Clause 31 and Schedule 8: Investigation by Chief Coroner or by judge at Chief Coroner’s invitation

280.     This clause gives effect to Schedule 8 which provides for the arrangements when an investigation into a death is to be conducted by the Chief Coroner or by a judge, by invitation of the Chief Coroner.

281.     The Chief Coroner has all the functions of a senior coroner. He or she can therefore conduct investigations personally. He or she can also arrange, with the permission of the Lord Chief Justice, for a judge to conduct an investigation. This will be appropriate when a case has particularly complex legal characteristics but it is envisaged that the power will be used sparingly.

Clause 32: Guidance by the Lord Chancellor

282.     This clause enables the Lord Chancellor to issue guidance about how the coroner system is expected to operate for interested persons. It is intended that the first such guidance will be in relation to bereaved people, in the form of the draft Charter for the Bereaved, published at the same time as the Bill. Further non-statutory guidance may be introduced for other classes of interested persons in the future.

283.     Subsection (4) specifies that the Lord Chancellor must consult the Chief Coroner before issuing, changing or withdrawing any such guidance.

Clause 33: Coroners regulations

284.     This clause enables the Lord Chancellor, with the agreement of the Lord Chief Justice to make regulations for regulating the practice and procedure in connection with investigations (excluding inquests), post-mortem examinations and exhumations.

285.     Regulations will include arrangements for:

• suspending and resuming investigations;

• discharging an investigation and providing for fresh investigations;

• delegation of a senior coroner’s functions relating to investigations;

• retention, release and disposal of bodies including reinterment;

• exercise of the powers of entry, search and seizure.

Clause 34: Coroners rules

286.     This clause enables Rules to be made by the Lord Chief Justice (or his or her nominee) as to the practice and procedure at or in connection with inquests and appeals to the Chief Coroner, thus separating out the inquest component of the senior coroner’s investigation. It repeats the power in section 32 of the 1988 Act.

287.     Subsection (2) sets out particular matters about which rules can be made. These are as follows:

• Subsection (2)(a) allows for rules regarding evidence including sworn and unsworn evidence.

• Subsection (2)(b) allows for rules regarding discharging a jury and summoning a new jury.

• Subsection (2)(c) concerns discharging inquests and holding fresh inquests.

• Subsection (2)(d) concerns adjourning and resuming inquests.

• Subsection (2)(e) would allow the senior coroner to direct that a person’s name should not be disclosed except to persons specified in the direction. It is intended that any provision made in rules will provide for this discretion to be used sparingly, for example during inquests into the deaths of UK Special Forces personnel or other investigations where witnesses need to remain anonymous to protect their safety.

• Subsection (2)(f) provides for rules relating to a senior coroner delegating his or her non-judicial functions relating to inquests.

• Subsection (2)(g) permits rules about disclosure of information held by the senior coroner.

• Subsection (2)(h) concerns excusing persons from jury service.

• Subsection (2)(i) allows for rules that would clarify when a senior coroner should hold an inquest into a possible treasure find.

• Subsection (2)(j) allows for rules requiring consent to be given to an appeal to the Court of Appeal against a decision by the Chief Coroner.

288.     Subsection (3) sets out particular matters in relation to which rules can confer a power on a senior coroner. Subsection (3)(a) would enable the coroner to decide that, if in his or her opinion the interests of national security required it (and even if a case had not been certified under clause 11) persons should be excluded from attending all or part of the inquest.

289.     Subsection (3)(b) enables a senior coroner to exclude persons from an inquest during the giving of evidence by a person aged under 18. A child or young person may find giving evidence at an inquest intimidating or traumatic. These powers would enable the coroner to be flexible about how evidence could be given.

290.     Subsection (4) provides that, in cases that have been certified under clause 11, and which as a result of being certified the inquest is to be held without a jury, a direction must be made by the judge conducting the investigation to the effect that all persons other than those of a prescribed description are to be excluded from all or part of the inquest.

Clause 35: Abolition of the office of coroner of the Queen’s household

291.     This clause abolishes the office of coroner of the Queen’s household. In future, any investigation which would have been carried out by the coroner of the Queen’s household will be carried out by the senior coroner in whose area the body is, or by a coroner directed to carry out the investigation by the Chief Coroner or by a coroner requested to carry out the investigation under clause 2.

Clause 36: “Interested person”

292.     This clause lists those who come within the definition of the term “interested person”. “Interested persons” have, amongst other things, the right to appeal against certain decisions made during the course of investigations and inquests (clause 30). In addition to the specific list of those that fall into the category of “interested person”, there is power for the coroner a power to determine that any other person is an interested person. This expands slightly the list of “interested persons” in rule 20(2) of the 1984 Rules and is intended to capture, for example, the role of the Independent Police Complaints Commission in conducting and managing some investigations.

