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I. Introduction
Where the state may bear responsibility for an individual's death in England and Wales there will normally be an inquest that will be carried out in public, consistent with principles of open justice and public accountability.Footnote 2 The aims of inquests in these circumstances are to discover who the deceased was, and when, where and by what means and in what circumstances they died (Coroners and Justice Act 2009 (CJA, 2009), s.5(2)). It is through this type of inquest that the state normally fulfils its procedural obligation under Article 2 of the European Convention on Human Rights (ECHR): that is, to initiate an independent, effective and public investigation into the death, involving the deceased's family to the extent necessary to protect their own interests (Jordan v. United Kingdom).Footnote 3
Openness is plainly important in inquests, and there is a literature that discusses the openness of inquests to the public and the media.Footnote 4 But it is often taken for granted that the deceased's family and the public have legitimate and important interests in learning about the circumstances behind use-of-force deaths at the hands of the state through public accountability. It will be argued that recognition theory may provide the moral foundation for such a claim, and thus a convincing link between openness and justice – implicit in the term ‘open justice’, but rarely explored in this context. This is important for providing a robust argument for affording an appropriate degree of prioritisation for openness and participatory rights when they come up against other important encroaching interests.Footnote 5 Understanding exactly why accountability is important and why justice requires openness in these circumstances also means that its procedural manifestation may be more effectively geared towards specifically furthering those normative ends.
An analogy may be drawn between the importance of such a project for inquests, and Konstantin Petoukhov's explanation of the importance of providing a normative framework for the aims of truth commissions:
‘A theory of justice may help to strengthen truth commissions’ mandates by clearly conceptualising their goals and objectives in concrete terms … and identifying the potential strategies to attain them.’ (Petoukhov, Reference Petoukhov2012, p. 13)
This paper will do two things, therefore. First, it will argue that practice suggests open justice in inquests is best understood very differently to the way it is traditionally understood in criminal and civil justice contexts. Second, it will use recognition theory to provide a thicker understanding of the importance of openness in these circumstances, than simply it being important for accountability.
The types of deaths that I will focus on are those that take place at the hands of the police, or in police or prison custody. These will be referred to in shorthand as ‘use-of-force deaths at the hands of the state’. They warrant particular attention because, as the European Court of Human Rights (ECtHR) emphasised in Ramsahai v. Netherlands, ‘what is at stake here is nothing less than public confidence in the state's monopoly on the use of force’.Footnote 6 The justice forms that will be considered are non-retributive and non-compensatory, as inquests are specifically precluded from reaching conclusions that appear to determine criminal liability on the part of a named person, or civil liability (CJA 2009, s.10).
Part II of this paper briefly outlines how openness is procedurally manifested through inquests following use-of-force deaths at the hands of the state, and the main rationales that are given for it. Part III will introduce recognition theory as the potential source of a robust normative foundation for the prioritisation of openness in inquests. Finally, Part IV will apply recognition theory to the circumstances that exist in the aftermath of use-of-force deaths at the hands of the state, and will explain some of the harms that may arise in the absence of adequate state responses to such deaths.
It will be argued that recognition theory can provide a moral foundation for the prioritisation of openness in these circumstances, and strengthens the value of openness through its intrinsic link to non-retributive, non-compensatory justice forms.
II. The procedural manifestation of, and rationales for, openness through inquests
In looking at openness in the context of use-of-force deaths at the hands of the state, it is appropriate to look at the practice of openness as manifested through inquests, rather than the narrower question of the practice of openness within inquests. This takes in two aspects of openness and inquests that might otherwise be excluded from the analysis: first, the question of when an inquest will be held, and, second, the question of its scope. What is not investigated – because there is no investigation, or because something falls outside of the scope of the investigation – is not opened up to scrutiny. The third aspect of openness concerns the manner and degree to which inquests are ‘open’ to different people in different ways.Footnote 7
For centuries in England and Wales, inquests have been required where a coroner has reason to suspect that: the deceased died a violent or unnatural death, the cause of death is unknown, or the deceased died whilst in prison (Thomas et al., Reference Thomas, Machover and Friedman2014, pp. 13–18; Sim and Ward, Reference Sim, Ward, Clark and Crawford1994; Burney, Reference Burney2000; Scraton & Chadwick, Reference Scraton and Chadwick1987, pp. 22–34; Dorries, Reference Dorries2014, pp. 1–5). They will also be held into all deaths in police custody (recently confirmed by CJA 2009, s.1), and deaths occurring during or as a result of arrest or restraint by the police (CJA 2009, s.1(2); Keenan v. United Kingdom; and R (on the application of Middleton) v. Coroner for the Western District of Somerset).Footnote 8 There are (so far) rare cases where an inquiry under the Inquiries Act 2005 may replace an inquest (CJA 2009, s.11, sch.1(3)–(4)). While I am excluding inquiries from the scope of my analysis, this is obviously an important caveat that needs to be borne in mind throughout what follows. Nevertheless, in all but a very few cases, inquests are held into all death at the hands of the police, or in police or prison custody.
I will return to the inquest's purposes below, but in Middleton the House of Lords held that as long as the question of how the deceased died is interpreted broadly, the inquest's scope will be sufficient for the purposes of Article 2 (Middleton).Footnote 9 Article 2 compliant inquests should therefore be of sufficient scope to determine who the deceased was, and when, where and ‘by what means and in what circumstances’ they died (Middleton; and CJA 2009 s.5(2); emphasis added).Footnote 10
It is neither necessary nor appropriate to confine the meaning of openness in this context to the ability of the public and the press to observe or report on proceedings. Rather, we should also consider the openness of inquests to the active participation of members of the public, whether personally (family) or through those who might represent their interests (the public via the family and jury).
