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These notes refer to the Lords Amendments to the Coroners and Justice Bill as brought from the House of Lords on 5 November 2009 [Bill 160]

CORONERS AND JUSTICE BILL


EXPLANATORY NOTES ON LORDS AMENDMENTS

INTRODUCTION

1.     These explanatory notes relate to the Lords amendments to the Coroners and Justice Bill as brought from the House of Lords on 5 November 2009. They have been prepared by the Ministry of Justice in order to assist the reader of the Bill and the Lords amendments and to help inform debate on the Lords Amendments. They do not form part of the Bill and have not been endorsed by Parliament.

2.     These notes, like the Lords amendments themselves, refer to HL Bill 33, the Bill as first printed for the Lords.

3.     These notes need to be read in conjunction with the Lords amendments and the text of the Bill. They are not, and are not meant to be, a comprehensive description of the effect of the Lords amendments.

4.     All the Lords amendments were in the name of the Minister, except for amendments 1, 2, 55, 59, 66, 119, 121, 216, 236 and 239 which were opposed by the Government, and amendments 89, 90, 91 and 156 which were supported by the Government. (In the following Commentary, an asterisk appears in the heading of each of the paragraphs dealing with a non-Government amendment which was opposed by the Government.)

COMMENTARY ON LORDS AMENDMENTS

*Lords Amendments 1, 2 and 216

5.     Amendment 1 would introduce a new clause amending section 15 of the Regulation of Investigatory Powers Act 2000 (“RIPA”) which requires the Secretary of State to ensure that appropriate arrangements are in place to secure that matters such as the use, copying, disclosure and retention of intercepted material are limited to the minimum that is “necessary for the authorised purposes”. The clause would extend the definition of when something is necessary for the authorised purposes to include cases where it is necessary to ensure that an inquest has the information it needs to enable the matters required to be ascertained by the investigation to be ascertained. Bill 160-EN     54/4

6.     Amendment 2 would introduce a new clause which would amend section 18 of RIPA to allow disclosure of intercept material to a coronial judge, a person appointed as counsel to an inquest, the jury, and other interested persons if (but only if) the coronial judge is satisfied that the circumstances of the case make the disclosure necessary to enable the matters required to be ascertained by the investigation to be ascertained. The order for disclosure may include directions requiring the redaction of any material relating to the method or means by which the information was obtained.

7.     Amendment 216 would provide that the amendments to RIPA made in amendments 1 and 2 apply to inquests that are in progress when those amendments come into force, as well as those that may occur in the future.

Lords Amendments 3, 6, 7, 32, 42, 43, 45, 53, 111, 113, 117, 152 and 218

8.     Amendments 6 and 7 would remove clauses 11 and 12 from the Bill. Amendments 3, 32, 42, 43, 45, 111, 113 and 117 would make consequential amendments arising from the removal of clauses 11 and 12.

9.     Amendments 53 and 152 would remove the equivalent proposed provisions for Northern Ireland, whilst amendment 218 would remove associated transitional arrangements from the Bill.

Lords Amendments 4, 5 and 130

10.     Clause 8 reduces the size of a coroner’s jury to between 6 and 9 persons, and clause 9 allows a majority determination to be made with the agreement of only 5 persons (6 if the jury comprises 9 persons). These amendments would revert to the position under the Coroners Act 1988 with regard to inquest jury numbers and the size of the majority required for a valid majority determination to be returned. The amendments therefore would require that a jury must comprise between 7 and 11 persons, and that if a unanimous determination cannot be reached, the number of dissenters to a determination must be no more than 2 for it to be valid.

Lords Amendments 8, 10 and 48

11.     These amendments would require the Chief Coroner to monitor investigations into the deaths of service personnel who die in active service, in preparation for or in support of active service, or in training for active service; and to ensure that coroners who conduct these investigations are suitably trained to do so.

