We're owed the truth about deaths by police

OPINION: Recent weeks have witnessed a renewed focus on police use of Tasers following the death of Brazilian student Roberto Laudisio Curti in Sydney.

Australia is not alone in concerns about police-related deaths; criticism of Taser use is growing worldwide as communities grapple with the consequences of police using supposedly non-lethal firearms alternatives with fatal outcomes.

When police are involved in citizen deaths, hopes are pinned on an independent death review to reveal what happened. One such avenue is a coroner's investigation, which stands out as a process concerned with finding the facts of death and thus the 'truth'.

When citizens die in a policing context, all Australian state and territory legislation requires a public inquest be held to examine the facts. Coroners can also make recommendations, so that lessons are learnt from such deaths.

When deaths allegedly involve police, the scrutiny of the deaths and any recommendations form part of the crucial armoury in society's prevention of similar deaths.

While in Australia Roberto Laudisio Curti's death has sparked concerns about police practices - and police investigating deaths involving other police - another case in the United Kingdom is also of concern.

Mark Duggan's death will be remembered for sparking the 2011 UK riots after he was fatally shot by police in Tottenham, North London on August 4.

A series of failures emerged in the official handling of his death, including the lack of communication with his family, who learned of his death from the television, and inaccurate reports about an exchange of gunfire between Duggan and the police.

Mark Duggan's family and friends peacefully marched to the local police station on August 6, 2011 demanding answers, and what ensued was a ripple effect of rioting in a number of cities in the UK, leading to numerous reports to government.

In February 2012, the Met and the Independent Police Complaints Commission (IPCC) apologised to Mark Duggan's family for investigative failures, but a month later the spotlight is again on this case as it has now been revealed by the IPCC that there may be sensitive evidence that cannot be disclosed to the coroner.

This case illustrates the very real tensions between policing and independent, transparent death investigation in the wake of contentious deaths.

Any threat to independence and transparency inevitably raises the spectre of bias, notwithstanding any investigative oversight from independent agencies, such as the ombudsman in NSW or the IPCC in the UK.

The IPCC is independent from the police and can take over the investigation of police-related deaths, as they have done in Duggan's case.

But after a clumsy case handover that left Duggan's family inadequately supported following his death, and regrettably incorrect comments to the press, the IPCC's position has been undermined in Tottenham.

That the IPCC may now not be able to share information with the coroner has the potential to impair the coronial investigation, if indeed one can even now take place.

The coroner's role is predicated not only on independence but is guided by the principles of open justice and transparency. Anything that undermines these principles can diminish trust in the coronial process and subsequent findings.

For the UK, and cases such as Duggan's, the problem lies in UK law. One illustrative example is the death of Azelle Rodney, who was shot dead by police in April 2005 during a police operation.

Rodney's inquest was adjourned in August 2007 due to a clash of laws preventing sensitive police evidence from intercepted communications being shown to the coroner yet also demanding an inquest is held.

The coroner's hands were tied, which meant that an inquest into Rodney's death was ultimately substituted for a public inquiry, which is a different process initiated by ministerial direction.

The inquiry is still collating evidence and due to begin hearings in September this year. Given it is almost seven years since Rodney's death, it is no surprise that his family are tiring of investigative delays, and the chairman to the inquiry is under pressure to proceed as openly as possible. Despite this, there may well be some closed hearings to hear secret evidence.

The fear of organisations such as Inquest, which supports families of people who die in custody, is that Duggan's case will echo Rodney's.

They are not alone in their concern. When on March 26, 2012 the IPCC informed a pre-inquest hearing into Mark Duggan's death that there may be sensitive police material that cannot be disclosed to the coroner, the UK media expressed disdain, querying whether the police are hiding something.

The IPCC responded by writing a letter to the Guardian newspaper, stating that their advice to the coroner was in the interests of fairness, and because they believe information should be disclosed to the family and the public.

As if this wasn't enough, in a remarkable move, the IPCC went further, releasing a statement on their website the following day expressing their frustration at legal obstacles that prevent disclosure of certain information. The IPCC also called for a change to the law, a sentiment since backed by Scotland Yard.

Cases such as Duggan and Rodney's cannot be read in isolation from the broader context of coronial reform in the UK, which has been repeatedly plagued by threats to open justice.

Since 2008 the UK Government has tried twice to pass laws that would close inquests off from public scrutiny, in addition to unsuccessfully appealing a ruling by the coroner of the inquests into the July 7, 2005 London bombings that she did not possess the power to hold closed hearings and exclude interested persons such as the bereaved families of the 7/7 victims.

And in October last year the government released its Justice and Security Green Paper as part of a broad brushstroke attempt to protect national security interests by proposing more closed hearings which would introduce greater secrecy into UK courts.

Inquests are part of a range of legal proceedings being targeted by the government, a move that has come under heavy criticism in the UK, not the least from the Joint Committee on Human Rights, which recently released its report on the Green Paper.

While the government's concerns largely relate to national security, in Duggan's case – as with Rodney's – national security doesn't appear to be an issue.

The issue is more with sensitive police evidence and the prohibition in the UK on admitting that evidence in court. The UK is the only common law country to ban the use of intercept evidence, with a few exceptions, and this situation continues to cause issues for a government reluctant to move on reform, and the ramifications for agencies such as the police and the agencies that investigate them, leading no doubt to the IPCC throwing up their hands in frustration.

As Duggan's case re-emerges in the media, so too does the shadow of the UK riots last August. What is at stake here is not just an argument about legal technicalities and closed justice – although in and of itself that is enough to draw significant concern – but a broader issue about policing in the UK which has been historically fraught with race relations and social inequalities despite the optimism of policing by consent models.

These issues are also relevant to Australia, where deaths involving police, such as Taser-related deaths, raise questions about independent and transparent death investigation. Indeed, suspicions of bias or cover-ups and the doubt they engender can not only jeopardise the independent status of death investigators such as coroners, but also damage police-community relations.

Inquiries following the UK riots have expressed their great interest in the outcome of the IPCC's inquiry into Duggan's death, highlighting the significance of this trigger event in August 2011. This is a telling acknowledgement that all deaths occur in a context, and when that context is policing, the circumstances of death matter a great deal.

In cases such as this, the risk is that the prospect of secrecy around contentious deaths creates not momentary ill ease in communities already tense with suspicion, but further entrenches distrust, which can only divide the state from its citizens.

Dr Rebecca Scott Bray is a Visiting Fellow in the Faculty of Law at UNSW.

This opinion piece first appeared in The Drum