293.     Subsection (6) lists those who can be classed as an “interested person” for investigations into treasure finds.

Clause 37: Interpretation: general

294.     This clause explains the meaning of various terms used within this Part of the Bill: for example, where the word “body” is used, this includes body parts.

Clause 38 and Schedule 9: Amendments to the Coroners Act (Northern Ireland) 1959

295.     Clause 38 introduces Schedule 9. This Schedule amends the Coroners Act (Northern Ireland) Act 1959 (the 1959 Act) so that inquests may be held without a jury where certified by the Secretary of State as having evidence that should not be made public. This broadly aligns Northern Ireland with England and Wales, as set out in clauses 11 and 12. Equivalent provision to that concerning witnesses and evidence and related offences is also made in relation to inquests in Northern Ireland.

296.     Equivalent provision to that concerning witnesses and evidence and related offences is also made in relation to inquests in Northern Ireland. Paragraph 1 of Schedule 9 amends the 1959 Act so that a witness required to give or produce evidence at an inquest may be punished by way of a term of imprisonment or a fine. This brings Northern Ireland into line with the reformed system in England and Wales, as it contains provision which is broadly equivalent to Schedule 5.

Part 2- Criminal Offences

Clause 39: Persons suffering from diminished responsibility (England and Wales)

297.     The effect of clause 39 is to replace the current definition of the partial defence of diminished responsibility with a modernised definition based on the concept of a “recognised medical condition”. It spells out the aspects of a defendant’s functioning which must be affected in order for the defence to succeed and sets out that the defendant’s abnormality of mental functioning should be at least a significant contributory factor in causing the defendant’s acts or omissions.

298.     Subsection (1) replaces the current subsection (1) of section 2 of the Homicide Act 1957 with new subsections (1) to (1B). The amended section provides that a person is not to be convicted of murder if he or she was suffering from an abnormality of mental functioning which meets the three conditions set out in new section 2(1)(a) to (c). As now, under section 2(2) of the 1957 Act, the person will be convicted of the offence of manslaughter instead of murder.

299.     New section 2(1)(a) sets out that the abnormality of mental functioning has to arise from a recognised medical condition.

300.     New section 2(1)(b) provides that the abnormality of mental functioning must have impaired the defendant’s ability to do one or more of the things mentioned in new section 2(1A). These are the ability of that person to understand the nature of his or her conduct, to form a rational judgement or to exercise self-control. This contrasts with the existing definition of the partial defence which requires a person’s mental responsibility to be substantially impaired but does not specify in what respects this must be so.

301.     New section 2(1)(c) sets out that, in order for the partial defence to apply, the abnormality of mental functioning must provide an explanation for the defendant’s involvement in the killing. New section 2(1B) clarifies that this will be the case where the abnormality was at least a significant contributory factor in causing the defendant to carry out the conduct.

302.     Subsection (2) updates the language of section 6 of the Criminal Procedure (Insanity) Act 1964 insofar as it refers to the partial defence of diminished responsibility.

Clause 40: Persons suffering from diminished responsibility (Northern Ireland)

303.     This clause makes provision for Northern Ireland equivalent to clause 39.

Clause 41: Partial defence to murder: loss of control

304.     The common law partial defence to murder of provocation is supplemented by section 2 of the Homicide Act 1957. It provides that a defendant who would otherwise be guilty of murder will be guilty of manslaughter instead if he or she was provoked by things said or done (or both) to lose self-control, and in the opinion of the jury the provocation was enough to make a reasonable person do as the defendant did.

305.     Clause 41 abolishes the common law partial defence of provocation (section 3 of the Homicide Act 1957 and section 7 of the Criminal Justice Act (Northern Ireland) 1966 are, accordingly, also repealed). Clause 41 replaces the common law with a new partial defence to murder for circumstances where the killing resulted from a loss of self-control attributable to a “qualifying trigger”, as defined.

306.     Clause 41 sets out the criteria which need to be met in order for the new partial defence of loss of self-control to be successful.

307.     Subsection (1) lists those as:

a)      the killing was a result of the defendant’s loss of self-control,

b)      the loss of self-control had a qualifying trigger (which is defined in clause 42), and

c)      a person of the defendant’s sex and age with an ordinary level of tolerance and self-restraint and in the circumstances of the defendant might have acted in the same or similar way to the defendant.

308.     Subsection (2) clarifies that the loss of control described in subsection (1) need not be sudden. Under the existing common law partial defence of provocation, the courts have held that the loss of self-control must be sudden. Case law has developed over time to the effect that the partial defence might still apply though where there was a delay between the provocative incident and the killing. The length of time between the incident and the killing does however affect whether there is sufficient evidence of a loss of self-control for the judge to leave the issue to the jury, and how readily a jury accepts that the defendant had indeed lost his or her self-control at the time of the killing. Although subsection (2) in the new partial defence makes clear that it is not a requirement for the new partial defences that the loss of self control be sudden, it will remain open, as at present, for the judge (in deciding whether to leave the defence to the jury) and the jury (in determining whether the killing did in fact result from a loss of self-control and whether the other aspects of the partial defence are satisfied) to take into account any delay between a relevant incident and the killing.