Lords Amendments 9 and 22

12.     Amendment 9 would insert a new clause placing a duty on a senior coroner to notify the Chief Coroner of any investigation into a person’s death that has not been completed or discontinued within 12 months beginning with the date on which the coroner was made aware that the person’s body was within the coroner’s area. A senior coroner would also be under a duty to notify the Chief Coroner of the date on which the investigation is concluded or discontinued. The new clause would also require the Chief Coroner to keep a register of the notifications given, under this provision, by senior coroners.

13.     Amendment 22 would require the Chief Coroner’s annual report to the Lord Chancellor, under clause 29, to include a summary for the year of the number and length of investigations in respect of which notifications are given under the above clause together with the reasons for the length of those investigations and any action taken to keep them from being unnecessarily lengthy.

Lords Amendment 11

14.     Clause 20(6) provides that section 7 (regulations as to burning) of the Cremation Act 1902 (“the 1902 Act”) does not require the Secretary of State to make regulations, or to include any provision in regulations, if or to the extent that he or she thinks it unnecessary to do so in consequence of provision made by regulations under clause 20. Amendment 11 would amend clause 20 so as to broaden the circumstances in which the Secretary of State was not required to make regulations under the 1902 Act. Under the amendment the Secretary of State would not be required to make regulations if they are unnecessary in consequence of regulations made under Part 1 of the Bill, or provision contained in or made under Part 2 of the Births and Deaths Registration Act 1953 (“the 1953 Act”) in relation to England and Wales.

15.     Regulations made under clause 35(3)(g) of the Bill may make regulations under the 1902 Act unnecessary, except in Scotland. Similarly the provisions in the 1953 Act (as amended by Schedule 19 to this Bill) about certificates of cause of death (section 22) and certificates as to registration of death (section 24) may similarly make regulations under the 1902 Act unnecessary in England and Wales.

Lords Amendments 12 and 125

16.     Amendments 12 and 125 would allow the Secretary of State to appoint a National Medical Examiner. The National Medical Examiner would issue guidance to medical examiners with a view to securing that they carry out their functions in an effective and proportionate manner.

Lords Amendments 13 to 18, 20, 21, 23, 26, 27, 29 to 31, 33 to 41, 44, 46, 47, 49, 50, 52, 131, 132, 134, 138 to 144, 146 to 148, 151, 186 to 189, 192 to 197 and 217

17.     These amendments would make provision for the appointment of a Coroner for Treasure who would conduct investigations into whether or not objects which have been found in England and Wales are treasure or treasure trove. The amendments would enable the Chief Coroner to designate assistant coroners to act as Assistant Coroners for Treasure, who may perform the functions of the Coroner for Treasure when he or she is absent or unavailable, during a vacancy or with the Coroner for Treasure’s consent. The amendments would make provision for interested persons, who would be defined to include the British Museum and the National Museum of Wales, to appeal against certain decisions to the Chief Coroner. They would also enable regulations made by the Chief Coroner about training to include the training of the Coroner for Treasure, any Assistant Coroners for Treasure and their administrative staff.

18.     The amendments would provide for an exception to the duty to conduct an investigation concerning treasure where notice is given disclaiming any title to the object by the Crown, where the object would vest in the Crown if it was found to be treasure, or a franchisee under the Treasure Act 1996 (such as the City of London, City of Bristol, Duchy of Cornwall and the Duchy of Lancaster), or where the object would vest in the franchisee if the object was found to be treasure trove. In such a case the Coroner for Treasure may not conduct an investigation and may return the object to a person in accordance with the Treasure Act Code of Practice. The amendments would also extend the time within which proceedings may be brought for an offence of failing to report a find under section 8 of the Treasure Act 1996.

19.     The amendments would also extend the powers in Schedule 5 - powers to require evidence to be given or produced and power to seek authorisation to enter and search land - to the Coroner for Treasure. This would enable the Coroner for Treasure to require persons to produce evidence, which would include the object of the investigation, so that it may be examined for the purposes of an investigation. The amendments would also enable the Chief Coroner to direct the Coroner for Treasure to investigate a death if required.

