Dr. Natasa Mavronicola:

Certainly. Some of the points made by the previous speakers tie together some of the things I wanted to bring out. Reference was made to the deaths of people in custody. One important thing to remember is that positive obligations of the State are amplified in a prison context. This arises because of the situation of vulnerability and helplessness of the prisoner on the one hand and the position of control that the State exerts upon the prisoner on the other. The duties to investigate are particularly important within the prison context to learn about potential breaches of positive obligations as well as potential breaches of negative obligations in instances in which State agents might have used lethal force in an unlawful manner against a particular person in custody. Moreover, they are vital if we are to learn lessons about how to minimise situations in which deaths in custody will occur in future. The European Court of Human Rights and domestic courts in the United Kingdom place a strong or strict onus on the state to investigate thoroughly any of the circumstances surrounding a death in custody, including death by suicide, etc.

This leads me to the three points I would like to flag to the Minister for Justice and Equality. The central point that needs to be put forward is the need for a cumulative set of mechanisms to address Article 2 compliance. This is relevant from the perspective of the investigative duty, predominately, but also in respect of other positive obligations, such as the framework duty to protect life, as well as the negative obligation whereby the relevant people need to establish circumstances in which the State might have actually exerted lethal force against individuals. The cumulative set of mechanisms is necessary in part because of some of the tensions raised by Deputy Mulherin in respect of criminal justice safeguards in certain contexts. Particular mechanisms will fulfil different functions and benefit different individuals or processes, either with a single benefit or a combination of benefits. Mechanisms can vary from being victim-oriented to next-of-kin-oriented, establishing the facts for the purpose of the family's understanding and satisfaction that a transparent investigation into the death of a loved one has occurred. However, certain mechanisms need to be criminal-justice-oriented or redress-oriented in a different fashion to realise several remedies in an alternative context - for example, where something short of criminal liability is established or where something like negligence is established. These two angles may not necessarily be fulfilled by one single mechanism like the coroner's inquest. Therefore, the criminal-justice-oriented mechanisms will potentially end up being fulfilled through an independent criminal investigation, which may lead to a decision to prosecute by the Director of Public Prosecutions. That criminal investigation could then take place with the requisite safeguards, such as the privilege against self-incrimination, etc. This is something worth keeping in mind in putting forward reform.

Another aspect or angle of certain investigative mechanisms is the reform-oriented aspect. This relates to the idea of learning lessons from potentially systemic failings and then reforming the system to avoid such failings in future. Mechanisms such as independent and effective inquiries could potentially lead to something like that, with a broader reform-oriented benefit. Of course, such inquiries would have to be thorough, effective and independent to attain these goals.

My second point to the Minister stems from the first point about a cumulative set of mechanisms. These mechanisms should be capable of potentially communicating with each other. The institutional mechanisms should be capable of communicating with each other, but with the requisite safeguards for independence and to ensure a defendant's rights are respected. This is happening, to some degree, in Northern Ireland, given that coroners are able to contact the Public Prosecution Service for Northern Ireland if they believe that there might be a cause to investigate the possibility of a prosecution. In addition, these mechanisms should communicate in so far as is possible with the next of kin of the potential victim of the taking of life.

My final point arises because the issue of resources has surfaced frequently in Northern Ireland in respect of reform of the system and the fulfilment of investigative duty.

What has emerged from some of the statements here is that it will ultimately be cost-effective to reform the system to ensure it functions in an effective and efficient manner. It will arguably reduce litigation and, if effective, will reduce incidents in which breaches of the right to life occur through learning lessons to deter unlawful taking of life. In that way I believe the long-term cost-effectiveness of reform is definitely visible.