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FINANCIAL EFFECTS OF THE BILL
774. The Bill is currently expected to result in gross costs of £17.1M/£55.6M/£58.7M for the financial year 2009-2010, 2010-2011 and 2011-2012 respectively and net costs (having regard to fee income in respect of the death certification and data protection provisions) of £8.6M/£10.6M/£13.7M. These figures are based on a number of assumptions about implementation which are subject to review.
775. In addition to the net savings identified above, the provisions in the Bill once fully implemented will result in a net increase of up to 300 in the requirement for prison places (at a cost of £60M capital and £12M resource). The estimated impact on the prison population of individual provisions in the Bill is:
- The reform of the law on homicide (clauses 39 to 45) - an increase of 200 places;
- The investigation witness anonymity order (Chapter 1 of Part 3) - an increase of 50 places;
- Conspiracy (clause 57) - an increase of 15 places;
- Driving Bans (clause 119 and Schedule 14) - an increase of 13 places;
- Extension of public protection sentences for certain terrorist offences (clauses 120 and 121) - an increase of 30 places.
776. The main financial implications of the Bill for the public sector lie in the following areas:
Part 1 - Coroners etc
777. The reform of the coroner service will have some effect on public expenditure. Local authorities will retain responsibility for funding their local coroner but, in line with Government policy, the Ministry of Justice is committed to funding any net additional costs that fall on local government which arise from changes made by the reforms. The best current estimate is that the initial start up costs for the reformed service will be £15M, with additional running costs in the region of £6M per annum.
778. There is the possibility of economies of scale savings to be made by local authorities when existing coroner areas are grouped together to produce larger ones. This has occurred previously where local authorities have voluntarily amalgamated.
779. The estimated annual cost of the proposed death certification system is £40M for each of the financial years 2010-2011 and 2011-2012. This compares with a cost of £45M for the existing system. The costs for both systems are funded by the payment of certification fees. There is a one-off set up cost of £1M which will fall in the financial year 2009-2010.
Part 3 - Criminal Evidence, Investigations and Procedure
780. The introduction of the investigation witness anonymity order will result in estimated costs to Her Majesty’s Courts Service (HMCS) of £931K, the CPS of £367K and to the LSC of £727K for each of the financial years 2009-2010, 2010-2011 and 2011-2012,
Part 4 - Sentencing
781. The Sentencing Council for England and Wales is estimated to have annual running costs of £1.79M in 2010-2011 and £1.81M in 2011-2012; this compares with the combined annual running costs of the SAP and the SGC of £1.33M in 2009-2010. There will be set up costs for the Council of £130K in 2009-2010. In addition, the creation of the council will lead additional costs for HMCS of £306K for the financial year 2009-2010 and £162K for the financial year 2010-2011.
Part 5 - Miscellaneous Criminal Justice Provisions
782. The creation of the post of Victims and Witnesses Commissioner will lead to additional cost of £250k in each of the financial years 2010-2011 and 2011-2012.
Part 7 - Criminal Memoirs etc
783. The creation of a civil scheme to recover profits made by convicted criminals from books and other publications about their crimes will result in estimated costs to HMCS of £67K and to LSC of £24K, in each of the financial years 2009-2010, 2010-2011 and 2011-2012. Costs to the Serious Organised Crime Agency are estimated at £280K per annum over the same period.
Part 8 - Data Protection Act 1998
784. The amendments to the 1998 Act will lead to additional costs to the Information Commissioner’s Office of £8.5M in 2009-2010, £6M in 2010-2011 and £6M in 2011-2012. Notification fees paid by data controllers when registering with the Commissioner fund his data protections responsibilities and these additional costs will be met from a new funding structure being implemented under the existing legislation.