Lords Amendments 19, 190 and 191

20.     Amendment 19 would insert a new section 8A into the Treasure Act 1996 which would impose a duty on a person who acquires property in an object to notify the Coroner for Treasure if he or she believes (or if he or she has reasonable grounds for believing) that the object is treasure, and if he or she believes (or has reasonable grounds for believing) that no one has already notified the Coroner for Treasure. The amendment would require this notice to the Coroner for Treasure to be given within 14 days beginning with the date that the person acquired property in the object or, if later, the date the person first believes (or has reason to believe) that the object is treasure and notification has not already been given to the Coroner for Treasure. Subsection (3) of the section 8A inserted by amendment 19 would create a new offence of failing to comply with the duty to notify the Coroner for Treasure if notification regarding the object has not already been given either by a finder of the object or any other acquirer of it and if there has been no treasure investigation in relation to the object. It would be a defence to have had, and to continue to have, a reasonable excuse for failing to notify the Coroner for Treasure. The amendment would also amend section 10 of the Treasure Act 1996 to enable a reward to be paid to a person who gives notice under this provision.

21.     Amendment 190 would amend section 8 of the Treasure Act 1996, which imposes a duty on the finder of an object to notify a coroner, so that the obligation is instead to notify the Coroner for Treasure.

22.     Amendment 191 would amend the Treasure Act 1996 to enable a requirement to give notification to the Coroner for Treasure to be complied with by giving notification to a designated officer, if there is one in the area. A “designated officer” would be an officer designated by the Secretary of State in an order made by statutory instrument. These officers, who are most likely to be officers who work in local museums, would then pass on the information to the Coroner for Treasure.

Lords Amendments 24, 25, 133 and 135

23.     These amendments concern coroners’ powers of search and entry when conducting investigations. Paragraph 3(1) of Schedule 5 enables a senior coroner to enter and search land if authorised by the Chief Coroner, or a senior coroner nominated by the Chief Coroner to give authorisation. These amendments firstly would remove the requirement for the authorisation to be in writing, thus enabling authorisation to be sought and given over the telephone. Secondly the amendments would require the person giving the authorisation to make a record of the reasons for suspecting that there may be anything on the land which relates to a matter that is relevant to the investigation and specifying which of the conditions in paragraph 3(3) of Schedule 5 is met. Thirdly they would require the Chief Coroner’s annual report to the Lord Chancellor to include a summary of the matters recorded by persons giving authorisations.

Lords Amendments 28 and 150

24.     Amendments 28 and 150 would make provision for the appointment of a person as Medical Adviser to the Chief Coroner.

25.     The Medical Adviser to the Chief Coroner would be appointed by the Lord Chancellor, following consultation with the Chief Coroner and Welsh Ministers. Terms and conditions would be set by the Lord Chancellor as he considers appropriate.

26.     The Government envisages that the postholder would fulfil a strategic role in that the postholder would liaise with other Government appointees and organisations such as the Human Tissue Authority and the Commissioner for Mental Health, as well as specialists in particular medical fields. He or she would represent the Chief Coroner at national level with organisations such as the British Medical Association, the General Medical Council, the Royal College of Pathologists and the Department of Health. More particularly, he or she would liaise with the National Medical Examiner, who will have oversight of the new medical examiner system. There will be responsibility for formulating, promulgating and monitoring the use of best practice for medical aspects of the coroner system including post mortem examinations, the release of bodies and organ and tissue retention.

Lords Amendments 51, 126, 136 and 175 to 177

27.     Clause 39 and Schedule 1 in relation to coroners and Schedule 15 in relation to the treatment of convictions in other EU member States, include various references to a “service offence”; this term is defined by reference to the Armed Forces Act 2006, which repeals the existing service disciplinary Acts. That definition is too narrow and these technical amendments would be designed to ensure that it is sufficiently broad for those purposes.

Lords Amendment 54 and 233

28.     Section 6(6) of the Access to Justice Act 1999 states that the Legal Services Commission may not fund, as part of the Community Legal Service, any of the services specified in Schedule 2 to that Act. Paragraph 2 of Schedule 2 states that the Legal Services Commission may not fund advocacy, except in the circumstances listed in that paragraph.

