Presumption of Death

House of Commons Justice Committee

Twelfth Report of Session 2010–12

Report, together with formal minutes, oral and written evidence

Ordered by the House of Commons to be printed 7 February 2012

HC 1663 Published on 22 February 2012 by authority of the House of Commons London: The Stationery Office Limited £14.50

Justice Committee

The Justice Committee is appointed by the House of Commons to examine the expenditure, administration and policy of the Ministry of Justice and its associated public bodies (including the work of staff provided for the administrative work of courts and tribunals, but excluding consideration of individual cases and appointments, and excluding the work of the Scotland and Wales Offices and of the Advocate General for Scotland); and administration and expenditure of the Attorney General's Office, the Treasury Solicitor's Department, the Crown Prosecution Service and the Serious Fraud Office (but excluding individual cases and appointments and advice given within government by Law Officers).

Current membership

Rt Hon Sir Alan Beith (Liberal Democrat, Berwick-upon-Tweed) (Chair) Steve Brine (Conservative, Winchester) Mr Robert Buckland (Conservative, South Swindon) Jeremy Corbyn (Labour, Islington North) Nick de Bois (Conservative, Enfield North) Christopher Evans (Labour/Co-operative, Islwyn) Ben Gummer (Conservative, Ipswich) Rt Hon Elfyn Llwyd (Plaid Cymru, Dwyfor Meirionnydd) Seema Malhotra (Labour/Co-operative, Feltham and Heston) Yasmin Qureshi (Labour, Bolton South East) Elizabeth Truss (Conservative, South West Norfolk) Karl Turner (Labour, Kingston upon Hull East)

The following Members were also members of the Committee during the Parliament: Mrs Helen Grant (Conservative, Maidstone and The Weald); Mrs Siân C James (Labour, Swansea East); Jessica Lee (Conservative, Erewash); Claire Perry (Conservative, Devizes); Mrs Linda Riordan (Labour/Co-operative, Halifax) and Anna Soubry (Conservative, Broxtowe).

Powers The Committee is one of the departmental select committees, the powers of which are set out in House of Commons Standing Orders, principally in SO No 152. These are available on the internet via www.parliament.uk.

Publication

The Reports and evidence of the Committee are published by The Stationery Office by Order of the House. All publications of the Committee (including press notices) are on the internet at www.parliament.uk/justicecttee . A list of Reports of the Committee in the present Parliament is at the back of this volume.

The Reports of the Committee, the formal minutes relating to that report, oral evidence taken and some or all written evidence are available in a printed volume. Additional written evidence may be published on the internet only.

Committee staff

The current staff of the Committee are Tom Goldsmith (Clerk), Sarah Petit (Second Clark), Hannah Stewart (Committee Legal Specialist), John-Paul Flaherty (Inquiry Manager), Ana Ferreira (Senior Committee Assistant), Sonia Draper (Committee Assistant), Greta Piacquadio (Committee Support Assistant), Frances Haycock (Sandwich Student) and Nick Davies (Committee Media Officer).

Contacts

Correspondence should be addressed to the Clerk of the Justice Committee, House of Commons, 7 Millbank, London SW1P 3JA. The telephone number for general enquiries is 020 7219 8196 and the email address is [email protected]

Contents

Report Page

Summary 3

1 Introduction 5

2 The current law 6

3 Is there a problem with the law on presumption of death? 8

4 Practical problems arising from the current system 11 Accepting legal paperwork 11 Resolving immediate financial issues 12 Obtaining information about a missing person’s affairs 12 Costs 13

5 Solutions to the lack of clarity around presumption of death 15 Non-legislative solutions 15 Guidance for industry and institutions 15 Guidance for families 16 Guidance on section 15 of the Coroners Act 17 Legislative solutions 18 A Presumption of Death Act? 18 Legislating for guardianship 21

6 Conclusion 24

Conclusions and recommendations 25

Formal Minutes 27

Witnesses 28

List of printed written evidence 28

List of Reports from the Committee during the current Parliament 29

Summary

When a person goes missing their family can suffer serious financial repercussions, as well as inevitable pain and distress. Having examined the law and processes we have found that such suffering is exacerbated by: a legislative patchwork of bewildering complexity; the inability to administer the financial situation of their missing relatives; a lack of information about the actions they are able to take; and ignorance of the correct procedures to be followed by police, lawyers, banks, insurers and others.

The approach we recommend the Government adopt to tackle the problems experienced by families trying to cope with the loss of a relative is threefold. Firstly, we recommend the introduction of a presumption of death act to clarify the legal position. Such an act should be modelled on the legislation in Scotland and Northern Ireland. In almost 34 years since the Scottish act came into force, only one person who has been the subject of an order under the statute has reappeared. We believe this shows the Scottish legislation provides for a robust and effective process. We believe that there is no good reason not to proceed with legislation for England and Wales, and the longer such legislation is delayed the longer families will suffer.

Presumption of death orders, however, can only solve some of the problems families face. It will only be appropriate to declare a missing person dead several years after their disappearance. In that time, their financial affairs can be devastated beyond hope of recovery, mortgages or rent may be unpaid, leading to repossessions or the loss of a secure tenancy, bank accounts can be drained by years of direct debits that do not benefit the missing person and the value of many years of paying into an insurance premium may be lost. Equally, dependents are unable to access financial resources or the missing person’s financial information meaning they can do little to protect themselves. We therefore recommend that legislation be introduced to allow for a system of guardianship orders, similar to those in Australia. These will allow for the administration of the missing person’s property in his or her best interests if they have not returned after three months, as well as support for dependents.

Finally, we call on the Government and industry to provide effective guidance for families in very difficult and distressing circumstances, as well as those who provide services for them.

1 Introduction

1. On 21 July 2011 we announced our inquiry into the law and processes relating to presumption of death. Concerns surrounding this issue were brought to the attention of some of our Members by their constituents, particularly about the cumbersome and Byzantine procedures which the relatives of missing people are required to negotiate. The UK Missing Persons Bureau, which collates data on those reported missing, told us that under 1% of the 200,000 people who are reported missing every year remain un-located after 12 months. In September 2011, the Bureau had around 5,500 outstanding missing persons and approximately 1,000 unidentified people, bodies and remains on its database. The number of people seeking to resolve issues concerning missing relatives at any one time is, therefore, relatively small, but those who are in that situation are inevitably already in distressing circumstances. We therefore decided to examine both the relevant law and procedures to establish whether there were as effective and efficient as possible.

2. Our terms of reference focused on four specific areas:

• Does the current system work effectively?

• Does the current system create difficulties for families, and if so, how can these be resolved?

• What can we learn from the experiences of Scotland and Northern Ireland which have Presumption of Death Acts?

• Is there a need for legislative or procedural change in England and Wales? If so, what form should these changes take?

2. We received 17 submissions from a wide range of witnesses and held two oral evidence sessions with witnesses listed at the end of this Report. We are grateful to all those who took the time to contribute to our inquiry.

2 The current law

3. When a person dies the executors of the will, anyone named in the will or, in the absence of a will, next of kin are able to obtain a grant of probate (or letters of administration if the deceased died without making a will) on production of the death certificate. Death certificates state that two doctors are satisfied that the deceased died from an identified cause. When a person goes missing, however, even if the circumstances of the disappearance strongly suggest he or she has died, the impossibility of a death certificate being issued leaves their affairs unresolved.

4. The law that relates to resolving the affairs of people who go missing is an extensive mixture of statutory and common law provisions; indeed, one witness described it as a “crazy paving of legislation, of statutory and non-statutory provisions.”1 The most well- known provision, that the court will assume a person to be dead when there has been no evidence of his or her continued existence for seven years, is a rebuttable common law presumption. The court will usually presume death if: there is no evidence that the missing person has been alive during the previous seven years; the people most likely to have heard from the missing person have not had any contact; and, during those seven years, inquiries have been made for the missing person, without success.2 If not satisfied on the facts of the case the court will reject the application. An application may be allowed before the person has been missing for seven years if the facts of the case allow, for example if inquiries were thorough and wide-ranging.3 A court order stating the missing person is presumed to have died will resolve the issue that is the point of the application, but not others. This may leave a need for multiple applications: for example an order sought to pay out life insurance could not then be used to put an end to a joint mortgage. The Ministry of Justice told us that no central records are kept of the numbers of applications for such orders, or for the number granted by the courts.4

5. An alternative to a presumption of death, and one that does not require the applicant to wait seven years, is an application under the Non-Contentious Probate Rules. Clifford Chance, a law firm who have undertaken pro bono work for Missing People, described the process as follows:

The Non-Contentious Probate Rules allow a district judge or registrar to grant an applicant leave to swear to the death of a person "to the best of his information or belief" in cases where death is presumed rather than proven. Such leave can be taken at any point after the person's disappearance, i.e. there is no need for the elapse of seven years. It is important to note, however, that in granting leave the High Court is not making a presumption of death but merely giving the applicant the opportunity to swear to the death as a pre-condition for obtaining a grant of probate in order to administer the missing person's affairs.5

1 Q 5 2 Chard v Chard [1955] 3 All ER 721 3 Re Mathews P.17 4 Ev 21 5 Ev 31

6. Specific facts may mean that probate will be granted without such an order. An example was the Asian tsunami in 2004. People who could prove their family member was in the area at the time were allowed by the then Department of Constitutional Affairs to apply for probate on production of the evidence.6

7. The statutory provisions applying to applications to resolve the affairs of missing people are found in a number of acts going back to the nineteenth-century. Clifford Chance listed the statutory provisions as including:

the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004; the Offences Against the Person Act 1861; the Non-Contentious Probate Rules (made by Statutory Instrument in 1987 under the authority of the Supreme Court Act 1981) and the Social Security Act 1998.7

8. Each statutory provision is designed for specific situations, an example being section 19 of the Matrimonial Causes Act 1973 and section 37 of the Civil Partnership Act 2004 where a spouse or civil partner can dissolve the marriage or civil partnership if the court is satisfied, on the balance of probabilities, that the missing person is dead. It is unclear, however, whether such an order can be used to try to resolve other issues. We heard from one solicitor who had found it could not, despite the clear intention of the judge who made the order.8

9. The Foreign and Commonwealth Office also has the power to issue a “consular death registration document” for people who die or who are presumed to have died abroad. The legal status of this document is unclear. The Ministry of Justice told us:

This type of document does not constitute a UK death certificate and does not replace a locally issued death certificate. Consular death registration is not a legal requirement but it means: an entry will be made in the death register by the British Consulate in the country concerned; an applicant will be able to obtain a British style certificate; and a record of the death will be held by the General Register Office in the UK.9

6 Department for Constitutional Affairs press release, New measures to help families of tsunami victims, 26 January 2005 7 Ev 31 8 Ev 45 9 Ev 23

3 Is there a problem with the law on presumption of death?

10. The UK Missing Persons Bureau (UKMPB) told us that the problems facing families seeking to resolve a missing relative’s affairs could be summarised as follows:

• the lack of knowledge and understanding and expertise evidenced by police and legal professionals; and

• the need to follow different processes to dissolve a marriage and administer a missing person’s affairs.10

11. We received ample evidence of the first issue from many of our witnesses. Vicki Derrick, whose husband Vincent Derrick disappeared on a works night out in 2002, told us “I initially spoke to the police for advice and guidance who suggested I contacted a solicitor…I have spoken to quite a few solicitors and have yet to meet one who has dealt with anything like this.”11 Her evidence was echoed by Rachel Elias, whose brother Richard Edwards went missing in 1995, who told us her “family solicitor, from an established and experienced firm, stated that he had never before dealt with such a matter. Indeed he informed us that he would be required to ‘go away and look further into the matter’ before he could proceed and assist us.”12 R Nelson, whose brother disappeared in 2000, found “most solicitors have essentially no experience in this field.”13

12. Stephanie Hynard, whose husband went missing in March 2011, told us that one of the police authorities with which she dealt was “unable to provide me with any information about the correct procedure to follow in dealing with legal issues or whom to turn to for advice”.14 The police are usually the first place families go following the disappearance of a relative. However, the UKMPB told us that referrals to sources of advice “are seldom made because police officers are unaware of or unknowledgeable about existing provisions”.15 They also told us that although a lack of specific training in this area could be a factor, “the complexity of the diverse processes and legislation regarding presumption of death compounds this problem”.16 Martin Houghton-Brown, of the charity Missing People, which provides information and support for the families of missing people, told us the reason why families found it difficult to access information was the complexity of the relevant law: “Because the process is, in effect, a crazy paving of legislation, of statutory and non-statutory provisions, it is very unclear how families should proceed.”17

10 Ev 35 11 Ev 38 12 Ev 19 13 Ev 18 14 Ev 26 15 Ev 35 16 Ibid. 17 Q 5

13. In addition, and as illustrated by the evidence of Mrs Derrick and Ms Elias, long-term missing people cases are relatively rare. The UKMPB told us that research suggests, of the 200,000 people who are reported missing every year, 99% are found within a year.18 Of the 2000 who remain missing many, particularly young people, are likely to have few or none of the financial and legal issues that are usually the reason families are compelled to take legal action. Inevitably, therefore, the police, lawyers, people working in the financial sector and others with whom families come into contact are unlikely to have either experience or training in advising the families of people who are missing long-term. The Association of British Insurers told us that the current system could work with regard to insurance policies when the insurance company was involved at an early stage.19 Otherwise, the evidence we received was unanimous in agreeing that the combination of the complexity of the law, and the rarity of cases, made obtaining reliable information difficult.

14. In addition, Patricia Barrett, of Clifford Chance, told us “lawyers advising the families of missing persons are likely to have to spend a disproportionate amount of time researching the common law and statute law provisions”,20 a situation which is likely to have a substantial impact on the cost of proceedings.

15. Not only is this emotionally draining and costly for the family, it can also lead to a messy legal position in which the missing person is declared dead for one purpose but remains legally living for another. Vicki Derrick told us that, despite the fact her husband had gone missing eight years previously, and their marriage had been dissolved on those grounds, she was still unable to take his name off their joint mortgage: “There is absolutely nothing I can do with my mortgage. My husband’s name is on that mortgage, and he is not around to sign it over to myself.”21 Mrs Derrick told us that without the financial, as well as emotional, support of her family she “would probably have had my house repossessed, because I would not have been able to keep up the mortgage repayments” following the loss of her husband’s income, but without the life insurance dividend she would have received if Mr Derrick had been known to have died.22 Dr Nelson had to have face-to face interviews with the Probate Registry and threaten to involve his MP to convince it to accept his personal submission for probate for his brother’s estate, despite the evidence his brother had been missing for over 10 years.23

16. Jonathan Djanogly MP, Parliamentary Under-Secretary of State for Justice, agreed that the current system is “convoluted and cumbersome”, although he suggested that it “has worked adequately. It has safeguarded the position of the missing person...[and]ultimately, it has enabled those who are left behind to move on.”24

17. We cannot agree with the Minister that the system relating to resolving the affairs of missing people has worked “adequately” because of the evidence we have heard about

18 Ev 34 19 Ev 43 20 Ev 32 21 Q 1 22 Q 12 23 Ev 18 24 Q 86

the problems faced by the families trying to resolve those affairs. Many of these problems appear to be due to the piecemeal nature of the relevant law, and the fact it is to be found in many different statutes as well as the common law. This complexity, as well as the rarity of these cases, means that people find it difficult to obtain reliable information. They may also have to pursue multiple proceedings before everything is resolved.

18. We note that the Minister made the important point that any system or law in this area must safeguard the financial and legal interests of the missing person. Some people do go missing for an extensive period for reasons of their own, returning after months or even years. We have kept this in mind in all our deliberations on this issue.

4 Practical problems arising from the current system

Accepting legal paperwork 19. A number of witnesses told us that they had difficulty in getting institutions to accept legal orders handed down by the court. Rachel Elias told us a number of organisations including the “Publishing Rights Society...and Lloyds TSB”25 initially refused to accept the Grant of Representation “because it was not a death certificate”.26 Ms Elias and her family had to provide the original court order and explain its status and meaning before matters were resolved: “This proved both time consuming and upsetting to us as a family.”27 Kirsten Bennett, a solicitor dealing with the case of a missing person, advised her client that dissolution of the marriage under section 19 of the Matrimonial Causes Act 1973 would provide a court order that could be used to apply for a payout on the missing person’s life insurance. Ms Bennett explained:

The Judge…heard my client’s application and made a Presumption of Death Order. He was keen to ensure the wording of the Order was correct and that the Order could be used for the purpose my client required it; to claim the proceeds of the life insurance policy. The Judge commented that if the Insurance Company were still not satisfied and refused to release the fund, she could make an application to join the Insurance Company into the proceedings and that they would be at risk of costs.28

The insurance company, however, did not accept the court order, despite apparently having said it would before the application was made. Instead it told Ms Bennett:

they ‘would like to make some further enquiries’ into her husband’s disappearance particularly why the police had redacted their report. Furthermore they wanted to contact people who had assisted ‘in the search for her husband’. I have also recently learnt that as the Order itself does specifically refer to the Life Insurance Policy, they may have to refer the matter back to Court on the basis it is insufficient for their purposes.29

20. We asked Nick Kirwan, of the Association of British Insurers, to respond to suggestions that some insurance companies were not willing to accept court orders to pay out on policies. Mr Kirwan told us that insurers should always accept such court orders as sufficient evidence of death to honour life insurance policies.30

25 Ev 19 26 Ibid. 27 Ibid. 28 Ev 45 29 Ibid. 30 Q 35

Resolving immediate financial issues 21. While families are not required to wait seven years before seeking a court order to resolve the missing person’s affairs, the common law presumption of death means that many do. Even if the court is willing to exercise its discretion and grant an order before the seven years are up, this will not assist families to resolve the immediate financial problems consequent on a person’s disappearance. Direct debits and standing orders can drain the missing person’s bank account. Stephanie Hynard, whose husband went missing in March 2011 having left behind a suicide note, was unable to stop payment on direct debits which contributed to her husband’s bank account becoming overdrawn. Ms Hynard told us “it was only at this point that the bank decided to freeze his account.”31 Claire Chandler endeavoured to explain to the utility companies who supplied her partner’s flat that he had gone missing:

The utility companies began to send legal letters to my partner because bills were unpaid, and when I rang them to explain the situation they told me either to ignore the letters or that there was simply nothing they could do to stop the legal process. One utility company even told me that its debt collectors would manage to find my partner. I felt as if my partner were being criminalized, but he’s not hiding from these companies; he’s died. None of the authorities appears to have a policy regarding missing people, and my partner’s affairs are left in a mess.32

22. Nick Kirwan noted that, while some direct debits simply drained the account, others, such as insurance, needed to be paid to protect the missing person’s position so that any measures to resolve short-time financial issues needed to distinguish between them “so that you can cancel their Sky subscription and gym membership which they are clearly not going to use, but keep their life insurance policy and their home contents policy in force and those kinds of day-to-day things.”33 In a written submission, the ABI told us: “This is an issue which the insurance industry would like addressed as it affects the continuing payment of premiums and can cause policies and the cover provided to lapse.”34

Obtaining information about a missing person’s affairs 23. The Data Protection Act (DPA) 1998 applies to all financial institutions either established in the UK or using equipment in the UK to process personal information.35 Companies who unlawfully disclose data can be fined by the Information Commissioner or face criminal prosecution. Equally, a company could be sued for negligence were it to act on the instructions of someone other than the missing person, and that person was to return. Consequently, most institutions have a policy barring the discussion of an account or other financial instrument with anyone other than the holder or someone with a power of attorney. For dependents, and other family members, obtaining the information necessary to protect the missing persons’ interests can be almost impossible. Stephanie

31 Ev 27 32 Ev 25 33 Q 41 34 Ev 43 35 Data Protection Act 1998, Section 5(1)

Hynard was told the reason she could not act on her husband’s behalf was the Act. Holly Towell, Policy Advisor at the charity Missing People, told us “If they have, say, a joint credit card and they are not the lead name, they might not be able to access any information around that. If bailiffs turn up at the house, they might not be able to find out where debts come from.”36

24. The DPA is not, however, the only reason why the families of missing people cannot obtain financial information about their relative’s affairs. Martin Houghton-Brown, Chief Executive of Missing People, told us that:

Certainly, financial institutions want to do the right thing, by and large. Our experience is that they are on side and are deeply sympathetic. However, they do not want to be in breach of their duties to protect an individual’s confidentiality. Therefore, if they have not been granted permission to communicate with anyone other than the individual who set up the original account or policy, they are prohibited from doing so...that poses enormous challenges to them in supporting families in these very difficult circumstances.37

25. Other people who have had family members go missing ran into difficulties with institutions’ lack of knowledge of what can and cannot be done in missing people cases. We explore this issue in more detail below.38

Costs 26. Applying for a presumption of death or other order in the courts can be a costly process, particularly if multiple applications have to be made. The lack of clarity over whether multiple proceedings will be necessary means that the cost of resolving a missing person’s affairs is not only exacerbated but it is also difficult to predict. Holly Towell told us:

It usually costs several thousands of pounds, but it is hugely variable. I have spoken to a gentleman who wanted to administer his brother’s estate, which was worth a few tens of thousands of pounds, and he was told not to bother, because it would cost that amount to administer it. Because the system is so disparate, people are quoted vastly different numbers.39

27. Rachel Elias told us that the procedure for obtaining probate after the disappearance of her brother “took approximately three years and cost £3,500”.40 The amount was charged to the family at the end of the procedure and up until that point they “were not aware of how much the matter would cost” as they struggled to find any “advisory organisations to signpost this question to.”41 The length of time between the presumed death and the court order declaring the person dead may also have financial consequences. Hugh Eddowes,

36 Q 8 37 Q 12 38 See paragraphs 30–32 39 Q 13 40 Ev 19 41 Ev 20

whose brother went missing in 2002 before probate on their mother’s estate was completed, had difficulties with HMRC when a presumption of death order was granted for his brother in October 2010:

HMRC…claimed interest on the late payment of all due instalments [of inheritance tax] from March 2003 resulting in my being charged an extra 34% on the basic IHT demand. In order to minimise further interest charges, the necessary amount of money was raised and paid. At that stage, HMRC read the solicitor's letter sent several weeks previously and decided to allow the requests made by the solicitor. They eventually repaid all the money with a little interest, but not before their systems demanded a compliance check. This resulted in them having to check the value of a property as at August 2002 when they had already accepted the value at February 2002 when our mother had died. This just added to the delays.42

28. The disappearance of a family member can also lead to consequential costs. Mr Eddowes stored his brother’s possessions as “property of a missing person cannot be disposed of nor managed” for more than eight years, which “cost over £9,000 and was considerably more than they were worth”.43 Claire Chandler is currently paying to keep many of her partner’s possessions in storage: “The paid storage is a significant financial burden, but I could not otherwise bear to see my partner’s possessions end up being sold or thrown away rather than distributed as instructed in his will.”44

42 Ev 20 43 Ibid. 44 Ev 25

5 Solutions to the lack of clarity around presumption of death

Non-legislative solutions 29. It was put to us that some non-legislative solutions, such as: more guidance and protocols for business and institutions; more guidance for the families of missing people; and, or as an alternative, more guidance for coroners on holding an inquest without a body under section 15 of the Coroners Act 1988 might help alleviate the problems associated with missing persons. We now look at each of these proposals.

Guidance for industry and institutions 30. As we noted earlier, several of our witnesses who had missing relatives believed the difficulties they came across were in part due to a lack of knowledge in the institutions with which they were dealing. Claire Chandler told us that “none of the authorities appears to have a policy regarding missing people”.45 Judy Lancaster found that, when she did speak to the bank regarding her missing brother’s finances, she was usually connected to a person “who has no experience in this area.”46 Similarly, Stephanie Hynard found that “if I told an organisation about my husband’s missing status, they were unable to offer advice”.47

31. One of the difficulties with seeking an exclusively non-legislative solution is that companies and institutions would not be protected from legal action should the missing person return and sue for negligence, even if the company involved had followed the guidance to the letter. Clifford Chance told us it believed that, in those circumstances “private institutions...may not be willing to release assets on that basis.”48 Clifford Chance also told us that “given the very wide scope of the institutions that might be involved, including for example public bodies such as the Land Registry, the process of creating and implementing such codes would be onerous compared with the effects of legislation.”49 Martin Houghton-Brown of Missing People agreed:

The process of trying to draw in the many components of guidance, good practice and codes of practice would be time-extensive and costly for each of the institutions. That does not mean to say that it would not be a welcome step in the right direction, but I do not think that there is a quicker fix than legislation.50

32. Industry guidance alone cannot solve all the problems families face when trying to resolve a missing person’s affairs, and it will not protect companies and public institutions from legal action should the missing person reappear. However, guidance

45 Ev 25 46 Ev 38 47 Ev 27 48 Ev 32 49 Ibid. 50 Q 20

on the best way to resolve a missing person’s affairs, and, in particular, how to communicate with the family, would alleviate at least some of the difficulties relatives currently face. We would therefore encourage organisations to develop such guidance, which will benefit the institutions concerned as well as families by making communication in cases of missing people more efficient and effective.

Guidance for families 33. As noted above, families find it difficult to get clear, reliable information on the law and processes relating to resolving a missing person’s affairs. There is currently no Government institution that provides such information. Jo Apps, Manager of the UK Missing Persons Bureau, told us that it would “signpost them, as the police would, to the charity Missing People for support.”51 Jonathan Djanogly MP, Parliamentary Under-Secretary of State, recognised this problem and told us “there is a lack of understanding of what is out there at the current time”52 and therefore “we do think that there is a role for guidance”.53 Holly Towell, who runs the helpline at Missing People which appears to be the main source of information for families, told us that, even with her knowledge of the system, the guidance she could give was inevitably limited because of the law:

Essentially, my role here is to tell them that, unfortunately, they are in a bit of a legal grey area and to be open and honest with the financial institutions—which their missing relative and perhaps they, jointly or solely, hold assets with or are a customer of—and just to have that open relationship, to explain the situation and essentially to rely on good will. We know that some families are able to get so far, usually when they have some sort of personal relationship with, for example, a bank manager, if they are from a smaller community. But the broad number of families come up against these hurdles whereby, if they do not have the signature of the missing person, there is not much that can be done. It is a case of advising them along the lines of where I have heard other families perhaps having success and sometimes of recommending that they perhaps go to the CAB and see if it can help, but really it is just one of clarifying what families suspect, which is that there is not really anything out there for them to access.54

34. The problems families encounter when a relative goes missing are in part due to the system, or lack of one. However, the primary reason why the system is so convoluted and obscure is because the law relating to it is neither clear nor comprehensive. Easily available guidance from the Government, however, would help families to begin navigating the system. We therefore recommend the Ministry of Justice develop guidance for families on the law and processes in this area.

51 Q 55 52 Q 87 53 Ibid. 54 Q 14

Guidance on section 15 of the Coroners Act 35. Section 15 of the Coroners Act 1988 allows a coroner to hold an inquest without a body. If the coroner is satisfied on the balance of probabilities that the missing person is dead then he or she can issue a death certificate for that person. However, as the Ministry of Justice told us, the provision only applies when the coroner has reason to believe “that a violent, unnatural or sudden death with unknown cause has occurred in or near his or her district but the body is irrecoverable or has been destroyed.”55 The coroner is then required to report these circumstances to the Secretary of State for Justice who may then direct the coroner to hold an inquest. The two limitations on this process, the requirement for a geographical link to the coroner’s area and the need for the Secretary of State’s permission, mean that the process is rarely used. The Ministry of Justice told us that 66 applications for section 15 inquests had been received from coroners between 2008 and September 2011. In seven cases a direction was refused.56 In 26 cases death was a certainty, in eight it was almost certain and in 13 death was assumed on the balance of probabilities.57 The Ministry of Justice is currently formulating guidance for coroners on when seeking a direction from the Secretary of State is appropriate.

36. The UK Missing Persons Bureau believed that guidance on section 15 inquests was helpful but could not resolve all the problems experienced by families:

The Bureau considers the criteria for a Coroner’s inquest to be too restrictive. For a Coroner to conduct an inquest there must not only be evidence to suggest the person is dead, but that the death occurred in the Coroner’s district. It is not always possible to provide evidence to this effect (particularly when there is no body or an identified crime scene) and thus many families are denied the opportunity to obtain a death certificate due to this geographic restriction, despite evidence to indicate that their loved one has died.58

Patricia Barrett, of Clifford Chance agreed: “Section 15 is slightly problematic, because it requires a report to be made to the Home Secretary and it requires the Home Secretary to make a consideration, so I do not think that that is ever going to be a route that you are going to want to encourage lots of people to go down.”59 Jonathan Djanogly MP told us that the Government accepted section 15 inquests were always only going to have limited application to the cases of missing people:

The important point to make on section 15 inquests is that it goes slightly further than missing persons. Section 15 inquests, basically, are for the situation where there is no body. For instance, that could be after cremation. We also need to realise that it does not cater for certain circumstances that one would want to be taken on board. If a person were to go missing in an aeroplane outside the jurisdiction, for instance,

55 Ev 22 56 Ev 22; The numbers do not add up to 66 because this includes cases which were under consideration by the Secretary of State for Justice at the time the submission was written and cases which were withdrawn. 57 Ev 22 58 Ev 35 59 Q 7; The Secretary of State for Justice took over this role from the Home Secretary on the creation of the Ministry of Justice in 2007.

section 15 would not cover it. Section 15 only covers in jurisdiction...We do not think it is going to lead to a larger number of inquests, but we do think that it will streamline the process.60

37. We welcome the Government’s commitment to provide guidance on the operation of section 15 of the Coroners Act 1988. However, the restrictions on holding inquests under section 15, evidence of a geographical link to the coroner’s area and a direction from the Secretary of State that the inquest be held, make the application of this legislative provision limited. Guidance in this area will rarely solve the problems experienced by the families of missing people.

Legislative solutions

A Presumption of Death Act? 38. Since 1977, Scotland has had a single statutory process which results in a certificate of presumed death which can be used to resolve all the missing person’s affairs, in much the same way as a death certificate. In 2009 the Northern Ireland Assembly passed a very similar Act.61 As a result, the problems encountered and described by our witnesses only occur to the families of missing people in England and Wales. In 2009, Tim Boswell MP (now Lord Boswell of Aynho) introduced a Private Member’s Bill modelled on the Scottish Act in the House of Commons which, because of the limited time available for the consideration of Private Member’s Bills, did not gain a second reading.

