Coroners and Justice Bill

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Q 13David Howarth: May I ask about loss of control? That is the standard problem in battered wives cases. They find it difficult to come within the existing defence of provocation, because of the requirement of loss of control. The obvious way to reform the law to help battered wives is to get rid of the idea of loss of control. The Government have kept that idea in the Bill, but how does that help? Clause 41(2) talks about “loss of control” not being “sudden”, but it is not the suddenness of the loss of control that matters; it is having to prove some sort of loss of control.
It might be helpful if I give an example of some instances of loss of control, where we would all reasonably think that what had happened had pushed the person beyond the very high threshold, such that it ought still to count to reduce murder to manslaughter. For example—this is not a real case—suppose a survivor of genocide came across one of the perpetrators in the street, which is not unknown and has happened. Suppose the victim recognised the perpetrator, and after confronting them and being laughed at or taunted, lost self-control and killed them. We would still want that kind of case to be defended by the concept of a loss of self-control. There are a small number of cases at the top end where that is still a useable concept that adds something to the law.
In these changes, we are trying to lift the bar, so that there are far fewer cases, while extending the law to incorporate the fear of violence that battered wives cases first raised as an issue. Those cases tended to make critics think that the way the current law of provocation works is not fair to those who kill out of fear, but it is perhaps overly generous to those who kill out of anger. That is why we still have that element of loss of self-control. If we did not believe that there were such cases, we would seek to abolish the concept completely in law. However, there are some instances where it might still be justifiable which is why it is there.
Q 14David Howarth: But the fear of serious violence requirement is about not only the fear of serious violence, but cases where the defendant’s loss of self-control was attributable to serious violence. There still needs to be that loss of self-control. That leads to the central example in the battered wives case. Suppose a wife is abused for a long time, and after a particularly bad incident of being beaten up she waits for her husband to go to sleep and kills him. I do not see the loss of control in that case, but I think that under the Bill that person would be convicted of murder.
Maria Eagle: It depends whether they fitted into the fear of violence element.
David Howarth: But they had to lose control.
Maria Eagle: The proposed changes mean that the loss of control does not have to be sudden. Some of the battered wives cases were at the stretch of the statutory wording but fitted into the current law, because they were able to show battered-wife syndrome or psychological effects proving that a loss of self-control had occurred, albeit on a slower basis. It is the removal of the requirement for it to be sudden that has allowed those cases to fit in. Without the requirement in the reformed partial defence for some self-control, we would open the door to cold-blooded killings fitting into the defence. There has to be a loss of self-control.
David Howarth: Mr Cook, do you want me to go on to data protection now?
The Chairman: No, I want to stick to this section if you do not mind.
Dr. Brian Iddon (Bolton, South-East) (Lab): I have a question on death certification. I hope that it is in order.
The Chairman: No. We had you down on murder, infanticide and suicide. Assisted suicide is at the end.
Dr. Iddon: Then I will wait.
The Chairman: Okay. So if we have finished the first section, we will move on to the possession of a prohibited image of a child. If nobody is interested in that, we will move on swiftly to witness anonymity. Alun Michael.
Q 15Alun Michael (Cardiff, South and Penarth) (Lab/Co-op): On the issue of the possession of images, rather than not being interested in it, it is that we do not feel a need to probe it at this stage. It will come up in later evidence.
The Chairman: Semantics.
Alun Michael: Very important semantics.
The Chairman: Yes indeed, carry on.
Alun Michael: It is easy to argue on either side about witness anonymity, and to show examples where not knowing where evidence is coming from makes it difficult for an innocent accused to provide a defence. However, most MPs will have had experience of places where intimidation of people within a community for an extended period means that the protection of witnesses is the only way that can be tackled and issues can be brought before the court. How will the drafting of the clauses ensure no unintended consequences on either side of that difficult balance?
Maria Eagle: The Bill re-enacts effectively with slight modification the provisions of the Criminal Evidence (Witness Anonymity) Act 2008. Many members of the Committee will remember that as a swift and in many ways exemplary piece of parliamentary activity to deal with a problem that had arisen suddenly, thanks to a House of Lords judgment that had many practical implications for the confidence of the public in the criminal justice system. As in any proceedings, witness anonymity has implications for fairness to the defendant and for the ancient rights of the defendant to confront their accuser, which was what the whole issue was about.
The legislation came into force on 21 July and, from what we can see, it appears to be working relatively well. Some members of the Committee who practise in the criminal courts may have their own view about whether it is working well, but it seems to us to be working well and to strike a correct balance between protecting the rights of the defendant and making sure that witnesses who come forward to give what can be vital evidence to make sure that justice is done in some pretty difficult and serious cases will be fully protected, when that is appropriate, and have their anonymity guaranteed.
Q 16Alun Michael: Some people have criticised the fact that an order may be granted to prevent serious damage to property. How would you justify that?
Maria Eagle: If, in the course of an intimidatory tactic, someone threatened to burn down a person’s house if that person gave evidence, that might be damage to property, but that might well be enough to stop a witness coming forward and be willing to give evidence, just as much as the threat of physical violence might be. Such matters are not for me, as a Minister, to decide on, but very much for the judge in the case to bear in mind when the prosecution makes an application to the court to protect a witness by the use of anonymity. It is something that a judge in a particular case with the circumstances that he is looking at will make a judgment about.