309.     Subsection (3) supplements subsection (1)(c) by clarifying that the reference to the defendant’s circumstances in that subsection means all of those circumstances except those that are only relevant to the defendant’s general level of tolerance and self restraint. Thus, a defendant’s history of abuse at the hands of the victim could be taken into account in deciding whether an ordinary person might have acted as the defendant did, whereas the defendant’s generally short temper could not. Consequently, when applying the test in subsection (1)(c) the jury will consider whether a person of an ordinary level of tolerance and self-restraint to be expected from someone of the defendant’s sex and age and in the defendant’s specific circumstances (in the sense described earlier in this paragraph) might have acted as the defendant did.

310.     Subsection (4) ensures that those acting in a considered desire for revenge cannot rely on the partial defence, even if they lose self-control as a result of a qualifying trigger.

311.     Subsection (5) clarifies where the burden of proof lies in murder cases where the partial defence is raised. If sufficient evidence of the partial defence is raised, the burden of disproving the defence beyond reasonable doubt rests with the prosecution. It is supplemented by subsection (6) which confirms that for the purposes of subsection (5) the evidence will be sufficient where a reasonable jury, properly directed, could conclude that the partial defence might apply. It will be a matter of law, and therefore for a judge to decide, whether sufficient evidence has been raised to leave the partial defence to the jury. This differs from the position with the existing partial defence of provocation where, if there is evidence that a person was provoked to lose his or her self-control, the judge is required by section 3 of the Homicide Act 1957 to leave the partial defence to the jury even where no reasonable jury could conclude that a reasonable person would have reacted as the defendant did. Where there is sufficient evidence for the issue to be considered by the jury, the burden will be on the prosecution to disprove it. This is the same burden of proof as other defences, including self-defence.

312.     Subsection (7) sets out that, when the defence is successful, the defendant will be guilty of manslaughter instead of murder.

313.     Subsection (8) provides that even if one party to a killing is found not guilty of murder on the grounds of the partial defence of loss of self control, other parties may still be found guilty of murder (for example, if they acted without losing self control).

Clause 42: Meaning of “qualifying trigger”

314.     Clause 42 defines the term “qualifying trigger” for the loss of self-control in clause 41(1).

315.     Subsections (2) to (5) set out that the qualifying triggers for a loss of self-control can be where the loss of self-control was attributable to a fear of serious violence, to things done or said or to a combination of both.

316.     Subsection (3) deals with cases where the defendant lost self-control because of his or her fear of serious violence from the victim. As in the complete defence of self-defence, this will be a subjective test and the defendant will need to show that he or she lost self control because of a genuine fear of serious violence, whether or not the fear was in fact reasonable. The fear of serious violence needs to be in respect of violence against the defendant or against another identified person. For example, the fear of serious violence could be in respect of a child or other relative of the defendant, but it could not be against an unidentified group of people (for example a political group).

317.     Subsection (4) sets out when things said or done can amount to a qualifying trigger for the loss of self-control. The things said or done must amount to circumstances of an extremely grave character and cause the defendant to have a justifiable sense of being seriously wronged. Whether a sense of being seriously wronged is justifiable will be an objective question for a jury to determine (assuming that there is sufficient evidence for the defence to be left to the jury).

318.     Subsection (4), therefore, has the effect of narrowing the circumstances in which a partial defence is available where a person loses self-control in response to words or actions alone. The example that the Law Commission identified where the partial defence might apply would be a case where a parent arrives home to find his or her child has just been raped, and in response the parent loses self-control and kills the offender as he tries to escape.

319.     Subsection (5) allows the loss of self-control to be triggered by a combination of a fear of serious violence and things done or said which constitute circumstances of an extremely grave character and cause the defendant to have a justifiable sense of being seriously wronged.

320.     Subsection (6) makes further provision in relation to determining whether a loss of self-control has a qualifying trigger:

• Subsection (6)(a) provides that, when the defendant’s fear of serious violence was caused by something that the defendant incited for the purpose of providing an excuse to use violence, it is to be disregarded. The effect is that, in such a situation, the person would not be able to claim a partial defence based on his or her fear of serious violence.

• Subsection (6)(b) provides that, when the defendant’s sense of being seriously wronged by something done or said relates to something that the defendant incited for the purpose of providing an excuse to use violence, it is to be disregarded. The effect is that, in such a situation, the person would not be able to claim a partial defence based on the relevant things done or said.