39. The Bill gave the court the discretion to order that indemnity insurance be taken out against the missing person’s possible return, to protect his or her financial position. The Bill was also drafted to allow that “if somebody turns out to be alive, you can go back to court and get a variation order, and the court can then have the power to distribute things in a different way.”62 Clifford Chance, who, on behalf of Missing People, helped draft the Bill, told us: “at the request of officials at the Ministry of Justice, we also drafted a consultation paper on the issue, with a view to its publication as a government consultation paper (with a draft Bill attached). Unfortunately, due, we believe, to competing priorities, this paper was never finalised, and was not issued.”63 In November 2010, Lord Boswell tabled a parliamentary question asking when the Government would introduce presumption of death legislation. Lord McNally responded as follows:

The Minister of State, Ministry of Justice (Lord McNally): My department has carefully considered the draft proposals from the charity, Missing People, to reform the law of England and Wales relating to the presumed death of missing persons. However, in light of the need to concentrate our resources on the delivery of our key

60 Q 91 61 Presumption of Death Act (Northern-Ireland) 2009 62 Q 17 63 Ev 31

priorities, we have decided not to take this work forward. We are grateful to Missing People for its work on the draft proposals.64

40. Jonathan Djanogly MP told us that, while presumption of death legislation was not coalition policy “we will look very carefully at the report that your Committee produces and will take a view based on that report and the APPG evidence as well.”65 We welcome the Government’s commitment to reconsider its position on bringing forward presumption of death legislation in the light of the recommendations in this report.

41. Under the Scottish Presumption of Death Act 1977 “any person having an interest may raise an action of declarator seven years after the subject of the declaration has gone missing or has believed to have died.”66 The 1977 Act applies to people resident in Scotland for a year before going missing, or the spouse of a missing person who lives in Scotland at the time of the action or habitually did so for the previous year.67 The court must consider whether having heard the facts and on the balance of probabilities, the missing person must be declared dead, and has the power to assign a date of death other than the end of the seven year period if the evidence allows.68 Insurance against the person’s return is required, unless the court directs otherwise.69 The effect of a decree is conclusive for all purposes, including the dissolution of the missing person's marriage, and any question of rights to property. Criminal liability of a missing person or any other person is not excluded by reason of a decree of death.70 The Scottish Government describes the Act as working “effectively”.71 Clifford Chance told us that around four or five orders are made a year.72

42. Martin Houghton-Brown was convinced that primary legislation which allowed for a single process was not only required but was “the right, just and sensible thing to do”:73

I have been working with missing persons and missing children for many years and I have sought many policy changes in the public domain. This is the first time I have come across an area where primary legislation is the right solution. In the vast majority of cases, secondary legislation, and in most cases good public policy, will fix the problem. In this case, I do not believe that that is true.74

43. The All-Party Parliamentary Group for Runaway and Missing Children and Adults, in which Members of our Committee participated, held an inquiry into the law relating to the affairs of missing people in summer 2011. It concluded that:

64 HL Deb 15 November 2010 c164WA 65 Q 87 66 Section 1(1) 67 Section 1(3) 68 Section 2(1) 69 Section 6 70 Section 3(4) 71 Ev 40 72 Ev 33 73 Q 9 74 Q 21

After listening to and carefully considering the oral evidence presented in this session, alongside written submissions (including from the Ministry of Justice and the Scottish Government) APPG members unanimously agreed that specific presumption of death legislation is necessary...75

44. The Association of British Insurers, however, had some concerns over the introduction of a Presumption of Death Act in England and Wales, believing it may lead to an increased temptation for people to commit fraud:

The combination of an increasingly difficult economic climate combined with increasingly fluid travel habits, may result in "going missing" becoming more common if access to insurance funds without a "body" becomes easier. A change in process would increase the risk that the monies are paid out which may at some point in the future need to be repaid.76

45. Nick Kirwan of the ABI told us that the insurance industry’s concerns could be alleviated but only if such an act provided for a “clear, robust process.”77 We heard evidence that the Scottish legislation provided such a process. Mr Houghton-Brown told us that, in the 34 years the Scottish legislation had been in place, only one person who was the subject of a court order declaring presumed death had reappeared. Joe Apps, Manager of the UK Missing Persons Bureau, also told us that good evidence would be available to any court deciding such an application from the police:

It is quite difficult to re-create yourself somewhere without coming to the notice of the authorities in some way. Provided the inquiries are diligent and expansive, then the chances are that we will come across them again. There are very few cases like John Stonehouse or Lord Lucan, for example, where people just seem to disappear and are never seen again. We are all just so well connected.78

46. A less cited benefit of enforcing such a system is a financial one. Assimilating the current presumption of death processes into one system would have the benefit of clarity and cost saving. The APPG inquiry concluded that “one system for presumption of death through which family members would be able to obtain a certificate of presumed death for all purposes would result in cost savings, not least in relation to reduced court time.”79 The UK Missing Persons Bureau also highlights the benefits of reduced court time and legal costs80and told us “Lord Boswell also suggested an indirect cost saving through reduction in benefit payments”.81

47. Non-legislative solutions to the problems of resolving the affairs of missing people are necessary but not sufficient. Primary legislation is required. We understand the concerns of the insurance industry that more people may be tempted to stage a

75 Ev 39 76 Ev 44 77 Q 44 78 Q 84 79 Ev 43 80 Ev 37 81 Ibid.

disappearance. However, the fact that, in 34 years, only one person who was the subject of an order under the Scottish Presumption of Death Act 1977 has reappeared is a compelling argument that the legislation provides a clear, robust court process to resolve the question of whether a missing person is alive or dead. We therefore recommend that the Ministry of Justice introduce legislation based on the Scottish Act.

48. In recommending the introduction of legislation on this issue we expect the Ministry of Justice to return to the bill introduced by Tim Boswell MP (Lord Boswell of Aynho) as a Private Member’s Bill. We understand that bill to have had widespread support, a view bolstered by the recommendations of the All-Party Parliamentary Group on Runaway and Missing Children and Adults that legislation on this issue is necessary.

49. The law relating to the affairs of missing people will only affect a limited number of people. It will, however, allow families placed in extremely difficult emotional circumstances at least to resolve the financial and legal affairs of their missing relatives. We believe the time is long overdue to extend to English and Welsh families the protection that is available to Scottish and Northern Irish families.

Legislating for guardianship 50. A presumption of death Act in England and Wales on the model of the Scottish legislation would usually only allow an application for a presumption of death order after seven years.82 The issue would still remain of how families could protect the financial position of the missing person or provide for dependents. In evidence we heard of a system of administering estates adopted by some states in Australia, with Victoria being a typical example.

51. Since October 2010, the relatives of a missing person in Victoria may apply to the courts for a guardianship order under the amended Guardian and Administration Act 1986. An order can be applied for 90 days after the person has gone missing.83 All persons who have an interest in such an order must be notified of the application, including those who oppose it.84 The court will require evidence that reasonable efforts have been made to find that person, reasonable efforts being case-specific but usually involving notification of the police; notification of organisations such as the Samaritans; a physical/internet search; and seeking media publicity.85 The court will only grant an order if there is a need for decisions to be made regarding the missing person’s property and it is satisfied that it in the best interest of the missing person that a order allowing administration be made.86 The powers available under such an order are limited. The person who is granted the guardianship order (known as the administrator) must act in the “best interests” of the missing person making only decisions that are “necessary and desirable” for:

82 Q 23 83 Section 60AB(2)(c) 84 Section 44 85 Section 60AB(2) and Safe Keeping: A Guide to Managing the Affairs of Missing Persons (2011), Loddon Campaspe Community Legal Centre, Victoria, Australia http://www.missingpersons.gov.au/support/~/media/MP/Files/PDFs/SAFE%20KEEPING_FINAL.ashx 86 Section 60AB(1)(b) and (c)

• The paying of the missing person’s debts;

• The maintenance of the missing person’s dependents; and

• The care and maintenance of the missing person’s estate.

52. An administrator’s decisions have the same legal status as those made by the missing person.87 If it is found desirable to appoint an administrator then the court will require that the appointed person:

• Will act in the best interests of the missing person;

• Is not in a position where their interests will conflict with the interests of the missing person;

• Is a suitable person to act as administrator;

• Has sufficient expertise to administer the estate or there is a special relationship or other special reason why he or she should be appointed as administrator;88 and

• Is over 18.89

53. The administrator will be accountable for all decisions that he or she makes, must keep complete and accurate records of all transactions, must file a complete financial statement of the missing person’s estate, and must file a full financial statement, which will be examined by the court, annually.90 Orders will be made for two years and can thereafter be renewed for another two years.91 The administrator is required to notify the court immediately he or she is aware of evidence that the missing person is alive or dead.92

54. We set the above out at length because, unlike the presumption of death legislation in Scotland, such provisions are relatively new. However, they received strong support from our witnesses. Martin Houghton-Brown told us: “With such a system, families and people like Vicki [Derrick] could have secured guardianship in the interim in order to administrate affairs: to renegotiate the mortgage to bring it on to a more favourable interest rate, for example. She or other people could have administrated interim affairs prior to any decision that they might have wanted to take to bring to a conclusion their partners’ affairs.”93 The ABI also suggested that a provision allowing for the protection of the missing person’s financial position was required, on the lines of a “limited power of attorney.”94

55. We recommend that the Government take steps to introduce provision for ‘guardianship’ orders modelled on the approach adopted by states in Australia, either

87 Section 48 88 Section 47(1) 89 Section 60AB 90 Section 58(2) 91 Section 60AE 92 Section 60AC 93 Q 10 94 Ev 44

via the introduction of the presumption of death legislation we have recommended, or some alternative legislative mechanism. This will protect the financial position of the missing person and his or her dependents.

6 Conclusion

56. While the numbers of people who have to deal with the repercussions of having a family member go missing are small, the pain and anguish those families go through is considerable. As things stand, their suffering is exacerbated by: a legislative patchwork of bewildering complexity; the inability to administer the financial situation of their missing relatives; a lack of information about the actions they are able to take; and ignorance of the correct procedures to be followed by police, lawyers, banks, insurers and others. We therefore recommend a threefold approach: the introduction of a presumption of death act to clarify the legal position; the introduction of ‘guardianship’ orders, so that financial stewardship of missing persons’ affairs can be established more speedily; and the provision of effective guidance for the families of missing people and those who provide services for them.

Conclusions and recommendations

1. We cannot agree with the Minister that the system relating to resolving the affairs of missing people has worked “adequately” because of the evidence we have heard about the problems faced by the families trying to resolve those affairs. Many of these problems appear to be due to the piecemeal nature of the relevant law, and the fact it is to be found in many different statutes as well as the common law. This complexity, as well as the rarity of these cases, means that people find it difficult to obtain reliable information. They may also have to pursue multiple proceedings before everything is resolved. (Paragraph 17)

2. We note that the Minister made the important point that any system or law in this area must safeguard the financial and legal interests of the missing person. Some people do go missing for an extensive period for reasons of their own, returning after months or even years. We have kept this in mind in all our deliberations on this issue. (Paragraph 18)

3. Industry guidance alone cannot solve all the problems families face when trying to resolve a missing person’s affairs, and it will not protect companies and public institutions from legal action should the missing person reappear. However, guidance on the best way to resolve a missing person’s affairs, and, in particular, how to communicate with the family, would alleviate at least some of the difficulties relatives currently face. We would therefore encourage organisations to develop such guidance, which will benefit the institutions concerned as well as families by making communication in cases of missing people more efficient and effective. (Paragraph 32)

4. The problems families encounter when a relative goes missing are in part due to the system, or lack of one. However, the primary reason why the system is so convoluted and obscure is because the law relating to it is neither clear nor comprehensive. Easily available guidance from the Government, however, would help families to begin navigating the system. We therefore recommend the Ministry of Justice develop guidance for families on the law and processes in this area. (Paragraph 34)

5. We welcome the Government’s commitment to provide guidance on the operation of section 15 of the Coroners Act 1988. However, the restrictions on holding inquests under section 15, evidence of a geographical link to the coroner’s area and a direction from the Secretary of State that the inquest be held, make the application of this legislative provision limited. Guidance in this area will rarely solve the problems experienced by the families of missing people. (Paragraph 37)

6. We welcome the Government’s commitment to reconsider its position on bringing forward presumption of death legislation in the light of the recommendations in this report. (Paragraph 40)

7. Non-legislative solutions to the problems of resolving the affairs of missing people are necessary but not sufficient. Primary legislation is required. We understand the concerns of the insurance industry that more people may be tempted to stage a

8. In recommending the introduction of legislation on this issue we expect the Ministry of Justice to return to the bill introduced by Tim Boswell MP (Lord Boswell of Aynho) as a Private Member’s Bill. We understand that bill to have had widespread support, a view bolstered by the recommendations of the All-Party Parliamentary Group on Runaway and Missing Children and Adults that legislation on this issue is necessary. (Paragraph 48)

9. The law relating to the affairs of missing people will only affect a limited number of people. It will, however, allow families placed in extremely difficult emotional circumstances at least to resolve the financial and legal affairs of their missing relatives. We believe the time is long overdue to extend to English and Welsh families the protection that is available to Scottish and Northern Irish families. (Paragraph 49)

10. We recommend that the Government take steps to introduce provision for ‘guardianship’ orders modelled on the approach adopted by states in Australia, either via the introduction of the presumption of death legislation we have recommended, or some alternative legislative mechanism. This will protect the financial position of the missing person and his or her dependents. (Paragraph 55)

Formal Minutes

Tuesday 7 February 2012

Members present:

Rt Hon Sir Alan Beith, in the Chair Steve Brine Rt Hon Elfyn Llwyd Mr Robert Buckland Seema Malhotra Jeremy Corbyn Yasmin Qureshi Nick de Bois Elizabeth Truss Chris Evans Karl Turner

Draft Report (Presumption of Death), proposed by the Chair, brought up and read.

Ordered, That the draft Report be read a second time, paragraph by paragraph.

Paragraphs 1 to 56 read and agreed to.

Summary agreed to.

Resolved, That the Report be the Twelfth Report of the Committee to the House.

Ordered, That the Chair make the Report to the House.

Ordered, That embargoed copies of the Report be made available, in accordance with the provisions of Standing Order No. 134.

Written evidence was ordered to be reported to the House for printing with the Report, together with written evidence reported and ordered to be published on 1 and 22 November 2011.

[Adjourned till Tuesday 21 February at 10.15am.

Witnesses

Tuesday 22 November 2011 Page

Patricia Barratt, Senior Associate, Clifford Chance LLP, Vicki Derrick, Martin Houghton-Brown, Chief Executive, and Holly Towell, Policy Advisor, Missing People Ev 1

Nick Kirwan, Assistant Director, Health and Protection, Association of British Insurers Ev 6

Tuesday 29 November 2011

Joe Apps, Manager, and Dr Llian Alys, UK Missing Persons Bureau Ev 10

Jonathan Djanogly MP, Parliamentary Under-Secretary of State, and Keir Hopley, Deputy Director, Criminal Law and Legal Policy, Ministry of Justice Ev 15

List of printed written evidence

1 Dr R Nelson Ev 18 2 Rachel Elias Ev 18 3 Hugh Eddowes Ev 20 4 Ministry of Justice Ev 21 5 Claire Chandler Ev 24 6 Stephanie Hynard Ev 26 7 Missing People Ev 27 8 Clifford Chance LLP Ev 31 9 UK Missing Persons Bureau Ev 34; Ev 49 10 Judy Lancaster Ev 38 11 Vicki Derrick Ev 38 12 APPG for Runaway and Missing Children and Adults Ev 39 13 Association of British Insurers Ev 43; Ev 50 14 Kirsten Bennett Ev 45 15 Anastasia Romanos Ev 46

List of Reports from the Committee during the current Parliament

The reference number of the Government’s response to each Report is printed in brackets after the HC printing number.

Session 2010–12 First Report Revised Sentencing Guideline: Assault HC 637 Second Report Appointment of the Chair of the Judicial Appointments HC 770 Commission Third Report Government’s proposed reform of legal aid HC 681–I (Cm 8111) Fourth Report Appointment of the Prisons and Probation Ombudsman HC 1022 for England and Wales Fifth Report Appointment of HM Chief Inspector of Probation HC 1021 Sixth Report Operation of the Family Courts HC 518-I (Cm 8189) Seventh Report Draft sentencing guidelines: drugs and burglary HC 1211 Eighth Report The role of the Probation Service HC 519–I (Cm 8176) Ninth Report Referral fees and the theft of personal data: evidence from HC 1473(Cm 8240) the Information Commissioner Tenth Report The proposed abolition of the Youth Justice Board HC 1547 (Cm 8257) Eleventh Report Joint Enterprise HC 1597

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Justice Committee: Evidence Ev 1

Oral evidence

Taken before the Justice Committee on Tuesday 22 November 2011

Members present: Sir Alan Beith (Chair)

Mr Robert Buckland Ben Gummer Jeremy Corbyn Mr Elfyn Llwyd Nick de Bois Elizabeth Truss Chris Evans ______

Examination of Witnesses

Witnesses: Patricia Barratt, Senior Associate, Clifford Chance LLP, Vicki Derrick, Martin Houghton- Brown, Chief Executive, and Holly Towell, Policy Advisor, Missing People, gave evidence.

Chair: Welcome Martin Houghton-Brown, Chief Vicki Derrick: I haven’t. I am looking at the fact that Executive of Missing People; Patricia Barratt, Senior I have got a very good family to support me. If didn’t Associate with Clifford Chance; Vicki Derrick, who have that support, I may have had to go down that has personal experiences of the kind of distressing road. I wouldn’t have had to try to sell my house; I circumstances that we are looking at today; and Holly would probably have had my house repossessed, Towell, Policy Advisor to Missing People. We are because I would not have been able to keep up the very grateful to you for coming in today to help us mortgage repayments. There is absolutely nothing I with the inquiry. It has come to our notice and has can do with my mortgage. My husband’s name is on been bought to Parliament’s notice through private that mortgage, and he is not around to sign it over to Member’s Bills and in other ways that there is a real myself. Obviously, having some kind of procedure in area of practical difficulties for people in place to help families try to sort these financial issues circumstances none of us would choose to be in out would be a great, great help and would ease the involving family members, and we want to look at burden that I have lived through for the past eight whether the Government should be pressed to do more years. You are not only living with the fact that your about it and, if so, what. We are particularly grateful husband has gone missing; you don’t know why and to have witnesses with a range of knowledge about it. you don’t know what has happened. I had a two-and- Mr Gummer, will you begin? a-half-year-old little boy at the time. There was a lot of pressure, and not enough help out there. Q1 Ben Gummer: Thank you, Sir Alan. Mrs Derrick, it is perhaps appropriate to start with you, Q3 Ben Gummer: How is your relationship with the if I may. To set the scene, will you describe for the police during this period? Have you found them to be Committee your experience of trying to establish that helpful or not? your missing relative is dead. Vicki Derrick: As for the police that I have dealt with Vicki Derrick: Obviously, my husband has been missing for the past eight years. Like most normal in my own city—I live in Manchester, so it is Greater everyday people, I was under the assumption that, Manchester police—in the very beginning, when after seven years, somebody is just presumed Vinny first went missing, it was treated as a high-class deceased. On looking into it more, as I have had to missing person case from the beginning and do, that is not the case, as it does not exist in this everything was done. From my point of view, country; there is no presumption of death procedure, obviously, there was not enough contact from the so it has been quite a long process to look into. I have police. To this day, there still isn’t. I do not have any had a solicitor involved. real criticism of how they have handled the case. They We still have a mortgage that has not been resolved, have investigated it fully, as far as I am concerned. which is still in joint names. I can’t change that mortgage. I can’t move house. I haven’t been able to Q4 Ben Gummer: All of this, I am sure, does not do anything for the past eight years. It has been help you get over the emotional problems. You can extremely difficult. I have gone from having a joint understand the administrative ones as well. income of a husband, who earned far more than I Vicki Derrick: Yes. For the past eight years, my life earned, to being a single mum overnight, on a greatly has been on hold. However much I try to move reduced income. I have just basically been expected forward, it is always there. I have come to live with to get on with it. There is really absolutely no help the fact and get used to the fact that this is part of my out there for people in my situation. In eight years— life now. For the mortgage issues, we had a life insurance policy that I tried to get paid out. For all Q2 Chair: Forgive me for interrupting you, but have those little things, if they could have been sorted out you had to contemplate selling your house and sooner, it would have made a big, big difference to discovering that it would be very difficult to do that? my life. cobber Pack: U PL: COE1 [E] Processed: [16-02-2012 08:49] Job: 017612 Unit: PG01 Source: /MILES/PKU/INPUT/017612/017612_o001_db_CORRECTED.xml

Ev 2 Justice Committee: Evidence

22 November 2011 Patricia Barratt, Vicki Derrick, Martin Houghton-Brown and Holly Towell

Q5 Ben Gummer: I know that we all appreciate really a step forward. Why do you think that section enormously your bravery in coming to tell us about it. 15 is so underused? Mr Houghton-Brown, is this a typical experience? Martin Houghton-Brown: Apart from the lack of Martin Houghton-Brown: Sadly, in the charity’s knowledge and understanding of section 15, both by experience—the charity has been in existence for 20 coroners and by the general public, the other years and was previously known as the National determinant is that there are suspicious circumstances. Missing Persons Helpline—there have been consistent Determining that the person was missing within the approaches to the charity by people from across jurisdiction, determining that the circumstances are England and Wales seeking help and support when suspicious and, indeed, determining that a death has their loved one has gone missing. They face the very occurred are all factors, by the nature of someone agonising process of saying that they may have died being missing, on which it is very hard to come to whilst they have been missing. Once they come to a conclusion. their conclusion and want to begin to resolve affairs, The police describe a person being missing as their seeking out help and support is, at best, chaotic. Legal whereabouts being unknown. That means that we do professionals do not know what they are doing. The not necessarily know that they have died within that courts do not know what they are doing. Because the jurisdiction; we do not know the circumstances of process is, in effect, a crazy paving of legislation, of their death—if they have, indeed, died—and we do statutory and non-statutory provisions, it is very not know whether there are suspicious circumstances. unclear how families should proceed. As in Mrs Quite rightly, coroners determine therefore that, even Derrick’s circumstance, you may proceed along one if they are approached, it is not necessarily within path and that path will not provide you with their jurisdiction to undertake, or seek leave to have, provisions for other circumstances. In Mrs Derrick’s a section 15 inquiry. case, her marriage is dissolved, but her mortgage Patricia Barratt: One of the things we suggested in remains in their joint name. We have this incredible the Presumption of Death Bill was an amendment to and archaic process, by which we can have, in one coroners legislation so that the chief coroner could state of affairs, her husband presumed to have died designate a coroner to undertake an investigation, and, in another, him presumed to still be alive. where appropriate, and we think that coroners’ greater involvement would be good. Section 15 is slightly Q6 Ben Gummer: Just so we get a general picture problematic, because it requires a report to be made of this, Miss Barratt, can I ask what the history and to the Home Secretary and it requires the Home Secretary to make a consideration, so I do not think the law are behind this? Why is it that there is this that that is ever going to be a route that you are going crazy paving that has been referred to? to want to encourage lots of people to go down. Patricia Barratt: As I understand it, it is because legislation has been developed to deal with very Q8 Mr Llwyd: It’s a rather bad piece of legislation, specific situations over a long period of time. In isn’t it? One obvious point is that when a disaster such common law, case law grew up to deal with the as this overtakes a family, financial problems occur. situation in which somebody was missing in particular In practical terms, how do families manage? We have cases. There was no procedure to address that. Also, had some insight, Mrs Derrick, into the situation that, there are legislative provisions to, for example, very unfortunately, you were in. How do families prevent you committing the criminal offence of manage in the aftermath of such a thing? bigamy, if you get married after your husband or wife Holly Towell: It varies very greatly from family to have been missing for a certain period of time. There family. It very much depends on that family’s is another legislative provision to allow for the individual circumstances and their relationship to the dissolution of marriage. There is a different piece of missing person. For example, as in Vicki’s case, there legislation for the dissolution of civil partnership. are partners of missing people who maybe have a joint There are also very specific legislative provisions for mortgage which they cannot renegotiate. when certain types of people go missing—for I speak to many people—my role is Policy Advisor— example, merchant seamen and Crown servants. In the and I give a lot of practical advice, one on one, to tsunami disaster, the Foreign Office said that it would families. I speak to many partners left behind who are issue foreign death certificates if particular criteria actually having to pay both halves of a joint mortgage were met. It is a very piecemeal reaction to it. There on their own. If they have, say, a joint credit card and is a real opportunity now to take an overview and say, they are not the lead name, they might not be able to “Well, actually, we could have a procedure that works access any information around that. If bailiffs turn up for everything.” at the house, they might not be able to find out where debts come from. Q7 Mr Llwyd: My understanding is that families can In terms of insurance, as Vicki was saying about life ask a coroner for an inquest under section 15 of the insurance, it can be quite difficult for families to try 1988 Act, but we have been told by several people— to find out just how they can access a life insurance in particular, the UK Missing Persons Bureau—that pay-out. They often end up approaching institutions the criteria are too geographically restrictive and that which want to work with families but do not really there must be not only evidence of death, but evidence have a framework through which they can. It is not that the person passed away within the coroner’s like when someone lacks mental capacity and they can jurisdiction. Hence only 12 requests have been made go for power of attorney; there is no such provision under section 15 between 2007 and 2009. That is not when someone is missing. You end up in a situation cobber Pack: U PL: COE1 [O] Processed: [16-02-2012 08:49] Job: 017612 Unit: PG01 Source: /MILES/PKU/INPUT/017612/017612_o001_db_CORRECTED.xml

Justice Committee: Evidence Ev 3

22 November 2011 Patricia Barratt, Vicki Derrick, Martin Houghton-Brown and Holly Towell where institutions—financial institutions in financial institutions that he was able to do anything— particular—are looking to work with families and and some would argue that they were in breach of families are trying to work with them, but there is no their duties under the Data Protection Act in co- way of getting around the fact that they do not have operating with him. 1 that second signature to help out. That also runs the risk of a lot more families falling into needing to Q12 Mr Llwyd: That was my next question. There is access the benefit system, simply because they do not also a complication there, isn’t there? Or there can be. have the money to live on. We certainly have quite a Martin Houghton-Brown: Certainly, financial few families who have had their homes very much at institutions want to do the right thing, by and large. risk of repossession, because they are not able to meet Our experience is that they are on side and are deeply certain payments. sympathetic. However, they do not want to be in breach of their duties to protect an individual’s Q9 Mr Llwyd: Do you have any specific suggestions confidentiality. Therefore, if they have not been as to how these problems can be alleviated? granted permission to communicate with anyone other Martin Houghton-Brown: It is clear to the charity than the individual who set up the original account or that legislative provision in line with the provisions policy, they are prohibited from doing so. As you will that are already in existence in Scotland, Northern hear from professionals from those institutions later, Ireland, Australia and many continental European that poses enormous challenges to them in supporting states—providing for a single legal process by which families in these very difficult circumstances. you can obtain a presumption of death certificate that has the same power as a death certificate, which Q13 Mr Llwyd: One presumes that it is a very costly enables you to draw to a conclusion your partner’s process to try to regularise the estate in these affairs in marriage, in financial and in legal terms—is circumstances. Do you have a ballpark figure for the the right, just and sensible thing to do. average cost to a family of trying to straighten things out? Q10 Chair: That prompts this question in my mind: Holly Towell: In terms of legal costs, I do not know is there a distinction to be drawn between those cases many families from my few years’ work in Missing where presumption of death seems reasonable—there People who have managed to go completely through is a basis for presumption of death—and those in the current presumption of death system, so I do not which someone has simply disappeared and you are have a massive pool of information to draw on, never going to be able to find them, but there really is unfortunately. It usually costs several thousands of no evidence that points reliably towards presumption pounds, but it is hugely variable. I have spoken to a of death? Families might be left in the situation that gentleman who wanted to administer his brother’s you have described and have to climb the very high estate, which was worth a few tens of thousands of threshold of saying, “There are grounds for presuming pounds, and he was told not to bother, because it death.” Should there be some category in between? would cost that amount to administer it. Because the Martin Houghton-Brown: I think there should. In system is so disparate, people are quoted vastly fact, sitting behind me is Mr Lawrence, the father of different numbers. Claudia Lawrence, who, sadly, went missing in York. He has found it incredibly challenging to face the Q14 Chris Evans: Mr Houghton-Brown, if someone process of administering his daughter’s affairs in the went missing now, what would be your advice to their duration that she has been missing. In Australia, there families? If someone went missing for 90 days, what is a process of guardianship. After 90 days, you can would be the best practice for people to get some apply for a guardian to be appointed to administer in satisfaction in law? I am thinking of when Rachel the best interests of the missing person and their Elias, who is my constituent, came before a affairs. Of course, the guardian will also undertake parliamentary inquiry in June. She said that she went any duties or responsibilities to dependants that the to a high street solicitor who was not very helpful. missing person might have. What would you advise if someone rang you up Again, as you suggest, this is a very sensible mid-term straight away? Will you guide us through that option. In fact, it could be argued that it is the more process? What would be the best thing for them to do? pressing concern. With such a system, families and Martin Houghton-Brown: Holly faces this challenge people like Vicki could have secured guardianship in every day, so I shall let her answer. But it is fair to the interim in order to administrate affairs—to say that we feel incredibly inadequate in the face of— renegotiate the mortgage to bring it on to a more in the words of the Scottish Law Commission, when it favourable interest rate, for example. She or other reviewed its provisions in 1974—an archaic process, people could have administrated interim affairs prior which fails to deliver. to any decision that they might have wanted to take Holly Towell: In terms of dealing with the immediate to bring to a conclusion their partners’ affairs. aftermath and the practical and financial issues that families come up against, they often end up being Q11 Mr Llwyd: Mr Lawrence is a lawyer, isn’t he? routed through to me from our helpline. Essentially, Martin Houghton-Brown: He is, and he has my role here is to tell them that, unfortunately, they submitted evidence to the all-party parliamentary are in a bit of a legal grey area and to be open and group. His experience was that, even with his legal 1 Note by witness: Missing People asked for this sentence to be prowess, he could not negotiate the system. It was clarified; it was a speculative statement, and on subsequent only through the good will of professionals in the clarification implies a breach where there was none. cobber Pack: U PL: COE1 [E] Processed: [16-02-2012 08:49] Job: 017612 Unit: PG01 Source: /MILES/PKU/INPUT/017612/017612_o001_db_CORRECTED.xml

