Q
1The
Chairman: We shall now hear oral evidence from the
Ministry of Justice. For the record, would you like to introduce
yourselves to the Committee,
please? Geoff
Bradshaw: I am Geoff Bradshaw, and I am responsible
for the coroners part of the
Bill. Ruth
Allan: I am Ruth Allan, and I am responsible for the
sentencing council part of the
Bill. Deborah
Grice: I am Deborah Grice, from the criminal law
policy unit. I am responsible for the substantive criminal law parts of
the
Bill. Belinda
Lewis: I am Belinda Lewis, and I am responsible for
the data protection
provisions. Bridget
Prentice: Thank you, Mr. Cook. The Bill is
before us today because we want to try to deliver a more transparent,
responsive and effective justice and coroner service for victims,
witnesses, bereaved families and the wider public. The Bill is intended
to ensure that victims and witnesses are at the heart of the justice
system. The coroners part of the Bill aims to improve significantly the
service that bereaved families receive from a reformed coroner
system—it has not been reformed for a very long time—and
will introduce a related new death certification system, which I hope
will provide people with the necessary reassurance that there is
independent
checking of the causes of death. The Bill will also give vulnerable and
intimidated witnesses, particularly in respect of gun and knife-related
violence, the best possible protection from the earliest stages of the
criminal justice process. The Bill will introduce a more consistent and
transparent sentencing framework, as well as providing stronger
inspection powers to improve public confidence in how data is held and
used, removing barriers to effective data sharing, which will improve
public services and the fight against crime and terrorism. In a
nutshell, that is what we are trying to achieve through the
Bill.
The
Chairman: Thank you. Before calling the first question, I
remind all hon. Members that questions should be limited to matters
within the scope of the Bill. We must stick strictly to the timings in
the programme motion, which the Committee has agreed. I hope that those
questions are within the framework of what we agreed in private. I hope
that I do not have to interrupt mid-sentence, but I shall do so if I
need
to.
Q
2Mr.
Garnier: I direct this question at either of the
Ministers, and would be happy for either to answer. Why have you
thought it appropriate to design such a lengthy and diverse Bill? It is
162 clauses long, has 21 schedules, which are divided up
into several parts, and covers a huge number of discrete public policy
areas. Why do you design Bills like this?
[Interruption.] If you do not know, please say
so. Bridget
Prentice: There is a bit of me that does not know.
Parliamentary time plays a big part in putting together different
groups of issues, but as I explained in my opening remarks about
providing victims and witnesses with transparency and protection within
the justice system, there is a logic to putting those things
together.
Q
3Mr.
Garnier: Could you explain a bit more about the
logic?
Bridget
Prentice: For example, bereaved families will be
given a much better service in the coroner section as a result of the
Bill, and they will receive a better service through the death
certification process. Equally, victims and witnesses in the justice
system might require better protection when they give evidence or when
they are approached for evidence in any investigation. This is about
protecting people and giving them confidence in the system. There is a
logic and thread that goes through that.
Q
4Mr.
Garnier: It is not a logic that I quite understand, at
least not as currently presented. For example, how do provisions to do
with child pornography or indecent pseudo-photographs tie in with the
thread that you say runs through the Bill? How does the thread connect
to the reform of the coroners system?
Bridget
Prentice: The most obvious response is that it is
another form of protection for children. My hon. Friend will go into
the details of that part of the Bill if you wish.
Maria
Eagle: There is an important but small provision in
respect of this, which has arisen as a result of trends and concerns
raised by the police and child protection agencies. There is a lacuna
in the criminal law about those kinds of images, which are not based on
real photographs but are increasingly being found. The Bill
presents us with an opportunity to close that loophole with the aim of
improving child protection as a result. It is a small part of the Bill,
and I hope that members of the Committee will understand that we should
not wait for a piece of legislation that is solely about the protection
of children. The provision fits with the general theme of the Bill,
which is to provide extra protection for victims in the criminal
justice system. That is why it is there.
Q
5Mr.
Garnier: When looking at the index of the Bill, a
reasonable person could, quite legitimately, comment that Ministers
have been running around the Department pulling things off shelves and
sticking them into the shopping trolley to create a long Bill. Why has
the legislative process not been managed in such a way that we have a
discrete coroners Bill? We were promised one a while ago. Would it not
be more sensible to run the reform of the coroner system through a
discrete Bill, rather than tagging matters relating to legal aid,
vulnerable and intimidated witnesses, and other substantive criminal
justice issues on to this Bill?
