A call for independent investigations

Leslie Thomas calls for a truly independent body to investigate deaths in police custody following the DPP's announcement that there will be an inquiry into such cases.

Two weeks, ago the Director of Public Prosecutions (DPP), Dame Barbara Mills QC, agreed to reconsider the CPS's failure to prosecute the police officers involved in the deaths of Shiji Lapite and Richard O'Brien. There was a blunt admission that her directorate had failed to give proper consideration to all the evidence in both cases.

The public flogging of the DPP, CPS and the Police Complaints Authority (PCA) in the High Court raised a number of important points about the decision-making process in controversial death-in-custody cases involving either police officers or prison staff.

For those working for the victims' families in such cases, the DPP's announcement of the inquiry, led by Gerald Butler QC, is long overdue.

For the past 17 years Inquest has been trying to bring to the top of the political and legal agenda the fact that there is unfairness and perceived double standards in the investigations of deaths in police and prison custody.

As a "families' lawyer", I am constantly asked: "Why are so few police officers prosecuted? Where is the due process?"

Such families cannot understand the reluctance of the CPS to bring prosecutions, especially where an inquest jury has returned a verdict of unlawful killing.

The DPP has been quick to point out that an inquest is not a criminal trial. It is accepted that the inquest forum is completely different. There is no accused, no duty of disclosure, no legal aid and no finding of guilt against a named defendant.

The inquest has very different and limited matters as its remit – namely who, when, where and how the death occurred. Accordingly, it is accepted that it does not necessarily follow that a criminal jury will reach the same verdict as an inquest jury.

However, it should be remembered that a verdict of unlawful killing at an inquest can only be returned on the criminal standard of proof.

Such verdicts are not easily obtained. There has to be clear evidence of the potential for a homicide verdict before a coroner will leave unlawful killing to the jury. Therefore, the inquest jury's finding should not be taken lightly. One can understand the frustration of the families and their lawyers when the CPS subsequently decides not to prosecute police or prison officers.

The DPP states that the CPS has to consider whether it is more probable than not in the light of the evidence that a jury will convict a particular defendant. But what is meant by "particular defendant"? All things being equal, should it matter whether the accused is a police officer or an ordinary member of the public? In the decision to prosecute or not, should it enter the equation that the death occurred in the purported performance of a public duty? In my opinion it should, but the balance should tip in favour of, and not against, prosecution.

Controversial deaths in custody are the very cases requiring greater public scrutiny. There is nearly always suspicion when these cases do not get to trial. There may be good reason for this. However, the fact is that, up and until recently, there has been little provided by way of reasons for decisions taken not to prosecute such cases by the CPS.

Such secrecy breeds even more public suspicion about the handling of such cases. Such suspicion is aggravated by recent events. What are families of the deceased, the lawyers representing their interests and, indeed, the public to think? Simple mistake, incompetence or something else? Hopefully the Butler inquiry will get to the bottom of this issue.

Whatever occurred in these individual cases is not the real issue. There are much broader issues – namely, those of openness and accountability.

The mistakes that were made in these cases serve to undermine our entire criminal justice system. Everyone is meant to be properly accountable before the law.

One of Butler's terms of reference is to consider the quality and process of the decision-making in death-in-custody cases handled by the CPS. It is a shame that the terms of reference do not include how the PCA investigates such deaths and the role of inquests.

One obvious criticism not addressed is how such deaths are initially investigated and who conducts the investigation before the matter reaches the PCA or CPS.

Early investigations are carried out by police officers investigating complaints against police officers. Surely, a truly independent investigation of such deaths ought to be undertaken by a truly independent body, and not by the police. Some argue that by the time the file reaches the CPS for consideration on whether to prosecute, it may be too late to correct errors. Perhaps I am being too controversial and asking for too much.

Leslie Thomas is a barrister at Two Garden Court and chairman of the Inquest Lawyers' Group.