A long awaited independent report into deaths in custody has called for non means tested legal aid to be made available for bereaved families. ‘It is difficult to justify the belief that families do not need a solicitor to represent them when several individual state bodies at the Inquest hearing are routinely represented,’ says the report published by Dame Elish Angiolini which recommends major reform of the Independent Police Complains Commission and the ‘phasing out’ of ex-police officers leading investigations and an end to conferring between officers before they make statements.
Prime Minister Theresa May commissioned the report while Home Secretary in July 2015 following her meeting with the families of Sean Rigg and Olaseni Lewis. Rigg, a 40 year old Black musician who suffered from schizophrenia, died in 2008 at Brixton police station; and Lewis, known as Seni, was a 23 year old Black graduate who died in 2010 after being restrained by up to 11 policemen while he was seeking help as a vulnerable voluntary patient at a South London hospital. The review recommends that the IPCC be resourced to provide ‘a 24 hour national on call post-incident team’ to provide immediate response to a death in custody noting that the first hours after a death were essential in the preservation evidence.
According to INQUEST, 1,563 people died either in police custody or following contact with the police in England and Wales since 1990. The IPCC reckon that there were 14 and 17 deaths in or following police custody in England and Wales in the last and previous year respectively. There were also 60 apparent suicides following police custody last year.
Marcia Rigg, the sister of Sean Rigg, told the review that ‘non-means testing of entire family households for access to legal aid and legal representation at the coroner’s inquest should be a foregone conclusion’. ‘Families have lost their life savings, including me,’ she said. Legal aid for representation at an inquest is only available through the highly restrictive exceptional case funding scheme. The view of the Ministry of Justice has been that the process is (in their words) ‘a relatively informal inquisitorial process, rather than an adversarial one’ and legal aid is not generally necessary.
The review explicitly rejects that. ‘The reality is that inquests into death in police custody are almost always adversarial in nature,’ it says. ‘This has been the unanimous opinion of Coroners, lawyers and families who have given evidence to this review. There is nothing inherently wrong with an adversarial approach as it may be the best way to robustly test evidence in court. However, it needs to be recognised as such. The expectation that the Coroner can meet the family’s interests during the inquest is wholly naïve and unrealistic as well as unfair to families and to the Coroner.’
Barristers from Doughty Street Chambers said that the mechanism for determining financial eligibility was ‘intrusive, lengthy and upsetting’. ‘It causes some families to withdraw from the process altogether while others report family conflict because of intrusive questioning of their financial circumstances irrespective of whether individual family members had any relationship with the deceased. Many families are excluded from such support simply by virtue of the fact that they own their own home, even if this does not mean in real terms that they have substantial disposable income to be spent on legal fees.’
The report argued that for the state to fulfil its legal obligations to allow families to participate in the process that is ‘meaningful and not “empty and rhetorical”’ there should be access to ‘free, non-means tested legal advice, assistance and representation immediately following the death and throughout the Inquest hearing’.
Deborah Coles, director of INQUEST, a charity that investigates deaths in custody called the report a ‘blueprint for change that would benefit everyone.’ But also noted that its value ‘must ultimately be judged by the changes it brings about.’
- To ensure the independence of the IPCC, ex–police officers should be phased out as lead investigators;
- There should be ‘a fundamental change’ in how the IPCC investigate, supervise and resource cases and a specialist deaths and serious injuries unit set up to address ‘delay and problems with the quality of investigation’ staffed by ‘senior and expert officers from a non-police background’;
- IPCC should have an experienced officer to attend ‘as a matter of urgency at the scene’;
- National policing policy must reflect the ‘now widely evident position that the use of force and restraint against anyone in mental health crisis or suffering from some form of drug or substance induced psychosis poses a life threatening risk’;
- Officers involved in a death in custody or serious incident ‘should not confer or speak to each other’ following the incident and prior to producing their initial accounts and statements;
- It is ‘critical’ for the IPCC, CPS and HSE to meet very early following a death in police custody to review the emerging evidence, and take an early view as to whether criminal charges might be a possibility;
- There is a need for properly funded specialist bereavement counselling to be offered to families from the outset;
- For the state to fulfil its legal obligations of allowing effective participation of families in the process that is meaningful ‘and not “empty and rhetorical” there should be access for the immediate family to free, non-means tested legal advice, assistance and representation immediately following the death and throughout the Inquest hearing’; and
- The use of police custody for children detained under section 136 of the Mental Health Act 1983 should be brought to an end with all NHS Trusts required to make sufficient provision of health-based places of safety to meet this requirement.
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