Maria
Eagle: There is always a question about balancing the
legislative priorities arising out of urgent issues requiring the
attention of Parliament. These matters are in the Bill because we
believe that they will make a difference. They will assist victims and
witnesses in the criminal justice system, and all those who come into
contact with it, whether on the coronial or criminal law side of the
Bill. As a Minister, one has to balance the priorities of each discrete
provision that has an urgency and the appropriate legislative
vehicle.
I understand
that many hon. Members who get this thrown at them, and have to
scrutinise the Bill in Committee, might have a slightly different
perspective from Ministers who seek to make what we believe are
important, useful and essential changes to the law. Making those
changes is different from fulfilling the requirements and needs of
scrutiny, and there is always a balance to be struck. As to where that
balance should be, Ministers might feel slightly differently from
members of the Committee who have to scrutinise the Bill. None the
less, I hope that we all accept that the issues dealt with in the Bill
are important. When criminal justice Bills involve law reform, they
often have a Christmas tree-look about them because much is done in
primary legislation that, in other fields, might be done in secondary
legislation. There is always a danger of that. All I can say is that we
will do our utmost to make sure that the Committee has every
opportunity to scrutinise as much as possible all aspects of the
Bill.
Q
6Mr.
Garnier: Why did you not accept the recommendations of the
Law Commission on the reform of the law of homicide? You picked out
some bits, but left out others. That seems to have created a rather
difficult picture for you, does it not, when attempting to reform an
important part of the criminal law relating to the killing of other
people? You picked some plums out of the commission’s report,
but left a lot of stuff behind, which could—if you two Ministers
are right in your description of the shape and design of the
Bill—perfectly properly have come into the Bill. It might have
made it longer, but we are used to
that. Maria
Eagle: The Law Commission came up with a
comprehensive proposal for the reform of the entire law of homicide
which was elegant and which fitted together
very well, but which did not meet with the approval of all the
stakeholders. The Committee will recall that the commission suggested
that we should replace murder or manslaughter with murder I or murder
II or manslaughter. It was a significant and big change, and it did not
meet with total approval among stakeholders. The commission also
accepted that there is a significant issue with the partial defences
under the Bill and that that was appropriate. It might not have wished
the Bill to be formed in such a way, but it accepted that it was
possible to take a partial approach and to deal with the partial
defences before looking at the entire structure, which is what we have
decided to
do. We
think that there is enough of an issue about the partial defences to
justify reforming them before going on to a second stage to see whether
or not the entire restructuring that the Law Commission suggested is
the right way
forward.
Q
7Mr.
Garnier: May I ask one further question? Clause 58 repeals
a provision that was introduced under the Criminal Justice and
Immigration Act 2008 on Report. That provision has not even come into
force, yet you are repealing it already. Your Government have a history
of passing lots of Bills that repeal other enactments that were
recently passed. The Criminal Justice Act 2003 is a classic example of
that. Huge chunks of it were repealed before they were due to come into
force, and parts that have come into force have also been repealed. Can
you guarantee that no parts of the Bill under discussion, as currently
drafted, will be repealed before your next Criminal Justice Bill comes
into effect, and that we can work forward at least on a moderately
planned basis in line with this particular Bill, or will new stuff be
brought in on
Report? Maria
Eagle: It is a complicated question. We certainly do
not put things into legislation that we intend to repeal before
bringing them into force. I do not believe that any Minister has done
that—from any party. The clause to which the hon. and learned
Member for Harborough referred was inserted into the previous
legislation by the House of Lords. It was not accepted by the Commons.
In fact, when it was returned to the Commons, it was rejected
decisively by 338 to 136. The so-called freedom of speech provision
relating to incitement of homophobic hatred was not something that the
Government ever accepted was necessary. Indeed, we believe that it
makes the substantive offence extremely confusing and, as well as being
insulting, it would make
it—
Q
8Mr.
Garnier: Forgive me, I do not want to discuss the merits
or demerits of clause
58. Maria
Eagle: I am trying to explain why the Government want
to remove a section that was passed under the previous legislation. It
was an amendment that the Government did not want. I said clearly on
the Floor of the House that we would return to it. We might therefore
see the matter as fulfilling the promise to return to it. We said that
we would do that, and we are doing it at the first
opportunity.
Q
9Mr.
Garnier: Do you not understand that that leads to cynicism
about the construction of
legislation? Maria
Eagle: I do not accept that. There are strongly held
arguments on both sides of this issue by those who believe strongly in
their views. It is an argument that will be raised again in Committee,
when we get to that
clause. It may come back to the Floor of the House on Report. However,
the Government’s position has been clear on this. Clarity and
pursuing a policy that one believes in engenders exactly the opposite
of
cynicism.