Ev 4 Justice Committee: Evidence

22 November 2011 Patricia Barratt, Vicki Derrick, Martin Houghton-Brown and Holly Towell honest with the financial institutions—which their Q17 Chris Evans: My final question is for you, missing relative and perhaps they, jointly or solely, Martin. What has been the impact of the John Darwin hold assets with or are a customer of—and just to case on your charity? Has there been an effect in the have that open relationship, to explain the situation way the families of missing people have been treated, and essentially to rely on good will. because he disappeared and re-emerged several years We know that some families are able to get so far, later? usually when they have some sort of personal Martin Houghton-Brown: No. In truth, in the relationship with, for example, a bank manager, if they Scottish case, there has been only one circumstance are from a smaller community. But the broad number since the Scottish legislation was enacted in which of families come up against these hurdles whereby, if someone reappeared. The legislation that Clifford they do not have the signature of the missing person, Chance helped us to draw up, in line with that in there is not much that can be done. It is a case of Scotland and Northern Ireland, put in place indemnity insurance as an option to enable the courts to help advising them along the lines of where I have heard protect financial institutions and individuals from the other families perhaps having success and sometimes occurrence of someone returning. of recommending that they perhaps go to the CAB Of course, it is possible in any circumstance that and see if it can help, but really it is just one of people may perpetrate fraud, but I think that not clarifying what families suspect, which is that there is legislating on the basis that an individual may seek to not really anything out there for them to access. defraud the system is a weak option and not the kind of parliamentary process that I would hope to be part Q15 Chris Evans: You touch on the relationship with of. the bank—you said, with a local bank manager. When Patricia Barratt: In addition to indemnity insurance, I worked in banking many years ago, the policy was there is also a provision in the proposed Bill where, if that if there was a dispute in the family, we froze the somebody turns out to be alive, you can go back to bank accounts and we froze all the assets. Is assets court and get a variation order, and the court can then being frozen a major problem for families of a missing have the power to distribute things in a different way. person? We have already talked about not being able to renegotiate a mortgage on to a preferential rate. Are Q18 Mr Buckland: I should declare that I was a banks still freezing bank accounts and things like that? member of the all-party inquiry, as I think was Chris Holly Towell: Not really. In my experience, a lot of Evans. Our report, in particular on this point, the time families are hoping that their loved one’s recommended that the MOJ should provide a bank account will be frozen, because while they are framework for consultation on presumption of death away they might have various debits consistently and that that framework should be in place by the end coming out and accruing quite a lot of debt. For of the current Session, with any resulting provisions families, it is so important that they maintain a to be implemented by the end of the current missing person’s estate, essentially for if they return: Parliament. Are you able to report back as to any they do not want them to come back and find that they progress that has been made on this? are completely financially destitute or that their home Martin Houghton-Brown: Sadly, at the all-party has been repossessed. A lot of the families I speak to parliamentary group, the Minister was—missing. I would like assets to be frozen, in lieu of being able to understand that you have secured his attendance here directly manage and safeguard them themselves. I next week. At that time, there was a delay, and it was have not actually spoken to a family where that has stated that at the end of the all-party parliamentary happened in terms of freezing. group process there would be a response. In some respects, I am grateful for this Committee, but again, the Ministry of Justice has said that after this process Q16 Chris Evans: In terms of the entire legal there will be a response. process, how long does it usually take to tie all the ends up? You said you have had only a few families Q19 Chair: They are obliged to respond to us. where you have seen that. Martin Houghton-Brown: Which is why this is a Holly Towell: At the moment, I am working with very welcome process. There is no doubt that it is a about 30 families, and the duration that they have matter of great concern to the families that the been trying to work through presumption of death Ministry of Justice reviews the legislation effectively processes can vary massively. For example, I am and properly consults on a new process. I suspect that speaking to a few families whose loved ones went what you will hear will be that a bit of extra guidance missing this year, but because of the circumstances and signposting will be sufficient and not to worry. I around the disappearance they are looking into can tell you that the families of missing people will presumption of death now, because it is very likely be gravely disappointed if the recommendation is that their loved one has died. I am also working with simply that a bit of extra signposting will fix this a few families who have waited seven years—it is a incredibly complex issue, which does not need to be common misconception that you must wait seven complex and can be simplified in line with the other years—and they have had failed applications trying nations of the United Kingdom. to go through probate and so forth. They may be on application No. 2 and it has been seven years since Q20 Mr Buckland: You foreshadow the next they started on this process. So durations can really question that I was going to ask. Let us just assume vary. for a moment that the legislative solution is not there. cobber Pack: U PL: COE1 [O] Processed: [16-02-2012 08:49] Job: 017612 Unit: PG01 Source: /MILES/PKU/INPUT/017612/017612_o001_db_CORRECTED.xml

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22 November 2011 Patricia Barratt, Vicki Derrick, Martin Houghton-Brown and Holly Towell

There has been a lot of talk about greater collaboration Patricia Barratt: Yes, at any point. There is a Council between agencies. What can be done now? What can of Europe recommendation on this, which says that if we do now to make that a reality? there is some evidence that the person is likely to be Martin Houghton-Brown: I think codes of practice dead, the period of waiting should be no longer than and good guidance from the ABI and the British a year. Bankers Association would be very welcome and supported. The reality is that each institution will need Q24 Chair: We will consult the Lord Advocate on to set up its own code of practice and guidance. that and try to get a definitive view. Is there a case for Guidance, training and capacity building needs to be there being a higher standard of proof than balance of provided for the legal professionals who will be probabilities, if you are looking at that question within engaged. We know, from our own research, that even a relatively limited period in the absence of concrete county courts, which might be asked to have a leave evidence of death? to swear death in order to initiate a probate process, Patricia Barratt: I don’t think so, no. know of no such process and do not know what to do. Martin Houghton-Brown: Our experience practically The process of trying to draw in the many components dealing with the affairs of missing people in its of guidance, good practice and codes of practice broadest context is that less than 1% of missing would be time-extensive and costly for each of the persons out of 250,000 who go missing every year are institutions. That does not mean to say that it would thought to die. Although the charity takes on the more not be a welcome step in the right direction, but I do difficult cases and therefore 10% of our cases lead to not think that there is a quicker fix than legislation. a fatal outcome, it would be our experience that, once Patricia Barratt: And the other thing to add on codes someone is missing for longer than a year, the of conduct is that financial institutions which likelihood of their coming home severely diminishes distribute somebody’s estate on the basis of what is in in any circumstance, let alone one where the a code of conduct, may well have legal liability if the probability is towards death. Therefore, the risk of missing person turns up alive. If they did it under a exposure to drawing an incorrect conclusion that the court procedure, however, they would not have that person is presumed to have died is very minimal and legal liability. certainly our experience would back that up.

Q21 Nick de Bois: Just to get clarity on something Q25 Chair: Did the private Member’s Bill that you said, Mr Houghton-Brown, am I right to think introduced by Lord Boswell in 2009 differ markedly that your opinion is that you need primary legislation from the Northern Ireland provisions on which it was and that non-legislative things are not really an modelled? option? Patricia Barratt: It was very closely modelled on the Martin Houghton-Brown: Absolutely. I have been Northern Irish Act, which itself follows very closely working with missing persons and missing children the Scottish Act. for many years and I have sought many policy changes in the public domain. This is the first time I Q26 Chair: Would you go for pretty much the same have come across an area where primary legislation is thing now, or would you want to introduce other the right solution. In the vast majority of cases, things into it? secondary legislation, and in most cases good public Patricia Barratt: There are enormous benefits from policy, will fix the problem. In this case, I do not having a homogenous similar system. The families of believe that that is true. missing people might live this side of the border or that side of the border. It would just be very helpful Q22 Nick de Bois: Is your primary reason the jigsaw if there were a common system. of legislation that surrounds this? Martin Houghton-Brown: I think that some families Martin Houghton-Brown: Absolutely. Also, the would certainly say that ensuring the legislation current system forces a family to go through extended provides the capacity for a judge to act on the basis expenditure and extended processes, meaning that we of evidence, rather than on the duration of time, so it create a disparity in law where we have someone alive is not about an automatic process after seven years, in one court and dead in another court, all of which would be very important. As for the provisions around goes against the laws of natural justice. guardianship that we alluded to earlier, whilst they may not necessarily fall into a presumption of death Q23 Chair: The Scottish and Northern Irish situation Bill, they would equally be of concern and of import is different and in many respects I think that you to families. would say it was better. There seems to be some Chair: In fact, I dragged us into that topic a little disagreement about whether the Scottish and Northern earlier. Mr de Bois might want to pursue it a bit Irish legislation applies only after seven years, with further. the court not having discretion to grant a declaration Nick de Bois: On the Australian guardianship? earlier. What is your view on that? Chair: Yes. Patricia Barratt: My view is that there is a clear discretion in the legislation to issue a presumption of Q27 Nick de Bois: You referred to it earlier, Mr death certificate once the applicant is able to Houghton-Brown. Given that it allows for an demonstrate to the satisfaction of the court that it is administration process, and I think you implied that it likely that the person is dead. was almost an interim process, do you think however Chair: That it is likely that the person is dead? that it could be a substitute for the presumption of cobber Pack: U PL: COE1 [E] Processed: [16-02-2012 08:49] Job: 017612 Unit: PG01 Source: /MILES/PKU/INPUT/017612/017612_o001_db_CORRECTED.xml

Ev 6 Justice Committee: Evidence

22 November 2011 Patricia Barratt, Vicki Derrick, Martin Houghton-Brown and Holly Towell death legislation, or is it needed in addition to Q29 Chair: Presumably, conflicting emotions are primary legislation? involved, but many families would want to hold on to Martin Houghton-Brown: I think it is needed in hope for a little longer; in other cases, circumstances addition because, for example, of being able to lead people to believe that there is no basis for hope, administrate your financial affairs. If you come to the but that must affect how people want to handle the conclusion that your loved one has died and you want situation. to remarry, guardianship will clearly not bring to an Martin Houghton-Brown: Absolutely, which is why end and bring to a close your marital affairs. Of the balanced system in Australia is a sensible and fair course, some families would choose to go through one that enables families to respond effectively in dissolution of marriage on the grounds of either setting. abandonment after five years, which the current legislative provisions allow for but, of course, a moral Q30 Jeremy Corbyn: I am sorry I missed the earlier and emotional decision of saying, “My husband has part of your evidence. Why do you think that the abandoned me,” when actually your view is that he Ministry of Justice and, before that, the Home Office has not abandoned you, can create enormous distress have been so dilatory in addressing this matter? It for families. would not, I believe, be legally complicated for them It is right that we can recognise the appropriate to do so, and these situations cause enormous stress circumstances. They are separate processes and to a significant number of people across the country. guardianship enables people to administrate affairs in Martin Houghton-Brown: Interestingly, we have had the interim, in the hope that their loved one will a huge amount of support from the Home Office. return. If they come to the conclusion, along with the James Brokenshire MP, the Minister responsible for investigating authority—the police in most cases— missing persons, is in the process of drafting a then the drawing to a conclusion of people’s affairs national strategy for missing persons, which is due to through presumption of death would be the next step be issued later this month or early next month. We along the way. have been delighted, and we have a very collaborative and positive working relationship with the Home Q28 Nick de Bois: Given that we might have limited Office, as we do with the Department for Education parliamentary time, what would your preference be: to in relation to missing children. go for the primary legislation or for the guardianship? Our relationship with the Ministry of Justice has not Perhaps I could also ask the same question of Patricia been the same. It is under enormous pressure—I Barratt. Which would be your preference, given understand that. I know that finance is limited and that limited parliamentary time? limited legislative time is available to it. In the words Patricia Barratt: Being a lawyer, I am not sure that I of officials from the Ministry of Justice, “This is not am the best person to answer that. I think that a priority for us.” However difficult and challenging Parliament has a responsibility, as a steward of it is to administer affairs—my organisation faces legislation over the years, to make sure that the enormous financial pressures—we have to continue to legislation on the statute book is fit for purpose, and do our best by the people whom we are here to serve. if we have a situation where you have lots of different We cannot say them to them, “I’m terribly sorry, we common law and bits that don’t fit together, this is cannot help you because we don’t have enough one of the purposes of Parliament and parliamentary money.” We do all we can to help these people, and time should be made available to do that. the Ministry of Justice should take the same Martin Houghton-Brown: I am certainly not an responsibility. That is what a big society is all about. advocate of lots and lots of legislation, but this is Chair: Thank you very much indeed. We are grateful about simplifying processes. This is about redacting to you all for the help you have given us this morning. the current set-up. I think that family members would I shall now ask some further questions relating to the say to us that, if we were to represent either insurance industry’s approach. guardianship or presumption of death as a preference, we as a charity would be dishonouring their evidence to us. So I would not go on record as saying that either is a preference. I certainly agree with Patricia’s view that this is an overdue matter for Parliament.

Examination of Witness

Witness: Nick Kirwan, Assistant Director, Health and Protection, Association of British Insurers, gave evidence.

Chair: Mr Kirwan, welcome. You are the Assistant Q31 Elizabeth Truss: Thank you, Mr Kirwan. What Director of Health and Protection at the Association evidence of death will an insurance company accept of British Insurers, so, presumably, this is an area that in a missing persons case? you deal with personally and have experience of. You Nick Kirwan: The answer is that it depends quite have heard not unfavourable comments about the widely. Generally speaking, there are two types of insurance industry’s dealings with people in this situation from a life insurance point of view that are situation. quite different in terms of the approach that an cobber Pack: U PL: COE1 [O] Processed: [16-02-2012 08:49] Job: 017612 Unit: PG01 Source: /MILES/PKU/INPUT/017612/017612_o001_db_CORRECTED.xml

Justice Committee: Evidence Ev 7

22 November 2011 Nick Kirwan insurance company would take. In one situation, some way of insurance companies operating effectively at kind of catastrophe happens and a number of people the moment because they don’t have to wait for go missing together. When that happens, the event is presumption of death. usually very well publicised. The sorts of events I am thinking of are planes being lost over an ocean or the Q34 Elizabeth Truss: Would you see cost tsunami. In those kinds of situations, it is usually implications for insurance companies of the change in relatively straightforward for insurance companies to the law? be able to settle death claims quickly and easily. You Nick Kirwan: No, not provided that it is a robust can check the passenger lists and the event is well process, as long as it didn’t do anything where we publicised, so you know that it has happened and that said—probably a ridiculous thing now—that, after a the person was on the plane and is missing, and so on. year, people are always presumed dead. We would not Usually, that is sufficient to be able to settle death want to encourage a target for fraud. But as long as a claims quite quickly. robust process is going through, which there is in all A much more difficult situation is when just one parts of the UK at the moment, that would not cause person goes missing. Then, of course, there are all the us any difficulty at all. questions, “Why? What has happened here? Do we know the circumstances?” Insurance companies will Q35 Elizabeth Truss: There have been some need to take a lot of things into account when they accusations that insurance companies will not accept are thinking about how to understand what has really presumption of death as sufficient evidence to pay out happened. One important factor is that insurance in some cases. Why would that be? companies don’t have to wait for presumption of Nick Kirwan: That’s not my understanding and I don’t death, although they will always act on that if it know of any cases like that. My understanding is that happens and sometimes there is a need for that, but it insurers should accept that. will depend on the circumstances of the case. Will some examples help? It might depend on when Q36 Elizabeth Truss: In fact, you may well pay out, the person took out their policy, why, and how long even if there is not presumption of death. What kind ago. If someone took out a policy quite a long time of criteria would you use in those cases? ago for the amount of their mortgage, that is a Nick Kirwan: Where we would pay out without—a perfectly everyday thing that people would do and, case came to my attention earlier this year when a therefore, there is no suspicion that there would be plane went down. The claim was settled within about anything wrong with it. If, on the other hand, 12 weeks or so. somebody took out a very large life insurance policy shortly before they went missing, that might put a Q37 Elizabeth Truss: Generally, it is in those group different light on it. cases when an incident occurred, rather the case when an individual was involved. Q32 Elizabeth Truss: From the insurance industry’s Nick Kirwan: In an individual case, unless the point of view, if the law in Britain were clearer about insurance company can satisfy itself quite clearly presumption of death and all the missing links were earlier, it is usually going to wait for the court’s tied up as described by the previous witnesses, would decision. that be helpful for the industry? How does it impact the industry in other countries that have a clearer Q38 Mr Llwyd: Insurance companies are not helpful framework around the presumption of death? in every case. For example, we were given evidence Nick Kirwan: I can’t really comment on other about a presumption of death order being made by countries outside of the UK. That is not my area of the High Court and the insurance company would not expertise. I can tell you that there are no real accept it. difficulties in how the law operates in Scotland, Nick Kirwan: I am very disappointed to hear that. I Northern Ireland or England. There is no difficulty in don’t know of any cases myself. I would be happy to that. The insurance industry would like a robust look into it. I don’t know if there were other reasons process that ensures the courts will go through a why policy may not have— rigorous process to ensure that the person—as we have heard earlier—beyond reasonable doubt could be Q39 Mr Llwyd: I cannot say, but a solicitor gave presumed to have passed away. In those evidence to us, saying that that was the case in this circumstances, the insurance companies can work particular instance. But that is unusual, in your view? with that situation. Nick Kirwan: In my experience, my understanding is that an insurance company would accept that as Q33 Elizabeth Truss: In principle, you would be in evidence of death. Of course, that is not the only thing favour of a change in the law. that insurance companies will look for when paying Nick Kirwan: As I said, this is not an area of the out. For example, they will need to make sure that the law that causes insurance companies problems at the policy had been in force and that the premiums were moment. I can see why a change of law would be very paid, and there may be other reasons, but I cannot helpful for all those missing people. I absolutely see imagine that that would be a reason in itself for the that. The insurance industry is very sympathetic to it. insurance companies not accepting proof of death. We would absolutely support it and wouldn’t want to do anything that would get in the way of it. Equally, Q40 Chair: I think that you will have heard the it would be wrong for me to say that the law is in the discussion earlier around guardianship; I think you cobber Pack: U PL: COE1 [E] Processed: [16-02-2012 08:49] Job: 017612 Unit: PG01 Source: /MILES/PKU/INPUT/017612/017612_o001_db_CORRECTED.xml

Ev 8 Justice Committee: Evidence

22 November 2011 Nick Kirwan were present in the room at the time. You, as an necessary information to be made available to the next industry, have some reservations about a statutory of kin? scheme to deal with things like direct debits and other Nick Kirwan: Yes, it is very important. I can tell you features of bank accounts, because there might be a that I have got a meeting with the Information subsequent liability. Would a guardianship scheme Commissioner later this week to discuss that. I have address your concerns, or would you have worries not had one to date, but it is something that we would about that as well? like to see resolved. Nick Kirwan: No, I think we would like to see a simpler way through the situation of people managing Q44 Nick de Bois: Just to return to your point about their accounts. That is, by far and away, a much larger fraud, you put considerable emphasis in your written issue for the insurance industry than managing death submission on—I will read it out for clarity—“The claims for missing people. I would have to say that combination of an increasingly difficult economic managing death claims for missing people is a very climate combined with increasingly fluid travel habits, rare occurrence. I spoke to one very experienced may result in ‘going missing’ becoming more claims manager who said she had dealt with only two common if access to insurance funds without a ‘body’ cases in her career. So it is quite a rare and individual becomes easier. A change in process would increase thing, but the issue of people managing their bank the risk that monies are paid out which may at some accounts and other things is not. point in the future need to be repaid.” I have got two things on that. Bearing in mind the Scottish case that Q41 Chair: It is analogous to the provisions that you we have just referred to, what evidence have you have in respect of lack of capacity, but it is a distinct based that on? Is it just a subjective statement, which category, isn’t it? We do not have it at the moment, is fair enough? Are we not in danger of causing a lot but Australia does. of distress to families by going to the lowest possible Nick Kirwan: Yes, and of course the insurance common denominator without evidence to support industry would absolutely support something which that? would help people manage the day-to-day accounts of Nick Kirwan: No, we don’t want to go to the lowest the person who has gone missing. Our own view is common denominator. We want to ensure that we that we would favour some kind of limited power of have a clear, robust process in place. Provided that it attorney. The problem with powers of attorney at the is a clear and robust process, I think that the insurance moment is that they are very difficult to obtain, and industry would support it. when you do obtain them they have no limits. Maybe there is room for something which is much easier to Q45 Nick de Bois: So it is a worry, but you cannot obtain more quickly but has some limited powers— point to any evidence. for example, that you can only act on the person’s Nick Kirwan: Yes. current account, so that you can cancel their Sky subscription and gym membership which they are clearly not going to use, but keep their life insurance Q46 Ben Gummer: Can I just add to that, Mr policy and their home contents policy in force and Chairman? I have personal knowledge of one case those kinds of day-to-day things. The issue at the where the insurance company was defrauded in an moment, of course, is the Data Protection Act, as I alleged missing person scenario. Do you have any understand it. figures for how many actual cases of fraud there are per year that you deal with as an industry? Q42 Chair: In the absence of such a scheme or until Nick Kirwan: We don’t have accurate information one might be brought in, why is the industry so about that, but it is only a handful. concerned as to worry about temporary alternatives to it, given that, if you take the case of Scotland, over Q47 Ben Gummer: But it is an annual occurrence. I the past 34 years only one missing person whose am trying to get a grip on where you are at the estate was subject to an order has reappeared? It is moment. going to be a very rare problem for the industry, Nick Kirwan: My understanding—it is only anecdotal isn’t it? evidence—is that there are probably about equal Nick Kirwan: Yes, I think this whole thing is a numbers of cases where we deal with missing people relatively rare problem. I do not have any numbers where we are settling claims and attempted fraud. about this, but there are also cases where attempted Most of them are attempted. Very few of them are fraud happens which does not succeed—people go successful, and when they are, they tend to be very missing and try to notify the insurance company, but high profile, as in the case mentioned earlier. the insurance company finds them, so that they never actually get to the point of receiving their pay-outs. Q48 Chair: I am not sure that I understood what you said there. You appeared to be saying that there were Q43 Chair: On managing affairs and the sort of as many cases of fraud as there were missing people. situation that you heard described earlier, what about Nick Kirwan: No, I’m saying that there are only a the Data Protection Act issues? Is the industry being handful of cases of attempted fraud. too rigid in dealing with this? Has it had any discussions with the Information Commissioner to get Q49 Chair: As opposed to quite a significant number an understanding of how best to deal with situations of missing person cases in which the insurance where it really is in everybody’s interest for the companies accept— cobber Pack: U PL: COE1 [O] Processed: [16-02-2012 08:49] Job: 017612 Unit: PG01 Source: /MILES/PKU/INPUT/017612/017612_o001_db_CORRECTED.xml

Justice Committee: Evidence Ev 9

22 November 2011 Nick Kirwan

Nick Kirwan: No, the number of missing persons Q53 Chair: It would be useful to know. It is cases that we deal with is very few, where people have interesting that we did not pick up from the earlier life insurance policies. It is a handful of cases every witnesses a sense that the insurance industry was year. treating people with an air of great suspicion. Clearly, however, that is a danger that must arise when you are Q50 Chair: If that is a handful, are we talking about dealing with individuals. If you are worried about a very much smaller number of actual fraud cases than fraud and experience it in a number of areas of that handful? insurance, how do you avoid, as an industry, making Nick Kirwan: Yes. They are both very small. the emotional turmoil of people who are in this situation even worse by adding suspicion to it? Q51 Chair: You might want to check that, if you Nick Kirwan: Well, insurers are experienced at have industry figures. dealing with these situations. These are exceptional Nick Kirwan: I don’t believe that we have accurate cases that we are talking about. I would like to think information on those numbers. It is not a problem that that our members try to make the process as helpful our members report to us regularly. and as easy to navigate as possible, in sometimes difficult circumstances. It is what life insurance Q52 Mr Llwyd: If it is only a handful, with respect, companies do. it will not be difficult to confirm, will it? Chair: Mr Kirwan, thank you very much indeed for Nick Kirwan: I think that that is right. We could write your help. We are very grateful. to our members and ask how many cases there are. Would that be helpful? cobber Pack: U PL: COE1 [SE] Processed: [03-01-2012 07:59] Job: 017612 Unit: PG02 Source: /MILES/PKU/INPUT/017612/017612_o002_db_CORRECTED.xml

Ev 10 Justice Committee: Evidence

Tuesday 29 November 2011

Members present: Sir Alan Beith (Chair)

Mr Robert Buckland Elfyn Llwyd Jeremy Corbyn Yasmin Qureshi Nick de Bois Elizabeth Truss Chris Evans ______

Examination of Witnesses

Witnesses: Joe Apps, Manager, and Dr Llian Alys, UK Missing Persons Bureau, gave evidence.

Chair: Mr Apps and Dr Alys, welcome. We are very in contact with them as well. We are also in contact glad to have your help on this subject, which arouses with a number of people who report parental a lot of concern for those families who have been abduction. involved, as you obviously know well. We are trying to see if we can help bring some order to it. I am Q56 Mr Llwyd: So the majority of your work day to going to ask Elfyn Llwyd to open the questioning. day is liaison with the police. I should also say that if we look as though we are Joe Apps: It is, yes. compressing the time today, it is because of the Chancellor’s autumn statement, which has come Q57 Mr Llwyd: What mechanisms are currently in earlier than we originally anticipated. place to safeguard against mistaken presumption of death claims and/or fraudulent ones? Q54 Mr Llwyd: Good morning. Could you talk us Joe Apps: Most of the time, if the police are asked through the usual process adopted when somebody about presumption of death, they would want to run goes missing? Could you give us a typical scenario of what are known as “proof of life” inquiries. Rather how you get involved? than seeing if someone is dead, they want to make Joe Apps: Of course. It will start with a report being sure that someone is not alive, if that is not a made to a police force. If the police force wants some contradiction. We conduct inquiries along with the immediate assistance, because perhaps it is a high-risk police force to see if there is any trace of the person case or there is something unusual about it, the police in contact with authorities—perhaps the Passport force can seek the assistance of the UK Missing Ofﬁce, the DVLA, their banks or the Department for Persons Bureau immediately. If it does not want Work and Pensions, those sorts of things—to see if immediate assistance, we have a code of practice that there is any trace of the person still alive. They are requires the force to contact us within three working termed “proof of life” inquiries. There are any number days and provide us with the details of the missing of those that can be done. person inquiry. With an inquiry to the bureau, if it is In terms of a safeguard against mistaken claims for for immediate assistance, we can see the things that presumption of death or fraudulent claims, that is one the bureau can add in terms of support and assistance thing I would expect the police to do. It is something to the police force, which might be the deployment of that I would expect the bureau to be involved in to one of the bureau members of staff to provide make sure that the inquiries have been done assistance on the spot for the police force, or we can satisfactorily. conduct some searching—cross-match searching particularly—on behalf of the police force. If it is a Q58 Mr Llwyd: Finally, are the numbers of missing case that does not require immediate assistance, we persons on the increase? will still run through eight or 10 actions ourselves to Joe Apps: I will let Llian answer that one. see what assistance we can provide to the police force. Dr Alys: We are not currently in a position to be able For example, we might want to challenge the risk to tell whether the numbers are increasing or assessment that has been provided by the police force decreasing. Prior to the introduction of the 2009 Code if the case has come out as low risk and we think it of Practice on Missing Persons Data, data was not ought to be a higher risk because of our knowledge of routinely collected from forces, and forces were not the type of things that missing people do. asked how many reports of missing people they received every year. Q55 Mr Llwyd: You mentioned the police in several Last year we published the Missing Persons: Data instances. At what point typically would families be and analysis document based on the data collected able to contact you? under the code of practice. This estimated the number Joe Apps: By and large families do not contact the of missing person reports made to the police across bureau directly. They are able to, but we would the UK during the 2009–10 ﬁnancial year. signpost them, as the police would, to the charity Unfortunately, at the time, not all police forces were Missing People for support from the charity. We are able to provide us with information so we had to in contact with a number of families, however, some estimate some of the data. However, this winter we of whom have long-term missing family members and will be publishing a second bulletin on the 2010–11 others whose missing people have returned. We keep data. We have managed to get data from all the Home cobber Pack: U PL: COE1 [O] Processed: [03-01-2012 07:59] Job: 017612 Unit: PG02 Source: /MILES/PKU/INPUT/017612/017612_o002_db_CORRECTED.xml

Justice Committee: Evidence Ev 11

29 November 2011 Joe Apps and Dr Llian Alys

Office geographic forces. This is a big step forward inquiry out to a police force, but in this case it cannot for us. be so we will take the inquiry on ourselves and make We cannot currently compare the data from last year as many inquiries as possible to see if we can trace with this year. What I will say, though, is that we are this person’s mother. aware that a lot of police forces are doing some really In terms of family support, whether psychotherapeutic good work with children missing from home and care. support or publicity, that is something the charity This has resulted in a reduction in the number of Missing People would take on.1 missing incidents, which would more than likely be short-term missing person cases. Children tend to Q61 Nick de Bois: Are you really set up, though, to return or are found quite quickly, but children and deal with the case from South Africa, for example, young people are responsible for a large proportion of that you talked about? You seem to be set up, from missing incidents. what you are saying to me, not so much to deal with the public as the police. Are you really set up to go Q59 Mr Llwyd: I find it very strange that police and do these inquiries? authorities do not keep a record of missing persons, Joe Apps: We are capable of doing those sorts of given that we know it is a fairly limited number. inquiries, yes. Police forces are only interested in Dr Alys: It is quite a large number. From our data last something that happens in their area. If the inquiry year we estimated there were 200,000 missing people cannot be located somewhere, there needs to be a and about 350,000 missing incidents. That suggests mechanism to pick the inquiry up to see what is that some people go missing more than once. I believe possible to be done. We are able to conduct Police most forces would have an idea of the range of National Computer and Police National Database missing incidents that they deal with. However, inquiries, open-source searching and searches on getting at that data is not always simple. Police forces things like social and digital media. We can check vary in their reporting practices and also in the IT prison indices and, increasingly through Missing systems they have. Being able to provide us with the People, we might be able to do some searches around data has not been easy in the past. NHS facilities as well. Joe Apps: If you are looking at older cases—this inquiry will be concerned with some of the older Q62 Nick de Bois: How much of your case workload cases—where police forces have changed from paper- does that represent, would you say? It might be based systems to IT systems, not all the old cases have something on which you could come back to us. been transferred. We are quite often contacted by Joe Apps: Yes. police forces asking for details of cases perhaps dating back to the ’60s and ’70s. The bureau is the only Q63 Nick de Bois: I am conscious of time, so I will repository of data concerning those cases because the move on, if I may, to the next point. In October 2010, police forces do not have them any more. the Home Office Minister said that the Government Dr Alys: I believe the Missing Persons Bureau, as we wanted to see better collaboration between the know it, only came into being in 2008. Before that it multiple agencies involved with missing people, was based in the Metropolitan Police service. It was a which makes sense. Has the bureau been working to very small unit and data was not routinely collected achieve this? from all forces at that point. Joe Apps: Yes, we have. We are part of a network of Government Departments, Government agencies, law Q60 Nick de Bois: Could I take you back a point, enforcement and the third sector, both here at home Mr Apps? In the written submission that we have within the EU and in the wider world. In terms of received, you said that UK MPB is referred to as the subject matter today we are part of the North Sea offering “consistent and comprehensive support” to Convention, which is a group of maritime nations the public during missing inquiries. You have just around the UK exchanging information on the lost and mentioned that you think that most of your work is found. We are part of the Global Missing Children’s with the police. I am slightly confused because none Network—18 countries worldwide. We are one of the of the individuals submitting evidence to the inquiry, pilot countries for Interpol’s FASTID project, which who have lost people within the last three years, ever is a reconciliation of lost and found people across the mentioned your organisation. I am confused. On the world through Interpol’s headquarters at Lyon. one hand, you are saying you give consistent and comprehensive support to the public. On the other hand, it is to the police. Can you guide me? Q64 Nick de Bois: It sounds very good. Are you able Joe Apps: Yes. We were set up to support police to point to the effectiveness of all these link-ups? forces, which is what the National Policing Have you seen a significant improvement in Improvement Agency does. In terms of public contact, outcomes? the agency has little contact because it is a policing Joe Apps: Yes, we have. Last year the bureau resolved organisation. Having said that, a number of members 39 cases on its own, without the assistance of police of the public write to us about missing episodes and 1 Note by witness: The Bureau wishes to clarify a sentence in we are able to guide them in terms of making reports. the Memorandum previously submitted. In paragraph 6, the For example, there is an e-mail this morning from a Bureau is to provide advice and support to police forces as part of its national coordination function, thus ensuring that woman from South Africa trying to trace her mother. the police provide a consistent and comprehensive service to We will take that inquiry on ourselves. If the inquiry the public. The sentence is not intended to suggest that the can be placed with a police force, we will push the Bureau provides support directly to the public. cobber Pack: U PL: COE1 [E] Processed: [03-01-2012 07:59] Job: 017612 Unit: PG02 Source: /MILES/PKU/INPUT/017612/017612_o002_db_CORRECTED.xml