Inquests must be held in public unless ‘the coroner believes it is in the interests of national security to exclude the public’ (Coroners (Inquests) Rules 2013 (C(I)R 2013), r 11(3)), and ECtHR jurisprudence requires there to ‘be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory’ (Jordan).Footnote 11 In the limited circumstances where the public can be excluded from inquests, ‘the public’ does not include the jury, or interested persons (R (SSHD) v. Assistant Deputy Coroner for Inner West London).Footnote 12
Not only are the public and the press entitled to attend proceedings, but a representative number of the public, in the form of the jury, will attend throughout inquests that are the concern of this paper (CJA 2009, s.7). Jurors are able to put questions to witnesses and are tasked with coming to a verdict/conclusion as to how the deceased died. Thomas et al. point out that the presence of a jury ‘provides a powerful symbolic and historical indication that the ordinary peers of the deceased are anxiously inquiring into the facts of his or her death’, creating ‘a more democratic and accountable process’ (p. 294). Where the deceased's family have little or no interest in the inquest, or are otherwise unable to pursue concerns that are not investigated by the coroner, the opportunity for jurors to question witnesses can be particularly important.
Finally, the family of the deceased's right to attend the inquest and question witnesses (either themselves or through their legal representative) has also existed for centuries (recently confirmed by s. 47 CJA 2009 and r. 19 C(I)R 2013).Footnote 13 They may also make representations to the coroner about which witnesses should be called and what verdicts should be left to the jury. While they will primarily be concerned with representing their own interests, these will often coincide with the interests of any group or community that identifies with the deceased, and concerned members of the public. In particular, they will often show a unique determination to ensure that lessons are learnt and that others do not suffer the fate of the deceased (e.g. Casale Reference Casale2013, pp. 12–13).
2.1 Open justice
Lord Neuberger has described ‘open justice’ as ‘a common law principle that stretches back into common law's earliest period’, whose ideal is that ‘what goes on in court and what the courts decide is open to [public] scrutiny’ (Neuberger, Reference Neuberger2011). In the context of criminal and civil justice, it is typically thought of as a procedural principle, the rationales for which are both directly and indirectly instrumental to the ends of justice (Attorney General v. Leveller Magazine Ltd).Footnote 14 In particular, the prime rationale for open justice is generally considered to be that it is a safety check on the constitutional guarantee of a fair trial (Attorney General v. Leveller Magazine Ltd; Scott v. Scott).Footnote 15 To this extent, the principle is subsidiary to the ends of justice, and thus departure from it may be justified ‘to the extent and to no more than the extent that the court reasonably believes it to be necessary in order to serve the ends of justice’ (AG v. Leveller Magazine Ltd).Footnote 16
Some writers have begun to draw a connection between open justice and free speech rationales that are linked to ideals of participatory democracy and an informed citizenry. For example, Sharon Rodrick points out that:
‘[R]ecently, there has been a tendency to regard open justice … as a stand-alone exercise of freedom of expression. Treating open justice as an adjunct of free speech has a number of consequences. First, unlike the traditional approach to open justice, it does not demand a link between open justice and the administration of justice.’ (Rodrick, Reference Rodrick2006, pp. 94–95)
However, such rationales are still very much described as peripheral concerns, subsidiary to the role of open justice in ensuring a fair trial (see, e.g., R (Binyam Mohamed) v. SSFCA (No 2)).Footnote 17
When it comes to inquests into deaths at the hands of the state, there is a much greater tendency to associate openness and public participation with a need for accountability regarding the subject matter under investigation, rather than for ensuring the fair and/or proficient conduct of the investigation itself. Of course, openness in inquests does also ensure that the coroner whilst conducting an inquest is herself on trial.Footnote 18 But in a reversal of the typical prioritisation of the rationales for open justice, this aim would appear to be subsidiary to that of ensuring public scrutiny of, and public accountability for, the subject matter under investigation.
2.2 The purposes behind Article 2 ECHR's procedural obligation
One of the problems with discerning the purposes behind inquests in the past is that prior to R (Amin) v. Secretary of State for the Home Department the domestic courts tended to take a literal rather than a purposive approach when interpreting an inquest's quantitative aims.Footnote 19 In the decades preceding the Human Rights Act 1998, without well-defined purposes, there was little to push back on the narrowing scope of inquests, prompted by a belief that they should not appear to determine criminal or civil liability. The quantitative aims, rather than qualitative purposes, of inquests were generally what concerned the courts, and these were to find out who the deceased was, and when, where and how they died. However, since the creation of the procedural obligation under Article 2 ECHR in McCann v. UK,Footnote 20 the ECtHR has preferred to focus on whether investigations fulfil their qualitative purposes. This reflects both the rights-based origins of the procedural obligation, and the desire to leave a margin of appreciation to states in terms of how they meet their obligations under the ECHR. When Middleton reached the House of Lords, this purposive approach was finally brought into domestic practice:
‘If an official investigation is to meet the state's procedural obligation under article 2 the prescribed procedure must work in practice and must fulfil the purpose for which the investigation is established.’ (Middleton, my emphasis)Footnote 21
In McCann, the European Commission on Human Rights defined the purpose behind the procedural obligation as being to ensure that the ‘circumstances of a deprivation of life by the agents of a state may receive public and independent scrutiny’ (McCann).Footnote 22 It also emphasised that it was ‘essential both for the relatives and for public confidence in the administration of justice and in the State's adherence to the principles of the rule of law that a killing by the State is subject to some form of open and objective oversight’ (McCann).Footnote 23 When the case reached the Court, it confined itself to underlining the practical need for an investigation where ‘a general legal prohibition of arbitrary killing by the agents of the State would be ineffective, in practice, if there existed no procedure for reviewing the lawfulness of the use of lethal force by State authorities’ (McCann).Footnote 24 Since McCann, the ECtHR has described the purpose behind the investigative obligation as being to ‘secure[] the accountability of agents of the State for their use of lethal force’ (Kaya v. Turkey);Footnote 25 ‘to allay rumours and suspicions of how a death came about’ (Jordan, 128);Footnote 26 ‘to secure the effective implementation of the domestic laws which protect the right to life’ (Jordan, 105);Footnote 27 and ‘in those cases involving State agents or bodies to ensure their accountability for deaths occurring under their responsibility’ (Jordan, 105).Footnote 28 In Jordan, the Court underlined that it is vital that accountability be secured ‘in practice as well as in theory’ (Jordan, 109).Footnote 29
2.3 The evolving purposes behind domestic inquests
Going back to the inquest's origins (that is, at least to the twelfth century),Footnote 30 its primary function was to protect the revenue interests of the Crown. In particular, coroners would determine whether the property of the deceased, or anyone deemed responsible for a death, should be forfeited to the Crown, or whether communities or individuals should be fined, e.g. for being unable to account for a death or for allowing an accused to flee (Thomas et al., Reference Thomas, Machover and Friedman2014, pp. 13–18; Sim and Ward, Reference Sim, Ward, Clark and Crawford1994; Burney, Reference Burney2000; Scraton and Chadwick, Reference Scraton and Chadwick1987, pp. 22–34; Dorries, Reference Dorries2014, pp. 1–5). Financial considerations also appear to have been behind the requirement that inquests be held into all deaths in prisons. In the early days of the inquest, when criminal punishment was primarily corporal, prisons mainly held civil or crown debtors. If a prisoner died, their debt died with them, and the purpose of the inquest was to determine if anyone could be held responsible (Burney, Reference Burney2000, p. 25).
