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The matter is probably better dealt with elsewhere in the report, where the then Attorney-General is quoted in respect of the passing of previous legislation from which a similar issue arose. He said in 1959 that the purpose of consent was "to prevent vexatious proceedings", which is a more neutral way of putting it, and
- to restrict prosecutions in circumstances where a law has, necessarily, been drafted in broad terms, thereby creating the risk that it would catch those who had not offended against the spirit of the legislation.
In its evidence to the Franks committee in 1972, the Home Office gave three good reasons why consent was required for prosecutions. The first was to secure consistency of practice in bringing prosecutions, so that different practices were not adopted in different parts of the country. For example, in some parts of the country, there might be particularly strong feeling about the matter covered by the Bill. The Conservatives talk about the relationship between NHS treatment and patients' postcode. It should not be possible for the postcode to be a factor determining whether or not a doctor is prosecuted.
Mr. Andrew Miller (Ellesmere Port and Neston): My hon. Friend knows that I have done a great deal of work on road traffic deaths. One of the relevant issues that has given rise to concern is the matter of treating the scene of death as the scene of the crime. If my hon. Friend pursues the logic of his argument as a lawyer--which I am not--would a consequence of clause 1 be that the place of death would be treated as a scene of crime and investigated as such?
Mr. Dismore: My hon. Friend raises an interesting point. That is inevitable, and could have consequences for the NHS if a ward or operating theatre had to be blocked off for forensic examination. That could entail the facility being taken out of use for several days while the police conducted their scene-of-crime inquiries. My hon. Friend makes a valid and important point.
The Home Office also told the Franks committee that the purpose of requiring consent was to prevent abuse or the bringing of the law into disrepute, for example with the kind of offence that might otherwise result in vexatious private prosecutions or the institution of proceedings in trivial cases. The Home Office argued, too, that requiring consent would provide some central control over the use of the criminal law when it has to intrude into areas that are particularly sensitive or controversial. Whatever the hon. Lady may think, the Bill is controversial, whether one is for or against it.
Mr. Michael Trend (Windsor): The Bill was fully discussed in Committee, and many of the complicated points that the hon. Gentleman is bringing up could have been raised at that stage. His speech will give rise to the suspicion that he is engaged in an attempt to wreck the Bill by talking it out today.
Mr. Dismore: I refute that allegation entirely. There are five new clauses in the first group, and all are detailed. When the hon. Gentleman hears how my argument develops, he will understand that consent to prosecution is an extremely important point, for the reasons that I am starting to outline. The vague wording of the Bill, the need to ensure consistency and--[Interruption.] If the promoter of the Bill is prepared to accept my new clause, I will not have to continue to explain why I think it is an important proposal. If she is not prepared to accept it, I have a job to do to convince her and the House. If the new clause is not accepted, I shall press the motion to a Division.
Mr. Ashton: My hon. Friend and the hon. Member for Windsor (Mr. Trend) know that the hon. Member for Congleton (Mrs. Winterton) chose the members of the Committee, as is always the case for a private Member's Bill. There were two members who were against the Bill--the hon. Member for Isle of Wight (Dr. Brand) and me. We had three sittings. It would have been impossible for two against 11 to analyse every point and every amendment--I am not a lawyer; the hon. Member for Isle of Wight is a doctor, but I am not. We also had a Second
Reading debate. Although the Bill does not cover Scotland, the hon. Member for Glasgow, Kelvin (Mr. Galloway)--
Mr. Deputy Speaker (Mr. Michael Lord): Order. The hon. Gentleman has made his point. We do not wish to revert to the Committee stage. We must consider the new clause.
Mr. Ashton: The point is, Mr. Deputy Speaker--
Mr. Deputy Speaker: Order. The hon. Gentleman has made his point. We must now consider the new clause.
Mr. Dismore: The Law Commission concluded that it was right to have restrictions on private prosecutions because of the harm that could result from an unsuccessful prosecution of an innocent defendant and from a successful prosecution that was not in the public interest. Since the consultation took place, the Law Commission presented in its summary of recommendations a series of circumstances in which consent should be required.
First, consent should be required when a defendant is reasonably sure that a prosecution would violate his or her rights under the European convention on human rights. The convention has been incorporated into United Kingdom law through the Human Rights Act 1998, which will take effect in the autumn. The new clause that I tabled on the applicability of the Human Rights Act was not selected for debate. I shall not therefore embark on an exposition of whether a defendant or those seeking a prosecution should be able to rely on the right to life that article 1 establishes. I have some anxieties about article 6, which I shall perhaps tackle later when we consider trial arrangements. It would clearly be open to a professional person who wanted to rely on convention rights to claim that the convention was applicable.
