Memorandum from Rt Hon Harriet Harman
QC MP, Minister of State, Department for Constitutional Affairs
(P 39)
Thank you for your invitation to comment on your
new inquiry.
I have seen the Attorney General's response to you
of 22 December 2005 and I agree with him that there is not a case
for excluding coroners' courts from the scope of the sub judice
rule. My particular concern is that excluding inquests from the
scope of the rule would be both difficult practically and raise
issues of risk.
Firstly, suspected criminal activity often results
in death. This could be the result of terrorist acts, breaches
of health and safety legislation, road accidents or hospital negligence
(amongst other matters). The legal consequences of this are that
there must be an inquest and there may be a criminal prosecution
or civil proceedings. All these proceedings will be focussed on
the same events although from different standpoints. I think that
the close links between inquests and criminal proceedings would
make it undesirable to make any significant changes to the sub
judice rule for inquests without making similar changes in
relation to criminal proceedings.
Furthermore, although there may be a long interval
between a death and the inquest, there may be one or more pre-inquest
hearings—often held in public—before the substantive
inquest is heard. The use of these pre-inquest hearings has become
more widespread since the scope of the inquest was extended to
include the "broad circumstances in which the deceased came
by his death" following the House of Lords' interpretation
of the meaning of Article 2 of the ECHR in Middleton. There may
thus be considerable discussion in open court before the inquest
is heard when the inquest is effectively active. And one of the
main areas where I think MPs would most likely wish to comment
before the inquest would most likely be around the increased scope
of the inquest in issues such as failings in systems, regime or
training.
I would also be concerned about the potential prejudice
to jurors if the sub judice rule were to be relaxed. Although
there are certain cases where there has to be an inquest jury
and this is known from the outset e.g. deaths in custody, the
coroner also has discretion on when to summon a jury. Indeed it
is precisely in those cases on which MPs would be most likely
to want to comment— disasters, multiple homicides, hospital
neglect etc.—where the decision to sit with a jury might
be made by the coroner at a later stage when those summoned could
have been exposed to parliamentary reports in the meantime.
But it is not only in jury inquests where there would
be potential prejudice. Witnesses too could be affected by outside
comment and might be tempted to tailor their evidence to avoid
certain consequences from outside sources. If MPs were allowed
to discuss inquest proceedings, a person aggrieved by the eventual
verdict could apply for judicial review on the ground that it
was not possible to conduct a fair inquest because of prejudicial
comments made in parliament, and have the inquest verdict quashed.
And coroners themselves could equally be affected by discussion
in Parliament on how they might conduct a particular inquest,
what the inquest should cover or which witnesses to call.
I also think that there would be serious practical
difficulties in modifying the sub judice rule by changing
the point in time from which it should operate. The various options
all appear to have serious difficulties and high risks.
In my view, the better solution—highlighted
by the Attorney General—would be to explore further the
discretion of the Speaker to balance the desirability of the House
discussing a matter of public concern against the likelihood of
prejudice. I agree with the Attorney that it would be helpful
for the Committee to consider the various factors the Speaker
would have to bear in mind when carrying out the balancing exercise.
As for coroner reform, my plan is to announce how,
in broad terms, we intend to proceed in February, and to publish
a draft Bill, for scrutiny by the Departmental Committee, in the
late Spring. We do not at present see our reforms as diminishing
in any way the considerations I have set out in this letter. But
will, I hope, improve the time it takes before coroners' proceedings
are concluded—and therefore the time sub judice in
coroners' proceedings applies.
January 2006
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