Over the centuries, the motivational sentiment behind a need to investigate unexplained, unnatural or violent deaths became a more social one. According to Foucault, towards the eighteenth century, criminal justice began to reflect a view that ‘the power to judge should no longer depend on the innumerable, discontinuous, sometimes contradictory privileges of sovereignty, but on the continuously distributed effects of public power’ (Foucault, Reference Foucault1977, p. 81). The character of the inquest saw a corresponding shift from a forum that was concerned with asserting and protecting the rights and privileges of the Crown, to a forum that, at least in theory, investigated deaths in the wider interests of society. In the nineteenth century, in particular, the inquest was increasingly characterised as a source of public accountability for deaths at the hands of, for example, yeomanry cavalry, or in workhouses, prisons and orphanages.Footnote 31 Burney notes that, in the inquest into the death of John Lees, who was fatally injured during the 1819 Peterloo Massacre, ‘radicals saw in the full public hearing [of the inquest] a chance to expose government repression to public opinion in a clear forum’ (Burney, Reference Burney2000, p. 29) And Sim and Ward describe the ‘distinctly popular flavour’ of Victorian inquests, which they argue provided a forum ‘in which the poor could challenge the powerful’ (Sim & Ward, Reference Sim, Ward, Clark and Crawford1994, p. 246).
‘[T]he coroners court was a forum where some of the most marginalised groups in Victorian society, such as prisoners, paupers and their relatives, could challenge the practices of disciplinary institutions and the medical profession … While there were many inquests in which juries tamely recorded “visitation of God’ verdicts as instructed by the coroner, there were others in which their verdicts reflected a form of popular justice. The coroner's claim to be the “magistrates of the poor” was not entirely unfounded.’ (Sim & Ward, Reference Sim, Ward, Clark and Crawford1994, p. 263)
By the middle of the twentieth century, the inquest seems to have lost its way somewhat. As argued above, in the decades immediately prior to the Human Rights Act 1998, its scope was gradually reduced as effect was given to the belief that inquests should, above all, not appear to determine criminal or civil liability. The 1971 Broderick Report reflected this concern, but it at least also recognised that a solution to the inquest's troubled relationship with the criminal courts required a positive statement of the inquest's purposes. These ‘grounds of public interest’ included: to determine the medical cause of death; to allay rumours of suspicion; to draw attention to the existence of circumstances which, if unremedied, might lead to further deaths; to advance medical knowledge; and to preserve the legal interests of the deceased's family, heirs or other interested persons (Broderick, Reference Brodrick1971, 14.19). With regard to prison deaths, the Report also states:
‘Most people, we think, want to have assurances that prisoners (and other persons set apart from society as a whole) did not die from maltreatment. We accept that it is perfectly proper for a coroner's court to be used for this purpose and that, to be fully effective, the procedure must apply to all deaths in such circumstances.’ (Brodrick, Reference Brodrick1971, 14.13)
These principles appear to have had little effect on practice, and it was not until post Human Rights Act 1998 (HRA 1998) cases like Amin and Middleton that the qualitative purposes of inquests into deaths at the hands of the state were set out in positive and substantial terms. In his lead Judgment in Amin, Lord Bingham held that:
‘The purposes of such an investigation are clear: to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others.’ (Amin, my emphasis)Footnote 32
As far as the first three of these aims are concerned, openness is absolutely intrinsic to bringing the facts to light, exposing culpable and discreditable conduct to public notice, and ensuring ‘that suspicion of deliberate wrongdoing (if unjustified) is allayed’. A degree of openness is also almost certainly going to be needed if the deceased's family are to be satisfied that, where possible, lessons have been learnt that may save the lives of others. As for the penultimate of Lord Bingham's purposes, openness fulfils a role that is perhaps more similar in nature to that ascribed to openness in civil and criminal justice proceedings: publicity may exert pressure on those responsible to make changes and improvements in practice. But with this last purpose, the participation of the deceased's family also has a track record of leading to issues being uncovered that may not otherwise have been (see, e.g., Casale, Reference Casale2013 pp. 12–13).
While these rationales do point to some instrumental benefits behind openness, both the domestic and ECtHR case-law focus on purposes – public scrutiny and public accountability – for which openness is an intrinsic requirement. Of course, in terms of the procedural obligation under Article 2, the instrumental role that accountability has to play in ensuring that the substantive right to life is protected is also a crucial one. But the ECtHR in Jordan, for example, lists accountability as a purpose that is additional to this end.
‘The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility.’ (Jordan)Footnote 33
Other than Article 3, none of the rights contained in the ECHR require specific procedural mechanisms to ensure public scrutiny and accountability where a substantive right is merely engaged but not necessarily breached by state action – as opposed to the requirement to provide a remedy for those injured by a breach. In Ramsahai, for example, the ECtHR found against the Netherlands in terms of the adequacy of a public investigation into a death at the hands of the police, despite being satisfied that there had in fact been no breach of the substantive duty (Ramsahai).Footnote 34
With the primary rationales for openness through inquests into use-of-force deaths at the hands of the state being quite distinct from the traditional instrumental rationales for open justice in criminal and civil proceedings, I now turn to the ways that openness might be linked to non-retributive and non-compensatory justice forms. It is at this point that recognition theory is helpful.
III. Recognition theory
The following will give a brief outline of recognition theory. I will then relate the three levels of recognition identified by Axel Honneth to the circumstances with which this paper is concerned.