It might be helpful to the Committee if I gave some statistics about what has happened since that legislation came into force, because they might be illuminating. The Crown Prosecution Service told me that 135 anonymity applications had been made to the courts up to the end of December following the passage of the legislation, of which 129 were granted and six refused. Of the applications granted, 43 were civilians; 35 were undercover officers; 49 were test purchase officers; and two were other police officers. All six applications that were refused were for civilian witnesses and, of those cases, three were in the magistrates court, one was in the youth court and the rest were in the higher court.
Q 17Mr. Garnier: May I interrupt and ask the Minister a question about the figures, which were very helpful? How many cases in the list were ongoing prior to the passage of the emergency legislation?
Maria Eagle: That I cannot say without trying to find out.
Mr. Garnier: Do you think that you could?
Maria Eagle: I shall do my utmost. Whether or not that information is available, I do not know, but I shall certainly come back to the Committee with a follow-up in that respect.
Q 18Alun Michael: Those figures show that a majority of non-civilian cases have come up. One of the queries was that clause 71(3)(b) provides that a witness anonymity order may be granted in cases where there is
“real harm to the public interest (whether affecting the carrying on of any activities in the public interest or the safety of a person involved in carrying on such activities, or otherwise).”
That has been interpreted as being intended to protect undercover officers. The Minister suggests that that protection is being afforded in a large number of the cases when an application is made. Why is that clause necessary? If it is to protect undercover officers, why does it not actually say so?
Maria Eagle: That is what it is for. I made that clear during the passage of the legislation. I suspect that it is like that because the Bill had to be done very quickly. I made it clear that that provision meant national security and undercover work of the police and relevant agencies, and that the reason behind such anonymity was to enable the re-use of undercover officers. That is specifically mentioned in the Strasbourg jurisprudence as an acceptable reason as well. It is always important in any application before a judge that the judge can choose whether or not it is appropriate in the individual circumstances of the case, and he or she would certainly be able to do that.
Q 19Alun Michael: Given the helpful and illuminating figures that you have put before us, are you satisfied that sufficient use is successfully being made of the cases that I have mentioned of community terrorisation or intimidation, which I think were in the minds of many MPs in supporting the legislation previously and now?
Maria Eagle: As far as we know, it is. It certainly would not be for us to suggest that there ought to be an increase in those sorts of order. We shall try to make it as easy as possible for witnesses to extremely serious crimes, such as homicides either involving the use of guns and knives or related to gang-based crime, by bringing forward in this legislation the earlier order—the investigation anonymity order. That might reassure witnesses to such serious crimes enough to make them come forward to give their evidence in the first place, long before a case gets to court. In such instances, if that evidence were to be given at a trial, it would be for the court or the judge to decide whether to make a witness anonymity order.
By including provision for the investigation anonymity order, the legislation seeks to provide extra reassurance to members of the public who see a serious crime of homicide relating to gang activity or involving the use of knives or guns that they can come forward and that their identity will be protected. It is well known—as many Members who have such problems in their constituencies are aware—what a climate of fear can be created by gangs trying to control geographical areas.
The Chairman: You tapped a vein of gold there, Mr. Michael.
Q 20Mr. Tim Boswell (Daventry) (Con): The statistics are very useful, Minister, and I understand what you are trying to do. In the failed cases, of which there were six, can you indicate whether there is any evidence as to the nature of the failure? For example, were there cases where it was impossible to establish a threat to personal safety, but where there might have been a real threat to property—something that would be brought in under the new law—as that would seem to be justification for what you are proposing? Equally, although it is more difficult to get a handle on this, were there cases where applications may not have been made or were frustrated, because, although you could go as far as the threat to property test, you could not actually demonstrate at the time that there was a direct threat to the individual’s personal safety? I just want to get a handle on how valuable it would be extend the existing provisions.
Maria Eagle: I will have to go back to the criminal justice agencies, and the Crown Prosecution Service in particular, for more specific detail about the applications that were refused. I shall do my utmost to find that out if it is possible, and will come back to the Committee. I do not have the information at present, but it would be helpful if it was available. I will bring it back to the Committee.
Q 21David Howarth: That will be very helpful. I have two other questions about the numbers cited. First, how many times were special independent counsel appointed in any of those cases? That was one of the big substantive problems in the Bill—there were lots of technical problems in the Bill, which we shall have to come back to, because we do not want to go into them now—but that was the one area of policy on which there was some disagreement. Secondly, how many appeals have there been and what kind of appeal activity has there been? What have the appellate courts said about the provisions?
Maria Eagle: There have been two requests for special counsel made and granted during the relevant period. Of all the requests made, and there have been two, they have been granted. In respect of appeals, there is the Myers case, is there not?
Q 22David Howarth: That was a transitional case though, was it not?
Maria Eagle: Yes. I shall have to come back to the hon. Gentleman on appeals beyond those that we know about. It may be a little soon to have huge numbers in that respect, but I shall see what is available and include that in my further letter to the Committee.
The Chairman: Now, for practical purposes and out of sequence, I shall go immediately to coroners.
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