Ev 12 Justice Committee: Evidence

29 November 2011 Joe Apps and Dr Llian Alys forces2, through the work that it was conducting. In Q68 Elizabeth Truss: Are we dealing with non- the seven months of this year we have done 34 cases, effective IT systems? How would you recommend which is almost double last year. that the system be simplified so that it works better? In relation to the sorts of things we are able to do, last Presumably, it is not just useful for tracing missing year a foot was found on a Humberside beach. It was people; it could also be used for serious and organised contained within a trainer, which was quite unusual. crime and other activities that the police may want We put an alert out round the North Sea Group to find to investigate. the other foot. It turned up on a Netherlands beach. Joe Apps: Absolutely. The development coming Both were connected to a missing person from along, which is being piloted in a number of forces, Humberside through DNA. is the Police National Database. That is an intelligence pool that builds on what is in PNC. PNC started, as Q65 Nick de Bois: Well done, but very gruesome. you know, as a collection of criminal records and has The ABI—the Association of British Insurers—told widened out into a selection of other information as us that they are developing guidance for families of well. In comparison, PND is an intelligence database missing persons, which I understand will be or may that links up all the intelligence in police forces under have been published on your website. Can you tell us five categories at the moment. There will obviously about the detail of that guidance and hopefully what be a wider set of categories in due course, including, impact you think it will have on some of the problems we hope, “missing”. that families are experiencing? Dr Alys: The ABI are working with the charity Q69 Elizabeth Truss: So “missing people” is not Missing People on that guidance. there at the moment but will be included in due course. Q66 Nick de Bois: So it is not you. Joe Apps: We hope that it will be. We are about to Dr Alys: No, it is not us. We are working with the report back to Home Office Ministers with some Ministry of Justice on guidance on coroners’ inquiries suggestions about databases for “missing”, whether as under section 15 of the Coroners Act. an extension of what we have already or whether as a Joe Apps: Dr Alys mentioned the collaboration with development of the PND. the Ministry of Justice. We have also attended two of the Coroners’ Society of England and Wales Q70 Elizabeth Truss: I want to ask how proposals conferences. We are currently negotiating with the for a National Crime Agency will fit with your work. Coroners’ Society’s secretary over the provision of How is it going to be integrated with the other training for coroners so that we can add to their activities that one would expect a national linking training to explain what police forces and the bureau force to carry out? can do for them, particularly in the event of Joe Apps: The Home Office has written to our Chief unresolved found bodies. Executive, Nick Gargan, saying that the Missing Persons Bureau will move to the National Crime Q67 Elizabeth Truss: You mentioned in your answer Agency. Because there is a gap between the formation to my colleague Nick de Bois that police forces are of the National Crime Agency and the end of the not necessarily passing information across borders to NPIA next year, the bureau will move to SOCA by one another. You said that your role is partly coping April of next year. Within SOCA, the bureau will be with the deficiencies of that information system. My able to add to the intelligence that SOCA currently understanding is that the Police National Computer is holds and will be able to glean information through based within the Met. Is that true and, if so, how do SOCA’s intelligence as well. Moving into the National you operate with that? Crime Agency, the services will be integrated with Joe Apps: The Police National Computer is based in other services that are destined for the National Crime NPIA at Hendon. It is an NPIA service rather than a Agency. There will be a single intelligence pool able Metropolitan service. The Police National Database is to be used by the bureau and other parts of the agency. also housed within NPIA. PNC contains details of people who are currently missing. Unfortunately, there Q71 Elizabeth Truss: What are your is an auto-delete on some of the old data in PNC, so recommendations from the perspective of missing if the record is not refreshed within 40 days3, the persons on the way that the NCA works with the 43 record will drop off PNC. PNC will only ever provide police forces? What is not working at the moment and you with a snapshot of information. It will not provide how could the NCA structure deal with that? you with information about everyone who is missing, Joe Apps: The thing for me that does not work hence the need for a national database which the particularly effectively at the moment in police forces bureau holds, which is a database of those who are is that “missing” tends to sit on the vulnerable missing, those who are found and those who come to persons’ side of the house in vulnerable persons’ notice as well. teams, whereas “found bodies” tend to sit in major 2 Note by witness: The wording “without the assistance of crime teams or with single officers. It depends on police forces” is not meant to suggest that police forces were whether it is a suspicious inquiry or not. If it is a not involved in the resolution of the cases, rather that the suspicious inquiry, perhaps a homicide team will be case would not have been solved without the resources of formed to look at the investigation. If it is not, it might the Bureau. 3 Note by witness: “within 40 days” should read “within 90 be down to a single beat officer or a single detective days”. Note that since 2010, auto-delete has been changed to to try and resolve the found thing, along with the after three years coroner’s officer. It is the two sides of the house cobber Pack: U PL: COE1 [O] Processed: [03-01-2012 07:59] Job: 017612 Unit: PG02 Source: /MILES/PKU/INPUT/017612/017612_o002_db_CORRECTED.xml

Justice Committee: Evidence Ev 13

29 November 2011 Joe Apps and Dr Llian Alys argument within the police force that I do not think Joe Apps: The bureau has 15 members of staff who works particularly well in some forces. Then there is are busy on the current caseload. We allocate staff to the issue of police forces finding it difficult to the cold case reviews as time becomes available. In exchange data with each other, hence the need for the terms of presumption of death, guardianship and the National Bureau to reconcile what happens across the use of section 15 of the Coroners Act and other types country in terms of finds. of coroners’ inquiries, we would suggest that cold The NCA will be able to add more value to that. case reviews are essential. Through the intelligence pool, it will have the significant data on the “lost and found” that the bureau Q76 Chair: Are they done in Scotland? has amassed over time and will continue to get. The Joe Apps: I would need to speak to somebody in specialist services currently within NPIA will be Scotland. We have a number of colleagues. Of course within the NCA in terms of the investigative advice the coronial system in Scotland is different, with a that can be offered to police forces. procurator fiscal.

Q72 Elizabeth Truss: Do you think the way that the Q77 Chair: I was going to turn to Scotland anyway. NCA plans are developing at the moment will give You are a United Kingdom body, so you have the organisation enough power to deal with things in experience of a completely different legislative the most efficacious way? framework introduced in Scotland, which is quite Joe Apps: I am not clear how the powers of the similar to that which Tim Boswell’s Private Member’s National Crime Agency are shaping at the moment. It Bill sought to bring before us in the Commons some is something that is being discussed with Keith time ago. In your experience of Scotland and perhaps Bristow and his team. SOCA officers have a number Northern Ireland, do you think that that basis of of powers—police powers, Customs and Excise legislation is broadly satisfactory, or would you go powers and immigration powers—which are easily about things in a different way? sufficient for the sort of things the bureau would need Joe Apps: Can you start answering that and I will to do. NPIA obviously has its own powers as well to come back in a second on the legislation? function with its current range of services. I do not think that additional powers are needed by the agency Dr Alys: As far as we are aware, there have been no in terms of doing its job. What we do know is that the issues with the Scottish or the Northern Irish NCA is much more about developing intelligence into legislation. We think it would be very important to actionable products that can be delivered either by have a register of presumed deaths and that any NCA staff or by police force staff in the forces applications should be notified to ourselves. Going themselves. back to the case review, what we could do in those cases is to check our database to see whether any Q73 Chair: You have recommended that there bodies have turned up anywhere that may be linked should be a cold case review system, preferably to that missing person. carried out by yourselves because you have records both of missing persons and of unidentified bodies. Q78 Chair: You are going back to cold case review. Joe Apps: Yes. Dr Alys: Yes; that would be the main reason for them to notify us. We might be able to identify further lines Q74 Chair: What would be achieved? How many of inquiry for the police that they had not considered. more cases do you think would be solved if that kind In an ideal world we would already be notified of all of cold case review was regularly conducted? these cases, but because the code of practice and the Joe Apps: Our database at the moment has about bureau itself are still relatively young, we know that 1,000 bodies, remains and things like that on it, all of there are likely to be a number of other unidentified which need reconciliation with missing people bodies and missing people out there that we are not somewhere. I am sure that some of the bodies and aware of. This would be a safety net, so to speak. things that we hold will be people missing from elsewhere in the world. Some of our missing people Q79 Chair: I wanted to broaden the question to the will have been found but not recognised elsewhere in wider issue of whether your experience, short though the world. Of the 1,000, about 300 are Interpol cases it is, has led you to believe that the Scottish legislative where there is supposed to be a connection with the framework is working satisfactorily or presenting any UK, and about 300 are Metropolitan cases—the force particular problems that we should bear in mind if we holds the largest collection of found bodies. Cold case are looking at legislation for England. reviews are really important. We did two for Cumbria Joe Apps: Certainly, we think that both the Northern the other day. They were two 30-year old cases, one Ireland legislation and the Scottish legislation work in of which was resolved in about an hour after searching a satisfactory manner. We have heard no reports our database because the body belonging to the through Scottish colleagues about difficulties in using missing person from Cumbria had been found three the system. I will not describe it as simple, but it weeks after she went missing on a Northern Ireland seems a clear mechanism in terms of presumption of beach. death. It is something we would obviously urge legislators here to consider. Q75 Chair: Why doesn’t your existing system turn up these cases? Why is it necessary to go back to them Q80 Chair: We have been advised that only one after they have become cold cases? missing person for whose estate an order had been cobber Pack: U PL: COE1 [E] Processed: [03-01-2012 07:59] Job: 017612 Unit: PG02 Source: /MILES/PKU/INPUT/017612/017612_o002_db_CORRECTED.xml

Ev 14 Justice Committee: Evidence

29 November 2011 Joe Apps and Dr Llian Alys made has reappeared since the Act was passed 34 that the person was not in existence somewhere years ago. through the style of proof of life inquiries that are Joe Apps: Yes. used in “no body” murders.

Q81 Chair: One other piece of evidence from other Q84 Chair: There is a category, is there not, which jurisdictions that we looked at was the working of the perhaps we should not call fraud, of people who go guardianship arrangement in Australia. Do you see missing because they simply want to abandon their that as something we ought to develop in England? previous life, and the only way they can think of doing Joe Apps: Yes, it is. If guardianship could be applied it is to walk away and leave no trace of where they for in the mid-term in regard to a missing person so have gone? You must presumably come across cases that the estate of the missing person could be looked of that kind. after by their family pending their reappearance or Joe Apps: We do. The case that springs to mind is a further work in terms of proof of life inquiries by man from Blackwater who was more or less a recluse. police forces and other family inquiries until such He disappeared one day and it was assumed that he time as the family are ready to consider declaring had been depressed and gone off to take his own life, someone dead, it would be very helpful. when in fact he had moved down to Lymington and The other thing from Australia is that, in New South set up a new life, thanks very much, with a new Wales, police can approach the coroner if it is thought partner. He was found after about three weeks of that a person has died. The coroner will then direct police inquiries. It is quite difficult to recreate yourself the police with the necessary inquiries to be made so somewhere without coming to the notice of the that the coroner can hold an inquest, in the same way authorities in some way. Provided the inquiries are as the procurator fiscal in Scotland or an examining diligent and expansive, then the chances are that we magistrate on the continent could direct the police to will come across them again. There are very few cases do things. We think that would be a helpful addition like John Stonehouse or Lord Lucan, for example, to the examination of people who are going from mid where people just seem to disappear and are never to long-term missing where the evidence is pointing seen again. We are all just so well connected. towards them being dead. Q85 Chair: What do you advise the police to do in Q82 Nick de Bois: I want to clarify something that those cases, if someone has not left obligations behind you said. Given the concerns expressed by the ABI and to some extent they have left their affairs in about increased levels of fraud if a Presumption of reasonable order? How should they deal with the Death Bill were to be established in England and family that has reported the person missing if the Wales, do you consider missing persons related fraud person who has gone missing wishes his location to to be a more significant problem in Scotland, despite remain unknown to the family? what the Chairman said, and Northern Ireland, where Joe Apps: There are a number of occasions when that they have such legislation? The ABI were basically comes up. Obviously article 8 provides for a right to making a subjective judgment. There was no evidence private life. The police are very conscious of adults to support it. I would like your opinion on that. who choose to go missing and not return. The police, Joe Apps: What I can say is that the fraud inquiries if they locate somebody, will ask them if they want that are exposed—Canoe man, for example—are so their details conveyed to their families. In a lot of well reported that you get the impression from the cases people do not want that to happen and would media that they are really important cases and that rather remain separated from their families. It is there are a lot of cases like that. In fact, in our different for children. The charity Missing People has experience there are very few cases in comparison a message home service where it can co-ordinate with the number of people for whom it might be those sorts of inquiries as well. If the person who has necessary to declare a death or to create guardianship gone missing did not want to speak to the police or proposals. I do not think the elements of fraud are that authority, for example, they could do so through the high. Obviously, the Scottish legislation has indemnity charity instead. There are a number of ways that insurance built into it. You have to take out insurance things can be done. But, yes, there are many cases to guard against a person’s reappearance if you are where family members just do not wish to contact mistaken in your declaration of death. their families again. Chair: Thank you very much indeed. We are hoping Q83 Nick de Bois: It is reasonable to conclude—I do to have the Minister with us at any moment. As he not want to put words into your mouth—that if we does not seem to be here yet, I will briefly suspend had a Presumption of Death Bill in the United the sitting. Thank you very much for the help you Kingdom, we should not anticipate more fraud as a have given us today. I think you are going to let us result. have some statistics that you were asked about earlier. Joe Apps: I do not think we should, no. The police When you see the transcript, the details will be there. could be charged, along with coroners and coroners’ Thank you very much. officers, with making the necessary inquiries to see cobber Pack: U PL: COE1 [O] Processed: [03-01-2012 07:59] Job: 017612 Unit: PG02 Source: /MILES/PKU/INPUT/017612/017612_o002_db_CORRECTED.xml

Justice Committee: Evidence Ev 15

29 November 2011 Jonathan Djanogly MP and Keir Hopley

Examination of Witnesses

Witnesses: Jonathan Djanogly MP, Parliamentary Under-Secretary of State, and Keir Hopley, Deputy Director, Criminal Law and Legal Policy, Ministry of Justice, gave evidence.

Chair: Thank you, Minister, for coming a little this. This Committee, more than anyone else, will earlier. Because of the earlier timing of the know what a very significant period of reform the Chancellor’s autumn statement, we thought we would Department has been going through and a realisation try to finish as close to 11.30 as we can or soon of the level of work that policy officials in the afterwards. I am going to ask Mrs Qureshi to open Department have been put under in recent months to the questioning. deliver on the reforms. It is not as though we have not been looking at reform, but it would be true to say Q86 Yasmin Qureshi: Thank you, Minister, for that it has not been a Government priority. I have said coming. I want to explore the current system for that we will look very carefully at the report that your presumption of death for missing people. We have Committee produces and will take a view based on heard in this Select Committee, both orally and in that report and the APPG evidence as well. written representation, from various organisations and charities involved in this process. Everyone seems Q88 Yasmin Qureshi: I do not know whether you critical of the process that we currently have in our have had a chance to read in the reports that in country to do with presumption of death. Some people Scotland and Northern Ireland they have had a process describe it as “piecemeal and specific to particular for the last 34 years that everyone describes as situations”. The Chair of Missing People, Martin simpler. As we understand it, only one missing person Houghton-Brown, says that the current process is has ever resurfaced in 34 years, so it seems that the “incredible and archaic”. There generally seems to be Scottish system is safeguarding the interests of the a level of unhappiness or dissatisfaction with the missing persons. current system. Mr Djanogly: That is true, but at the same time it In your experience and knowledge, do you think the would be fair to say that the experience of Scotland system is as difficult as everyone says it is, and, if so, and Northern Ireland has been that presumption of is there any plan by the Ministry to deal with the death is not used very frequently. In Scotland, it matter in any way? averages at something like four cases a year. In Mr Djanogly: Good morning, Chairman. To directly Northern Ireland, in the short time they have had the answer the question, I would agree that the system we process, there have been one or two cases. Again, have is convoluted and cumbersome; that is for sure. putting it in the context of Government priorities and But, generally speaking, it is a system that has worked where we put our scarce resources, I would admit that adequately. It has safeguarded the position of the it has not been a priority to date. I repeat that we will missing person, which we have to bring on board as carefully look at the report that you produce. well. Ultimately, it has enabled those who are left behind to move on. I sympathise with the very Q89 Mr Llwyd: I would just add a rider. Minister, emotional and practical difficulties that the families of you have referred to the law being convoluted and those left behind can face at what is bound to be a cumbersome, and said that there are practical very stressful time of their lives. difficulties and that we need better processes. I would suggest one thing to you at this stage. There are Q87 Yasmin Qureshi: Has any thought been given several problems but there is one very real problem. by the Ministry to deal with this situation and perhaps When a person goes missing, for example, that person to make the process easier? Will there be any changes might have a large mortgage on a property. There is a or is the view that at this time there is no need to need for a look at some form of limited administration do anything? so that those left behind can deal with the outgoings, Mr Djanogly: There are various areas—we may go deal with the property and generally make some order on to discuss them—where there could be better of a great deal of practical difficulties that exist. guidance. I have read the very helpful reports from I am sure it is not difficult to do that. In coming to your previous hearings, and I agree with much of what any legislative solution, may I impress upon you the has been said in relation to the fact that there could need for looking at that issue as well—in other words, be better processes with insurance companies and so a limited form of administration order? forth, for instance. What also came out of the Mr Djanogly: Yes; I take that on board. I certainly evidence, and we would agree with, is that to a great agree that this is an area where there could be a much extent advisers are not aware of the processes that are more significant role for life insurance companies and available. I appreciate that these can be convoluted mortgage companies to agree protocols so that people processes, but we think there is a lack of have a better idea of what to expect in that situation understanding of what is out there at the current time. rather than different companies taking a different Yes, we do think there is a role for guidance. approach, which I fully realise could be cumbersome In relation to legislation, we think there could be. I and impractical. have personally said clearly that we will look at this. To be frank, it has never been Government policy Q90 Mr Llwyd: And the high street banks as well, before. It has not been the policy of this Government of course. either, up until now. It is not coalition policy to do Mr Djanogly: Indeed, yes. cobber Pack: U PL: COE1 [E] Processed: [03-01-2012 07:59] Job: 017612 Unit: PG02 Source: /MILES/PKU/INPUT/017612/017612_o002_db_CORRECTED.xml

Ev 16 Justice Committee: Evidence

29 November 2011 Jonathan Djanogly MP and Keir Hopley

Q91 Chair: One of the things you are doing, I that it can be over-zealously applied and there is a understand, is preparing guidance on section 15 practical halfway house that can be reached. The inquests. What is that likely to do? What do you have Information Commissioner agrees with us on that in mind? perspective. So, yes, we are now looking with him to Mr Djanogly: The important point to make on section see whether a bit more common sense can be injected 15 inquests is that it goes slightly further than missing into the system when necessary. persons. Section 15 inquests, basically, are for the situation where there is no body. For instance, that Q97 Chair: Doesn’t it need some sort of protocol could be after cremation. We also need to realise that around necessity? it does not cater for certain circumstances that one Mr Djanogly: It may well do. We have opened would want to be taken on board. If a person were to discussions with the ICO on this area and we will be go missing in an aeroplane outside the jurisdiction, for looking at that. instance, section 15 would not cover it. Section 15 only covers in jurisdiction. But, yes, we do think this Q98 Mr Llwyd: In October last year a Home Office is an area where there needs to be better guidance and Minister, in responding to a Westminster Hall debate that is in process at the moment. We do not think it is on the issue of presumption of death, said that the going to lead to a larger number of inquests, but we Government believed greater co-operation and do think that it will streamline the process. collaboration between all the agencies involved would help in delivering improved services. What steps are Q92 Chair: Will you find a way of getting over the the Government now taking to ensure greater co- geographical restrictions that make it difficult to apply operation and collaboration between the agencies who section 15 at the moment? are typically involved in missing persons cases? Mr Djanogly: Yes. Out of country it would not apply. Mr Djanogly: We have mentioned two or three of them so far. Indeed, I agree with you that we need Q93 Chair: But between coroners’ jurisdictions, better protocols in terms of the way our banks and Mr Djanogly: Between coroners’ jurisdictions, insurance companies behave as well. All of that is in absolutely. The commencement of the recent Coroners hand. I have to say, though, that in terms of moving Act, which is obviously now going to be through the forward, for instance, not least as to whether we Chief Coroner, would, either way, have enabled the should have primary legislation in this area, we will decision to be taken to pass inquests between internal be looking at the recommendations of your and national jurisdictions, which we think will give Committee. We hope to learn from them, and we hope significant help. It will also, of course, enable that you give us a good pointer. expertise to be used. For instance, if there was a coroner who was expert at section 15 type inquests, Q99 Mr Llwyd: It is refreshing to hear that, Minister, or a series of them, and a coroner who was not so because very often Select Committees are not the expert in that field, the case could be transferred to necessary triggers for legislation, but if that be the the expert coroner. We think there would be an case, I am delighted. How would you counter advantage there. concerns that the introduction of codes of practice would not negate the civil liability of institutions for Q94 Chair: That is the kind of reform in the what are erroneous payouts? Would they need to be coroners’ system for which this Committee has been accompanied, for example, by insurance? arguing for years. Mr Djanogly: I would have thought that was a Mr Djanogly: Absolutely. question for the institutions rather than Government.

Q95 Chair: Forgive me for looking a bit sceptical Q100 Mr Llwyd: But if you are going to be in when what we are told by a Government about what discussion with institutions, as you said you would be, it wants to do on coroners gets changed at very short is it an issue you might care to take up with them? notice—sometimes for the better. It is difﬁcult to Mr Djanogly: Indeed; yes, we are quite happy to do engage with the Government on the subject of so. coroners, if I can put it that way. Mr Djanogly: As I said, Chairman, that proposal and Q101 Mr Buckland: Minister, we are delighted to reform was going to happen whether or not there was hear that you acknowledge that there are signiﬁcant a Chief Coroner. We hope that will be implemented issues that may well need legislative change. Looking shortly. at the time scale, you will have the report from this Committee and you will be aware of the All-Party Q96 Chair: There are problems with the Data Parliamentary Group on Runaway and Missing Protection Act as well in getting information Children and Adults and their report. necessary to resolve some of the issues that Mr Llwyd Mr Djanogly: Do you know when you are going to mentioned. Have you had any discussions with the produce the report? Information Commissioner about that? Mr Buckland: Before the end of the year. Mr Djanogly: Yes, we have. The underlying point is Chair: I think early in the new year would be safer. that the law on data protection applies to missing people as much as to anyone else. It would be wrong Q102 Mr Buckland: I am grateful, Chairman. Our to say that it should not. At the same time, in practical report will be early in the new year. You will be aware application, we have had some evidence shown to us of the report which has been done by the All-Party cobber Pack: U PL: COE1 [O] Processed: [03-01-2012 07:59] Job: 017612 Unit: PG02 Source: /MILES/PKU/INPUT/017612/017612_o002_db_CORRECTED.xml

Justice Committee: Evidence Ev 17

29 November 2011 Jonathan Djanogly MP and Keir Hopley

Parliamentary Group, of which I was a member, and Office. Would you agree with me that perhaps, on I think some work was done for the last Government, reflection, the Ministry’s failure to take part in the oral but not issued, by Clifford Chance. I do not know evidence sessions in the APPG was a missed whether you or your officials have seen that body of opportunity? work. Mr Djanogly: No. It was a busy period for me Mr Djanogly: I saw some of that in the transcripts of personally. I said that we should provide written your previous meetings. evidence, which we did. We have provided written evidence to this Committee. I have appeared before Q103 Mr Buckland: Quite clearly, this is an issue this Committee. I do not think we have exactly that has been going on for some time. It is not specific ignored it. I had a formal meeting with James to the current Administration. Looking at the time Brokenshire, Department to Department, to discuss scale, what are your proposals for the next move for the issue as well. It is an issue that we have been the Ministry of Justice once you consider this following. evidence? What is going to happen? Mr Djanogly: I will commit to looking at your Q107 Mr Buckland: The view of this Committee is evidence and your findings, the APPG findings and that this is an important priority and we are glad to working with the Home Office. I have already had a hear that you and your Department are acknowledging full discussion on this with James Brokenshire at the that. Is that a fair summary? Home Office. I will reach a view on whether Mr Djanogly: That was implied in the fact that you legislation is required by the end of this Session in have held your inquiry and in the transcripts that I April. have seen. That is the first time I think you have said formally that it is an important and formal priority for Q104 Mr Buckland: I will press you a little on that. your Committee. I look forward to reading your report Let us put aside parliamentary time for the moment. and seeing your recommendations. Would you agree with me that there is a case for new legislation in this area, perhaps along the lines of the Q108 Chair: It is clear to us, Minister, that this is an Private Member’s Bill that Tim Boswell, now Lord issue that affects families, in particular, in very Boswell, introduced without success back in 2009? difficult and challenging ways and for long periods as Would you agree there is a case for that? they try to resolve the difficulties they face. It seems Mr Djanogly: A good presentation of the case has clear to us that although there are difficult technical been made. I want to look at the issues in the round issues to resolve and safeguards to build in, the and put them into the context of other departmental principle of doing something about it is not a priorities. That has to be done. I do see, from the particularly controversial issue. We have the benefit evidence that I have been shown, that there is an issue of the Scottish and Northern Ireland experience. here. I have to say that I see issues every day of the Incidentally, the Scottish legislation was passed at week in my job and one has to prioritise. We will need Westminster because it was before the days of to do that, but I commit to you today to doing that by devolution. the end of the Session. It may be suitable for a Private We, as a Committee, will look now carefully at the Member’s Bill, if it were to go ahead. We had a piece evidence we have received and produce a report. We of legislation brought in by way of Private Member’s very much welcome the open way you have dealt with Bill in this Session and I thought the process worked our questions this morning and your willingness to very well. I would not necessarily say that is not the look at various options, whether it is Government or way to go. Private Member’s legislation. We hope to assist you in the process of consideration. Q105 Mr Buckland: In other words, the Government Mr Djanogly: Thank you. assisting and a Private Member presenting a Bill with Chair: Thank you very much indeed. Government approval. Mr Djanogly: Possibly.

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Ev 18 Justice Committee: Evidence

Written evidence

Written evidence from Dr R Nelson

Summary This submission relates to my brother who had been missing for over 10 years. It represents only a small financial value but points to the difficulties in dealing with the system. My experience indicates that the HMCS and Probate system are just not set up to deal with such cases and that most solicitors have essentially no experience in this field. There needs to be a simple and clear system in place to deal with Presumption of Death. 1. My brother suddenly disappeared in 2000, he had been living “outside the system” for some time. He was unemployed, had no income, had no bank account, did not receive any benefits and had not paid taxes etc. He had no real fixed abode, but I kept in touch through a mobile phone that I gave him. This suddenly went dead and I had not heard from him since then. I went to his last known “address” but found nothing, I then reported him as a missing person to the police. In 2001, by chance a letter arrive at my mother’s old address, she had been dead for many years, which was forwarded to me by the then current occupants. This letter was from Scottish Widows addressed to my brother informing him that a paid up pension was due, this was in fact only for £1,500. I contacted Scottish Widows, but they said that they were unable to pay the money until a death certificate had been submitted. 2. I waited for some 10 years (I understood that at least seven years was necessary) before I re-contacted Scottish Widows. I took advice and realised that the sum of money involved was so little that it was not appropriate to use a solicitor. I searched the WEB and found advice from the “Missing Peoples” organisation, who suggested that I contact the Courts directly, by letter. Luckily I had an old Will which my brother and I had organised well before his disappearance. 3. After some time a helpful junior officer in the HMCS replied asking for full details including what steps I had taken to find my brother. I submitted a detailed report, this junior officer submitted this to the Probate Registrar who agreed to accept a personal submission for probate as the sum of money was so small. After numerous e-mails and letters and very helpful guidance from the Registrar I eventually submitted an acceptable request which included appropriate affidavits and a completed PA1 together with letters from Scottish Widows. All the paperwork was the passed to a Probate Commissioner to deal with. By now the process had taken some eight months. 4. At this stage I had assumed that it now would be dealt with quickly, but this was far from the case. It took another year to be dealt with, the case being passed from person to person, the excuse being that it was an unusual case which had no death certificate etc. I contacted the Chief Officer, who agreed to sort it out, but nothing happened. I then threatened to contact my MP, and at last this got things moving. At the final face-to- face interview, there was concern that there was no death certificate. However, eventually The Grant of Representation was granted. This was sent to Scottish Widows and the small inheritance was paid. 5. I think that the HMCS and Probate system are just not set up to deal with such cases. If the financial amounts are small then it is perhaps too costly to use Solicitors. In any case I have found that most solicitors have essentially no experience in this field. There needs to be a simple and clear system put in place to deal with Presumption of Death, This would save significant costs, time and worries. I believe that I was particularly lucky because, by chance, I found a junior officer in the HMCS who took it upon himself to help out. The “Missing Peoples Organisation” were also very helpful. August 2011

Written evidence from Rachel Elias

1. I Rachel Elias, welcome the opportunity to contribute to the Justice Select Committee Inquiry into Presumption of Death. 2. I have a missing brother, Richard James Edwards, who disappeared on the 1 February 1995 and has not been seen or heard of since that date. At the time of his disappearance he was a member of the successful British band the “Manic Street Preachers.” 3. On the 13 October 2008, the High Court of Justice, Probate Registry of Wales, issued my family a Grant of Representation in respect of my missing brother Richard James Edwards in order to resolve his legal and ﬁnancial affairs. 4. On the 16 June 2011, I contributed to the “All-Party Parliamentary Group for Runaway Missing Children and Adults”—Inquiry—Support For Families of Missing People—Report with recommendations (July 2011.) I provided oral evidence at the session entitled “Resolving Practical Affairs—Presumption of Death” (16 June 2011–10.00–12.00—Committee Room 5, House of Commons.) cobber Pack: U PL: CWE1 [O] Processed: [16-02-2012 08:53] Job: 017612 Unit: PG03

Justice Committee: Evidence Ev 19

The Current System 5. From my own personal experience of obtaining a court order for leave to swear the death of my brother, I found the current system does not work effectively and proved to be a confusing and unclear process. 6. Initially it proved difficult to find information about how to get started. There appeared to be no advisory organisations that I could access. In addition the family solicitor, from an established and experienced firm, stated that he had never before dealt with such a matter. Indeed he informed us that he would be required to “go away and look further into the matter” before he could proceed and assist us. 7. Regrettably, and from the outset, I was unclear on the processes that I would be required to follow in order to obtain the court order for leave to swear the death of my brother. Constant questions were raised in my mind such as—would I be required to go to court and give evidence? Would there be a death certificate? Would an Inquest be held? Would H.M. Coroner be involved? Such questions remained unanswered for me during the whole process and were a source of great distress to me. 8. The whole procedure for obtaining probate took approximately three years and cost £3,500.00. The final amount was assessed and charged to us at the end of the procedure. Up until this point, my family were not aware of how much the matter would cost as there were no advisory organisations to signpost this question to. 9. This was the first application for probate. Initially the Probate Registrar was not satisfied with my affidavit and returned it on its first draft. In total it had taken me approximately three months to write and I found this a difficult piece of work as I was unclear as to the precise nature of what the Registrar requested. Once satisfied with my affidavit, the Registrar then requested second and third affidavits to be sworn from other parties in order to corroborate the main affidavit and also requested copies of additional corroborative evidence. 10. I found obtaining copies of the additional corroborative evidence difficult as there had been a thirteen year gap since the date of his disappearance.