According to Axel Honneth, ‘our notion of justice is … linked very closely to how, and as what, subjects mutually recognize each other’ (Honneth, Reference Honneth2007, p. 130). Honneth draws upon Hegel's early Jena writings, and the empirically backed child and development psychology of Donald Winnicott and George Herbert Mead, to develop his theory that:
‘The connection between the experience of recognition and one's relation-to-self stems from the intersubjective structure of personal identity. The only way in which individuals are constituted as persons is by learning to refer to themselves, from the perspective of an approving or encouraging other, as being with certain positive traits and abilities. The scope of such traits – and hence the extent of one's positive relation-to-self – increases with each new form of recognition that individuals are able to apply to themselves as subjects. In this way, the prospect of basic self-confidence is inherent in the experience of love; the prospect of self-respect, in the experience of legal recognition; and finally the prospect of self-esteem, in the experience of solidarity.’ (Honneth, Reference Honneth and Anderson1996, p. 173)
While some features of recognition theory can be traced back to Rousseau, Fichte and Hegel (Honneth, Reference Honneth and Anderson1996, pp. 12, 185), their rediscovery and resurrection in political and moral philosophy is a relatively recent phenomenon. Over the past twenty-five years, recognition theory has been used increasingly in modern political and social discourse to frame theories of rights, authenticity, autonomy, difference, identity politics and social struggle. Bert van den Brink observes that ‘[t]he topic of recognition has come to occupy a central place in contemporary debates in social and political theory’ (Brink and Owen, Reference Brink and Owen2007, p. 1). And for Nancy Fraser, ‘the demand for recognition is fast becoming the paradigmatic form of political conflict in the late twentieth century’ (Fraser, Reference Fraser1995, p. 68).
Mattias Iser describes recognition theory as having both a normative and psychological dimension (Iser, Reference Iser and Zalta2013). This dualism features heavily in Nicholas Smith's outline of the three basic elements that make up the core of most conceptions of recognition theory (O'Neill and Smith, Reference O'neill and Smith2012, pp. 1–21). The first of these is observational and relatively straightforward: social struggles (‘at least in many cases’) are the result of certain groups in society having their normative expectations of recognition violated in such a way as to give rise to feelings of disrespect and humiliation (p. 5). According to Smith, this is true of modern struggles against, for example, racial or gender inequality, as well as the ‘epoch-defining historical conflicts’ of, for example, anti-colonial movements and class struggle (p. 5). Smith surmises that these struggles are driven by ‘the intolerable burden borne by some part of the population of the disrespect or contempt shown to them by others, often in a generalised form embodied in prevailing laws, customs, and social institutions’ (p. 5).
The second core element of recognition theory identified by Smith concerns the explanation for this apparently pervasive psychological need for recognition. In its most concise terms, recognition theorists claim that the very integrity of one's relations-to-self are dependent on mutually affirming intersubjective relationships (O'Neill and Smith, Reference O'neill and Smith2012, p. 6).
Charles Taylor, for example, states that an individual's identity ‘crucially depends on … dialogical relations with others’ (Taylor, Reference Taylor and Gutmann1994, p. 34), and recognition or its absence shapes ‘a person's understanding of who they are, [and] their fundamental defining characteristics as a human being’ (p. 25) Noteworthy are the harms Taylor associates with misrecognition:
‘Non-recognition or misrecognition can inflict harm, can be a form of oppression, imprisoning someone in a false, distorted, and reduced mode of being … [M]isrecognition shows not just a lack of due respect. It can inflict a grievous wound, saddling its victims with a crippling self-hatred. Due recognition is not just a courtesy we owe people. It is a vital human need.’ (Taylor, Reference Taylor and Gutmann1994, pp. 25–26)
For recognition theorists, ‘[t]his dependence on the recognition of others for the positive self-relations that enable individuals to lead their own lives’ explains the traumatic implications of experiences of disrespect and humiliation, and the motivational force behind social struggle (O'Neill and Smith, Reference O'neill and Smith2012, p. 6). For Honneth, in post-traditional society, it is possible to discern three levels of recognition which influence the development of three types of relations-to-self: self-confidence, self-respect and self-esteem.
The first of these concerns the mutual reciprocation of basic physical and metaphysical needs, characteristic of relationships of love and affection (Honneth, Reference Honneth and Anderson1996, pp. 95–107). This type of recognition is most crucial during early childhood – where a child is utterly dependent (typically) on his mother for his own basic needs. It continues, however, through familial and non-familial relationships (with ‘significant others’), involving physical and emotional support, love and affection throughout an individual's life. Through the intersubjective recognition and fulfilment of these basic needs, an individual develops a basic sense of trust in the world and self-confidence (pp. 37–38). The corresponding forms of misrecognition that Honneth identifies with this level of recognition are those which threaten the individual's physical integrity, particularly through physical abuse or rape (p. 129).
The second level of recognition identified by Honneth corresponds to the Kantian concern that all individuals be recognised as ends in themselves, as equal citizens and bearers of universal rights. Through this type of recognition, individuals are confirmed as morally responsible agents who are ‘capable of acting autonomously based on reason’ (Haldemann, Reference Haldemann2008, p. 685). According to Yar, ‘“rights” mediate a demand for dignity and moral equality as an individual person amongst others’ (O'Neill and Smith, Reference O'neill and Smith2012, p. 115). For Honneth, recognition on this basis provides the conditions that favour the development of self-respect. Conversely, the denial of this type of recognition will generally take the form of the denial of rights (Honneth, Reference Honneth and Anderson1996, p. 129).
The third level of recognition outlined by Honneth concerns recognition of the particular positive qualities of individuals and groups.
‘In order to be able to acquire an undistorted relations-to-self, human subjects always need – over and above the experience of affectionate care and legal recognition – a form of social esteem that allows them to relate positively to their concrete traits and abilities.’ (Honneth, Reference Honneth and Anderson1996, p. 121)
This type of recognition concerns the fulfilment of individuals’ need to be recognised as valued members of a community (or society), with the potential to contribute, through their personal qualities, positively to that community or society. According to Honneth, this type of recognition is a basic condition for the development of an individual's self-esteem (Honneth, Reference Honneth and Anderson1996, pp. 121–129): that is, ‘a sense of one's value as a person with particular social and cultural traits and abilities’ (O'Neill and Smith, Reference O'neill and Smith2012, p. 115). The denial of this type of recognition may take the form of insult and denigration of ways of life (Honneth, Reference Honneth and Anderson1996, p. 129). Honneth draws a connection between this level of recognition and the experience of solidarity (p. 129).