785. The other provisions of the Bill are largely cost neutral, or will result in minor savings.
EFFECTS OF THE BILL ON PUBLIC SECTOR MANPOWER
786. Public service manpower will be affected by the reform of the coroner service in that the number of coroners will change as the service moves from approximately 110 coroners, working full and part time, to around 60 to 65 coroners working full time, along with locum assistants. However, the Government does not envisage that the number of coroners’ officers who are employed by the police in the majority of cases, and local authorities in others, or the numbers of administrative staff will be affected by the changes in Part 1 of this Bill. The Government expects the office of the Chief Coroner to have 29 staff, although this only represents a net increase of 14 as the office will take on some current policy functions carried out within the Ministry of Justice. The death certification provisions will require some 240 (full time equivalents) Medical Examiners and an equal number of Medical Examiners Officers.
787. The Sentencing Council for England and Wales will have some 20.5 staff, compared with the 13 staff currently employed by the SAP and the SGC. The Office of the Information Commissioner currently has a staffing complement of some 261. The Government expects the increase in the Information Commissioner’s inspection powers to result in an increase of 72 staff.
788. The Commissioner for Victims and Witnesses is expected to be supported by 3 staff.
789. No other provisions of the Bill are expected to have a net impact on public service manpower.
SUMMARY OF IMPACT ASSESSMENTS
790. Eight impact assessments and one overarching impact assessments have been published alongside the Bill. The individual impact assessments deal with the following provisions
- establishment of the sentencing council;
- investigation anonymity orders;
- enhancing the inspection powers of the Information Commissioner.
791. The provisions of the Bill impact mainly on the bereaved, victims, witnesses and the public who come into contact with the criminal justice system and the public sector (primarily medical practitioners; coroners, coroner’s officers, local authorities; police, courts and other agencies within the criminal justice system and the coroners service; and public sector bodies in their capacity as data controllers). Where the private and voluntary sectors will be engaged, the business sectors affected are: funeral industry and crematoria; data controllers; financial services providers regulated by the Financial Services Authority; bodies regulated by the Department for Business, Enterprise and Regulatory Reform; internet service providers; and the media and publishing industry.
792. The costs of the Bill are outlined in paragraphs 774 to 785 of these explanatory notes.
EUROPEAN CONVENTION ON HUMAN RIGHTS
793. Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement before Second Reading about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The Lord Chancellor and Secretary of State for Justice, the Rt. Hon. Jack Straw MP, has made the following statement:
“In my view the provisions of the Coroners and Justice Bill are compatible with Convention rights.”
Part 1: Coroners etc
Duty to investigate death where deceased died while in custody or otherwise in state detention
794. Clause 1 sets out when the duty to investigate deaths applies. A senior coroner who is made aware that the body of a deceased person is within that coroner’s area must conduct an investigation into the person’s death if he has reason to suspect any of three things. The first two - that the deceased died a violent or unnatural death, or the cause of death is unknown - are broadly equivalent to section 8(1)(a) and (b) of the 1988 Act. The third - that the deceased died while in custody or otherwise in state detention - extends the statutory duty to investigate beyond the current duty to investigate deaths “in prison” (section 8(1)(c) of the 1988 Act). This enhances the UK’s ability to meet the procedural requirements of Article 2 of the ECHR; “custody” would include prisons, police cells, court cells, young offender institutions and secure training centres. The requirement to investigate deaths in “state detention” will also mean that there will be an automatic investigation into, for example, the death of a person who is being detained by a constable without actually being taken into custody, a person who is being detained compulsorily under mental health legislation or immigration and asylum legislation, and a person in custody or a detained person in the above categories who is being transported from one place to another. It would also cover the case of children placed in secure accommodation. It will not matter whether the detention is lawful or unlawful.
Purpose of investigation
795. The purpose of an investigation is to ascertain who the deceased was, and how, when and where the deceased came by his or her death (clause 5(1)). Where necessary for the purpose of avoiding a breach of Convention rights, the purpose of an investigation includes ascertaining in what circumstances the deceased came by his or her death (clause 5(2)).
796. In R v HM Coroner for the Western District of Somerset and another ex parte Middleton 1, the House of Lords gave detailed guidance for the conduct in future of inquests into deaths in custody where Article 2 is engaged. This looked specifically at whether the statutory scheme under the 1988 Act and the 1984 Rules was compatible with the ECHR. They held that it was - but only because the word “how” was taken to mean “by what means and in what circumstances”. The new provision makes the position expressly clear. The clauses therefore ensure that investigations into deaths under the Bill are compatible with the ECHR as determined by Middleton.