Further Difficulties 11. Regrettably, and despite being issued a Grant of Representation from the Probate Registry of Wales for my missing brother Richard Edwards, I have still encountered problems with Institutions not accepting the Grant. Examples have included PRS—The Publishing Rights Society—and Lloyds TSB. Both institutions explicitly refused to accept the Grant of Representation stating that it was not a “death certificate”. Such matters have since been resolved following us, as a family, having to send the original court order to each organisation and further having to explain the nature of the court order to them. This proved both time consuming and upsetting to us as a family. 12. I also remain disappointed with the current system as the law states that: “An order for leave to swear death is retained in the registry and copies of it are never given out”. (Applications Without Notice—25.31.) The application was examined, and the Grant issued, by the District Registrar and involved no third parties or hearing. We had taken over three years to achieve it and kept it confidential to us as a family. 13. However, despite this, and within days of the Grant being issued, the information became public knowledge and leaked into all of the national and regional newspapers, music magazines, and television and radio articles. His obituary was written and published in the broadsheet newspapers citing the Grant of Representation as evidence that he had died. In addition the financial value of his said estate, as stated on the Grant of Representation, was also leaked to the media and published accordingly. 14. After having finally reached probate, this development was upsetting and has caused enormous implications to the family that continues to this day. As part of this Inquiry I would like the Committee to consider whether current provisions are adequate in respect of this.

Conclusion — I welcome the opportunity of contributing to the Justice Select Committee Inquiry into Presumption of Death and I remain committed to a Presumption of Death Act. — I recognize the challenges that I faced in resolving the practical and legal affairs of my brother. Further, I recognize that, had my brother had wider issues to deal with, such as a marriage dissolution or having to deal with joint issues, then the procedure would proved to have been even more challenging and distressing. — I welcome a framework to improve the current system for Presumption of Death that could address the challenges that exist to the current system in England and Wales for Presumption of Death provisions. I call for a Presumption of Death Act to address this. September 2011 cobber Pack: U PL: CWE1 [E] Processed: [16-02-2012 08:53] Job: 017612 Unit: PG03

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Written evidence from Hugh Eddowes Summary 1. This contribution is my story of obtaining Probate and settling the affairs of my brother, David Eddowes, who had disappeared, particularly of how to obtain Probate and then settling the Inheritance Bill due on his estate. 2. My brother disappeared in August 2002 from his home in Seaview, Isle of Wight. Our Mother had died the previous February and her Executors had applied for Probate which was received very soon after his disappearance. My brother’s half share in our Mother’s estate was left mostly in Trust for him, similar to our father’s estate when he had died in 1993. I and my two sons eventually became the Trustees for my brother’s Trusts. A few days after the last known sighting, I was in touch with the Police and soon after with the charity Missing People. Despite their advertising in Big Issue and with snippets appearing in the Isle of Wight County Press, culminating in a substantial article in the County Press 28 August 2009, no credible reports of his existence were received. 3. As part of the evidence for presumption of death, my brother’s doctor was requested to write a report about him in the quest for probate and he wrote... “In today’s parlance we would describe David Eddowes as having learning disabilities but his medical records do not reveal any such formal assessment or diagnosis. In plain words he was a simple man, competent to communicate in speech and writing albeit in clumsy and simple terms”. 4. Nowhere could I find any guidance of what to do about the affairs of a missing person, not even from the charity Missing People! Having sought and received legal advice informally from various sources, I waited the accepted seven years and then instructed solicitors to apply for a Presumption of Death. The Solicitors first assumed that they would be applying in the Family Court for a judgement of Presumption of Death but they then found the route via the non-Contentious Rules for Probate and eventually the Probate Office ordered that an application for a Grant of Probate could be made, 9 April 2010. There being no evidence available to apply for a more precise date, I was advised that the date of death should be taken as 13 August 2002. The application was duly made but this had to include HMRC’s receipt for the initial payment of Inheritance Tax as determined by their formal methodology. This required that interest was payable on this payment as from March 2003, being six months after the date of death. The Grant of Probate was duly issued on the 25 October 2010 on the basis of death being on or after the 13 August 2002. The payment to HMRC was accompanied by a letter from the Solicitor requesting that due to the unusual circumstances they give consideration to allowing the legal costs of applying for Probate to be offset against the IHT ( as mourning costs are in normal circumstances) and charging interest from the date of grant of probate. 5. The methodology and procedures of HMRC were that very quickly they claimed interest on the late payment of all due instalments from March 2003 resulting in my being charged an extra 34% on the basic IHT demand. In order to minimise further interest charges, the necessary amount of money was raised and paid. At that stage, HMRC read the solicitor’s letter sent several weeks previously and decided to allow the requests made by the solicitor. They eventually repaid all the money with a little interest, but not before their systems demanded a compliance check. This resulted in them having to check the value of a property as at August 2002 when they had already accepted the value at February 2002 when our mother had died. This just added to the delays. 6. The costs of a missing person to the relatives are not trivial. There are the search costs which may or may not be significant. Because of the rule that the property of the missing person can not be disposed of nor managed, I had to put my brother’s belongings into storage which cost over £9,000 and was considerably more than the they were worth. His money in the Bank could not be touched so it has not been possible to invest or get any return on it. 7. To answer your specific questions, I would say: 1. Does the current system work effectively? No! 2. How easy was it to find information to get started? I had to go to the Solicitors because the Internet was in no way helpful and even the Solicitors had to do a lot of research to find the processes they needed to follow to get “Presumption of Death”. Once these things were established there were no legal issues. 3. Does the current system create difficulties for families and, if so, how can these be resolved? These difficulties were: (i) the inability to manage my brother’s affairs for the seven years; and (ii) the associated costs as mentioned above. 4. What can we learn from the experiences of Scotland and Northern Ireland which have Presumption of Death Acts? My understanding is that these set out definitive procedures to follow. 5. Is there a need for legislative or procedural changes in England and Wales? If so, what form should these changes take? cobber Pack: U PL: CWE1 [O] Processed: [16-02-2012 08:53] Job: 017612 Unit: PG03

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Follow the procedures of Scotland and Northern Ireland, except that: (i) Inheritance Tax should be based on the date of disappearance; (ii) no interest is due until six months after the date of the Application for the Grant of Probate has been approved; and (iii) legal costs and maybe other costs should be allowed against Inheritance Tax. September 2011

Written evidence from the Ministry of Justice Executive Summary 1. The Department is aware that there are concerns about the working of the law in England and Wales in relation to the property and affairs of persons who have disappeared and are thought to be dead. These have been expressed most recently by the All Party Parliamentary Group for Runaway and Missing Children and Adults in the report of its Inquiry into support for families of missing persons published in July 2011. The Department is giving careful consideration to this report, which includes recommendations on issues relating to presumption of death. 2. The Department welcomes the Inquiry by the Justice Committee into presumption of death. The Department has not reached any conclusion as to whether any legislative or procedural changes are necessary in relation to presumption of death in England and Wales and will not do so until it has had the opportunity to consider the outcome of the Justice Committee’s Inquiry in detail. 3. The Department acknowledges that unlike the situation in Scotland and Northern Ireland there is no single procedure for obtaining a certificate of presumed death equivalent to a death certificate in England and Wales. Instead, there are a number of procedures leading to specific outcomes. 4. The Department considers that consideration of changing the law or practice relating to presumption of death in England and Wales should take into account the experiences of the systems in operation in Scotland and Northern Ireland.

The Issue 5. This memorandum has been prepared in response to the announcement by the Justice Committee on 18 July that it would be holding an Inquiry looking at the issues around the presumption of death in England and Wales. The announcement specified that “presumption of death for these purposes is the process by which people can register a death where there is no body, and resolve their affairs, including financial, marital and probate.” 6. The memorandum addresses each of the questions set out in the announcement. Does the current system work effectively? Does it create difficulties for families, and if so, how can these be resolved? 7. Under English law, when a person dies proof of his or her death is set out in a death certificate. This facilitates dealing with the affairs of the deceased. A death certificate will usually only be issued where there is an identifiable corpse in existence. In the case of a person who goes missing there will be no corpse to prove death, and consequently no death certificate will be issued. The usual procedures for dealing with the affairs of a dead person are therefore not available. 8. When a person who has disappeared is thought to be dead, the consequences for those left behind vary from case to case. The disappearance of a sole breadwinner will, for example, give rise to very different issues from the disappearance of a dependant. In the context of presumption of death the legal problems are likely to relate to the missing person’s property or his or her status as a spouse or civil partner. 9. In the case of the missing person’s property, the problem is likely to be that those left behind want or need to use the property to pay for outgoings or other expenses but they cannot deal with the property to make the payments or to enter the transactions that the missing person would have done. The objective of obtaining a presumption of death in these cases will usually be to distribute the property under the missing person’s will or the intestacy rules as if the missing person had died. 10. In the case of status as a spouse or civil partner, the problem is likely to be the inability of the spouse or civil partner left behind to enter a new marriage or civil partnership while he or she is still married or partnered to the missing person. The objective in these cases will be to end the existing marriage or civil partnership. 11. Where a person goes missing and there is sufficient evidence that he or she is probably dead then there are a number of specific procedures under which he or she may be presumed dead. In most of these cases the presumption of death is limited to the purposes of the specific procedure in question. This diversity may make resolving problems more complicated but the department would recommend that persons left behind by a cobber Pack: U PL: CWE1 [E] Processed: [16-02-2012 08:53] Job: 017612 Unit: PG03

Ev 22 Justice Committee: Evidence

missing person should take legal advice to identify the best way to deal with their predicament. The details of the speciﬁc procedures are as follows.

Coroner’s Inquest 12. Section 15 of the Coroners Act 1988 provides that a coroner may report to the Secretary of State where he or she has reason to believe that a violent, unnatural or sudden death with unknown cause has occurred in or near his or her district but that the body is irrecoverable or has been destroyed. On receipt of such a report the Secretary of State, if he considers it desirable, may issue a direction to the coroner to hold an inquest. A death certiﬁcate will be issued as a result of the inquest. 13. Table 1 below sets out the number of section 15 applications received, directions made and not made since 2008. In cases where directions were made under section 15 table 2 indicates the certainty of the death. Table 1 SECTION 15 APPLICATIONS RECEIVED, DIRECTIONS MADE/NOT MADE 2008–2011 2008 2009 2010 2011 Totals (Jan— Sept) Section 15 applications received 18 14 14 20 66 from coroners Direction made 10 13 13 11 47 Direction not made 3 1 1 2 7 Coroner able to proceed without a direction 4 0 0 3 7 Report permanently withdrawn 1 0 0 0 1 Under consideration 0 0 0 4 4

Table 2 STATISTICS ON CERTAINTY OF DEATH FOR DIRECTIONS MADE 2008–2011 Directions made—estimated degree of 2008 2009 2010 2011 (1 Jan- 14 Sep) Totals presumption (10) (13) (13) (11) Death is a known fact 4 8 9 5 26 Death is almost certain 2 2 2 2 8 Death is presumed on the balance of 4 3 2 4 13 probabilities

14. The Ministry of Justice is currently in liaison with the Missing Persons Bureau (MPB) on the drafting of guidance which is to be published on the MPB website. This guidance will contain details about circumstances where coroners can consider applying for a section 15 direction to open an inquest. This is signiﬁcant as it may be possible for the families of missing persons who are believed to have died violent, unnatural or sudden deaths to obtain a death certiﬁcate following the opening of an inquest under section 15. This would enable them to undertake some administrative tasks surrounding the deceased’s estate. In addition, putting more information in the public domain could aid some families, in certain circumstances where persons are missing, presumed dead and the body is believed to be irrecoverable, to become aware of the role of coroners and inquests.

Decree of Presumption of Death and Dissolution of Marriage and Presumption of Death Order 15. Under section 19 of the Matrimonial Causes Act 1973 and section 37 of the Civil Partnership Act 2004 where a married person or civil partner goes missing and the surviving spouse or civil partner wishes to dissolve the marriage or civil partnership, he or she can apply for a “decree of presumed death and dissolution of marriage” in the case of a marriage or in the case of a civil partnership a “presumption of death order”. A decree or presumption of death can be obtained at any time after the spouse or civil partner goes missing and will be granted if the court is satisfied that there are reasonable grounds that the missing person is probably dead. The decree or presumption of death order can only be used to dissolve the marriage or civil partnership. They cannot be used to obtain a death certificate and do not allow a person to obtain financial or property orders against the former spouse of civil partner. Such ancillary relief will only be available if the missing person returns. 16. The decree or presumption of death order will allow the spouse or civil partner left behind to marry or enter a civil partnership. 17. The Ministry of Justice does not hold information centrally on the number of High Court applications or orders made for decrees of presumed deaths and consequent dissolution of marriage or civil partnerships made under section 19 of the Matrimonial Causes Act 1973 or section 37 of the Civil Partnership Act 2004. cobber Pack: U PL: CWE1 [O] Processed: [16-02-2012 08:53] Job: 017612 Unit: PG03

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18. Information for applicants on these procedures can be downloaded from the Family Procedure Rules section of the Justice website. Form D8D “Petition for a presumption of death decree/order and the dissolution of a marriage/civil partnership “ contains information to help people complete the form, whilst Form D8D Notes contains further guidance about the application and the evidence required and the other applications which can be made (for example in respect of ﬁnancial arrangements).

Leave to Swear Death 19. Where a person goes missing and a member of the missing person’s family wishes to obtain a grant of probate in order to administer the estate of the missing person then he or she can apply for a “leave to swear death order”. A leave to swear death order is made pursuant to Rule 53 of the Non-Contentious Probate Rules 1987. It is an order made solely for the purpose of allowing probate to be granted to the estate of a missing person. It is not, and will not be accepted as, conclusive proof of death. An application is made ex parte on afﬁdavit, usually by the applicant for the grant of probate or letters of administration, to a District Judge of the Principal Registry of the Family Division or a District Probate Registrar. Appeals from the Probate registry are made to the Chancery Division of the High Court. 20. Probate is the process by which the estate of a deceased person is administered: that is gathered in, the debts paid and the net estate distributed in accordance with the will or the intestacy rules. The administration is conducted by executors named in the will under a grant of probate or administrators appointed by the court under letters of administration in the case of intestacy. 21. A leave to swear death order enables an application for probate or letters of administration to be made. The estate of the missing person can then be administered. 22. The numbers of leave to swear death orders made between April and March in each of the last three years were 17 in 2008–09, 16 in 2009–10, and 14 in 2010–11.

Certificate of Presumed Death 23. Where a person has gone missing in identifiable circumstances it may be possible to obtain a “certificate of presumed death”. These can be made under a variety of Acts and regulations. 24. Circumstances where such legislation can apply include where a member of the armed forces has gone missing in action; if a merchant seaman goes down with his ship; where someone cannot be found after a tragedy on an offshore installation; or where someone working in a particular Government department cannot be found after an incident while he or she was on duty, for example, an embassy worker who goes missing in a bomb blast. 25. These certificates are not usually issued by the courts but by the authority responsible for the missing person. They are issued once the authority is satisfied that the person probably died as a result of the incident. They can be used, at the discretion of the court, for probate purposes, but they cannot be used to obtain death certificates.

Social Security benefits 26. Section 8 of the Social Security Act 1998 governs the Secretary of State’s power to make decisions in relation to a person’s entitlement to a range of benefits, including decisions that a person’s spouse may be presumed to have died. Section 3 of the Social Security Administration Act 1992 enables claims for bereavement benefit to be made outside the usual twelve month period where it is difficult to establish death.

Consular Death Registration 27. The FCO has the power to issue consular death registration documents once the relevant local authorities issue official notification of the death—presumed or otherwise. This type of document does not constitute a UK death certificate and does not replace a locally issued death certificate. Consular death registration is not a legal requirement but it means: an entry will be made in the death register by the British Consulate in the country concerned; an applicant will be able to obtain a British style certificate; and a record of the death will be held by the General Register Office in the UK. 28. Records held of the number of deaths registered by FCO do not distinguish between those issued on presumption of death and those issued on known death.

Common Law Presumption of Death 29. The question whether a person who has disappeared has died may arise in many different circumstances. The effect of the terms of a gift in a will or under a trust may for example turn on whether a missing person is dead or alive. In these cases the court may have to decide whether a person is to be deemed alive or dead. Where this situation arises, there is a common law rule of evidence that if a missing person has not, despite thorough enquiries, been seen or heard of for seven years, he or she is presumed to be dead. This presumption can be used generally, but it is only a presumption and not a rule and cannot be used to obtain a death cobber Pack: U PL: CWE1 [E] Processed: [16-02-2012 08:53] Job: 017612 Unit: PG03

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certiﬁcate. The court can accept evidence of absence over a shorter period if it wishes. In other words, an interested party does not have to wait for seven years to make an application for an order relating to the presumed death. 30. The Ministry of Justice does not hold centrally information on the number of applications made to the High Court for orders relating to presumed deaths or for the number of orders made.

What can we learn from the experiences of Scotland and Northern Ireland which have Presumption of Death Acts? 31. In Scotland and Northern Ireland there are single statutory procedures to obtain a certificate of presumed death. 32. In Scotland, the law governing the procedure for obtaining a certificate of presumed death is contained in the Presumption of Death (Scotland) Act 1977 (“the 1977 Act”). The 1977 Act implemented recommendations of the Scottish Law Commission in its Report on Presumption of Death published in 19741. 33. The 1977 Act provides that where any person who is missing is thought to have died or has not been known to be alive for a period of at least seven years, a person having an interest may raise an action of declarator of death of that person in the Court of Session or the Sheriff Court subject to certain conditions concerning domicile or residence. The certificate can be used for the same purposes as a death certificate. 34. About 40 declarations of presumed death were made under the Act in Scotland between 2000 and 2010. 35. In Northern Ireland, the law governing the procedure for obtaining a certificate of presumed death is governed by the Presumption of Death Act (Northern Ireland) 2009. It was originally envisaged that the Act would be for the benefit of the families of “the Disappeared” (those people who are thought to have been killed during the Troubles, and whose remains have not yet been located). As the provisions were developed it became clear the Act should also cater for families of people who have gone missing and are thought to have died in other circumstances. The provisions of the Act are broadly analogous to those of the 1977 Act. 36. No applications have yet been made under the 2009 Act. 37. The legal systems in each of the three jurisdictions within the United Kingdom are different from one another. The Department considers that in deciding whether to take forward any proposals to change the law or practice in relation to presumption of death in England and Wales it would be useful to consider the experiences of the other two jurisdictions.

Is there a need for legislative or procedural change in England and Wales? If so, what form should these changes take? 38. The Department has not reached a conclusion as to whether legislative change is necessary in England and Wales and looks forward to the ﬁndings of the Committee on this point. September 2011

Written evidence from Claire Chandler Executive Summary 1. Since my partner disappeared I have received little guidance on dealing with his affairs or information about accessing presumption of death provisions. Some of the information I have obtained has been contradictory. I believe that there is sufﬁcient evidence that my partner has died, but I have thus far been discouraged from taking matters further before seven years have elapsed. I have been frustrated and upset by the attitude of the companies and authorities with which I’ve dealt and by their lack of clear procedure. In addition, dealing with my partner’s possessions has been a ﬁnancial burden on top of the emotional distress. My partner deserves to have his estate settled as he wished, and I would like to see the law changed to make it much easier to deal with the affairs of a missing person where there are reasonable grounds to suppose that the person has died.

Does the current system work effectively? 2. No, I believe that the current system creates emotional and ﬁnancial strain for families at a time when they are already experiencing great distress.

Does the current system create difficulties for families and, if so, how can these be resolved? 3. My experience is that the current system creates difficulties for families. I have not found it easy to obtain information about what should happen, and what to do, when a person goes missing. The information I have 1 http://www.scotlawcom.gov.uk/download_file/view/429/ cobber Pack: U PL: CWE1 [O] Processed: [16-02-2012 08:53] Job: 017612 Unit: PG03

Justice Committee: Evidence Ev 25

received from different sources has sometimes been contradictory. My partner disappeared from a cross- Channel ferry in February 2011. After the ferry company informed me that he had not disembarked with the other passengers and that all his possessions had been found in his cabin, my initial dealings were with the Missing Persons Unit of the Metropolitan Police. I cannot remember how long it was before I heard about the seven-year period before presumption of death; I recall being told by the police only that, unless my partner’s body was found (and I was told that this was unlikely), it would be a long time before there could be any resolution of my partner’s affairs.

4. Three or four weeks after my partner’s disappearance I met with his accountant. The accountant invited to the meeting a solicitor experienced in probate who works in the same building. The solicitor was the first person to mention to me the possibility of using presumption of death provisions before seven years have elapsed. He had made some calls and was at that time unable to find anybody at the Bar who had experience of seeking an order for presumption of death. He was, however, reasonably confident that, subject to getting a barrister’s advice, it would be possible to seek an order, if the police were able to issue a report that was sufficiently positive about my partner’s fate—that is, there was reasonable evidence that he had died.

5. When I discussed this matter with the police, they told me that, because I did not live with my partner and have no legal status, it would fall to my partner’s family to bring proceedings and provide evidence of the likelihood of death. They advised that presumption of death is granted only in very particular circumstances, such as a plane crash or another disaster, when it is established that there were no survivors. I was further informed that the matter would be complicated by the fact that my partner went missing in the Channel, crossing both British and French waters.

6. A few months later, I asked the charity Missing People if it could recommend a lawyer experienced in dealing with the affairs of missing people. The lawyer with whom I spoke told me that she believed any interested party could seek an order for presumption of death, not just the missing person’s family, but she said that it would be very unusual to attempt to do so before seven years. In the meantime, my partner’s next of kin, a brother who lives abroad, informed me that he does not wish to be involved in any decisions regarding my partner’s affairs. Therefore, if I do not myself at some point seek a presumption of death order, it will never happen, and I feel strongly that it would be a disservice to my partner if there were never any resolution of his affairs and his estate were not settled as he instructed in his will.

7. Missing People has now put me in touch with the charity Missing Abroad, to help me look into the possibility of obtaining a consular death certiﬁcate for my partner. Neither the police nor any other authority or lawyer has informed me about this possibility.

8. If the possibility of a consular death certiﬁcate comes to nothing, I appear to be faced with two options: wait for seven years, and effectively feel as if my life is on hold, constantly worrying about my partner’s affairs being in limbo; or spend what is likely to be a considerable amount of money on legal representation, with no guarantee of getting a presumption of death order. I have only recently discovered that, even after seven years, one still has to apply to the High Court to obtain such an order; the process is not automatic.

9. In addition to trying to obtain information about presumption of death, I’ve found it very stressful to deal with financial institutions and other organizations regarding my partner’s affairs. The police suggested to me and my partner’s brother that we inform the relevant authorities about my partner’s disappearance, giving them details of the investigation. Only a couple of authorities responded to the letter; all continued to send correspondence to my partner’s flat. The utility companies began to send legal letters to my partner because bills were unpaid, and when I rang them to explain the situation they told me either to ignore the letters or that there was simply nothing they could do to stop the legal process. One utility company even told me that its debt collectors would manage to find my partner. I felt as if my partner were being criminalized, but he’s not hiding from these companies; he’s died. None of the authorities appears to have a policy regarding missing people, and my partner’s affairs are left in a mess.

10. My partner had life insurance policies with two different companies. One company has been sympathetic and responsive (primarily because my partner’s accountant is a trustee of the policy, and so has been able to get replies to his queries), although it has indicated that it would not pay out on the policy before seven years. The other company has been much more difﬁcult and slow to respond, and has said it cannot answer any questions about the policy until probate is obtained. No one has the authority to look into my partner’s ﬁnancial affairs at this time, but these insurance policies appear to be the main assets of his estate, and I am anxious about what will happen because I understand that the cost of an application for presumption of death is usually covered by the missing person’s estate.

11. In his will, my partner asked me to distribute his possessions among friends and charities. The legal advice I have been given is that I cannot do this until such time that his affairs can be administered. My partner rented his flat from a housing association, and the association sought an order to repossess the property once the rent had not been paid for a certain period. Fortunately, it was sympathetic in allowing me access, but I am now in a position of having to store as many of my partner’s things as I can, including in paid storage, for up to seven years. The paid storage is a significant financial burden, but I could not otherwise bear to see my partner’s possessions end up being sold or thrown away rather than distributed as instructed in his will. cobber Pack: U PL: CWE1 [E] Processed: [16-02-2012 08:53] Job: 017612 Unit: PG03

Ev 26 Justice Committee: Evidence

12. The loss of one’s partner is one of the worst things in life; to lose your partner without knowing for sure what happened to them, not to have their body, not to be able to organize a funeral, is unbearable. There is no sense of closure. The lack of clear guidance since my partner’s disappearance has been incredibly frustrating; I feel utterly abandoned, and my uncertainty about the future causes me a great deal of stress. At this time I have no idea when my partner’s estate may be settled. I wish to see things resolved primarily for my partner’s sake, but also to allow me at least to attempt to get on with my life without this constant worry about his affairs. I could understand objections to obtaining a presumption of death order if my partner had walked out of his flat and disappeared into the crowds, but he disappeared in the middle of the Channel with no possessions. There seems to me no possibility that he is still alive, and to have to wait seven years for this to be recognized in the eyes of the law only adds to my considerable distress. In such circumstances—where there is evidence that the missing person is likely to have died—it should be easier for presumption of death to be granted. 13. I would like to see better guidance for families dealing with financial authorities, utility companies and other organizations when a person goes missing, and most importantly a single clear procedure for obtaining a presumption of death order. If a solicitor had not mentioned to me the possibility of obtaining such an order, I don’t know how long it would have taken me to find out the relevant information by myself—and even now I’m not clear if this is a realistic option at this stage. No one can give me a straight answer. Families face so much anguish when a loved one goes missing, and it’s distressing for them to learn that the law at present is virtually non-existent as far as missing persons are concerned. September 2011

Written evidence submitted by Stephanie Hynard 1. Current Situation My husband left home on 1 March 2011, leaving behind a suicide note and information for the person ﬁnding his body. This was the third attempt to end his life. His car was found, but to date his body has not been located.

2. Does the Current System Work Effectively? I have been involved with two Police authorities. One has been very supportive and able to talk about a potential death following a possible suicide. The other was unwilling to do this and unable to provide me with any information about the correct procedure to follow in dealing with legal issues or whom to turn to for advice. I believe a document explaining the procedure would have been useful. After a month I carried out my own research on the internet and found several articles that indicated that the procedure for “presumption of death” was complicated and would involve the District Probate Registry or the Secretary of State. I was unable to find information on how to deal with the legal issues about payment of debts that were in my husband’s name. I have replied to financial letters that were addressed to him explaining the situation, but usually do not receive a response or an acknowledgement. I approached one of the Police forces I was working with for guidance, but they were of the opinion that I could do nothing until seven years had passed, and were negative about an application to the Coroner’s Court. My impression was that the police were concerned that I might be involved with an “insurance scam”. Initially I requested meetings with the police, but as the intensity of the search for him has decreased, I have been unable to find out how the investigation is being managed or what is planned for future investigation. As I am now suffering from depression, I find I do not have the energy to pursue this. I felt that I needed legal advice and asked my solicitor to investigate how I could manage my husband’s affairs that had a direct impact on my life and well-being. She made it clear that it would be a long, complicated and potentially expensive procedure, with no guarantee of a positive outcome. She made a telephone call to the Coroner’s Court and was provided with a list of evidence that would be needed. However, it wasn’t clear to me on what basis I was making an application ie (a) Presumption of death; or (b) Power to manage my husband’s financial affairs. The Probate Manager of HM Courts responded saying this information was useful, but until the Police report was released the case could not proceed. My solicitor has written to one of the Police forces on two occasions and made several phone calls, but they were not cooperative in providing any documentation dealing with their enquiry or the level of search that had been undertaken. They indicated that they would only produce evidence if they were directly required to do so by the Coroners’ Court.