Finally, Smith identifies as the third core component of recognition theories a moral claim.
‘The general purpose of moral norms, for the recognition theorist, is to provide protection from the harms of disrespect and humiliation to which human beings are constitutively vulnerable … This means that modern morality has its basis in its claim to provide the social infrastructure – in terms of recognition relationships – that enables all individuals, no matter what their particular identity or place in society, to lead their own lives well. The meaning of morality is thus bound up with its social, institutional expression.’ (O'Neill and Smith, Reference O'neill and Smith2012, p. 6)
According to Honneth, the measure of the justice of a society is ‘the degree of its ability to secure conditions of mutual recognition in which personal identity formation, and hence individual self-realisation, can proceed sufficiently well’ (Honneth, Reference Honneth2004, p. 354).
IV. Applying recognition theory to the aftermath of use-of-force deaths at the hands of the state
I will begin by using recognition theory to identify the sources of three types of interest that demand recognition in institutional responses to deaths. I will go on to outline what these interests might require in terms of the second and third levels of recognition identified by Honneth.
4.1 The source of the rights that accrue after a death
Part III of this paper described how the second level of Honneth's tripartite scheme of recognition theory is concerned with the need to recognise individuals as equal bearers of rights. Generally speaking, one's vulnerability to misrecognition on this level arises out of the potential to be denied a right that others would ordinarily enjoy. In practice, if not also the law, it is normal for the cause of a loved one's death to be explained to families by a doctor, the police or, in certain circumstances, through an ordinary inquest. To deny this right in cases where a death occurs at the hands of the state would be to misrecognise the generally accepted rights of the families of the deceased. Such a right to the truth recognises a very basic metaphysical need that people usually have to know how a loved one died. Far from there being objective reasons for a negative differentiation against this generally accepted social norm, a right to a reliable explanation is arguably more pressing here because: (a) the state must assume some responsibility for those its agents subject to the coercive use of force; and (b) the details of what happened to cause a death will often be exclusively in the hands of state actors.Footnote 35
The second originating source of a legitimate demand to ‘be given positive consideration in the plans of others (Honneth, Reference Honneth and Anderson1996, p. 44) in these circumstances is more complex. If Honneth's second level of recognition requires the equal recognition of individuals as bearers of equal rights, why should the deceased's family, any group that identifies with the deceased, or the wider public, be afforded additional rights to those that accrue where a death occurred in circumstances not involving the use of force by the state? The answer is that there are objective reasons that justify a positive differentiation to be made in the aftermath of these types of death. A death that occurs in circumstances involving the coercive use of force by the state brings into sharp focus the inevitable inequality that exists in having coercively empowered institutions and individuals who exercise the state's monopoly on the lawful use of force over others. In these circumstances the basic nature of the state/citizen relationship is called into question. If the social exercise of the state's monopoly on the use of force is to be the exercise of ‘public power through the corporate body’ (Rawls, Reference Rawls2001, p. 90) rather than an exercise of private power by a privileged group over subalterns, the public must be engaged in processes which scrutinise fatalities in state-use-of-force scenarios.
I will return to what may be required in terms of recognition in these circumstances further below, but it first needs to be acknowledged that the interest that members of the public have in a death is not uniformly spread. Some are more vulnerable to more serious forms of misrecognition than others, and this may require a differentiation of recognition responses on the part of the state.
4.2 The source of the enhanced interests of the deceased's family and those who identify with the deceased
This differentiation derives from the fact that the deceased's family, and any community that identifies with the deceased, are vulnerable to particular moral harms where deaths are caused or contributed to by wrongdoing. This paper is concerned with the misrecognition that can occur where a state fails to adequately respond to a death, rather than misrecognition that may have caused or contributed to a death. But if the state's response to a death fails to recognise the vulnerability of those with a connection to the deceased to the harms associated with this latter type of misrecognition, this can itself amount to a further act of misrecognition.
It should be recalled that the types of misrecognition that Honneth identifies as having a negative impact on the first level of relations-to-self (self-confidence and trust in the world) are those associated with physical abuse and rape. He argues, surely correctly, that ‘situations in which a person is forcibly deprived of any opportunity to freely dispose over his or her body represent the most fundamental sort of personal degradation’ (Honneth, Reference Honneth and Anderson1996, p. 132). However, David Owen criticises Honneth on this point, arguing that by limiting this category of misrecognition to attacks on an individual's physical integrity, Honneth unjustifiably excludes other types of misrecognition that can impact upon one's trust in the world and self-confidence (Owen, Reference Owen, Brink and Owen2007, p. 307). Owen has a point here. It is likely, for example, that where a familial, or otherwise very close, intersubjective partner is subjected to this type of misrecognition with fatal results, the surviving partner will suffer a similar loss of self-confidence and trust in the world. Where the death is at the hands of a state institution, or someone associated with a body as powerful as the state, it is not difficult to imagine a particularly strong feeling that one's reality is at the mercy of others.
In the aftermath of a use-of-force death at the hands of the state, the bare harm that comes with the loss of a loved one will often combine with a moral harm arising from a subjective belief or suspicion that the death was caused or contributed to by wrongdoing (or misrecognition) on the part of the state or its agents. This moral harm often derives from a personal identification with the deceased as a primary victim of injustice, as well as a sense of personally being the victim of an injustice by being unjustly being deprived of a loved one. Aside from those who were personally close to the deceased, this sense of injustice may extend to any group or community that identifies with the deceased, where they believe or suspect that the deceased may have suffered this level of misrecognition because she was a co-member of that group. Here, the attendant moral harm will again likely derive from an identification with the deceased, but will often also derive from one's identification with a group that one perceives as being unjustly threatened or discriminated against.
Until the circumstances of a death are uncovered, it will normally not be possible to ascertain whether these moral harms have an objective foundation. However, whether or not they do, the vulnerability of the family, and any group that identifies with the deceased, to this type of harm arguably sustains a need for special consideration through mechanisms that recognise their special interest.