29.     Amendment 54 would add a new clause which would amend the list in paragraph 2 of circumstances where advocacy can be made available by adding (a) inquests into the deaths of British service personnel who die while on active service, and (b) inquests into the deaths of persons who die while in the custody of the State, or those who die in the course of a police action or arrest. The Legal Services Commission would be authorised to fund advocacy for family members to be represented at such inquests, subject to the funding criteria in the Funding Code made under section 8 of the Access to Justice Act 1999 being met. Funding would also be subject to a means test. Amendment 223 would make a consequential repeal to the Access to Justice Act 1999.

*Lords Amendment 55

30.     Clause 45(6)(c) makes it clear on the face of the Bill that the fact that a thing said or done constituted sexual infidelity must be disregarded by the jury when deciding whether a loss of self control had a qualifying trigger. Amendment 55 would remove this paragraph.

Lords Amendments 56 and 118

31.     Amendment 56 introduces a new clause which would make amendments to Part 5 of the International Criminal Court Act 2001 in respect of the offences of genocide, war crimes and crimes against humanity. Firstly, the new clause would make provision for the retrospective application of the offences of genocide, war crimes and crimes against humanity and related offences from 1st January 1991. The new clause would also modify the penalties applicable to the offences for the period of retrospection in respect of certain specific offences. Secondly, the new clause would make supplemental provision about UK residents. Such residents are liable under the 2001 Act for offences committed abroad if they are residents at the time or subsequently become resident. The new clause would add a list of persons who are to be treated as resident in the UK for the purposes of Part 5 of the 2001 Act to the extent that it would not otherwise be the case. The new clause would also provide the courts with a non-exhaustive list of factors to consider when assessing whether a person is a UK resident. The new clause would apply to England and Wales and Northern Ireland.

32.     Amendment 118 would make provision in respect of section 79(3) of the International Criminal Court Act 2001. That section permits Her Majesty to make provision by Order in Council to extend provisions of the 2001 Act to any of the Channel Islands, Isle of Man or any colony. The effect of the amendment would be that the power in section 79(3) may be exercised in respect of the 2001 Act as amended by Amendment 56.

Lords Amendments 57, 114 and 219

33.     Amendment 57 inserts a new clause into the Bill. Subsection (1) of the new clause would create a new offence in England and Wales and Northern Ireland of holding someone in slavery and servitude, or requiring a person to perform forced or compulsory labour.

34.     Subsection (2) of the new clause would require subsection (1) to be interpreted in accordance with Article 4 of the European Convention on Human Rights.

35.     In England and Wales and Northern Ireland on conviction on indictment the maximum sentence for this new offence would be imprisonment for 14 years.

36.     The maximum sentence on summary conviction of this new offence in England and Wales would be six months’ imprisonment. On the commencement of section 154(1) of the 2003 Act, the maximum sentence on summary conviction in England and Wales would rise to 12 months (see paragraph 14(1) of Schedule 20 to the Bill). The maximum custodial penalty on summary conviction in Northern Ireland would be six months. Amendments 114 and 219 would be consequential amendments.

Lords amendments 58, 115, 122, 123, 124, 199, 234, 235, 237 and 240

37.     Amendment 58 would abolish the common law offences of sedition, seditious libel, defamatory libel and obscene libel in England and Wales and Northern Ireland. Amendments 115, 122, 123, 124, 199, 234, 235, 237 and 240 would make consequential amendments to the minor and consequential amendments and repeals schedules and to the extent and commencement clauses.

* Lords Amendments 59, 119, 121, 236 and 239

38.     Amendment 59 would retain the provision on “freedom of expression” applicable to the offence of stirring up hatred on the grounds of sexual orientation. The “freedom of expression” provision is currently in section 29JA of the Public Order Act 1986. Clause 61 deletes section 29JA. This amendment would remove that clause, and would therefore retain the “freedom of expression” provision. Amendments 119, 121, 236 and 239 would make consequential amendments.

