The Counter-terrorism Bill and coroners

Section 42 (4) (b) (ii) of the Counter-Terrorism Bill, as it seeks to extend detention without charge to forty-two days, has attracted some considerable criticism. Unfortunately, it is not the only part of the bill that is, at best, distinctly ill-considered and with considerable scope for abuse. Serious consideration must also be given to clauses 64 and 65, which can be found on page 50 of this PDF of the bill. Clause 64 allows the Home Secretary to issue a certificate requiring an inquest to be held without a jury or discharging a jury mid-inquest. Clause 65 allows the Home Secretary to discharge a coroner and appoint a coroner of their own choosing. The two powers can be exercised simultaneously; that is to say, the Home Secretary would have the power, if they thought the an inquest would embarrass the government, to discharge the jury and the coroner and have the inquest started again without a jury and with a coroner of the Home Secretary’s choosing.

Inquests are unusual in English law in that they are the only inquisitorial proceeding, as opposed to the adversarial form that every other legal proceeding takes.

It is worth remembering that there are two main objections to the provision for forty-two days’ detention provided for in S42 (4) (b) (ii). The first is deontological; the period of time that any entity or person acting under the law (ultimately dependent on Weber’s definition of the state) should detain anyone else should be kept to the absolute minimum as the potential exists that, before trial, the person is innocent and so their detention is unjust. It is the same logic that insists justice should be speedy; detention before charge should be speedy¹.

The second is utilitarian. While I’m sure some people will disagree with me¹, I do not think that the current government is an evil monster that wants to abolish all our civil liberties. However, I do not think that the current government should hand a carte blanche to every single, future government. The risks and potential harms of the 42 days’ detention, and the deeply unsatisfactory safeguards – that people could be taken off the street if they threatened a future government (say, 41 days before an election) and held incommunicado – far outweight any potential benefit. Liberty make that point very well in this briefing document (PDF).

I feel the same applies to S64 and S65. Firstly, the idea that someone in the executive should be able to wander into a judicial proceeding and change things is opening the process up to abuse. It is different from making provisions for national security – things can be heard in camera – and, in any case, it should not be possible to change things in the middle of the proceeding, but only a priori. Secondly, the risks are significant as they would allow interference, as I have said, and set a worrying precedent for expansion.

If nothing else, connections will be made between a stroppy Oxfordshire coroner, a move to Gloucestershire for repatriating the bodies of people who have died in Afghanistan and Iraq, a stroppy Gloucestershire coroner and then this bill; it does look as if the Government is trying to cover its tracks.

xD.

1 – the definition, not the blogger.