4.3 What must due recognition involve for the general public?Footnote 36
Recognition amongst equals requires institutional processes to engage with the public as rational and reasonable beings, and equal partners in the management, control and scrutiny of state power. Where they are not so treated, the legitimacy of the state's monopoly on the use of force, and its social exercise, are brought into question. First of all, conclusions about the appropriateness of the exercise of the use of force need to be publicly justified. But an account of what happened to cause a death must also actually speak to the concerns of those with a special substantive interest – which in these circumstances includes the general public. Otherwise, even if the state's explanation for a death is made public, it remains a private one: an account of how arbiters ‘satisfy themselves in light of their own convictions’ (Rawls, Reference Rawls2001, p. 186; emphasis added). This implies that, as a minimum, the public, or those who may effectively represent their interests, must have an opportunity to raise suspicions and concerns, and these must be addressed in an investigatory process and its conclusions.
Recognition here operates on two levels, then. First, it recognises a right held by members of the public to scrutinise the exercise of the use of force by state institutions or actors where a death has occurred. Second, it recognises the right of the public to the agency that comes with knowledge and, in particular, the right to participate as an informed citizenry in wider debates about the use of force by the state. If we are to reflect upon and engage with related questions – about how, for example, we recruit, train and oversee our police forces; about the implications of routinely arming the police with tasers or firearms; about the conditions and staffing levels in our prisons; and about the realities of how the criminal justice system manages the vulnerable, the mentally ill and those with drug dependencies – we need to be properly informed about them. This accords with political proceduralism whereby ‘basic rights represent a kind of guarantee for the continued existence of the interplay of the democratic public sphere and the society's political administration’ (Honneth, Reference Honneth2007, p. 219). Justice as recognition demands that these interests be recognised, and recognition theory suggests that where they are not, the resulting harms – concentrated in the case of the family of the deceased, diluted but multiplied in the case of members of a community, or the wider general public – have significant personal and social implications.
4.4 What must due recognition involve for those particularly vulnerable to moral harm?
A number of writers have used recognition theory as a normative basis for transitional justice strategies embodied in truth commissions (Haldemann, Reference Haldemann2008; Petoukhov, Reference Petoukhov2012; Kiss, Reference Kiss, Thompson and Rothberg2000; De Toit, Reference De Toit, Robert and Thompson2000; Allen, Reference Allen1999; Stanley, Reference Stanley2009; Taylor, Reference Taylor and Gutmann1994). The situations that exist in transitioning societies are very different to the circumstances that are the focus of this paper, and truth commissions are very different processes to inquests.Footnote 37 One major difference is that the setting up of a truth commission itself constitutes an acknowledgment that wrongdoing on a significant scale was inflicted (usually by a previous regime) on a large number of victims. The argument in transitional justice literature is usually that recognition theory requires the prioritisation of the victims of previous wrongdoing in transitional justice strategies. Frank Haldemann, for example, is explicit: ‘Due recognition is something we owe the victims of injustice, and when it is lacking the victims have moral reasons for feeling insulted or humiliated’ (Haldemann, Reference Haldemann2008, p. 693). He asserts that an understanding of recognition theory leads to the conclusion that the harm caused by – amongst other things – denying secondary victims a reliable, official and public truth about a death or disappearance, is ‘not merely a psychological or factual observation’, but it ‘lays a moral claim’ (p. 693). The question is: Is this true only for those who are acknowledged victims of previous wrongdoing, or does it extend to those who suffer the harm that comes from a subjective perception that one is the victim of an injustice? The latter approach must be correct, if only from the practical standpoint that the former approach would confine justice as recognition to those whose claim of wrongdoing is immediately obvious.
Judith Shklar argues persuasively that it is the moral duty of a just society to attend to subjectively experienced harm, wherever it occurs, and that there is a particular moral imperative to do so where claims made by putative victims are against society's official agents – even if claims turn out to be unfounded on the available evidence (Shklar, Reference Shklar1990, p. 90). Jonathan Allen makes a similar point:
‘Saying that political theorists need to take the perspective of victims into account does not amount to a call to accept their perspective at face value but is simply a reminder that victims’ claims that they are being subjected to evils must be given explicit attention.’ (Allen, Reference Allen2001, pp. 348–349)
The holding of an investigation and the creation of an official and public narrative may not be enough, however. It is perfectly possible for an investigation and resulting narrative to misrecognise interested persons or groups by ignoring or failing to adequately engage with their concerns about the circumstances of the death. The most effective way of avoiding this is to involve these individuals or groups in the investigatory process, allowing them to raise and pursue their concerns. But as well as the instrumental good that this does for ensuring that the end narrative (verdict/conclusion) addresses the concerns and suspicions of those with a special interest in the narrative, it is also an act of recognition that gives them agency in a matter which affects them.
‘The object of respect (including self-respect) is an agent's capacity to raise and defend claims discursively or, more generally, an agent's status as responsible [an agent's Zurechnungsfähigkeit]. But this capacity can only become the basis for “self-respect” if it can be exercised … Hence the importance of rights in connection with self-respect lies in the fact that rights ensure the real opportunity to exercise the universal capacities constitutive of personhood. This is not to say that a person without rights cannot have self-respect, only that the fullest form of self-respecting autonomous agency could only be realised when one is recognised as possessing the capacities of “legal persons”, that is, of morally responsible agents.’ (Joel Anderson's ‘Introduction’ to the English translation of Honneth, Reference Honneth and Anderson1996, p. xic)
The exclusion of those with a legitimate interest in the narrative formation process, and the failure to provide a reliable account of what happened to cause a death, are usually not the extent of the types of misrecognition that can occur in these circumstances. There is also the real harm that can derive from false, inaccurate and one-sided narratives that can arise in the absence of a reliable, official and public one. These may have as their sources untested claims by state actors, which reach the media through official briefings or unofficial leaks by state actors.Footnote 38 In ‘Demystifying Deaths in Police Custody’, Simon Pemberton discusses, with a number of detailed examples, how state accounts of state violence are very often ‘faithfully replicated in the media’ (Pemberton, Reference Pemberton2008, p. 247). And in the context of policing, empirical studies in the US show that ‘reliance upon official sources translates into a majority of news accounts that rationalize and normalize police violence by associating it with the performance of a legitimate institutional role’ (Hirschfield and Simon, Reference Hirschfield and Simon2010, p. 175).Footnote 39 Hirschfield and Simon note, in particular, how ‘news articles construct deadly force victims as physical or social threats and frame police actions as a normal and reasonable response’ (p. 160). These narratives may variously focus on loaded descriptions of the circumstances that led to the death, or the perceived deviancy of the deceased and/or any group or community with which the deceased is identified, at times using language that plays on racial and other stereotypes (Pemberton, Reference Pemberton2008; Scraton and Chadwick, Reference Scraton and Chadwick1986; Cohen, Reference Cohen1993; Lawrence, Reference Lawrence2000).