797. In Jordan v UK 2, the European Court of Human Rights (ECtHR) set out the criteria required for an Article 2-compliant investigation. These include the need for an investigation that is capable of leading to a determination of whether any force used was justified, and the identification and punishment of those responsible for the death. The fact that clause 10 prevents a determination being framed in a way which determines criminal liability on the part of a named person does not mean that the coroner’s investigation would not satisfy this requirement. The obligations arising from Jordan concern procedure rather than results. The authorities must take the reasonable steps available to them to secure the evidence concerning the incident, including eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. The obligation arising from Jordan is not that the result of the investigation will be the allocation of blame and the imposition of a punishment, but that the investigation is provided with the means of establishing what happened. In this respect, the Bill provides the coroner with powers to secure evidence from witnesses and to gather evidence, and this is dealt with below.
Investigations concerning or involving a matter which should not be made public
798. Clause 11 relates to “certified” investigations. It would enable the Secretary of State to certify an investigation into a person’s death where he or she considers that the investigation will concern or involve a matter that should not be made public for certain specified reasons (clause 11(2)), and no other measures would be adequate to prevent that matter being made public. Those reasons relate to protecting the interests of national security, the relationship between the UK and another country, or preventing or detecting crime; protecting the safety of a witness or other person; and preventing real harm to the public interest.
The effect of certification is three-fold: the investigation will be conducted by a judge of the High Court nominated by the Lord Chief Justice; the inquest must be held or continued without a jury: and Coroners rules will provide for the exclusion of persons from the inquest. Certification can be discontinued (clause 12). However the certification will not have effect for 14 days from the date of the certification or, if proceedings for judicial review are started within that period, until the conclusion of those proceedings.
799. These provisions will enable there to be full investigations of deaths even where there is sensitive material, including intercept material falling within section 17 of RIPA, which must be considered but which cannot be disclosed publicly (including to a jury) or to the families of the deceased. This ensures compliance with Article 2 ECHR.
800. At present, inquests must be held with a jury if (for example) the death occurred in prison or while the deceased was in police custody or where death resulted from an injury caused by a police officer in the purported execution of his duty. Cases may therefore arise where a coroner is obliged to summon a jury but where there is sensitive material, including RIPA material, which is relevant to the assessment of the circumstances which led to the death but which cannot be disclosed publicly (including to the jury (as the finders of fact)) or to the family of the deceased.
801. The new regime is intended to address this by:
- providing for the investigation to be certified if it concerns or involves a matter (which would include RIPA material) which cannot be disclosed, the effect of which is that the inquest will be held without a jury; and
- amending section 18 of RIPA to permit a judge, in any certified inquest, to order disclosure of RIPA material to himself or herself alone, or to himself or herself and to counsel to the inquest where he or she is satisfied that the exceptional circumstances of the case make the disclosure essential to enable the matters that are required to be ascertained by the inquest to be ascertained.
802. Article 2 requires not only an independent and effective investigation of the circumstances of the death but also requires the State to provide a means of properly protecting the interests of the deceased’s family. Proceedings at a coroner’s inquest are not, at present, considered to be sufficient to meet Article 2 obligations in such
cases since the inquest must be held with a jury but the material cannot be disclosed to jury members or to the public or interested persons.
803. In terms of family involvement, the sole requirement - so far as Article 2 is concerned - stems from the decision in Jordan that the next-of-kin of the deceased must be involved in the procedure to “the extent necessary to safeguard their legitimate interests”. Article 2 does not therefore give the public and next-of-kin an absolute right to be present at all times or to see all the material relevant to the investigation. The Government considers that the courts are very likely to accept that it is consistent with Article 2 for sensitive material not to be made public or disclosed to the next-of-kin where this is required by a substantial public interest.