3. Does the Current System Create Difﬁculties for Families? As technically I am not bereaved, I have been unable to access the services of SOBS and CRUSE. I have paid for my own counselling in order to deal with the situation. I feel lonely and isolated and as I am not a “widow” no-one knows how to deal with difﬁcult issues. There seems to be a complete lack of guidance on what to do. cobber Pack: U PL: CWE1 [O] Processed: [16-02-2012 08:53] Job: 017612 Unit: PG03

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Banks and Insurance companies have quoted the Data Protection Act as their basis for not assisting me. It was only when my husband’s account went into debt that the bank decided to freeze his account. Pet Insurances were cancelled when I tried to change the insurance to my name. If I told an organisation about my husband’s missing status, they were unable to offer advice. Problems have included payment of mortgage, car insurance, legal ownership the car, applying for tax, what to put on the electoral register, how to inform the tax ofﬁce, stopping payment on direct debits.

4. Legislative or Procedural Changes The officer allocated to my case is of the opinion that until my husband’s body is found, the police service will not provide information for the Probate Service. I was informed that this might mean that I will have to wait for the full seven years. Having officially retired I have now had to returned to part time work to meet our financial commitments. A change in the legislation would assist in these rare, but distressing cases where mental health has been an issue for many years and suicide was the intention of the person who is now missing. September 2011

Written evidence from Missing People “The loss of one’s partner is one of the worst things in life; to lose your partner without knowing for sure what happened to them, not to have their body, not to be able to organize a funeral, is unbearable. There is no sense of closure. The lack of clear guidance since my partner’s disappearance has been incredibly frustrating; I feel utterly abandoned, and my uncertainty about the future causes me a great deal of stress. At this time I have no idea when my partner’s estate may be settled. I wish to see things resolved primarily for my partner’s sake, but also to allow me at least to attempt to get on with my life without this constant worry about his affairs.” Partner of a missing man2

1. Executive Summary 1.1. Missing People is a UK charity providing support to missing people of all ages and the families they leave behind. Last year we took more than 114,000 calls to our helplines, and worked with approximately 1,000 families at any one time. 1.2. The charity has been campaigning for a Presumption of Death Act for England and Wales since 2008. This stems our research report “Living in Limbo: the experiences of, and impacts on, families of missing people”,3 which demonstrates the deep legal and financial problems families can face following a disappearance.4 1.3. “Living in Limbo,” along with our wider policy and research work with families, demonstrates how families in England and Wales can find the presumption of death system confusing, costly and cumbersome. It requires some to go to court several times to deal with their missing relative’s affairs, which can exacerbate an already difficult time. Our work also indicates low awareness of the system across all sectors, including those that support families through the measures and those delivering a service within them. 1.4. These issues were explored in the APPG for Runaway and Missing Children and Adults’ inquiry into support for families of missing people. Missing People provides secretariat to this group. 1.5. Missing People understands the Scottish and Northern Irish Presumption of Death Acts have functioned successfully since introduced in 1977 and 2009 respectively—for both families and institutions. This noteworthy, as the absence of safeguards in the disparate English and Welsh system can lead to failed applications and institutions being unwilling to accept the documentation it yields. 1.6 Missing People believes all families should have access to a straightforward presumption of death system—regardless of where they live in the UK. A Presumption of Death Act for England and Wales would additionally clarify the law for institutions families approach for support, as well as introduce safeguards to assist the public and financial sectors.

2. Does the current system work effectively? 2.1 Missing People’s policy and research work and direct contact with families clearly demonstrates that the present presumption of death system does not work effectively. 2.2 Families report the current systems to be confusing, costly and complex, and that the institutions they approach for help can struggle to provide them with accurate advice. The charity understands public sector 2 Excerpt from a Select Committee submission shared with Missing People. 3 Holmes, L. Living in Limbo: the experiences of, and impacts on, families of missing people. Missing People, 2008. 4 Ibid, pp. 31–4. cobber Pack: U PL: CWE1 [E] Processed: [16-02-2012 08:53] Job: 017612 Unit: PG03

Ev 28 Justice Committee: Evidence

institutions can also be cautious in working with families because of the lack of safeguards in the system, and some ﬁnancial institutions are unsure what documentation they should request to administer a missing person’s assets. 2.3 Missing People believes presumption of death provisions in England and Wales are fragmented and not ﬁt for purpose. It is imperative that a clear, effective and accessible system is introduced.

3. Does the current system create difficulties for families, and if so, how can these be resolved? 3.1 Whilst only a relatively small proportion of families accessing our services will want—or indeed need— to declare their relative as presumed dead, those that do report a number of problems associated with the current English and Welsh system. 3.2 Research demonstrates the pain associated with having a loved one go missing is unlike other forms of loss, such as death where there is a body.5 Termed “ambiguous loss”, this does not alleviate with time, as families are unable to grieve without answers of what has become of their relative. Therefore whilst many families wait some years before pursuing presumption of death, the pain of their situation will not necessarily lessen, and thus it can be a particularly difficult time. 3.3 The majority of families pursue presumption of death out of necessity rather than want, with many reporting it as borne from the need to administer their relative’s estate. As each missing person case is different this can be for any number of reasons, yet those most cited are to: resolve joint ownership/liability issues; access monies to overcome debt caused by the loss of the missing person’s income, or; halt debts the missing person may be accruing whilst away. Others may access the system to remarry. 3.4 Acting from necessity rather than need, families describe conflicting emotions. Many report feeling guilty, fearing they may be perceived as “giving up” on their relative, whilst also relief from the thought that financial complications may finally be resolved. With such emotionally fraught circumstances, it is vital families can access a straightforward system that sensitively meets their needs. Unfortunately however, this is often not the case, as families can encounter a range of issues when attempting to access the present system:

3.5 Lack of awareness of present measures 3.5.1 Awareness of the presumption of death system, what it comprises of, and what it can yield, is low amongst families and professionals. At the outset many assume there is a single court process through which a person can be declared “presumed dead” for all purposes and their affairs administered. Many also believe Certificates of Presumed Death are widely issued and can be used in place of a Death Certificate when required. Neither assumption is correct. 3.5.2 Families often only discover the complexities of the system—and their proactive role—through their own research. With cost, time, and emotional implications, this can be very daunting, and not all families will have the financial or intellectual resources to take such a proactive approach.

3.6 Onerous system 3.6.1 Depending on circumstances, families may need to go through several court processes to resolve a missing relative’s affairs. For example, if a missing person’s spouse wants to administer their loved one’s estate and dissolve their marriage, they need to seek Leave to Swear Death, Probate, and a Decree of Presumption of Death and Marriage Dissolution Order. This demonstrates the fragmented nature of the system; indeed, the Ministry Justice described it as “onerous” in its submission to the APPG inquiry into support for families of missing people.6 3.6.2 The system is cumbersome, with cost implications stemming from multiple court proceedings, which can exacerbate an already emotionally difficult time. The disjointed system also leaves open the possibility that while one court may rule a missing person as presumed dead, another may not, resulting in a very contradictory legal predicament. 3.6.3 With little public information as to which processes families should follow, Missing People understands families can be advised to pursue a range of different legal paths to achieve broadly similar ends. This tends to be influenced by what their solicitor believes is the most appropriate route, and what paperwork is required by financial institutions to administer a missing person’s assets (eg life insurance). Yet with low awareness of the system, errors can be made. 3.6.4 Families aware of the more straightforward systems in Northern Ireland and Scotland can find their situation particularly frustrating, as it presents a “postcode” element to it.

3.7 Absence of knowledgeable support 3.7.1 Missing People understands legal professionals can also find the system challenging, with our policy and research team receiving information requests from firms seeking advice on how to work with families. 5 “Ambiguous loss” was identified by psychologist Dr. Pauline Boss, as discussed in Living in Limbo, p.17, 25–26. 6 APPG inquiry transcript, session two, p. 13: www.missingpeople.org.uk/appg. cobber Pack: U PL: CWE1 [O] Processed: [16-02-2012 08:53] Job: 017612 Unit: PG03

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3.7.2 Family accounts cohere with this as they can struggle to find knowledgeable legal assistance. Some describe approaching several solicitors before feeling confident they have found one capable of unravelling the confusion of the present system. Others describe being turned away by firms, and some have even been told the costs associated with pursuing an order would not make it worth the family’s time or money—even when an estate is worth tens of thousands of pounds. 3.7.3 Other institutions, such as the police, can also struggle with presumption of death. Sean Sutton, Head of the NPIA Missing Persons Bureau told the APPG inquiry his team has “identified a lack of knowledge in police officers in this area”.7 This can have serious repercussions for families. For example, some forces may not be cooperative when asked to evidence the search for applications. 3.7.4 The charity has been looking at presumption of death from a policy and practice perspective for several years whilst fielding calls from families and professionals alike, and yet we still lack the legal clarity we would like and which would enable us to more effectively support our service users. For example, we would like better knowledge of what circumstances would enable families to instigate proceedings ahead of the seven year common law rule, however this information (to our knowledge) is not available. It is likely other voluntary advisory organisations are in a similar position. 3.7.5 Overall, this lack of knowledgeable support can lead to families being given misguided advice, which can impact on crucial matters such as when they pursue presumption of death and which paths they follow. This can lead to families waiting unnecessarily for seven years before making an application,8 perhaps accruing debt in the meantime, or failed applications.

3.8 Legal documentation 3.8.1 The fragmented system can result in families having a range of different legal documents depending on the route they pursue. This lack of standardisation can be problematic, as different institutions may require different documents from a family before they will administer a missing person’s assets. 3.8.2 Low awareness of the system also means institutions may request documentation families cannot provide. For example, whilst Certiﬁcates of Presumed Death are not available from the courts,9 families report some institutions still requesting these before administering a missing person’s assets. As many families are only able to obtain Probate, this can effectively leave them at a frustrating and upsetting legal dead-end.

3.9 Time, expense and failed applications 3.9.1 Some families wait unnecessarily for years before instigating proceedings as they have no information to clarify the exceptions to the so-called “seven year rule”. This wait may be ﬁnancially damaging for families if they are liable in maintaining their relative’s payments in the meantime, eg a joint mortgage. 3.9.2 Once families embark on presumption of death, ﬁnding out information and processing applications can be very slow; Missing People is aware of families who have been tackling the system for more than seven years. This stems from low awareness of provisions and the lack of safeguards built into the system leading approving agencies to move very tentatively. 3.9.3 This latter point can also lead to applications failing, or Probate Registrars requesting families to seek insurance before they will consider approving an application. This adds another layer of complexity for families, and costs them additionally in time, money and their emotional wellbeing.

3.10 Concerns not addressed by the current system 3.10. The overall lack of clarity around the system can cause deep concern for families, and many have problems that fall through the cracks of the current patchwork of provisions. For example, families have asked Missing People about whether the police continue to look for a missing person if they are legally presumed dead, and whether they will remain as next of kin and kept abreast of any developments stemming from the search if their marriage is dissolved. These questions are not addressed in the present system and must be for families and professionals alike. 3.11. Whilst families continue to face these issues, their ﬁnancial and emotional wellbeing can be severely compromised, with Missing People aware that some have faced the risk of having their homes repossessed as they wait for a resolution. The current system does not provide a clear and coherent legal pathway to resolution. In addition the current system is not understood by professionals within the legal, ﬁnancial and law enforcement sectors and varieties of interpretation often prejudice the best interests of the families and the estates of missing persons. The charity proposes a Presumption of Death Act for England and Wales is introduced to overcome these concerns. 7 Ibid, p. 39. 8 Missing People understands that when there is evidence to suggest a person faced immediate peril at the point of going missing, their family can apply for presumption of death before seven years have passed. 9 APPG inquiry transcript, session two, p. 12–3 cobber Pack: U PL: CWE1 [E] Processed: [16-02-2012 08:53] Job: 017612 Unit: PG03

Ev 30 Justice Committee: Evidence

4. What can we learn from the experiences of Scotland and Northern Ireland which have presumption of death Acts? 4.1 Missing People understands the Scottish and Northern Irish legislation is working efficiently; indeed, the charity has not received a request for guidance from families or professionals around how to use it. 4.2 The charity has also spent some time assessing their legislation with its pro bono lawyers, Clifford Chance LLP, by way of ascertaining whether it is suitable for families. We agreed it is, as it brings all existing provisions together into one streamlined process. It also contains inbuilt safeguards (such as an indemnity insurance requirement for applicants), and provisions which create a central register of presumed deaths and a Certificate of Presumed Death to act as a Death Certificate. These elements overcome many issues created by the current system. 4.3 The Acts in Scotland and Northern Ireland also overcome the existing loophole that one court may rule the person as presumed dead whilst another may not. 4.4 As a result of this assessment, Missing People worked with Clifford Chance and Tim Boswell MP (now Lord) to table a Presumption of Death Act for England and Wales in 2009. Whilst this fell, the charity has continued to call for the legislation through other avenues since this date with the support of families using our services.10 4.5 Missing People believes that both families and professionals would benefit if the presumption of death system in England and Wales be reformed along the lines of the Scottish and Northern Ireland Acts.

5. Is there a need for legislative or procedural change in England and Wales? If so, what form should these changes take? 5.1 This submission outlines how the current system does not provide for an equitable or transparent legal process. The legislative provision of a Presumption of Death Act for England and Wales in line with other nations within the United Kingdom and developed nations all over the world is the just next step. The outline of this act has been considered in detail by the Ministry of Justice and a consultation paper has been drafted to take it through to a legislative process.11

5.2 The scale of need—families 5.2.1 Recent Parliamentary questions tabled by Lord Boswell demonstrate there is no complete, centralised data held on the number of presumption of death applications made annually under existing legal provisions.12 Whilst this means there are no ﬁrm numbers of how many people are affected by this issue each year, Missing People has estimated numbers based on Scottish data.13 5.2.2 The charity understands that, on average, approximately ﬁve deaths are registered in Scotland each year under the provisions of the Presumption of Death (Scotland) Act 1977.14 In relation to population statistics, it can be estimated that similar measures in England and Wales would results in approximately 50 registered deaths each year. It is possible that other cases might reach the courts but not be granted. 5.2.3 Yet as seen in Scotland, it is likely that this number would be higher in the immediate years following legal reform, with a peak of 14 deaths being registered in Scotland in one year. Missing People anticipates a similar trend in England and Wales, as families and professionals struggling with the present system would have clarity on how to proceed. Those with previously failed applications are also likely to re-apply. Proportionate to the uplift in Scottish deaths registered, Missing People estimates registered deaths in England and Wales could reach approximately 150 in the years immediately following legal reform.

5.3 Scale of need—professionals 5.3.1 Further to families, it is clear that clarifying the law would also beneﬁt professionals, including: — Institutions approached for advice, such as solicitors, the police and voluntary sector organisations, as evidenced in the APPG inquiry. — Organisations with a role within the system, including Probate registry staff,15 courts, and agencies required to evidence the search. — Financial sector organisations holding missing people’s assets. 10 Please see http://bit.ly/pTSGR7 for a full account of our campaigning on presumption of death. 11 Ibid. 12 Please see questions HL11855, HL11707 and HL11643 for examples of these. 13 As families are able to apply at any time depending on the circumstances of the disappearance, simply looking at cases open for seven years or longer would provide an underestimation. 14 Statistics obtained through direct contact with the National Records of Scotland. 15 Former District Probate Registrar Keith Biggs stated to Missing People that he received “many applications where there was no body and no proof of actual death. It is not a common event but when it does occur is always difﬁcult for family and for the court.” (via private correspondence). cobber Pack: U PL: CWE1 [O] Processed: [16-02-2012 08:53] Job: 017612 Unit: PG03

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5.4 Missing People’s view is that the simplest way of achieving a more straightforward system—whilst also achieving legal parity across the UK—would be through a Presumption of Death Act for England and Wales. We urge the Committee to recommend that the Government explore this option. September 2011

Written evidence from Clifford Chance LLP About Us 1. This submission is made by Clifford Chance LLP in response to a call for evidence on 21 July 2011 by the Justice Committee. 2. Clifford Chance is one of the largest global law firms with 33 offices in 23 countries, and over 3,500 legal advisors, the largest number of whom are based in London. We are regulated by the Solicitors Regulatory Authority of England and Wales. 3. Our interest in the presumption of death stems from our relationship with the charity Missing People, for whom we have worked in a pro bono capacity for over five years. On behalf of, and in conjunction with, Missing People we drafted the Private Member’s Bill16 introduced by Tim Boswell MP (now Lord Boswell) in January 2009. Following meetings with, and at the request of, officials at the Ministry of Justice, we also drafted a consultation paper on the issue, with a view to its publication as a government consultation paper (with a draft Bill attached). Unfortunately, due, we believe, to competing priorities, this paper was never finalised, and was not issued. We would be happy to send the Committee a copy of the draft consultation paper, should the Committee feel this would be helpful.

Does the current system work effectively? 4. The current law in England and Wales does not, in our view, provide a clear process by which a missing person can be presumed dead, with universally applicable effect at a point when factors such as the passage of time and, more pertinently, the circumstances of the disappearance would make such a presumption reasonable. The existing law is piecemeal and specific to particular situations, and is contained in a mixture of different statutory provisions and the common law. 5. At common law there is a presumption that a person lives a natural life span unless there is a reason to suspect he or she is dead. The expectation therefore is that a missing person will live into old age if he or she was in good health prior to disappearance and in the absence of evidence to the contrary. This expectation has been refined by case law, notably in Chard v Chard,17 which has allowed the court to presume death under certain conditions. These conditions are: that there are persons who would be likely to have heard from the missing individual during a period of seven years or more; that those persons have not received information of the missing person during that period; and that enquiries have been made as to the person’s whereabouts. A combination of these three factors will enable a court to make a presumption that, for the purposes of the specific proceedings before it, the individual is dead. However this presumption does not then have wider application to all the missing person’s property or affairs—only to those which touch on the case being heard in court at the time. This approach therefore risks considerable duplication of effort, and consequent additional cost, both for the courts, and for the missing person’s family and other connections. 6. Alongside the common law, there are statutory provisions addressing presumed deaths in specific scenarios, such as the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004; the Offences Against the Person Act 1861; the Non-Contentious Probate Rules (made by Statutory Instrument in 1987 under the authority of the Supreme Court Act 1981) and the Social Security Act 1998. 7. The High Court may make a presumption of death as a basis for an order for dissolution of a marriage or partnership.18 Such a presumption can be made if the missing spouse or civil partner has been absent for a period of seven years or more and the other spouse/civil partner has no reason to believe that he/she was alive during that seven year period. These provisions are, however, very rarely used as a spouse or civil partner who wishes to remarry has the alternative option of petitioning for divorce or dissolution on grounds of desertion after only five years. 8. The Non-Contentious Probate Rules allow a district judge or registrar to grant an applicant leave to swear to the death of a person “to the best of his information or belief” in cases where death is presumed rather than proven.19 Such leave can be taken at any point after the person’s disappearance, ie there is no need for the elapse of seven years. It is important to note, however, that in granting leave the High Court is not making a presumption of death but merely giving the applicant the opportunity to swear to the death as a pre-condition for obtaining a grant of probate in order to administer the missing person’s affairs. 16 The Presumption of Death Bill 2009. 17 [1955] 3 WLR 954 18 Matrimonial Causes Act 1973 s.19 and Civil Partnership Act 2004 s.37 19 Rule 53 Non-Contentious Probate Rules (SI 1987/2024) cobber Pack: U PL: CWE1 [E] Processed: [16-02-2012 08:53] Job: 017612 Unit: PG03

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9. Furthermore while a grant of probate is obviously essential to enable a missing person’s estate to be administered it will often not be enough to undertake that administration effectively. Banks and other holders of investments frequently require to see both a grant of probate and a death certiﬁcate before they will release funds to executors or administrators.

Does the current system create difficulties for families and, if so, how can these be resolved? 10. As a large commercial law firm, our knowledge of the difficulties caused for families by the current system is purely second-hand, gained through our association with Missing People. However, it was precisely the difficulties faced by families of missing persons that created the impetus for the drafting of the Bill and the consultation paper (see paragraph 3 above). 11. Moreover, as a matter of principle, we consider it inevitable that the current system will cause difficulties for the families of missing persons. The complexity and overlapping nature of the differing rules and procedures for different situations creates considerable scope for both confusion and duplication of resources and effort. Lawyers advising the families of missing persons are likely to have to spend a disproportionate amount of time researching the common law and statute law provisions, and families may need to take a number of different proceedings to court in order to resolve all outstanding issues. 12. In our opinion, establishing a procedure to enable families to obtain a certificate of presumed death, which would have equivalent effect to a normal death certificate, would greatly simplify and clarify the current confused system, and bring benefits for families, at the same time as saving court time.

Approaches to reform other than primary legislation 13. It could be argued that the difficulties could be resolved through guidance and revised codes of practice rather than legislation. However there are two problems with that administrative approach. Firstly, private institutions could be a risk of civil action if they were merely following a code in the absence of a statutory framework, and may not be willing to release assets on that basis. Secondly, given the very wide scope of the institutions that might be involved, including for example public bodies such as the Land Registry, the process of creating and implementing such codes would be onerous compared with the effects of legislation. 14. Another option might be to extend the jurisdiction of the Coroner to cover missing persons in some circumstances. Coroners currently have a duty to investigate within their area when there is a deceased person reported20 and a duty to make a report to the Chief coroner when that duty does not arise due to the “destruction, loss or absence of a body”.21 This, however, assumes that there is at least evidence that a death has taken place, which in the case of a missing person there may not be. Moreover their established expertise is in ascertaining how a person died rather than to take responsibility for determining that a death has taken place in the absence of any definitive evidence. 15. Another alternative could be to amend the existing legislation22 concerning the registration of deaths in order to allow an investigation by a public body such as the police to conclude and certify a missing person as dead, provided the person has been missing at least seven years. While an attractive option this once again raises the possibility of involving existing public officials in a process which is outside their traditional remit. Furthermore it is difficult to see how the elements of intervention, variation and insurance, all of which are necessary safeguards, could be easily incorporated into the existing system without primary legislation.

What can we learn from the experiences of Scotland and Northern Ireland which have Presumption of Death Acts? 16. When drafting the Presumption of Death Bill introduced in 2009, we looked closely at both the Scottish and Northern Irish precedents, noting that ofﬁcials drafting the Northern Irish Act (only passed in 2009) had in turn given close consideration to the Scottish legislation. 17. It would appear that the driver behind the Presumption of Death (Scotland) Act 1977 was a report by the Scottish Law Commission report23 which criticised the multiplicity of different legal frameworks dealing with the question of missing persons and recommended a single piece of legislation which could be used to obtain a presumption of death. 18. The Act provides that “any person having an interest” (s1.(1)) can raise an action in the Court of Session or the sheriff court to have a missing person “thought to have died or not known to be alive for a period of at least seven years” (s1.(1)) declared dead by decree. Any person having an interest would obviously include close family members and civil partners but could also include others such as creditors. The Scottish law, and the more recent Northern Irish law, have, in common with the established common law principle, used seven years as the minimum time elapsed since disappearance but we understand that a number of American states use shorter periods. The court also has the power to determine any questions relating to interests in property arising as a result of the missing person’s death. 20 Coroners and Justice Act 2009 s1 21 Ibid s1(4) 22 The Births and Deaths Registration Act 1953 and the Registration of Births and Deaths Regulations 1987 (SI 1987/2008) 23 Report on Presumption of Death, Scottish Law Commission 34 (1974) cobber Pack: U PL: CWE1 [O] Processed: [16-02-2012 08:53] Job: 017612 Unit: PG03

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19. The decree is subject to a variation order (except in so far as it applies to marriage or civil partnership) in the event that new information arises concerning the missing person, such as a change in the estimated date of death or, in extreme cases, the reappearance of the disappeared. Trustees of the missing person’s estate are required, unless directed otherwise by the court, to insure against any variation orders being made. In a similar vein the beneﬁciaries of any life insurance policies that pay out as result of a declaration are required to insure themselves against a variation.

20. We understand that in Scotland approximately four to ﬁve orders are made each year, and that there has been only one occasion since inception that a missing person has reappeared and applied for the revocation of the order.

21. The Private Member’s Bill,24 is very closely modelled on the Presumption of Death (Northern Ireland) Act 2009, with certain adjustments for application in England and Wales.

22. It envisages that the time period during which a missing person may “not be known to be alive” will remain seven years, in line with the existing Northern Irish and Scottish legislation, the common law principle and a Council of Europe recommendation.25 It does however allow for a shorter period in circumstances where the missing person is likely to be dead,26 for example, disappearance on a time limited expedition.

23. The Bill (as does the Presumption of Death (Northern Ireland) Act) empowers the court to determine any question regarding the property of the presumed deceased at the same point as making the declaration. As any declaration is capable of variation27 trustees are obliged to take out insurance against that possibility.28 However, unless there are “exceptional circumstances”, variations of orders made with respect to property can only be made up to ﬁve years after the initial declaration.29 This provision is intended to increase the certainty available to beneﬁciaries and trustees and could also reduce the cost of the insurance that they would obliged to take.

24. The Bill gives any person the opportunity to intervene in an application for a declaration or an application for the variation of an existing declaration.30 This right is subject to the leave of the High Court except in the case of close relatives of the deceased.31

25. Finally, the Bill provides that the Registrar General should keep a register of Presumed Deaths32 and that he has an obligation to enter on the register the names of those whom the High Court has declared Presumed Dead.33 The Bill also obliges the Registrar General to amend the register in response to any variation orders made by the High Court.34 A certiﬁed copy of the entry made in the register would then, by law, be treated as evidence of death, without the need for further proof,35 and would therefore operate in the same way as death certiﬁcates do now.

Is there a need for legislative or procedural change in England and Wales? If so, what form should these changes take?

26. We have discussed above the beneﬁts that we believe would accrue from the creation of a procedure to issues certiﬁcates of presumed death, valid for all purposes. We have also discussed a number of different ways in which change could be effected, and concluded that legislative change is to be preferred, for the reasons outlined above.

27. To summarise, our view is that the current system regarding the presumption of death of missing persons is unsatisfactory because of the need to take different court proceedings to address different legal issues, and because, even when such proceedings are followed, ongoing problems and delays result from the reluctance of ﬁnancial and other institutions to deal in the absence of a formal death certiﬁcate.

28. This is inevitably time-consuming and confusing for non-professionals and professionals alike. It is also costly, takes up more court time, and could be avoided if a system of certiﬁcation and registration were available. Other options for reform do not provide the comprehensive solution that new primary legislation would offer, and, in practice, would tend to complicate or distract from the roles of established institutions and personnel. 24 The Presumption of Death Bill 2009 25 Recommendation CM(2009)12 of the Committee of Ministers to member states on principles concerning missing persons and the presumption of death 26 The Presumption of Death Bill Clause 1(1)(a) 27 Ibid Clause 5(1) 28 Ibid Clause 7 29 Ibid Clause 6(5) 30 Ibid Clause 10(1) 31 Ibid Clause 10(2) 32 Ibid Clause 15(1) 33 Ibid Schedule 1 Clause 1 (2) 34 Ibid Schedule 1 Clause 2 (2) 35 Ibid Schedule 1 Clause 6 cobber Pack: U PL: CWE1 [E] Processed: [16-02-2012 08:53] Job: 017612 Unit: PG03

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29. As far as we understand, the legislation in Scotland has worked effectively since 1977 and has provided a much more satisfactory regime for the families of missing persons and their professional advisors. The Bill attached would, if enacted, provide England and Wales with a similar regime, with some minor adjustments. 30. We would therefore urge the Committee to recommend that new legislation be passed in this area in order to clarify and simplify the legal procedure whereby missing may be persons presumed dead. While the beneﬁts of this will accrue primarily to the families of missing persons and their advisors, it would also be of beneﬁt to other interested parties such as creditors, and, we believe, would be in the public interest more generally. September 2011

Written evidence from the UK Missing Persons Bureau, part of the National Policing Improvement Agency Executive Summary 1. It is estimated that approximately 200,000 people were reported missing in Britain in 2009–10 and approximately 2,000 may have been missing for more than a year. As of September 2011, the UK Missing Persons Bureau has approximately 5,500 outstanding missing persons and approximately 1,000 unidentified people, bodies and remains on its database. As seen in the recent Parliamentary Inquiry into support for families of missing people, families find the current procedures regarding presumption of death in England and Wales complex, lengthy and bureaucratic. 2. The Ministry of Justice and the UK Missing Persons Bureau are producing guidance on holding a Coroner’s inquest under Section 15 of the Coroner’s Act 1988. This may assist the families and police in understanding the current remedies available but may not solve the specific issues with current legislation. 3. Issues could be solved by simplifying the current presumption of death procedures in line with Scotland and Northern Ireland and amending the Coroners and Justice Act (2009) so that an inquest may be held in the coroner’s district where the person is registered as missing. The introduction of a “guardianship” or similar order, like that in Australia, would allow families to manage the affairs of a missing person prior to the need for an application for presumption of death. 4. A body or unit such as the Bureau could have the responsibility for reviewing unresolved missing person cases, in order to identify cases where a presumption of death order or s15 application would be relevant. The Bureau should also be notified of all applications under this legislation.

Introduction 5. The UK Missing Persons Bureau, part of the National Policing Improvement Agency (NPIA), is the only UK public body focussed exclusively on missing people. It provides integrated operational services for all missing people in support of law enforcement and other agencies. 6. The Bureau’s role with regards to presumption of death is to provide advice and support to police forces as part of its national coordination function, ensuring consistent and comprehensive support to the public during missing enquiries. It will also signpost enquiries from the police and public to other relevant agencies and NGOs—this is part of the Bureau’s role as the UK national and international point of contact for all missing persons and unidentiﬁed bodies cases, and the centre for information exchange and expertise on missing person issues.