The following examples illustrate the sense of injustice that can be experienced by those who are denied, or suffer a delay in, a reliable, public and official narrative as to how a loved one died. Becky Shah, who lost her mother, Inger, in the Hillsborough disaster, said after the publication of the Hillsborough Independent Panel's Report in September 2012:
‘I have mixed feelings. I am really relieved that Liverpool fans, survivors and the dead have been exonerated, and the city of Liverpool too, which I feel is important and I am not from here. But I was a young woman of 17 who lost her only parent at Hillsborough and the fact it has taken more than half of my life to get to this point is absolutely outrageous in a democratic society.’ (Gibson and Conn, Reference Gibson and CONN2012)
Prime Minister David Cameron's address to Parliament directly addressed the moral harm that had been piled on the families of the Hillsborough 96, prior to the report:
‘… [T]he new evidence that we are presented with today makes clear that these families have suffered a double injustice. The injustice of the appalling events – the failure of the state to protect their loved ones and the indefensible wait to get to the truth. And the injustice of the denigration of the deceased – that they were somehow at fault for their own deaths.’ (Commons Hansard Debates, Volume 550, No. 52, Column 285, 12 September 2012)
The sense of justice that can come with a reliable, official and public narrative is also palpable in the following illustrative examples. Adrienne Makenda Kambana responded to the unlawful killing verdict in the inquest into the death of her husband, Jimmy Mubenga:
‘Kambana said the inquest verdict was a huge relief for her and her family. “I feel like Jimmy can rest in peace now – everything was behind closed doors before, but now it has come out,” she said.’ (Taylor and Lewis, Reference Taylor and Lewis2013)
After the Hillsborough Inquest jury returned an unlawful killing verdict on 26 April 2016, Becky Shah was asked by reporter John Snow, ‘In all the emotions today … is there some joy at least that justice has dawned?’
‘There is some comfort. And there is relief now that no-one can really argue that we have[n't] been vindicated. That the supporters, the survivors, the 96 [who died at Hillsborough] are all completely vindicated. And that is a tremendous feeling. I never thought it would come.’ (Channel 4 News, 7pm, Tuesday 26 April 2016Footnote 40)
Christine McEvoy expressed her relief after the verdict that:
‘All of the people around the world now know the truth. We've known the truth from day one … and now it's all out in the open. And everyone knows, so yeah, it's a great relief to know that.’ (Channel 4 News, 7pm, Tuesday 26 April 2016)
And following the inquest verdict into the death of her fourteen-year-old son, Adam Rickwood, Carol Pounder said:
‘I have waited over six years for truth and justice … Nothing can bring Adam back. All I have ever wanted is to find out the truth about what happened to my son and for those responsible for unlawful assaults to be held to account.’ (Wainwright, Reference Wainwright2011)
A common theme in the comments of family members following long-delayed, effective public investigations into contentious deaths, or the long-delayed publication of the known facts about a death, is a sense of vindication. This can follow years of official denials and the proliferation of inaccurate official and unofficial narratives. When the conclusions of Commander John Cass's investigation into the death of Blair Peach were finally published in 2010 (thirty-one years after Blair Peach's death), Blair's partner, Celia Stubbs, wrote a comment piece for The Guardian headlined ‘For Blair Peach, a Little Justice’:
‘I always knew the police killed my partner Blair Peach. Now all can see the scale of the lies told … We have been vindicated. The report states what we always believed – the fatal blow was struck by a police officer … But, equally disturbing, in reading the report the deliberate untruths told by officers and their success in obstructing the police inquiry have been laid bare … Blair, we have fought for justice for you for 31 years, and I hope that we have, even if only partly, got it.’ (Stubbs, Reference Stubbs2010)
In the aftermath of the 2010 Saville Inquiry Report into the Bloody Sunday massacre of 30 January 1972, Tony Doherty, whose father was killed by British paratroopers said:
‘The great lie has been laid bare. The truth has been brought home at last.’ (BBC, 2010)
John Kelly, whose seventeen-year-old brother Michael was killed, said:
‘Everything else fades into insignificance compared to the fact that those gunned down on Bloody Sunday were ordinary, decent Derry people. That was the verdict we wanted. That is what matters. We have overcome.’ (BBC, 2010)
Referring to the original investigation into the massacre, which was led by Lord Widgery, and widely seen as a whitewash, Gerry Duddy, whose brother John (Jackie) was killed, said:
‘Widgery destroyed our loved ones’ good name. Today we cleared them. I am delighted to say, “Jackie was innocent”.’ (BBC, 2010)
Despite the fact that the conclusions of the Saville Report were broadly welcomed, the Inquiry itself continues to be dogged by criticism about its length and cost.Footnote 41 Barrister Ashley Underwood QC gave evidence before the Commons Select Committee on the Inquires Act 2005. He suggested that the Saville Inquiry's expense might be partly explained by the harm that was done by the deficiencies of its predecessor inquiry (the Widgery Inquiry):
‘[T]here were so many factors [that influenced The Saville Inquiry]. The first was that it is the antidote to Widgery … Widgery was regarded as a whitewash and in order to stem what flowed from the perception, rightly or wrongly, that it was a whitewash, you have to have a dramatically long, highly detailed, very expensive inquiry. As Lord Morris said, one of the reasons for multiplicity of representation may have been the bitterness and divisiveness that attended that.’Footnote 42
None of this is to say that some family members would not also like to see the prosecution of those responsible for their loved ones’ deaths.Footnote 43 But these examples illustrate both the personal sense of injustice that can flow from the denial of public accountability for use-of-force deaths of loved ones, and the sense of justice that can lie in a reliable and official public truth.