804. In order to ensure that the interests of the next-of-kin are fully protected provision will be made in rules enabling the coroner to appoint independent counsel to the inquest. As a public authority, the coroner will be required to appoint counsel to an inquest where necessary to avoid a breach of Convention rights. Counsel to the inquest will be able to see the material and would be directed, by the coroner, to take responsibility for testing the evidence which cannot be disclosed publicly or to the next-of-kin, acting in effect as special advocate. Although counsel to the inquest would not be independent of the inquest, the Government considers that this is not vital since the coroner (who will be a High Court judge) will be independent - and for the purposes of complying with Article 2, “independent” means independent of those involved in the death.
805. Although Coroners rules under clause 34(4) will require a direction to be given excluding persons from all or part of an inquest that has to be held without a jury, such a direction will only be necessary when the inquest is considering sensitive material. The rest of the inquest will continue to take place in public ensuring public scrutiny of the investigation so far as possible.
806. There is a further safeguard in subsection (5) which prevents the certification from having effect until 14 days after it was issued or, if judicial review proceedings are begun in that 14 day period, until they are concluded. The Secretary of State will have a responsibility to notify interested persons about the certification and they will have time to consider whether to commence judicial review proceedings before the certification takes effect.
807. These provisions will affect a very limited number of cases in exceptional circumstances and the Government anticipates that there will be no more than an occasional inquest which needs to be held under these conditions.
808. The Government is aware of at least one inquest which is stalled because the coroner and jury are unable to consider sensitive material which is relevant to the investigation. The Bill therefore enables the Lord Chancellor by order to apply the
equivalent of clauses 11 and 12 to inquests which have already started under the 1988 Act before those provisions come into force (paragraph 4 of Schedule 20 to the Bill).
809. Clause 13 enables intercept evidence to be considered at an inquest although it will remain inadmissible in criminal proceedings. However there is no possibility of a coroner’s investigation reaching a different conclusion to criminal proceedings. Criminal proceedings always take place before a coroner’s investigation since the coroner is required to suspend an investigation under the Act until the outcome of criminal proceedings. A determination of a coroner’s investigation resumed after criminal proceedings have concluded may not be inconsistent with the outcome of the criminal proceedings (paragraph 8(11) of Schedule 1). Equally a determination may not be framed in such a way as to appear to determine any question of criminal liability on the part of a named person (clause 10(2)(a)).
810. Provision equivalent to the certified investigation provisions described above will have effect in Northern Ireland by virtue of paragraph 3 of Schedule 9.
Suspending and resuming investigations
811. Investigations may be suspended and resumed (clause 14 and Schedule 1). In particular, a senior coroner must suspend an investigation where criminal proceedings may be brought (if the prosecution so request) or where they have been brought. A senior coroner must also suspend an investigation if an inquiry under the Inquiries Act 2005 is being held and the Lord Chancellor asks the coroner to do so because the cause of death is likely to be adequately investigated by the inquiry. There is also a general power for a senior coroner to suspend an investigation if he or she thinks it appropriate to do so.
812. An investigation suspended by a coroner may not be resumed unless, but must be resumed if, the senior coroner thinks that there is sufficient reason for resuming it.
813. There is no provision in the Bill requiring an investigation to be resumed in circumstances where it is needed to fulfil the requirements of Article 2. The need could arise because the criminal investigation did not examine all the material that the coroner is required to make findings on under Article 2, for example, because the defendant in the criminal proceedings pleaded guilty.
814. The Government considers that it is not necessary to make express provision in the Bill requiring an investigation to be resumed in these circumstances because the coroner would already be required by section 6(1) of the HRA 1988 to resume the investigation if that is in fact necessary to secure compliance with Article 2. Such provision would in any event be duplicative and so contrary to proper legislative practice.
Post-mortem examination
815. A coroner may ask a suitable practitioner to make a post-mortem examination of the deceased (clause 15). This would include any examination made after the death of the deceased, whether invasive or non-invasive, for example, using MRI since an invasive post-mortem involves dissection of the body it runs counter to certain religious beliefs and could therefore engage the deceased’s family members’ right to manifest religious belief under Article 9. The Government considers that an invasive post-mortem examination would be justified, even where it infringes their religious belief, where it contributes to the purpose of an investigation in promoting and protecting public safety and health.