Lords Amendment 60

39.     This amendment would require the Secretary of State to undertake a review of the operation of investigation anonymity orders and provide Parliament with a report of the review within 2 years of the commencement of clause 65.

Lords Amendment 61

40.     This amendment would ensure that where the court that makes a witness anonymity order is a magistrates’ court, it will be open to any magistrates’ court in the same local justice area (or the same petty sessions district in Northern Ireland) to discharge or vary the order, not only the court that originally made the order. There might otherwise be difficulties if, for example, a member of the court that made the order were to retire.

Lords Amendment 62

41.     Clause 86 determines eligibility for special measures for witnesses to gang and gun crime by reference to a list of relevant offences; that list may be amended by order. This amendment would ensure that the exercise of this power would attract the affirmative resolution procedure (as recommended by the Delegated Powers and Regulatory Reform Committee (7th Report, session 2008/09)).

Lords Amendments 63 to 65

42.     These amendments would change references in clause 100 to the Department of Enterprise and Regulatory Reform to the Department of Business, Innovation and Skills to take account of machinery of government changes.

* Lords Amendment 66

43.     Amendment 66 would establish an Independent Commissioner for Terrorist Suspects. It would require the Secretary of State (in practice, the Home Secretary) to appoint a person to monitor the detention and treatment of persons arrested and detained under section 41 of and Schedule 8 to the Terrorism Act 2000. The appointment would need to be approved by the Lord Chief Justice. The Commissioner would be informed of all arrests under section 41 and would be entitled to visit places of detention unannounced to ensure that the questioning of suspects is being carried out diligently and expeditiously and in accordance with the relevant legislation and codes of practice. The Commissioner would be entitled to interview suspects (if they agree) in private and to attend any interviews conducted by the police. He or she would be entitled to attend any hearings for warrants for further detention of suspects and to give the judge considering the application any assistance that may be required in deciding whether to agree to an extension of detention. Finally the Commissioner would be required to report annually to Parliament on the carrying out of his or her functions.

Lords Amendment 67

44.     Amendment 67 would insert mention of the impact of sentencing decisions on victims into the list of matters (at clause 106(11)) to which the Sentencing Council must have regard when preparing sentencing guidelines.

Lords Amendments 68 to 85 and 92

45.     Amendments 68 to 85 relate to the way in which sentencing guidelines for particular offences are to be structured in accordance with clause 107.

46.     Amendment 68 would refer to the desirability of offence specific guidelines being subdivided, where practicable, into different categories of case illustrating the varying degrees of seriousness of the offence.

47.     Amendment 69 would permit the use of other factors particularly relevant to seriousness as well as those of culpability and harm as illustrative of the varying degrees of seriousness with which an offence may be committed. In consequence, amendment 76 would remove the requirement to list as aggravating and mitigating factors any factors which have already been used to describe and illustrate a particular category of case.

48.     Amendments 70, 71, 73 to 75, 77, 79, 81, 82 and 84 would reflect the moderation throughout clause 107 of the imperative as regards how guidelines should be structured. References to “must” would be replaced by “should”; references to “under” would be replaced by “in accordance with” or “mentioned in”.

49.     Amendment 72 would introduce in subsection (4)(b) of clause 107 “the category range”. This would describe the range of sentences appropriate for cases of a particular level of seriousness as described within a subdivided guideline. Amendment 92 would insert a corresponding interpretation of this term into clause 121 (Interpretation of this Chapter).

50.     Amendment 78 would permit different guidelines to be made for a particular offence in different circumstances or cases (such as enabling there to be a different guideline for young offenders to reflect the different sentencing powers that exist). Amendment 85 would remove the delegated power in clause 107(11) that was previously intended to serve a similar purpose.

51.     Amendment 80 and 83 would insert “starting point” instead of “sentence” at two places in clause 107(10). This would make it clearer that the sentences set out in a guideline are the starting point. The eventual sentence, on the other hand, is one that the sentencing judge arrives at after having taken into account the factors mentioned in subsection (6), such as aggravating factors.

 
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