House of Commons Justice Committee Presumption of Death 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] 1 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 3 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. 5 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. 6 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.