those of Ibrahim Sey, Richard O'Brien, Alton Manning, Brian Douglas and Wayne Douglas - are investigated by coroners' courts. So what is wrong with coroner's courts?

n No legal aid for the bereaved family, despite the police and/or the prison service being represented at public expense.

n No disclosure of evidence in advance by the police or prison service, so the family's lawyers, if any, are disadvantaged.

n No rights for lawyers for the family to call witnesses or address the jury on the facts; only the coroner can do this.

n Jury verdicts are restricted, particularly those suggesting negligence by the state.

n It is the coroner, not the jury, who makes recommendations to prevent similar deaths.

Despite promises in opposition, the Government is not proposing to reform the system. Research by the Home Office showed that nearly half of those who have died following restraint were black. Virtually all the families of those who had died in custody felt that the investigation by the coroner's court was not fair.

Last week, the Court of Appeal (CA) found that the 1996 inquest into the death of Wayne Douglas was flawed because the coroner did not direct the jury properly and made it too difficult for them to return a verdict of unlawful killing. Despite this, the CA declined to order a new inquest because of "the stress and the expense". The judgment clearly signalled that the CA regards the returning of a proper verdict and the family's right to justice as subordinate to cost. An appeal against this will go to the House of Lords.

Other families may be denied an inquest altogether. This was the case after the death of Joy Gardner five years ago. She died of asphyxiation after police wound masking tape round her head to restrain her. They were assisting an immigration officer trying to deport her to Jamaica.

Two police officers were charged with manslaughter and acquitted. The coroner then decided not to hold an inquest. Myrna Simpson, Joy Gardner's mother, did not realise she could challenge this decision. The failure to hold an inquest meant there was never a real examination of what went wrong. Last week the Home Secretary, Jack Straw, announced that increased powers to restrain people would be given to police and immigration officers.

One result of the inadequate and unfair investigation by coroners into controversial deaths is that there is little public pressure on the authorities. Families of those dying from positional asphyxia have seen no real action to prevent further deaths because the inquest process masks the unlawful actions of the state.

Unless this government acts to restore confidence in the system, its professed commitment to human rights will look like a sham.

Louise Christian is a partner in Christian Fisher, civil liberties solicitors, and acts for the families of Wayne Douglas and Joy Gardner.