I shall not deal with the second category because I do not believe that it is relevant. The third category covers offences that create a high risk that the right of private prosecution will be abused and that the institution of proceedings will cause the defendant irreparable harm. That is potentially relevant to the Bill because there is a risk that private prosecutions could be abused.
My hon. Friend the Member for Bassetlaw (Mr. Ashton) referred to the attempted private prosecution in the Tony Bland case. There have been others. I would not describe them as an abuse of process because the law was unclear, and I attribute charitable motives to those who brought the prosecutions. They endeavoured to use the law as it was perceived and to abide by it. The hon. Member for Congleton is trying to clarify the law, but whether the Bill achieves clarification or obfuscation is a matter for debate on Third Reading. I understand that she would like specific harms to be addressed; perhaps I would also like them to be tackled. However, I do not know whether the Bill achieves that.
The Law Commission's third category is important. It covers abuse of the right to bring private prosecutions and the effect on the doctor, whose career could be completely blighted by a prosecution even if it proved unsuccessful.
If consent to prosecution is required, it begs the question whether it should be that of the Attorney-General or that of the Director of Public
Prosecutions. The House is presented with both possibilities in new clauses 10 and 11. New clause 10 would provide for the consent of the DPP and new clause 11 would provide for that of the Attorney-General.I acknowledge that there is a difficulty with consent by the DPP in current law. If consent by the DPP is required, it can currently be granted by a junior prosecutor in the Crown Prosecution Service. That would clearly be unsatisfactory in the circumstances that we are considering. The Law Commission recommendation deals with that point. It states that consent should be delegated only to the head of central casework. The Government have said that they will act on the Law Commission's recommendations on consent to prosecution. One of the key objections to making a prosecution conditional on the consent of the DPP rather than the Attorney-General has therefore been tackled.
There is a strong argument against making a prosecution conditional on the consent of the Attorney-General. The Attorney-General performs a different role from the DPP. That is highlighted in the Law Commission report. Paragraph 4.13 cites the Franks committee. It states:
- The Franks Committee was "in doubt" that there was widespread unease amongst those "outside governmental and Parliamentary circles" about the Attorney-General carrying out both political and quasi-judicial functions.
I have no reason to question the integrity of my noble and learned Friend the Attorney-General or my hon. and learned Friend the Solicitor-General. They are both men of high professional calibre and great integrity. However, one never knows who will fill those offices in future. If my hon. Friend the Member for Walthamstow (Mr. Gerrard) presses new clause 11, I will vote against it.
Consent to prosecution is important and could be incorporated in the Bill. I cannot understand the objection to it, unless those who support the Bill want access to private prosecutions. They are already subject to all sorts of controls--for example, by the DPP--that the Law Commission sets out. However, I shall not go through them, because I do not want to be accused of trying to string out the debate. Requiring consent would introduce some consistency in the Bill.
New clause 13, which my hon. Friend the Member for Southampton, Test (Dr. Whitehead) will move later, makes an interesting suggestion. I am afraid that I must oppose it because I do not believe that it is sensible. It states:
- This Act shall give rise to liability in tort only.
I must declare an interest; before I became a Member of Parliament, I made my living by bringing claims in tort on behalf of people injured in medical, industrial and road accidents. However, I did uncover some of the lacunae in
the law when preparing for today's debate. If one wants to sue a doctor, one generally sues for clinical negligence. There have been many debates in the House and the wider community on medical negligence.To prove medical negligence, one has to satisfy an extremely broad test--the Bolam test. The claimant has to satisfy the court that the care was not in accordance with the practice accepted as proper by a responsible body of medical opinion. The only alternative to the Bolam test deals with informed consent.
Informed consent features in the Chatterson v. Gerson case of 1981. That case showed that the courts take a tough line on informed consent. The lady in the case suffered unpleasant treatment, to which she claimed she had not consented because the problems had not been explained. I shall not go into the details of the case unless I am asked to do that. The lady sued for negligence and the criminal tort of battery. Battery in civil law is different from assault and battery in criminal law. I received a Library briefing on the matter. It states that the courts are uncomfortable with the idea that doctors acting in good faith could be guilty of battery in civil law. There is a lacuna in the law.
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