Q
10David
Howarth: On that point, as the person who called the final
vote on the last bit of ping-pong because I wanted to protest against
the Government giving in on that last round, I confirm what the
Minister has just said. The Government were plainly coerced by a
timetabling issue—of their own making—and I am not
surprised that they have returned to the
matter. To
return to the law of murder, I am disturbed about this piecemeal
approach.
The
Chairman: While you are doing that, David, could you speak
up a
little?
Q
11David
Howarth: Sorry, I will sit nearer the microphone. The
piecemeal approach to the law of murder is unsatisfactory. The impact
assessment on the Bill says that the proposed changes in the partial
defences will increase the number of people convicted of murder as
opposed to manslaughter by between 100 and 200. I raised that on Second
Reading, but it was not the correct setting to do so, so I am asking
again: who are those people? What kind of defendant will, as a result
of the proposals, now be found guilty of murder rather than
manslaughter? Maria
Eagle: We are seeking to make changes to the partial
defences. The concerns that the Law Commission reported on are accepted
more widely than the solutions that have been adopted. But there is a
widespread acceptance about the nature of the problems of the partial
defences—particularly provocation. That particular defence may
be too easily accessible to those who kill in anger. The crime is often
characterised as jealous partners who kill in anger and the defence is
not sufficiently accessible to those who kill in fear of serious
violence.
There have
been developments in the case law through the courts to try to
accommodate this, but there is no obvious place in the defence, as it
currently stands, for fear of serious violence. There are also concerns
that all evidence of provocation has to be put to a jury, even where it
is unmeritorious and not raised by anyone—even the
defence—which can cause concerns. What we therefore sought to do
in respect of the change to a provocation defence is to raise the
threshold generally, so that those who kill in anger can succeed in
having their conviction reduced to manslaughter only in exceptional
circumstances. So, we are raising the bar of the availability of that
defence and extending it to cover those who kill in fear of serious
violence as well as those who kill in anger. On that basis, I hope that
he can see the kind of person who might now be caught and convicted of
murder rather than manslaughter, if these provisions go through. In
respect of provocation, there is an increasing threshold and a slight
change in the way the remaining partial defence works. We do not
believe that the changes we are proposing to diminished responsibility
will change the numbers enormously; it is really just a clarification
of the way in which that defence
works.
Q
12David
Howarth: I am worried about the changes to diminished
responsibility. By making that defence more precise, and with reference
to recognised medical conditions, there is a danger of people who
perhaps
come under the category of those with learning disabilities who might
not be said to have a recognised medical condition, being caught by the
law of murder rather than manslaughter. I am worried about
that. On
the provocation defence—the replacement of
provocation—what is the evidence for the figure of
100 to 200? If you look at the standard legal databases to
see what is going on in the provocation defence, you will see that
convictions for manslaughter on the grounds of provocation where there
has been sexual infidelity are rare in recent years. Normally what
happens these days is that such cases either succeed or fail on
diminished responsibility, so provocation does not come into it. I do
not see the 100 cases. On the serious violence side, the numbers go the
other way. For the most part these days, in the battered wives cases,
the law goes in their favour. I do not see that moving in the way that
the Minister says
either. The
problem is that, if you look at the words in the Bill, they seem to
suggest a rather different sort of person being found guilty of murder.
For example, there are such people as those raised in the Doughty
decision of the 1980s. A stressed-out parent who loses his or her
temper and strikes a child, could be guilty of homicide, yes, but the
decision in that case was manslaughter not murder. Those defendants
would not qualify any more, because they do not have any justifiable
sense of being seriously
wrong. Maria
Eagle: If I can reassure the hon. Gentleman in this
respect, I can see where he is coming from. I want to make it clear
that the calculation that he refers to is about the impact on prison
places, which is calculated on the basis of length of sentence as well
as number of convictions. What we expect is perhaps an
additional 10 to 20 convictions a year, but when planning for
prison places, we always have to take into account the likely length of
sentence resulting from such convictions. In the various magical ways
in which National Offender Management Service does that, the estimated
result, in a build-up over about eight years or so, is that we might
have to account for 100 to 200 extra prison places. We are not saying
that we expect 100 to 200 extra convictions for murder as opposed to
manslaughter, but that we expect a small number of 10 to 20 or so. I
hope that that reassures
him. In
respect of the Doughty case, as far as we are concerned, it is not
intended that that kind of case—unless it can fit into
diminished responsibility—ought to count as provocation. We are
trying to put the bar higher and not to bring it
down.
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