Does the current system work effectively? 7. The NPIA estimates that approximately 200,000 people were reported missing to UK police forces in 2009–10. While the majority were found safe and well, 0.2 to 0.9% were found dead within the same year.36 Data from a number of police forces and academic research suggests that the majority of missing people will be found or will return relatively quickly. Tarling and Burrows (2004)37 reported that 46% of a random sample of over 1000 cases reported to the Metropolitan Police were resolved within 48 hours. This increased to 92% in one week and 97% in one month. Overall, 99% of cases were resolved within a year. 8. Extrapolating from the estimates above, approximately 2,000 (who go missing each year) will be missing for more than a year; it is not known how many of these people may have died. As of September 2011, the UK Missing Persons Bureau has approximately 5,500 outstanding missing persons and approximately 1,000 unidentified people, bodies and remains on its database.38 The numbers of grants of leave to swear death (the number of applications/grants of presumption of death orders is not held centrally) appear below: 36 National Policing Improvement Agency (2011) Missing persons: Data and analysis 2009/2010. NPIA: Bramshill. 37 Tarling, R. and Burrows, J. (2004) The nature and outcome of going missing: the challenge of developing effective risk assessment procedures. International Journal of Police Science and Management, Vol. 6, No. 1, 16–26 38 This may be an underestimation. Prior to the introduction of the Code of Practice on the Collection of Missing Persons Data in 2009, data was not routinely collected from forces. The Bureau may also not have been notified of all missing persons or bodies found (conversely, some of the open cases on the database may be resolved but the Bureau has not received notification of this). cobber Pack: U PL: CWE1 [O] Processed: [16-02-2012 08:53] Job: 017612 Unit: PG03

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— April 2008/March 2009–17 — April 2009/March 2010–16 — April 2010/March 2011–1439 9. The Missing Persons Taskforce under the previous government was established to improve the multi- agency response to missing people. It proposed that current procedures regarding presumption of death could be simplified. This work continued in the recent Parliamentary Inquiry into Support for the Families of Missing People which highlighted “an absence of clear and informed guidance and support” and “disparity of legal provisions”40 with regards to the complex legislation surrounding presumption of death. Lack of guidance is not only an issue for families but for legal professionals, police and other agencies too. 10. The police should be able to signpost families of missing people to NGOs such as Missing People or the Citizens Advice Bureaux for advice and guidance on practical, financial and legal issues. Referrals are seldom made because police officers are unaware of or unknowledgeable about existing provisions. While lack of relevant training may be a factor, the complexity of the diverse processes and legislation regarding presumption of death compounds this problem. 11. The legislation of most direct relevance to the Bureau is that of Coroner’s inquests. The Ministry of Justice and the UK Missing Persons Bureau are jointly producing guidance on holding a Coroner’s inquest under Section 15 of the Coroner’s Act 1988. The Bureau considers the criteria for a Coroner’s inquest to be too restrictive. For a Coroner to conduct an inquest there must not only be evidence to suggest the person is dead, but that the death occurred in the Coroner’s district. It is not always possible to provide evidence to this effect (particularly when there is no body or an identified crime scene) and thus many families are denied the opportunity to obtain a death certificate due to this geographic restriction, despite evidence to indicate that their loved one has died. 12. Only a handful of requests for permission to hold an inquest without a body are made each year (twelve or so cases over three years, 2007–09, under Section 15 of the Coroners Act) and are mostly as a result of pressure from family members.41 The majority of these cases are not missing person cases but are linked to unrecovered bodies eg people lost from ships and unreturned divers. It would appear that, for a variety of reasons, most cases are not notified to a Coroner. This is possibly due to a lack of police understanding about the process.

Does the current system create difficulties for families, and if so, how can these be resolved? 13. It is not the Bureau’s place to set out the experiences of family members of missing people. The Missing People report “Living in Limbo”42 sets out the financial and practical difficulties of families and Rachel Elias, Alan Smith, Jacqui Hoyland and Peter Lawrence provided powerful testimony regarding their experiences in the recent Parliamentary Inquiry. 14. The Bureau is aware however that families of missing people find the current procedures regarding presumption of death in England and Wales complex, lengthy and bureaucratic. The main difficulties faced are: — the lack of knowledge and understanding and expertise evidenced by police and legal professionals; and — the need to follow different processes to dissolve a marriage and administer a missing person’s affairs. 15. Whilst the Bureau is working with the Ministry of Justice in order to produce guidance that may assist the families and police in understanding the current remedies that are available, this will not solve the specific issues with current legislation; namely its complexity and unnecessary bureaucracy. 16. These issues could be solved by simplifying the current procedures in line with Scotland and Northern Ireland. The introduction of Presumption of Death legislation which would allow families to go to court once to deal with all of their missing relative’s affairs (eg dissolve a marriage, gain approval to administer the estate) would be more efficient both financially and in terms of time. A simplified system would be better understood by legal professionals and other interested/associated parties, and the development of comprehensive and informed guidance would be easier. 17. A third separate but related issue is that families can do little to manage and protect a missing person’s assets until the person has been missing for seven years and a leave to swear death order has been granted. Issues with paying mortgages and bills arise very quickly and banks often refuse to let anyone but the missing person gain access to accounts or amend payment details. 39 Obtained from the Ministry of Justice “Coroners, Burial, Cremation and Inquiries” on 14/09/11 40 All-Party Parliamentary Group for Runaway and Missing Children and Adults (July 2011) Inquiry: Support for Families of Missing People: Report with recommendations. 41 Source: Nick Matthews, Coroners Team, MoJ; the Bureau’s request to MoJ for information followed numbers published on BBC website after FOI application. Note that the majority of these cases are not missing cases but are linked to unrecovered bodies eg people lost from ships and unreturned divers 42 Holmes, L. (2008) Living in Limbo: The experiences of, and impacts on, the families of missing people. London: Missing People. cobber Pack: U PL: CWE1 [E] Processed: [16-02-2012 08:53] Job: 017612 Unit: PG03

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18. This issue could be resolved by the enactment of new legislation, separate but related to presumption of death legislation. Families should be able to apply for a “guardianship”43 or similar order to gain approval to manage the ﬁnancial and practical affairs of the missing person until they return (or until the family wishes to apply for a leave to swear death order). This would differ from applying for a leave to swear death order where one is seeking to administer (and not simply manage) a person’s assets. Whilst we appreciate that this is not directly part of the current inquiry, as any such provision would impact on the procedures regarding these cases, and would also require an amendment in current legislation, it is felt worthy of inclusion. The ability to assign a missing person a form of “protected status” such as that given to those who may for mental health reason be incapable of administering their own affairs would enable families to ensure that neither they or their missing relative is unfairly disadvantaged whilst the individual is absent.

What can we learn from the experiences of Scotland and Northern Ireland, which have Presumption of Death Acts? 19. Both Scotland and Northern Ireland acknowledged that their previous systems regarding presumption of death were confusing and complex, “archaic and unsatisfactory”44 and therefore decided to enact new comprehensive legislation. The Scottish Government’s evidence to the recent Parliamentary Inquiry stated that the law is “operating effectively” and the Northern Irish Assembly consultation document concluded that “The Scottish legislation has worked well over the years and the Department is confident that it provides a sound template on which to base a new piece of legislation for Northern Ireland.”45 20. The Bureau proposes that both Acts can provide a basis for corresponding legislation in England and Wales. Any English and Welsh legislation should follow the precedent of any person with an interest being able to apply for a declaration that the missing person is presumed to be dead with the safeguard that the court can “refuse to hear the application if it considers that the applicant does not have sufficient interest in the determination of that application”46 as in the NI Act. 21. In Scotland and NI, a record or Register of Presumed Deaths is maintained by the Registrar General. This should be stipulated in any English and Welsh legislation due to the obvious benefits of recording such information.

Is there a need for legislative or procedural change in England and Wales? If so, what form should these changes take? 22. The Bureau’s view is that England and Wales should adopt presumption of death legislation similar to Scotland’s and Northern Ireland’s. It seems reasonable for each country in the UK to have a similar presumption of death act. The Irish Law Reform Commission is considering the adoption of a presumption of death act in the Republic of Ireland too and will publish a white paper on the matter in due course. 23. There is also international interest on this subject. The Committee of Ministers of the Council of Europe has called for the supplementation and harmonisation of the legislation on the presumption of death of missing persons in member states (09/12/2009).47 The Committee cites greater mobility and increased risk and occurrence of terrorist attacks and man-made or natural disasters as reasons for the need for common or compatible legislation. 24. If a person is thought to have died, the Scottish and Northern Irish Acts allow for declarations of presumption of death at any time (it is assumed that the court decides what is sufficient evidence to indicate that the person is dead.) For other cases however, the missing person must have “not been known to be alive for a period of seven years”. This is a considerable length of time to wait to manage person’s estate. If the time requirement was omitted from the Act, the court would have the responsibility of deciding whether the declaration is premature or whether further enquiries should be undertaken. Safeguards could be put in place to ensure fairness and penalties introduced for fraudulent or inappropriate claims. The removal of any time constraint is supported by ACC Phil Thompson (the retiring Association of Chief Police Officers,lead for missing persons). The Committee of Ministers of the Council of Europe (cited above) also suggests that: — if the death can be taken as certain, there should preferably be no waiting period; — if the death of the missing person is likely due to the circumstances of the disappearance, the maximum waiting period for lodging a complaint should preferably be one year (at the most); and 43 A guardianship order is a court appointment which authorises a person to take action or make decisions on behalf of an adult with incapacity. A guardianship order can be in relation to property and financial matters, personal welfare, or a combination of these. It is not currently used in relation to missing people. 44 Scottish Law Commission (July 1974) Report on Presumption of Death. Edinburgh: Her Majesty’s Stationary Office. http://www.scotlawcom.gov.uk/publications/reports/1970–1979/ 45 Northern Irish Assembly (January 2008) Presumption of Death Bill Consultation. 46 Presumption of Death Act (Northern Ireland) 2009 http://www.legislation.gov.uk/nia/2009/6/contents 47 Directorate General of Human Rights and Legal Affairs (2009) Principles concerning missing persons and the presumption of death: Recommendation CM/Rec (2009)12 www.coe.int/t/DGHL/STANDARDSETTING/FAMILY/ Fact%20Sheet%20on%20missing%20persons.pdf Recommendation CM/Rec(2009)12 of the Committee of Ministers to member states on principles concerning missing persons and the presumption of death https://wcd.coe.int/wcd/ViewDoc.jsp?id=1563505&Site=CM&BackColorInternet=C3C3C3&BackColorIntranet=EDB021& BackColorLogged=F5D383 cobber Pack: U PL: CWE1 [O] Processed: [16-02-2012 08:53] Job: 017612 Unit: PG03

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— if the death is uncertain, the maximum waiting period should preferably be seven years. 25. The consultation in Northern Ireland considered that some spouses may want to administer their loved one’s assets and remain married but decided that “it is undesirable for a person to be recognised as dead for some purposes but not others”.48 A “guardianship” or similar order, as discussed earlier, may be able to alleviate this concern, as it would allow families to manage their loved one’s affairs for many years until they felt ready to apply for presumption of death. This provision would enable a nominated individual (the next of kin or a legal representative) to manage the practical affairs of the missing person as soon as necessary (with restrictions and safeguards) without the need to register the person as presumed dead. Safeguards would obviously need to be in place, particularly in cases where it is suspected that the applicant may be involved in the disappearance. It would therefore be preferential for it to be possible to nominate an independent impartial party to manage the missing person’s affairs in their best interests. 26. This is not a wholly novel proposition. In Australia with its comparable criminal justice and coronial systems it is possible to appoint a trustee or set of trustees to manage a missing person’s affairs after 90 days if all reasonable efforts have been made to ﬁnd the person. The process of application is free and the appointment made by the Australian equivalent of the Court of Protection. 27. The best forum for declarations of presumed death in England and Wales may be the civil court or Coroners court. There are more civil courts and therefore this may be the most efﬁcient way. However, given that the responsibility for deaths in England and Wales sits with Coroners, it may make more sense for the presumption of death procedures to fall within their remit. Whilst any procedural amendments of this kind are likely to increase the work of the Coroners court, it is unlikely that a change in legislation would result in an unmanageably large volume of cases as the majority of missing people return very quickly; the number of long term missing persons is low. Also, the charity Missing People reports that only 171 people have been presumed dead in Scotland since the introduction of the legislation.

28. The Bureau also recommends amending the current legislation regarding the holding of an inquest without a body (s15 of the Coroner’s Act) to remove the seemingly arbitrary geographic restriction. In missing person cases, where there is no body, surely the location where they were resident and where they were last known to be alive is of more relevance, and could be used as a manner in which to determine which Coroner has primary responsibility. It is already possible to transfer responsibility for an inquest, and therefore this could be used should the body be located in other Coroner’s jurisdiction.

29. It was suggested in the Parliamentary Inquiry that the cost of enacting new legislation might be outweighed by the benefits. The infrastructure is already in place to effect the new legislation and the number of applications made is unlikely to be high. Moreover, families would only need to go to court once which would save court time and reduce legal costs. Lord Boswell also suggested an indirect cost saving through reduction in benefit payments as at present some people may have to apply for benefits because they are unable to access their loved one’s assets.

30. If new legislation is enacted, it might be prudent to give a body the responsibility of reviewing long term missing person cases or cases where someone is believed to be dead, in order to identify those where a presumption of death order or a s15 application would be relevant. The NPIA is being phased out; however, the natural home for this function would be the Bureau until the detail of the policing landscape is speciﬁed. The Bureau would need powers to action further investigation by police forces and could act as a gatekeeper to the process.

31. The Bureau would also like to see a national referral system where the Bureau is notiﬁed of all applications for presumption of death. This would enable the Bureau to review the case (eg ensure it is recorded on the database and search the database for any unidentiﬁed bodies/remains/people matching the missing person’s description). If a body is found in this way, a presumption of death declaration would be unnecessary.

Recommendations for Action 32. England and Wales to enact presumption of death legislation similar to that of Scotland and Northern Ireland including provisions for a register of presumed deaths. 33. The UK Missing Persons Bureau should be notiﬁed of all applications under this legislation to enable searching of the UK database. 34. The introduction of a “guardianship” or similar order that would enable a nominated individual to manage the practical affairs of the missing person as soon as necessary without the need to register the person as presumed dead.

35. Amendment to the current Coroners and Justice Act (2009) advising holding the inquest in the coroner’s district where the person is registered as missing, unless there is strong evidence to suggest that the body is within another jurisdiction. 48 Department of Finance and Personnel (May 2008) Presumption of Death Bill (Northern Ireland) 2008: Report on consultation. cobber Pack: U PL: CWE1 [E] Processed: [16-02-2012 08:53] Job: 017612 Unit: PG03

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36. A body or unit such as the Bureau to have responsibility for reviewing unresolved missing person cases, in order to identify those cases where a presumption of death order or s15 application would be relevant. September 2011

Written evidence from Judy Lancaster 1. Background My Son, Chay Lancaster age 41, went missing from home on Sunday 12 September 2010. He regularly went walking in the Lake District in Cumbria at weekends. CCTV evidence shows him arriving that day by train: there is no evidence to suggest he returned. Chay lived alone in a mortgaged house: he was divorced 14 years ago: he had three daughters from the marriage who he was very close to and are his sole beneﬁciaries.

2. Does the current system work effectively? 2.1 From my experience I am not sure what the current system is. In order to deal with day to day personal and financial issues I had to trawl the internet to find information. This was very time consuming and confusing. In our case it was over a week before the family were aware that Chay was missing. It transpired he had not reported for work or telephoned to explain his absence. His Manager said this was very unusual as he always applied for leave of absence and made arrangements for his work to be covered (Chay worked with adults with learning difficulties and understood his duty of care towards them in his absence). 2.2 When someone goes missing the first port of call for help is the police. Whilst they ask the right questions to establish whether there were personal problems which suggested my son went missing deliberately I found that they were not equipped to help when it came to questions of a practical nature. An area of significant improvement would be for the Police to have a professional person in place who is capable of giving sound advice and practical help to relatives to ease the frustration. A simple leaflet could be prepared stating where to find help and what needs to be done.

3. Does the current system create difficulties for families? 3.1 In the initial stages of Chay’s disappearance I was at a loss on how to start handling his financial affairs. It was imperative his house be protected from repossession. I found financial institutions extremely difficult to deal with as they appeared to have no experience of dealing with these cases. We were fortunate that Chay’s bank account was in credit and most expenditure was paid by direct debit, however, when trying to stop some of the payments which were no longer relevant I was unable to do so. His bank have not responded to all correspondence and trying to make contact by phone is expensive and my experience is that it leads to being connected to a person who has no experience in this area. Financial institutions should have guidelines on how to handle a Missing persons affairs and provide practical help to resolve issues that arise in this situation.

4. Presumption of Death 4.1 I have found this very difﬁcult to approach and as a consequence have not taken any action in this respect. From the beginning I have accepted that Chay met with a tragic accident but unless his body is found we may need to go down this route as waiting seven years is not an alternative. I will shortly be looking at taking legal advice and accept that I will have to pay for this. We now need closure and to be able to bring his affairs to a conclusion. My Grand Daughters are entitled to their rightful inheritance, albeit small, and it is what their father would have wanted. I would welcome changes to the current situation to enable a quick and straightforward procedure to be put into operation as quickly as possible. September 2011

Written evidence from Vicki Derrick 1. My name is Vicki Derrick and my husband Vincent (Vinny) Derrick has been missing since 30 August 2003 during the past eight years I have not only had to deal with the fact that my husband is missing, I have also had to continue to pay the mortgage and bills etc. It has been at times extremely difficult and one of the worst experiences I have ever had to deal with. 2. Does the current system work effectively? Quite simply NO it doesn’t. I have first hand experience of how difficult it is to try and resolve financial matters when someone goes missing, for the past 14 months I have been trying to do just this, as my husband has now been missing for over seven years. 3. Like many people I believed a person is presumed deceased automatically after seven years, however this is not the case. I initially spoke to the police for advice and guidance who suggested I contacted a solicitor, again I have spoken to quite a few solicitors and have yet to meet one who has dealt with anything like this, while I understand that my case is very rare I am absolutely astounded that in this day and age there is no proper measures in place to offer families like myself the proper help and guidance we deserve. cobber Pack: U PL: CWE1 [O] Processed: [16-02-2012 08:53] Job: 017612 Unit: PG03

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4. I now have a solicitor (who has never dealt with a case like this before) who is helping me to try and get a life insurance policy that myself and my husband took out in 2002 paid out. Again the insurance company have never paid out on a policy like this before and I have faced many hurdles over the past fourteen months; no one seems to know the correct way to proceed with this or what legal paperwork they need from me to enable me to deal with my husband’s affairs, not the insurance company, solicitors and even the courts at the time of writing this I am still no further along. I feel very let down and frustrated. 5. I feel very strongly that this matter should be looked into and investigated further. The solution is very simple: we need to follow the way of Scotland and Northern Ireland and have a Presumption of Death Act in place in England and Wales to create one straightforward procedure that enables families to sort out all ﬁnancial matters. 6. To summarise I can’t fully explain the nightmare I have been living for the past eight years, the unknown of not knowing what has happened to my husband and if I ever will, the fact that life still goes on bills need to be paid, we have a 10 year old son and I will keep ﬁghting on for him to enable he has the secure future he deserves. September 2011

Written evidence from the APPG for Runaway and Missing Children and Adults 1. Overview 1.1 The APPG for Runaway and Missing Children and Adults led an inquiry into support for families of missing people in June 2011. The second inquiry session examined whether there is a need to reform current presumption of death provisions in England and Wales. 1.2 After listening to and carefully considering the oral evidence presented in this session, alongside written submissions (including from the Ministry of Justice and the Scottish Government) APPG members unanimously agreed that speciﬁc presumption of death legislation is necessary and recommended in its inquiry report: “That the Ministry of Justice provides a framework for consultation on presumption of death and guardianship provisions, exploring the evidence base that exists in relation to presumption of death in Scotland and Northern Ireland and in relation to guardianship in Australia. The Inquiry recommends that this framework, along with a timetable for future action, should be in place by the end of the current session, with any resulting provisions to be implemented by the end of the current Parliament.” 1.3 The APPG therefore welcomes the Justice Select Committee’s decision to hold a short inquiry into this issue and is pleased to submit written evidence as part of the inquiry process.

2. Response to Inquiry Questions 2.1 Does the current system work effectively? 2.11 The APPG inquiry heard from a range of stakeholders about their attempts to navigate the legal system around presumption of death as it stands in England and Wales. Their accounts strongly suggest that the current system does not work effectively. 2.12 Patricia Barratt, a senior associate at Clifford Chance, told the APPG that presumption of death in England and Wales is a confused area of law; a patchwork of statutory legislation, primary legislation, secondary legislation and probate laws mixed with common law provisions—something that was illustrated by the Ministry of Justice’s written submission. 2.13 Martin Houghton-Brown, CEO of the charity Missing People, noted that the emergency measure around presumption of death which was introduced following the Asian Tsunami appears to indicate that the Government recognises this. 2.14 The presumption of death inquiry session uncovered the following problems with legal provisions as they currently stand: — The provisions that exist in common law, statutory legislation, primary legislation, secondary legislation and probate laws do not apply for all circumstances where proof of presumed death is required. — Neither the limited statutory provisions, nor the common law can assist in the issue most directly affecting a person’s status—the registration of their death. — One of the measures, a certiﬁcate of presumed death, is only available to servants of the Crown ie armed forces, merchant seamen and embassy workers and not to civilians, highlighting potentially discriminatory treatment.49 49 The Scottish Law Commission report on presumption of death (1974) notes that the courts “have been less exacting in presuming the death of seamen, soldiers on active service and persons upon expeditions to unexplored territories” cobber Pack: U PL: CWE1 [E] Processed: [16-02-2012 08:53] Job: 017612 Unit: PG03

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— Legal professionals are unfamiliar with and confused by presumption of death provisions and are therefore unable to give advice effectively. — Police forces struggle to provide families of missing people with guidance about this issue. — Demands by legal professionals and families are placed on charities such as Missing People to provide clarity. — Some applications to the courts fail as a consequence of uncertainty about what will happen if the missing person re-appears. — Presumption of death processes cause confusion and emotional distress to the families of missing people in England and Wales.

2.2 Does the current system create difficulties for families, and if so, how can these be resolved? 2.21 In the course of its inquiry, the APPG heard from family members of missing people who communicated a number of difficulties with the current system. These were mostly related to its complexity. Issues that arise for families when attempting to use different provisions in law for different purposes include: — The length of time that applications take. — The expenses incurred by families as they navigate the legal system. — The time and costs to families of having to prepare paperwork and other evidence. — The mistaken belief that action can only be taken seven years after a person has disappeared, leading many families to delay taking action even where there is evidence to indicate the missing person is likely to be dead ie a suicide note — Legal professionals being unable to advise and guide families through the legal system as it currently stands resulting in frustration and confusion. — Legal professionals providing unhelpful responses to families as a consequence of their lack of understanding about current provisions—for example, suggesting that the cost of accessing legal provisions is more costly than a missing person’s estate is worth. — The legal documentation acquired by the family through the court system not being accepted by banks/insurers. — Perceived unfairness that families living in Scotland and Northern Ireland have access to a single legislative process that results in the issuance of a presumption of death certificate for all purposes. 2.22 The family members who provided evidence to the APPG inquiry indicated that many of these difficulties could be resolved through the introduction of a single, straight forward and standard system that is easily accessible to families and legal professionals. 2.23 Missing People also indicated that a single piece of legislation which would result in a single framework and point of entry is what needs to be aimed for. This would facilitate the development of clear guidelines so that families of missing people and legal professionals alike would know how to approach the issue of evidencing a presumed death and what to expect.

2.3 What can we learn from the experiences of Scotland and Northern Ireland which have Presumption of Death Acts? 2.31 Members of the APPG heard from families in the course of its inquiry who are aware of the Presumption of Death Acts in Scotland and Northern Ireland and who believe that they provide a better response than the system that currently exists in England and Wales. 2.32 Missing People indicated that, unlike the current system in England and Wales, it is not aware of any evidence to suggest that families are experiencing any difficulties in relation to presumption of death legislation in Scotland and Northern Ireland. 2.33 The written evidence received by the APPG from the Scottish Government states that over the 30 years that the Presumption of Death (Scotland) Act 1977 has been operating, the general perception is that it is operating effectively. This view is confirmed by the Registers of Scotland. 2.34 The introduction of Presumption of Death legislation in Northern Ireland, just two years ago, carefully considered the experience of Scotland and found legislation to be necessary, despite the existence of sensitive sectarian issues that might have created political discord. 2.35 Having compared the legislation that currently exists in England and Wales with the rest of the UK, Patricia Barratt of Clifford Chance told the APPG that there is a lot to learn from the simple systems which operate in Scotland and Wales. 2.36 APPG members were usefully referred by the Scottish Government to the 1974 Report on Presumption of Death produced by the Scottish Law Commission (SLC). This highlights the policy considerations that led it to recommend to the Scottish Government that: the law on this subject should be embodied in a single comprehensive statute. Many of the issues raised by the SLC report are similar to those identified in relation to England and Wales: cobber Pack: U PL: CWE1 [O] Processed: [16-02-2012 08:53] Job: 017612 Unit: PG03

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— Presumption of life at common law: in the absence of direct or circumstantial evidence of earlier death, the onus of proof of the death of a missing person is always on the person who asserts it. — Existing statutory presumptions of limitation of life are not suitable for all purposes50 since they only cover specific situations. — The expense occasioned by the multiplicity of proceedings. The SLC report also highlighted to the APPG additional considerations, including: — The variety of processes required to establish a person’s death for different purposes constitutes a “serious defect” in the current law. For example, a wife whose husband has disappeared must initiate one action to establish her right to re-marry but must initiate another process to recover monies under insurance policies on her husband’s death. To see a person being treated as alive for some purposes under the common law, but dead for others by virtue of statute law is puzzling. — Multiple processes could lead to judgements in apparent conflict since, if one proceeding presumes the missing person has died, this is not automatically binding in other proceedings.51 Not only may a multiplicity of procedures be required, but the burden of proof may differ as between actions under the common law and those proceeding upon the statutory presumptions. This could conceivably result in a scenario whereby a wife whose husband has disappeared may be successful in undertaking action to establish her right to re-marry but may fail in her attempts to recover monies under insurance policies on her husband’s death. — Common law around this area was developed against a social and technical background which has radically changed. Whereas when the law was developed, mere silence was not held to be sufficient per se to overcome the presumption of life, the ease of modern communications is such that, where a person has been continually absent for their home and family and there is no evidence of him/her being alive, then they should be treated as dead.

2.4 Is there a need for legislative or procedural change in England and Wales? If so, what form should these changes take? 2.41 Work undertaken by APPG member Tim Boswell MP (now Lord Boswell of Aynho) on presumption of death has considered a number of possible options for change, with the primary objective being to simplify court and administrative procedures for the families of missing people who are presumed to be dead. 2.42 Options include: administrative steps in the form of a Code of Conduct for financial and insurance organisations dealing with the affairs of a missing person and corresponding guidance for public sector organisations; new powers for coroners; changes to the system of death registration; and a new system allowing certification of presumed death. 2.43 Lord Boswell concluded, along with Clifford Chance and Missing People, that the last option, a new system of certification of presumed death has advantages over the other options in terms of clarity and effectiveness.52 Lord Boswell tabled a Presumption of Death Bill for England and Wales which, despite cross- party support, failed at its second reading. 2.44 After hearing the evidence outlined in response to questions one and two above, the APPG is convinced that a new, single piece of legislation is still required. This would ensure that the legal system around presumption of death is comprehensive and deals with every circumstance that families find themselves, whilst at the same time safeguarding their emotional and financial well-being. 2.45 The table below illustrates how a Presumption of Death Bill would address the difficulties that were highlighted through the APPG inquiry session: Difficulties with the current system Solutions proposed within the draft Presumption of Death Bill The provisions that exist in common law, statutory The practical and legal effect of a declaration of legislation, primary legislation, secondary presumed death is that the missing person may be legislation and probate laws do not apply for all treated as dead. The draft Bill provides explicitly circumstances where proof of presumed death is that the declaration shall be effective for all required. purposes.

50 Including: the right to succeed to the missing person’s property; the right to succeed to other property consequent upon the missing person’s death; the disburdenment of property from a liferent; the right to proceeds of policies of assurance upon the missing person’s life or contingent upon his/her death; the right to the payment of annuities, whether or not under policies of assurance; the winding up of trusts and the cessation of annuities; the right to pensions under state and private pension schemes; the dissolution of a marriage and the right of the surviving party to remarry; the dissolution of other contracts; the right to dispense with the missing person’s consent 51 The fact that a presumed death will only apply to proceedings before the court and has no wider application is also noted in the draft consultation paper on presumption of death developed by Clifford Chance in collaboration with Missing People. 52 The Scottish Law Commission report on presumption of death (1974) noted that to remove the limitations and to eradicate the defects of the law as it existed before the new legislation was enacted would “be a partial cure at best” cobber Pack: U PL: CWE1 [E] Processed: [16-02-2012 08:53] Job: 017612 Unit: PG03

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Difficulties with the current system Solutions proposed within the draft Presumption of Death Bill Neither the limited statutory provisions, nor the The draft Bill makes provision for the maintenance common law can assist in the issue most directly of a Register of Presumed Deaths by the Registrar affecting a person’s status—the registration of their General. death. The draft Bill also introduces a new mechanism by which the families of missing persons would be able to apply for a presumption of death certificate which would be valid for all purposes, in the same way as a death certificate.

One of the measures, a certiﬁcate of presumed The draft Bill harmonises presumption of death death, is only available to servants of the Crown ie legislation across the UK. armed forces, merchant seamen and embassy workers and not to civilians, highlighting potentially discriminatory treatment. Perceived unfairness that families living in Scotland and Wales have access to a single legislative process that deals with all aspects of resolving the missing person’s affairs.

Some applications to the courts fail as a The draft Bill deals with the possibility that the consequence of uncertainty about what will happen missing person is later found to be alive or to have if the missing person re-appears. died at a different time from that stated in the declaration of presumed death, by giving the court the power to make a variation order. The draft Bill places a duty/may require a trustee/ person receiving any capital sum to take out insurance for any claim which may arise.

Presumption of death processes causing confusion The draft Bill establishes a single and straight- and emotional distress to the families of missing forward process that can be understood by all. people. Legal professionals being unable to advise and guide families through the legal system as it currently stands resulting in frustration and confusion. Legal professionals are unfamiliar with and confused by presumption of death provisions and are therefore unable to advise families effectively. Police forces struggle to provide families of missing people with guidance about this issue. Demands placed by both legal professionals and families on charities such as Missing People to provide clarity.

2.46 The APPG noted during the oral evidence sessions that families may seek presumption of death provisions some years after the missing person’s disappearance and that a mechanism is also required to manage a missing person’s affairs in the short term. As such, the APPG’s recommendation in relation to introducing Presumption of Death legislation also includes the need for consultation on and provision around a system of guardianship.

3. Conclusion

3.1 Members of the APPG were very disappointed that the Ministry of Justice chose not to attend its oral evidence sessions on presumption of death and guardianship.

3.2 It is the APPG’s understanding, based on the oral evidence provided by Missing People, that the Ministry of Justice is not contesting that changes to the presumption of death system are necessary; rather that they do not consider them to be a business priority and, as such, have been unwilling to give any time to this matter and take it forward.