816. In any event the Government considers that the provision is not disproportionate in effect. Regulations made under the Bill will enable the deceased’s family members to make representations to the coroner about whether a post-mortem examination should take place. A coroner will be required to take into account representations from family members to use non-invasive procedures at a post-mortem although the final decision will be for the coroner.
817. In such a case the coroner will be able to order the removal of a body to any suitable place in England and Wales (clause 16), for example, if specialist pathology equipment or skills are available outside his area.
Death certification
818. Clauses 18 and 19 provide for the scrutiny and secondary certification of deaths not subject to investigation by a senior coroner. In particular, such scrutiny is to be carried out by a medical practitioner who will have the title “medical examiner”. This reflects certain conclusions of the Third Report of the Shipman Inquiry.
819. Insertion of an additional step in the death certification process arguably could delay the disposal of bodies. This might give rise to concerns for various religious groups whose practices demand that disposal takes place as soon as possible after death and therefore bring into play Article 9(1). The ECtHR has held that the right to have a burial in accordance with the practice of a certain religion does come within Article 9(1) (Islamic Community in Bosnia and Herzegovina v. Serbia (Burials and Cremation). 3
820. In the Government’s view these provisions do not infringe Article 9(1). The procedures which will be put in place to enable the medical examiner to carry out the scrutiny will ensure that any additional delay will be kept to an absolute minimum. Indeed, given the use of electronic communications, it is entirely possible that there would be no additional delay at all. In any event, it is important to note that this procedure will apply only in the most straightforward cases - where the cause of death is known, natural and non-suspicious - and so it is in everyone’s interest to expedite the certification process.
Gathering of evidence
821. Clause 24 and Schedule 4 set out the powers of a senior coroner. These include power to require people to attend and give evidence, to provide evidence by way of a written statement, and to produce documents and things.
822. These powers of compulsion could engage rights under both Article 8 and Article 1, Protocol 1 (“A1P1”). But unless a coroner (or, where relevant, jury) can ascertain all relevant facts and inspect all relevant material it will make it impossible to comply with the obligations under clauses 5 and 10 of the Bill. Powers to compel evidence are also a necessary corollary of the state’s duty to discharge obligations under Article 2. In Edwards v UK 4, it was held that the lack of any power to compel witnesses diminished the effectiveness of the inquiry as a mechanism to investigate and establish the facts relevant to the death, and thereby to achieve one of the purposes required by Article 2.
823. Whether any interference with the right to privacy is justifiable will depend on the particular circumstances of the case and it will be for the coroner to ensure that he only exercises the powers in a way which ensures that any interference is in pursuit of a legitimate aim and proportionate to the aims, thus falling within Article 8(2).
824. Interference with an A1P1 right may be justified if it is in the public or general interest. The Government is satisfied that any interference here will be justified in the public or general interest because an investigation of a non-natural death must reach conclusions based on all relevant information.
825. There are also safeguards in the Bill to ensure that any interference is not disproportionate. By paragraph 1(4) of Schedule 4, the person required to attend, or produce a document or thing may claim that compliance is either impossible or unreasonable, and the coroner has the power to vary or revoke the notice given. When considering whether to do so, the coroner must take into account the public interest (paragraph 1(5) of Schedule 4). This ensures that the coroner considers whether a fair balance will be struck between the competing interests whenever he considers whether to exercise the powers of compulsion. 5 Furthermore, a person may not be required to give, produce or provide any evidence or document if he or she could not be required to do so in civil proceedings (paragraph 2).
826. Procedural safeguards will also apply. In particular, any notice of compulsion must tell the person how to make a claim that he or she is unable to comply with the notice or that it is not reasonable to require him or her to comply (paragraph 1(3)(b) of Schedule 4). The coroner’s decision will also be capable of challenge by way of appeal to the Chief Coroner.
827. Equivalent provision will have effect in Northern Ireland by virtue of paragraph 1 of Schedule 9.
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