4.5 Recognition on the third tier of Honneth's tripartite schema
Finally, it is appropriate to briefly consider the relevance of Honneth's third-level of recognition in these circumstances. This relates to the recognition of individuals’ particular traits and abilities. Allowing openness and participatory rights not only recognises their innate value for those claiming them. It may also be understood as a progressive act that recognises the positive contribution that different participants can bring to investigatory processes, and the positive role that a properly informed citizenry can play in the public sphere.
The deceased's family can bring a unique sense of responsibility and determination to ensure that all the facts are brought to light and lessons are learnt. For example, Adrienne Mubenga commented in the aftermath of her husband's death:
‘I can't stand by and watch this happen to another family. I have to do that for Jimmy.’ (Taylor, Reference Taylor2014)
What this level of determination can achieve in practice was recognised by Dr Silvia Casale in her investigation into why the inquest in to the death of Sean Rigg reached such starkly different conclusions to the IPCC investigation:
‘The Review considers that the family are fellow travellers in the search for the truth; the perspective of the family must be recognised as important. The Rigg family were determined to see that a thorough investigation took place. Their considerable and sustained efforts resulted in the emergence of information that might otherwise not have seen the light of day. The Rigg family are to be commended for their tenacity and commitment in this regard.’ (Casale, Reference Casale2013, pp. 12–13)
The attitude of the Rigg family can be compared to Casale's conclusions about the attitude of the IPCC investigators:
‘The interviewers did not pursue failures on the part of the police with sufficient rigour … Most of the interviewers appeared ready to accept the police officers’ view of events without following up potential lines of questioning.’ (Casale, Reference Casale2013, p. 95)
The deceased's family and their legal representatives, as well as representatives of the wider public, can bring their particular knowledge and experience to an investigation. This can contribute to the pool of forensic skills that a diversity of participants naturally brings: whether in terms of probing (family and jury) or evaluating (jury) evidence. Any group that identifies particularly with the deceased may also bring valuable experience and a perspective of the day-to-day realities of intersubjective interaction with state actors to which the deceased may have been exposed.
Misrecognition of these qualities can be particularly frustrating and painful for those concerned. Here, Haldemann describes the harm that misrecognition on both the second and third level of Honneth's theory can cause:
‘Humiliation, as Honneth defines it for us, is a matter of being denied a certain status in communication with others. It evokes painful feelings of being ignored, of not being taken seriously, of being denied a voice, of being refused an ear, of being cut out of the conversation with your fellows. When a person is denied the possibility of ever being recognised as a valuable contributor to some shared project, and when that person is treated as though his presence counts for nothing, it is natural for him to experience this as a serious lack of respect or decency.’ (Haldemann, Reference Haldemann2008, pp. 691–692)
V. Conclusion
Truth and justice are intrinsically, not just instrumentally linked
Elizabeth Kiss (Kiss, Reference Kiss, Thompson and Rothberg2000, p. 73)Before drawing some conclusions, it is important to raise a short caveat. This paper has sought to describe some of the justice needs relating to how the state responds to deaths at its hands. The inquest has been considered very much in isolation, but they are just one part of a complexity of intersubjective interactions between state institutions and agents on the one hand, and members of the public and communities on the other. The struggles fought by families and communities for justice are unlikely to begin and end with the inquest, and neither are the opportunities for misrecognition. An inquest's conclusions and any recommendations may be ignored, and bad practices and the systemic causes of insult and injury will often remain. Further, the potential for inquests to fulfil meaningful ends cannot always be guaranteed through the laws and practices which frame inquests. Their success in producing meaningful narratives, that test and challenge dominant state narratives, including by broaching systemic concerns or deeper social pathologies, depends on the involvement of those able and willing to take up such a role. Those who die in custody are usually some of the most marginalised in our society. Even if public funding is available, a victim's family may lack the emotional resources and social capital to engage in processes that can go on for years and are very emotionally demanding. Experience suggests that coroners cannot always be relied upon to fulfil such a role, and, while juries are a vital safety check in inquests, it is unrealistic to expect them to fulfil its probative aspects effectively on their own.
This paper has argued that the prime rationales for openness in inquests into use-of-force deaths at the hands of the state are clearly distinct to those rationales behind traditional conceptions of open justice in the criminal and civil justice contexts. As the analysis in Part II showed, openness is a fundamental and intrinsic requirement – rather than a merely instrumental aid – for the fulfilment of the main purposes pursued by inquests into use-of-force deaths at the hands of the state. Recognition theory was then introduced into the analysis as a way of providing a normative understanding of the significance of openness in these circumstances, and the link between openness and justice.
The practice and rationales described in Part II are largely sympathetic to what were argued to be the requirements of justice as recognition in the aftermath of these types of death. First, they are generally investigated by inquests. These are open to the public and create an official and public narrative about how someone died that is relatively broad in scope. The family are able to attend and participate in inquests and, while primarily representing their own interests and concerns, they will often effectively represent the interests of any group or community that identifies with the deceased, and any concerns that might be held by the wider public. The public interest will also be represented to a degree by the jury. However, the distinctive normative understanding that recognition theory provides us, in terms of the role of openness in securing non-retributive and non-compensatory justice forms, has potentially transformative implications for inquests in these circumstances.
The application of recognition theory prompts questions about whether some of the interests outlined are adequately recognised, given the stakes that are at play and the harms that are associated with misrecognition. The implications of this analysis for most inquests into use-of-force deaths may be quite subtle: for example, it may strengthen the argument for a rebalancing of priorities in favour of public funding for families at inquests; or it may motivate renewed efforts to tackle the delays that plague these sorts of inquests. But the normative understanding of openness in this context may also justify more radical reform. For example, taking a cue from judicial review proceedings, it may be appropriate to allow civil society organisations such as the Howard League, the Equality and Human Rights Commission, or the Mental Health Foundation, to intervene in certain inquests in order to raise concerns on behalf of particular groups who might identify with the deceased. But perhaps more importantly in the current climate, the implications of this analysis may also be significant when the case for openness needs to be justified against encroaching interests that push for a deviation from the normal procedures of openness embodied in modern inquests. In particular, the use of exceptional procedures that close down openness – for example, the use of Public Interest Immunity in inquests, and the replacement of certain inquests with inquiries – may benefit from a rebalancing of priorities that pays better attention to the consequences of misrecognition in these circumstances.
