On the function and purpose of an inquest

Neither justice nor public confidence has been served by the costly three month inquest into Mark Duggan’s death. Part of the problem is that the inquest has been used as the vehicle for an examination of matters more appropriate, at least in cases like these, to the criminal process. The inquest has a function that is in part procedural: to permit appropriate matters to be heard in a criminal court. What we have now is a finding that Duggan though unarmed was not unlawfully killed by the police who shot him. No-one is likely to come before a criminal court charged with his homicide and questions remain in the minds of many that justice has not been done. What should have been a straightforward matter heard by a jury in a criminal court now has the appearance of an institutionally protected police hit job.

The British police are not internationally renowned for their brutality or homicidal character. On the contrary, the number of deaths of citizens at the hands of the police is remarkably low. Police internationally, whether in Asia, China, Africa, Europe, Russia, America and the Middle East have much to learn from the UK when it comes to policing. Substantial numbers of police officers are killed or maimed in the line of duty and their families devastated. Fatal incidents caused by police officers are recorded, subject to inquest and occasionally too criminal trial. The Duggan case, however, raises questions about the rationality of inviting widespread public scepticism by applying an overly stringent approach to IPCC recommendations of criminal charges while at the same time employing a high standard of proof in all cases at inquest stage so that cases like Mark Duggan’s can never come to trial.

The Independent Police Complaints Commission or IPCC can recommend that criminal charges be laid in certain cases. There are good reasons to think that criminal charges should have been recommended in this case if only for reasons of public interest. Given that the standard of proof demanded in an inquest makes a verdict of unlawful killing unlikely, it is important that the IPCC use its discretion sensibly to forestall unnecessary criticism. Part of the problem that makes it necessary that the IPCC be more liberal in its approach to recommending criminal charges relates to the character of an inquest.

The standard of proof required at an inquest before a verdict of unlawful killing can be reached is proof to the criminal standard or proof beyond reasonable doubt: R v West London Coroner, ex parte Gray and others[1988] QB 467, [1987] 2 All ER 129.  Lord Justice Watkins in that case favoured the rigorous criminal standard of proof that had been applied in the past to proof of suicide. There the claimant’s argument that the standard of proof required at an inquest before a verdict of unlawful killing could be reached is proof to a lesser civil standard was rejected. The high standard of proof was confirmed in R (on the application of Cash) v County of Northamptonshire Coroner[2007] EWHC 1354 (Admin), All ER (D) 71 (Jun). In both cases appeal was made to the case of R (Anderson) v HM Coroner for Inner North Greater London [2004] Inquest LR 155 at [21], and in particular his explanation that:

“… a finding of unlawful killing will almost inevitably be regarded as a condemnation of the actions of one or a number of easily identifiable persons.  It is presented in the media and regarded generally as a positive finding that that person or those persons between them have been guilty of a criminal offence, in this case, manslaughter.  It is for this reason that the law requires that a verdict of unlawful killing be proved to the criminal standard …”

By Art 2 of the European Convention on Human Rights (the Convention) the court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. The European Court of Justice in Jordan v UK (2003) 37 EHRR 2 at [103] has demanded that an inquest be just as stringent as a criminal trial. Thus it was said:

“In the light of the importance of the protection afforded by Art 2, the court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances.  Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as for example in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death which occur.  Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation.”

In order to satisfy the Jordan requirement, the obligation to provide a satisfactory and convincing explanation for the use of force was taken to be an evidential burden.  Accordingly any satisfactory and convincing explanation for the use of force raises an evidential burden that needed to be rebutted, but the jury has to be satisfied to the criminal standard, beyond reasonable doubt, that the circumstances in which the force was used meant that the deceased had been unlawfully killed. What this means is that a finding of unlawful killing is less likely than it might have been applying the civil standard.

The Mark Duggan case highlights the problems raised by an over-stringent approach to IPCC recommendations that criminal charges be laid while at the same time rigorous standards of proof are demanded at inquest. For reasons of public interest, something has to give: either the IPCC must loosen up or the standard of proof must be lowered.