3.3 The APPG believes that legislative change in this area would do a great deal to strengthen the cross- governmental policy approach to missing people. It is delighted that the Home Ofﬁce Minister responsible for missing people, James Brokenshire MP, accepted the overarching recommendation in its inquiry report which called for the Government to develop a national strategy on missing persons. cobber Pack: U PL: CWE1 [O] Processed: [16-02-2012 08:53] Job: 017612 Unit: PG03

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3.4 The APPG recognises the difficult financial times in which the Government is currently operating, but believes that having one system for presumption of death through which family members would be able to obtain a certificate of presumed death for all purposes would result in cost savings, not least in relation to reduced court time. 3.5 Time and resources have already been channelled by Clifford Chance, Missing People and Lord Boswell into developing a draft Presumption of Death Bill for England and Wales. Clifford Chance and Missing People have also worked together and with the Ministry of Justice to develop a public consultation paper. The charity has further indicated that it would be willing to manage a consultation on the Ministry’s behalf. 3.6 Based on these considerations and balancing them against the urgent needs of families, the APPG hopes that the Ministry of Justice will be prepared to advance the process towards creating Presumption of Death legislation for England and Wales to a stage where a timetable for future action is in place by the end of the current session, with any resulting provisions implemented by the end of the current Parliament. September 2011

Written evidence from the Association of British Insurers 1. The ABI is the voice of insurance, representing the general insurance, investment and long-term savings industry. It was formed in 1985 to represent the whole of the industry and today has over 300 members, accounting for some 90% of premiums in the UK.

2. Executive Summary 2.1 The ABI believes that the current system does work effectively in conjunction with the measures that the insurance industry itself has put in place (see below) to ensure that life insurance payments are paid without delay. We understand, following meetings with Missing People, that they have been speaking to the banking industry about the issue of taking over bank accounts to ensure that important direct debits continue, yet cancel other direct debits, such as gym membership, to ensure that funds remain. 2.2 This is an issue which the insurance industry would like addressed as it affects the continuing payment of premiums and can cause policies and the cover provided to lapse. We are working with Missing People to produce a leaﬂet explaining the process, which can be given to relatives and friends to help resolve a missing person’s insurance affairs. 2.3 The industry has introduced (with support from the Law Commission) an initiative that means for straightforward estates the claim can be paid promptly to the beneﬁciary helping to avoid hardship, especially for families on lower incomes who have few other assets available to rely on. This can also be applied to the infrequent cases of missing persons presumed to be dead. 2.4 If a change is implemented there would be an increased risk that ‘‘going missing’’ may become more common if access to insurance funds without a “body” becomes easier and this may lead to an increase in fraudulent claims.

3. Does the current system work effectively? 3.1 The ABI believes that the current system does not work well with allowing friends and families access to manage financial affairs. This can result in lapsed policies, for example, lapsing house and contents insurance would leave properties uninsured. The ABI understands from its meetings with the organisation Missing People that it is in discussion with the banking industry about the issue of relatives and friends taking over bank accounts to ensure that important direct debits continue. This is a problem which the insurance industry would like to see addressed as it affects the continuing payment of premiums and can cause policies and the cover to lapse. 3.2 Where insurers are directly involved the ABI considers that the current system works effectively. Insurers generally find that each case is quite different, but have put in place processes to ensure that life insurance payments are paid without delay and people get the payments they need. 3.3 The insurance industry recognises that speed is important and has introduced new guidelines when waiting for probate, a common cause of delay. This process works provided it is possible to establish the cause of death. 3.4 If there is no body then insurers will look for whatever evidence they can find and if there is evidence that clearly points to death then insurers will accept this. For example, during the South East Asian tsunami an insurer was notified of a claim for a married couple whose bodies were never found. The claims were paid after four months when the insurer received confirmation from the government that they were officially listed as missing and presumed deceased. As a further example, a claim was made on a man who it was said had died in a plane crash in Africa, but there was no body. The plane crash made news on many media websites and after a few weeks the insurer received confirmation from the airline that he had been on the flight and the claim was paid. cobber Pack: U PL: CWE1 [E] Processed: [16-02-2012 08:53] Job: 017612 Unit: PG03

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3.5 The ABI understands that a Presumption of Death Act for England and Wales would also introduce a register of those presumed dead and a requirement for the “trustee” to take out indemnity insurance to cover the missing person’s property and money. Feedback from ABI members is that claims arising from this situation occur very infrequently. Their feeling is that a register would not help alleviate fraud as there is not usually a multiple claim and that insurers already have their own fraud registers in place.

4. Does the current system create difficulties for families, and if so, how can these be resolved? 4.1 Life insurance pays out a lump sum after the insured person dies helping families to cope financially. Insurers recognise that situations such as those presumed dead or missing are particularly stressful and distressing for relatives and loved ones; as such they aim to deal with each case as quickly and sensitively as possible. 4.2 The industry has introduced a “fast track indemnity process” that means for straightforward estates the claim can be paid promptly to the beneficiary helping to avoid hardship, especially for families on lower incomes who have few other assets available to rely on. This approach can also be applied to the infrequent cases of missing persons presumed to be dead, and can equally be used in England and Wales, as well as Scotland and Northern Ireland. 4.3 There can be many legal issues to be resolved when someone dies. Depending on the circumstances, probate for example, this can mean that it takes a long time for life insurance companies to be able to pay out the proceeds. People who have lost loved ones have often had to wait months for life insurance payments. 4.4 The insurance industry recognises that financial hardship can arise due to the lengthy legal process associated with winding up a person’s estate. Whilst the same legal process applies to all assets, an early life insurance payout can help reduce financial hardship until other assets become available to dependents and family members. 4.5 Insurers have developed a new process to enable them to pay out relatively small amounts to claimants without waiting for probate, subject to certain conditions, including the completion of an indemnity agreement by the claimant. 4.6 The ABI published guidance earlier this year to encourage more insurers to adopt these processes and help reduce the financial hardship associated with delays arising from the legal process of winding up a person’s estate. 4.7 The “fast track indemnity process” set out in the ABI guidance can be applied to a substantial proportion of life insurance claims for both new and in-force single life policies. We believe the process is simple for customers to understand and relatively easy for insurers to implement. It has been developed with the assistance of the Law Commission.

5. What can we learn from the experiences of Scotland and Northern Ireland which have Presumption of Death Acts? 5.1. The ABI would prefer to keep the current approach in conjunction with the initiative that the ABI has introduced.

6. Is there a need for legislative or procedural change in England and Wales? If so, what form should these changes take? 6.1 The combination of an increasingly difficult economic climate combined with increasingly fluid travel habits, may result in “going missing” becoming more common if access to insurance funds without a “body” becomes easier. A change in process would increase the risk that the monies are paid out which may at some point in the future need to be repaid. 6.2 Insurers must be very careful with the data they hold. Their customers have entrusted this data to them. The Data Protection Act (DPA) governs how insurers use data and can prevent insurers from disclosing information. This may create barriers and delays if the insurer is contacted by somebody who isn’t the policyholder. 6.3 ABI members believe that the restrictions imposed on them by adherence to the DPA should not be used as a “blanket” blocking mechanism, but while striving to assist relatives where possible the person missing or presumed dead has a right of confidentiality which needs to be protected and fraud avoided. 6.4 A solution may be to establish a streamlined method of appointing a Power of Attorney or “guardian” where someone is presumed dead or has been missing for a certain amount of time (policies generally lapse 30 days after non payment of the premium). This would also overcome the problem of handling a missing person’s financial affairs, for example their bank account and ensuring important direct debits continue to be paid whilst cancelling other direct debits such as gym membership or Sky subscription. This would ensure that a property remains insured and maintains life insurance premiums. cobber Pack: U PL: CWE1 [O] Processed: [16-02-2012 08:53] Job: 017612 Unit: PG03

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6.5. The ABI and Missing Persons are collaborating to produce a leaﬂet explaining the process, which can be given to relatives and friends to help resolve a missing person’s insurance affairs. September 2011

Written evidence from Kirsten Bennett Presumption of Death Orders—The Pitfalls 1. Having entered into the profession as a newly qualified solicitor in April 2010 and going on to gain my Higher Rights of Audience I was asked by my probate department to apply for a Presumption of Death Order on behalf of a client (hereinafter “V”). Once obtained this would enable V to claim under her husband’s life insurance policy. To put this into context, V’s husband went missing on 30 August 2003. Whilst the circumstances following his disappearance are outside the remit of this submission, it should be noted that an extensive investigation was carried out following her husband’s disappearance by the police. Television and newspaper appeals were carried out, none of which proved successful. 2. Following his disappearance V struggled on a daily basis, she no longer had the income of her husband and was left to meet all the day to day expenses of running a household and bringing up a young son. During the next seven years she received no help financially and was unable to deal with her husband’s estate until he had been missing for seven years. 3. My research about surrounding Presumption of Death Orders revealed a hotchpotch of inconsistent law, with no one single point of reference. I discovered there were various ways of obtaining a Presumption of Death Order but there was no legislation that could give any guarantees that: (a) That the Presumption of Death Order would be granted; and (b) If granted for what purpose it could be used for. 4. It was agreed that V would apply to the High Court for a Presumption of Death Order under section 19 of the Matrimonial Causes Act 1973. This in itself was quite a traumatising experience for her as not only was she making a much needed application for a Presumption of Death Order but she was inadvertently bringing an end to her marriage. 5. Submitting the relevant paperwork to Court was relatively straightforward. V had to swear an affidavit and submit her Petition to the High Court. The Principal Registry in London were extremely helpful and it was agreed that Manchester would be the venue of the hearing for ease of the parties. 6. The Judge in Manchester heard my client’s application and made a Presumption of Death Order. He was keen to ensure the wording of the Order was correct and that the Order could be used for the purpose my client required it; to claim the proceeds of the life insurance policy. The Judge commented that if the Insurance Company were still not satisfied and refused to release the fund, she could make an application to join the Insurance Company into the proceedings and that they would be at risk of costs. The Judge also pronounced the Decree Nisi. 7. The sealed Court Order was served on the Insurance Company on 9 June 2011 who responded on 19 July stating that they would pass the Court Order to the Company solicitor but were unable to provide a timescale as to when the matter would be dealt with. On the 1 August the Insurance Company responded and stated that they “would like to make some further enquiries” into her husband’s disappearance particularly why the police had redacted their report. Furthermore they wanted to contact people who had assisted “in the search for her husband”. I have also recently learnt that as the Order itself does specifically refer to the Life Insurance Policy, they may have to refer the matter back to Court on the basis it is insufficient for their purposes. 8. It appears ludicrous that the Insurance Company now want to make further enquiries, had the Court been unsatisfied about the husband’s disappearance surely the Court would have been the appropriate body in which to raise the enquiries and not the Insurance Company. Further the Court would not have proceeded to make the Presumption of Death order. Although the Insurance Company initially stated that they would release the funds once a Presumption of Death Order had been obtained, this appears not to be the case and they are still allowed to prolong matters at their own discretion. 9. If insurance companies had one point of reference eg a piece of legislation perhaps the process would be simplified and minimise the stress and anguish that people left behind following a disappearance of a loved one. 10. It appears that the system in place with regard to obtaining a presumption of death Order is seriously flawed. I read with interest the Enquiry from the APPG who presented their case to the House of Commons earlier this year. The Chief Executive of Missing People coined the different routes as a “crazing paving of legislation” and as such there is always a danger of gaps where crazing paving exists and these gaps can deepen the emotional turmoil of people left behind. 11. If these gaps are either not filled in or the system is not completely overhauled the unsatisfactory state of this area of law will continue. Scotland and Northern Ireland have already identified the need for reform and have respectively brought in relevant statues to deal with missing people. Whilst it would appear that the cobber Pack: U PL: CWE1 [E] Processed: [16-02-2012 08:53] Job: 017612 Unit: PG03

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only reason England have not caught up with their counterparts is because the draft bill prepared in 2009 lacked clarity, this should not be used as an excuse to continue to drag their feet. There is real call for change and I would contend it is not just by the relatives directly affected by a missing person but by the professionals who are left having to advise the families as to the law. September 2011

Written evidence from Anastasia Romanos — A personal account of my own experiences of a family of a missing husband and father of our children. — The observations of a professional and intelligent member of the community. — A report of my contact with a variety of agencies in particular the obstacles and recognition of those whose assistance proved to be invaluable. — My research into the strategies and methods already in place in other countries and existing recommendations already proposed by various organisations. — My own recommendations and suggestions to the Select Committee of a positive way forward to ensuring that a well sign posted legislative infrastructure is implemented and embedded for supporting families of missing children and adults.

My response to APPG for Runaway and Missing People (Children and Adults) Inquiry: Support for Families of Missing People; Session Two—Resolving a missing person’s affairs & presumption of death. 1. Reading through the all the Parliamentary Inquiry Session transcripts and the concluding “Report of Recommendations to Support Families of Missing People (Children and Adults)” brought up a whole ray of emotions from deep sorrow, sadness, to a strange sense of relief. A sense of affirmation and acknowledgement that long awaited voices of the families of missing children and adults are being addressed as clearly stated in the Universal Declaration of Human Rights (UDHR). 2. The Human Rights Act for Protection clearly states the duty of the state to place measures to protect individuals and have adequate laws in place to punish those who violate the “Right to life of others”. 3. This being the first ever inquiry in the UK to support families of missing people (Ann Coffey MP Chair of APPG), it is ashamedly obvious where the state has failed to meet its obligation as part of “The Duty to Protect” and act on the state to investigate in all cases of a breach of the right to life. “The Duty to Investigate” has fallen far short of the guaranteed UDHR. This is where the need for a coherent legislative framework is desperately needed to avoid the present fragmented and disjointed system that families of missing people face daily some for years and unfortunately, forever for others. 4. Whilst reading through the APPG Session transcripts of the experiences and difficulties faced by other families of missing people; I identified and related to them so easily. I find it incredibly difficult to comprehend why families in England and Wales have had to struggle blindly for so long without any guidance from the state. 5. Many of the measures for safeguarding and supporting the families of missing people are explicitly detailed in “The International Committee of the Red Cross (ICRC) Handbook for Parliamentarians [N°17 2009]”. Although, it is primarily focus is on the issue of missing persons due to armed conflict and internal violence. Other situations that give rise to the issue of missing persons include natural disasters, population displacement or terrorism. In essence the guidance and framework outlined in the above ICRC is relevant and deals with the issues and obstacles faced by families of missing people. 6. Scotland, Northern Ireland, Australia and even Canada have systems in place to help families in situations where members are missing. My research has revealed that in many countries issues of such a sensitive nature have had some forms of coherent system or procedures in place—so alleviating the distress and torment already being experienced by families of missing people. In Canada, having a single point of contact reduces the likelihood of conflicting information that could result from dealing with multiple family members. Designating a family representative ensures that police know who to contact with updates about the investigation. It also allows for the family representative and the designated officer handling the missing person case to establish a level of comfort and trust in their communications regarding the case. 7. Reflecting back over the past five years I am astonished at how long and lonely my journey has been to even get to this stage. The impact for families of missing people is far reaching and devastating than can be perceived at first sight. As my own experience shows there is a total lack of sign posting for family members to even begin dealing with issues of reporting, seeking help and raising awareness to their plight. 8. The police are usually the first statutory service families will seek to obtain help and guidance. I bear no criticism of the Police Force I first made contact with. In my case, initial generic process was followed to eliminate foul play. Paul’s house was searched to make initial assessments as there was nothing out of the ordinary ie a body? I was designated a police officer to obtain feedback. cobber Pack: U PL: CWE1 [O] Processed: [16-02-2012 08:53] Job: 017612 Unit: PG03

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9. When I raised concerns about the odd bizarre happenings I was directed towards the path that Paul was not a vulnerable individual having being a former soldier. He was not a priority even when I explained he suffered from PTSD, the emotional trauma our family was suffering and the concern we had about his house being repossessed. Responses given were such as “Paul is a grown man and has made his own decisions in the end” and “Paul decided to leave on his own accord” in spite of the fact that I kept on raising issues about his mental state. The police failed to take any action by following up on his medical records especially since I had been very explicit about this. I continued to remain in contact with Cambridgeshire Police Constabulary from January 2007 until April 2008. Throughout this contact I was ﬁrst speaking to Sergeants, then an Inspector, and ﬁnally I was left to speak to Civilian staff. I felt that the Police were “washing their hands” of me and my family. [See footnote 1]

10. During this period, I had to take the initiative to contact the Child Support Agency to see if they had any information via their system of tracking absent parents. I was told there was nothing on record to establish his whereabouts. I then approached the Passport Office to check if his passport had been handed in or if he had travelled abroad recently. They were unfortunately unable to help due to data protection legislation. I was told that only the police would be able to obtain this information. Armed with these facts, I contacted Cambridgeshire Police to act on my behalf. Upon the police following this inquiry, it was confirmed that the Passport Office had little to no information to assist with finding Paul.

11. In April 2008, having exhausted this avenue of search (the police), I contacted the Foreign Commonwealth Office, seeking their support. I continued working with the Foreign Commonwealth Office who asked for information to build a profile of Paul. I contacted Paul’s dentist for copies on any dental records they held. Unfortunately, they didn’t hold any dental records. I passed all the information onto the FCO who were able to obtain records from the MoD. I felt as though I again, had to take the lead and use my initiative to find out any information that could help us. At the back of my mind, there was a constant worry that at any time, DNA samples would requested from the children. My main priority, as any parent, during the whole period of time, was to protect my children from any further unnecessary distress that they were already suffering. I remember during this time, my mind wandering back to the fact that it may even mean our unborn daughter’s sample tissues that had been kept by the hospital having to be recalled as a possible means of obtaining DNA.

12. Another serious issue that arose was dealing with Paul’s financial affairs, for example his mortgage company. I informed the Halifax Bank of the current situation. I gave them his mortgage account number, and that he was four months behind on his repayments, which they confirmed. I asked them to make sure that this current situation was on his account records, ensuring they were aware of the context of why repayments had stopped. In essence, I was trying to ensure that Paul had a home to come back to. [Reference: Appendix A— Not Printed]. Other difficulties faced with Paul’s financial affairs have included his three pensions are protected.

13. In addition to the psychological distress suffered as a result of Paul’s disappearance almost five years ago, it was compounded not only by the obvious lack of specialist support for families such as mine [See footnote 2]. It runs deeper, as we have been in a state of “limbo” and constant uncertainty waiting as in a frozen time zone. You find yourself avoiding even talking about your plight; the aching pain, the distress and anxiety as others do not understand leaving you feeling stigmatised and isolated. It may be atypical to my experiences only but for Paul not to have attempted any contact has left me on hyper alert. Given Paul’s Armed Forces background and his complete disappearance off any radar drew me to researching websites of newspapers abroad in an attempt to find him. Instead I was faced to read horrific stories of violence and terror; what if he had got drawn into unsavoury associations that put his life at risk and unintentionally put our children’s safety at risk [See footnote 3].

14. I found myself focusing all my energy and attention on searching for Paul whilst attempting to remain strong for the children and career; I completely neglected my own needs. My physical, emotional and mental health began to suffer but I remained oblivious to the signs; I even forgot how to enjoy life. With time, I withdraw socially and emotionally from those around me but never the children. Numbness lack of closure, the not knowing, has meant we have not even begun the mourning process. Over time you withdraw socially from others around you. The fear that missing loved ones will be forgotten forever, leaving no trace they ever existed plunges you into obsessive questioning “Who will remember them when I am gone?” There is no monument or register to even valid Paul’s existence.

15. The enormity and the far reaching impact a situation like this can have is unbelievable unless of course you have lived through it. The ability to keep everything as normal as possible and the continual juggling (keeping all the balls in the air) eventually took its toll. It creeps up on you slowly, obviously you remain unaware as your physical health begins to deteriorate but you keep battling on. You continue believing you will bounce back and this is only a temporary blip. One day you wake up and realise how fragile and vulnerable you have become; that includes even those of us known for our strong mental resilience. No matter how hard you try to continue in your resolve to get back to the person you once were, the further you are slipping back. Eventually, this whole nightmare cost me my health and a much loved career. This may be extraordinary to my case but my vulnerability and difﬁcult situation was exploited by my former employer in the “political ofﬁce” battles that go on the further up the career ladder you climb. Instead of choosing to be compassionate and supportive I was exposed to three years of what can only be described as “deliberate victimisation” at cobber Pack: U PL: CWE1 [E] Processed: [16-02-2012 08:54] Job: 017612 Unit: PG03

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work. I was unaware at the time I was being watched for nearly three years and to sum it up politely—“it was and had nothing to do with my Teaching Ability”.[Reference: Evidence available via “copy of a dossier”]

16. My recommendations are based on my own experiences and from the in-depth research I have carried out, so that no other family have to go through the horrendous ordeal accounted in this report. I found many of the issues and difﬁculties I have encountered over the past ﬁve years are interlinked; as one agency eg “health” cannot work exclusively on its own to resolve the complex needs of families of missing people. The compelling evidence documented in the APPG Inquiry increasingly promotes the vital necessity for a multi- agency approach. Within the Education System “The Common Assessment Framework” (CAF) a key part of the Every Child Matters Change for Children Programme has been a success in its aims to deliver front-line services that are integrated and focused around the needs of children and young people. The CAF is a standardised approach to conducting an assessment of a child or young person presenting with additional needs and agreeing how those needs can best be met. Perhaps it is time that families of missing persons, who not only have to deal with the psychological distress caused by the disappearance of a loved one have access to such front-line services as those referred to above.

17. I believe the original proposals for the development and implementation of a Task force The NAPIA Missing Persons Bureau (MPB) is the direction the Government should be pursuing. The MPB did put into place some very important and necessary strategic measures but was not far reaching enough as it was subsequently abandoned. The present Governments intention of setting up a new body to continue the work started by the MPB is a crucial and necessary to addressing the issues raised by the ﬁndings of the APPG “Report of Recommendations to Support Families of Missing People (Children and Adults)” June 2011. In my opinion the basis of the foundations set up by the MPB need to be embedded into a legislative form for it to work effectively and address all the areas that were raised at the above APPG. The difference needs to be seen and felt at grassroots level—by families of missing children and adults. I am not convinced that the manner in which the “new proposed body” is being an “add on” to the Government consultation as documented in the framework for “Policing in the 21 Century.” [September 2011].

18. I urge the committee to give the “new proposed body” the recognition and sustenance that it deserves anything less falls far short of supporting families of missing children and adults. I am aware of the importance of liaison with the Police Forces but we must not forget that Police Forces are already stretched by the ever increasing intricacies and complexities of crime in the 21 Century. My account of my family’s last five years vividly highlights that there are still many families who still fall through the “net.” This is due to the lack of signposting and the existence of a clear working infrastructure being in place. My own unfamiliarity and lack of knowledge of the work of charities like “Missing People” meant I did not make contact with them until the Foreign Commonwealth Office personally directed/introduce me to the “Missing Peoples” charity. Prior to this I knew the existence of such charities but never beyond the raising money front or even the adverts you walk past outside supermarkets. I would never have fathomed the machinery at work behind the “shop front” of charity work. This only validates my argument for the existence of legislative body to deal especially with all the difficulties those families of missing people experience.

19. The issue of the absence of legal provisions makes the lives of the families’ of those missing extremely difficult and the harsh realities are many suffer financial hardship in addition to all the other stresses. Tim Humphrey’s Association of British Insurers expresses his opinion in the APPG “Report of Recommendations to Support Families of Missing People (Children and Adults)” June 2011. “Industry-wide guidance would be welcomed by the membership….I think insurers would like to know they can act in a certain way as regards data protection… I think they would like to be provided with that reassurance.” Here there is a clear plea from the British Banking and Association of British Insurers for legislation to be put in place for them to follow. This is indeed an area that the “new proposed body” could administer and oversee by liaising with the appropriate agencies. Here my previous objection to the “new proposed body” being an “add on” to the British Police Forces holds ground. We cannot expect our police forces to also deal with financial difficulties that the family of a missing person experiences. Can I emphasise in my own personal experience the police made it very clear it was out of their jurisdiction and advised me to seek legal support. This current disjointed practice again strengthens my argument for a dedicated Task Force to deal with every aspect of support and help to the families of missing children and adults. The presumption of death would thus be dealt with in a coherent system and each case be considered duly within the context of each individual circumstances based on evidence. [See footnote 4].

20. We must remember despite the stereotypical stigma attached to the image of “missing people” that in essence we are dealing with ordinary hard working families from varying backgrounds(I refer to Lord Boswell, the parents of Madeline McCann and of course my own family [Reference: Appendix B—Not Printed].) Families I make reference to above like many other families out there(including my own family) are a real assets to society but when the tables are turned; there is no infrastructure in place to help these very same valued members of the community—then there is an enormous loss to humanity. November 2011 cobber Pack: U PL: CWE1 [O] Processed: [16-02-2012 08:54] Job: 017612 Unit: PG03

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Reference [Footnote 1] Further hitches emerged in 2010 following an enquiry I made to Derbyshire Police Constabulary, exposed a lack of communication and co-ordination between police forces. I had believed that in the 21 Century (due to the level, complexity and intelligence of crimes committed) we would have had a “National Police Database” of sorts, which the police could access when required. [Footnote 2] Families are already unable to grieve because how can you grieve when you do not know—it is a waiting game. I found it extremely difficult to talk about what was going on at the time, as it is such bizarre and unchartered territory you find it difficult to communicate your emotions and fear the response from others. I still don’t know how I am still here today—looking back retrospectively, “I could weep for that woman and her children”. Kate McCann clearly reiterates the point… “We are medically trained and we couldn’t function….I think it is paramount importance that psychological support is offered to the family” [APPG June 2011]. [Footnote 3] I changed our children’s surnames, made the schools they attended aware of the necessity for extra vigilance re: security whilst they were at school. It has now come to the point I have requested a change of ID for our safety and my peace of mind. I would like our children to grow up without having to be in a state of continual vigilance and fear. [Footnote 4] I like many others view the “Presumption of Death Bill” with caution. However, we can draw from the experiences of legislation already in place in Scotland and Northern Ireland and even countries like Australia for guidance as to workable practicalities. My personal opinion lies with the view that each case presented to the court must meet criteria before a court will consider a decision. The court’s decision must take each case on its merit, as believe me no single “missing persons” situation is the same as any others. There are core familiarities but each will tell its own story. This is why the “Presumption of Death Bill” cannot be classified into a tariff style system but instead must have room to maneuverer within an air of discretion. I would like to acknowledge the following people and organisations for the support they have provided during the ordeal me and my family have endured: — Matt Searle—Director of Operations—Missing Abroad. — Nigel Mills MP—Amber Valley Constituency. — Liam Rhodes—Case Worker Amber Valley Constituency. — Aldercar Community Language College. — Foreign Commonwealth Office. — Dr A B Graham MB, ChB/BS—GP Brooklyn Medical Practice. — All the staff at Brooklyn Medical Practice. — Rob Sewell—Psychologist. — The Royal British Legion. — Amber Valley Adult Disability Social Services Team.

Supplementary evidence from the UK Missing Persons Bureau53 The Bureau’s relationship with families and the public 1. Oral evidence was given by the Bureau regarding the Bureau’s relationship with families and the public in response to a question from a Committee member. The Bureau wishes to clarify a sentence in the Memorandum previously submitted. In paragraph 6, the Bureau is to provide advice and support to police forces as part of its national coordination function, thus ensuring that the police provide a consistent and comprehensive service to the public. The sentence is not intended to suggest that the Bureau provides support directly to the public. 2. The Bureau mentioned in its oral evidence that it has long standing relationships with family members. It held a consultation event with them to identify ways to improve the police response to missing cases and find out what families want from the police. Based on this feedback, the Bureau has recently produced a series of eleven leaflets for police officers to give to family members explaining what to do when a person goes missing, what to expect from the police and where and how to get support and assistance from other organisations. Family members can also access these leaflets on the Bureau’s webpage. The leaflets are in the process of being translated into Welsh and the Bureau is consulting with forces to identify the next languages for translation. 3. The Bureau estimates that its Intelligence Officers spend approximately 5% of their time supporting direct enquiries from the public. For the management team, this time increases to 15%. Bureau staff members do not conduct police investigations; instead, case enquiries are made leading to the development of actionable intelligence for police usage. Enquiries include open source searching, searches of the Police National Computer (PNC), Police National Database (PND) and other national systems and liaison with government departments, agencies and the voluntary sector, both at home and abroad. 53 Part of the National Policing Improvement Agency cobber Pack: U PL: CWE1 [E] Processed: [16-02-2012 08:54] Job: 017612 Unit: PG03

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The Bureau’s Joint Guidance with the Ministry of Justice on Coroner’s Inquiries opened under Section 15 4. The Bureau is producing guidance on opening a coroner’s inquest under section 15 of the Coroner’s Act 1988 to assist families, solicitors, coroners and police. It also includes information on the other current remedies available including leave to swear death. The Bureau is working closely with the Ministry of Justice and Coroners on this guidance; however, it is proving challenging due to the complexities of the current system. The guidance may aid understanding and improve awareness but it will not solve the specific issues with current legislation; for example, the need to follow different routes to apply for dissolution of the marriage and to administer the missing person’s estate. 5. The Bureau is producing a quick reference guide for police regarding coronial involvement in missing person enquiries which will hopefully lead to increased referral of relevant missing person cases to coroners. 6. The Bureau is producing a quick reference guide for coroners on lines of enquiry in missing person case. These enquiries would form part of proof of life enquiries in no body murder cases. The guide will hopefully standardise coronial involvement in missing person cases and assist coroners to decide whether the relevant investigation has been completed and whether there is sufficient information available to decide whether to apply to the Justice Secretary of State for a direction to open a section 15 inquiry. 7. The Bureau welcomes the recent announcement to implement the role of Chief Coroner. When the role was first proposed, it was suggested that coroners would apply to the Chief Coroner instead of the Secretary of State for Justice for a direction to open an inquiry under Section 15. The Bureau looks to the Chief Coroner to provide direction and encourage consistency in coronial decision-making.

The Need for Primary Legislation 8. It is the Bureau’s view that primary legislation is necessary to transform the complex legal landscape and replace the current “archaic and unsatisfactory” provisions with new law. This new legislation should incorporate presumption of death provisions akin to Scotland and Northern Ireland, guardianship provisions similar to those in Australia and should extend coroners’ responsibilities under Section 15 (removing the geographic restriction). December 2011

Supplementary evidence from the Association of British Insurers Thank you for inviting me to provide evidence to the Justice Select Committee for the Inquiry on the presumption of death on Tuesday 22 November. At the session I was asked for specific figures on the number of missing persons cases that the insurance industry deals with each year and the number of fraudulent cases. This information has not been collated before, and as the ABI has over 300 member companies it has not proved possible to gather information from all of them. However, we have received information from companies who represent over 45% of the life insurance market. They tell us that, in the last year, they have dealt with six genuine missing person cases and 11 fraudulent missing person cases—with many insurers reporting that they did not deal with either type last year. It is therefore unlikely that there are more than 20 cases of either type each year across the entire industry. In my evidence I suggested that the number of cases were presumption of death is an issue is very small and the evidence above would seem to bear this out. While the number of fraudulent cases may seem high in percentage terms, it should be remembered that we are dealing in very small numbers here. It is not statistically significant for the insurance industry. December 2011

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