• Subsection (6)(c) has the effect that, in determining whether a loss of self-control has a qualifying trigger, the fact that something done or said amounted to sexual infidelity (on the part of the victim or anyone else) is to be disregarded. The effect is that, if a person kills another because they have been unfaithful, he or she will not be able to claim the partial defence.

Clause 43: Abolition of common law defence of provocation

321.     Clause 43 abolishes the common law defence of provocation, and consequently repeals section 3 of the Homicide Act 1957 and the equivalent Northern Ireland provision, section 7 of the Criminal Justice Act (Northern Ireland) 1966). That section 3 supplemented the common law principles relating to provocation by providing that the issue of whether the provocation was enough to make a reasonable person do as the defendant did should be left to be determined by the jury. This has been interpreted as meaning that a judge must leave the partial defence to the jury even where the evidence is such that no jury properly directed could reasonably conclude that the defendant was acting reasonably. This is in contrast to the common law position that existed prior to the Homicide Act 1957, where the judge was not required to leave the issue to the jury in such circumstances.

Clause 44: Infanticide (England and Wales)

322.     Clause 44 amends section 1 of the Infanticide Act 1938 so that it is clear that the offence and defence of infanticide are available only in respect of a woman who would otherwise be found guilty of murder or manslaughter. Whilst it had generally been assumed in the past that infanticide could apply only in circumstances that would otherwise amount to the offence of murder, the Court of Appeal has ruled in R v Gore [2007] EWCA Crim 2789 that section 1 may apply whenever the requirements of infanticide are made out regardless of what offence would otherwise have been committed.

323.     Clause 44 limits infanticide to cases that would otherwise be murder or manslaughter through two changes. The first is to replace the words “notwithstanding that” with the word “if”. This resolves an uncertainty that has existed in the past about the meaning of the term “notwithstanding that” which at different times has been interpreted as meaning “even if” and “provided that”.

324.     The second is to explicitly state that infanticide can apply (provided all the other criteria for infanticide apply) where the offence would otherwise be murder or manslaughter.

325.     The combined effect of the two changes is that infanticide can apply “if the circumstances were such that but for the Infanticide Act 1938 the offence would have amounted to murder or manslaughter”.

Clause 45: Infanticide (Northern Ireland)

326.     This clause makes provision for Northern Ireland equivalent to clause 44.

Clause 46: Encouraging or assisting suicide: England and Wales

327.     Section 2(1) of the Suicide Act 1961 currently provides that a person who “aids, abets, counsels or procures” the suicide or attempted suicide of another person commits an offence (the substantive offence). By virtue of section 1 of the Criminal Attempts Act 1981 it is also an offence to attempt to aid, abet, counsel or procure the suicide or attempted suicide of another person (the attempt offence). Clause 46 replaces the substantive and attempt offences with a single offence expressed in terms of “encouraging or assisting” the suicide or attempted suicide of another person. The clause modernises the language of the current law with the aim of improving understanding of this area of the law. It is in line with the case law relating to the existing substantive and attempt offences. The clause does not change the scope of the current law, when section 2 of the Suicide Act 1961 is read in combination with section 1 of the Criminal Attempts Act 1981.

328.     Subsection (2) replaces section 2(1) of the Suicide Act 1961. It provides that a person will commit an offence if he or she does an act which is capable of encouraging or assisting another person to commit or attempt to commit suicide, and if he or she intends the act to encourage another person to commit or attempt to commit suicide. The person committing the offence need not know, or even be able to identify, the other person. So, for example, the author of a website promoting suicide who intends that one or more of his or her readers will commit or attempt to commit suicide is guilty of an offence, even though he or she may never know the identity of those who access the website.

329.     Subsection (3) amends section 2(2) of the Suicide Act 1961 so that the language is consistent with the new section 2(1).

330.     Subsection (4) inserts new sections 2A and 2B into the Suicide Act 1961. The new section 2A elaborates on what constitutes an act capable of encouraging or assisting suicide. Section 2A(1) provides that a person who arranges for someone else to do an act capable of encouraging or assisting the suicide or attempted suicide of another person will be liable for the offence if the other person does that act. Section 2A(2) has the effect that an act can be capable of encouraging or assisting suicide even if the circumstances are such that it was impossible for the act to actually encourage or assist suicide. An act is therefore treated as capable of encouraging and assisting suicide if it would have been so capable had the facts been as the defendant believed them to be at the time of the act (for example, if pills provided with the intention that they will assist a person to commit suicide are thought to be lethal but are in fact harmless) had subsequent events happened as the defendant believed they would (for example, if lethal pills which were sent to a person with the intention that the person would use them to commit or attempt to commit suicide get lost in the post). Section 2A(3) clarifies that references to doing an act capable of encouraging or assisting another to commit or attempt suicide include a reference to doing so by threatening another person or otherwise putting pressure on another person to commit or attempt suicide. The new section 2B provides that an act includes a course of conduct.