Coroners and Justice Bill

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Q 51Alun Michael: But it will not happen by osmosis, will it? It will not happen by inputting data that is looked at by a group largely consisting of judges. It needs to be clinical.
Maria Eagle: It will consist largely of judges in the sense that there will be one more judge than lay members, but there will also be a lot of involvement from other experts.
Q 52Alun Michael: That brings me to the other point. How are we going to make sure, given that it is only a minority of members who will provide that clinical examination of what works, that those appointments will be given to questioning, evidence-based individuals who provide that necessary challenge?
Maria Eagle: I am certain that when appointing the non-judicial members, the Lord Chancellor will have that very much in mind. It is also the case that we will be boosting the capacity of the body—the sentencing council—over that currently available to the Sentencing Advisory Panel and the Sentencing Guidelines Council, to increase its capacity to research and analyse what is happening and what the implications are. A greater inherent capacity will exist to produce some of this work, as well as relying on the non-judicial members of the council itself.
Q 53Alun Michael: And there will be the resources to do so?
Maria Eagle: Yes.
The Chairman: Mr. Howarth, I think that Alun Michael shot your fox. We shall now move on to death certification.
Q 54Dr. Iddon: I want to refer to clause 19. I welcome the attempts to improve the accuracy of death certification, particularly with regard to after-use of death certificates. My hon. Friend will know that epidemiologists are interested in death certificates, but my greater interest is in the misuse of drugs and, indeed, in those that cause death.
An important publication from St. George’s hospital is produced by gathering coroners’ information. It is on drug-related deaths as reported by coroners in England and Wales. I have had discussions with Hamid Ghodse, who is one of the compilers of that information, and he sometimes makes the criticism that death certificates do not always mention the drugs that people were using when they died. Therefore my question to the Minister is whether any consideration has been given to making sure that the medical examiner and even the death certificate has proper and accurate information with respect to the drugs that the person was on before death?
Bridget Prentice: To be honest, we have not looked at that issue in terms of the way in which the form would be set out. However, we are obviously having discussions with both the coroner and medical examiner fraternity as to whether they should specify what drugs have been used. Certainly, on Second Reading, the hon. Member for Wyre Forest (Dr. Taylor) made some telling remarks about some of the information that is put on death certificates. At the moment, it would clearly not be acceptable under the new system.
Dr. Iddon: I think that I am flagging up a point of discussion in Committee.
Q 55David Howarth: The question on data sharing is not whether it is always a good or bad thing because obviously it is sometimes both; the question is why the provisions of the Bill are drawn so broadly? Why are they drawn up to allow any person to share any data on the basis of any Government policy, regardless of what any enactment says, apart from the Regulation of Investigatory Powers Act 2000? Why does the Bill allow data sharing to include using data for purposes entirely different from those for which the data was originally handed over? That is not information sharing; it is something quite different. The Bill allows the organisation that originally collected the data, without any other organisation being involved, to be authorised to use the information for another purpose. Surely that is all far too broad.
Bridget Prentice: I say gently to Mr. Howarth that he is exaggerating the situation—it is not quite as all-singing and all-dancing as he has described. The inclusion of this part of the Bill is entirely a result of the review by the Information Commissioner and Mark Walport, who pointed out that there is currently a great deal of confusion about the law concerning data sharing. For example, some are overly cautious about sharing data that they are legitimately able to share, while in other cases where it would be good to share data, there are legal impediments to doing so. That is why this part of the Bill has been drawn in the way that it has. Also, we have always said that if we want to make requirements about data sharing, they would have to be in primary legislation. That is why the provision in the Bill is so detailed.
Q 56David Howarth: The Thomas and Walport report said that there should be a fast-track process for allowing data sharing, but only in specific circumstances. The trouble with the Bill is that it is not specific at all; it is enormously broad. They also said that they did not think that the fast track should be allowed to facilitate big changes in Government policy, such as getting rid of the existing safeguards on the data collected for the purposes of identity cards and so on—DNA or medical records. There is no such safeguard in the Bill. It seems to me that the Thomas and Walport report has been taken as a starting point, but the Bill goes way beyond that.
Bridget Prentice: I am not sure whether it does, and I am not sure whether the Information Commissioner would agree with you that it does—in fact, I think that he would take quite a different view. The Bill does not actually allow for indiscriminate data sharing across Whitehall or across public authorities. The order-making power permits the Minister to bring forward specific proposals under specific circumstances, so it is not as all-encompassing as you describe.
Q 57David Howarth: But the circumstances—the pursuance of any Government policy—are not specific. Obviously, the Government do not have to tell anybody what their policies are; in fact they could act in pursuance of some new policy that they have just made up.
Bridget Prentice: One of the aspects of this Government is that we are constantly telling people what our policies are.
David Howarth: You do not have to.
Bridget Prentice: I dare say, but it is generally not good government not to tell people what the policy is.
The order must be specific, and say what information must be shared, why it must be shared and with whom. That is fairly specific, and it needs to be proportionate too. Of course, it would also have to receive scrutiny under the privacy impact assessment. Having all those things in place should reduce the concerns that you have about it being too all-encompassing.
Q 58David Howarth: What about sharing information with private sector organisations, which are not covered by human rights legislation, for example? Surely that goes too far. If that is to be done, it should be done by primary legislation or nothing.
Bridget Prentice: That issue about private sector organisations is important and the Minister, therefore, would have to be very concerned about allowing information to be shared with the private sector without a very good reason. That would have to be taken into account.
Q 59Alun Michael: Briefly, there are some constructive suggestions made by the Information Commissioner in a note to the Committee, particularly in relation to linking the data-sharing code of practice explicitly to the information-sharing orders. Given that simplicity and getting the balance right is the challenge with all of this, will she take those points on board and consider the other points in his memorandum?
Bridget Prentice: I certainly will. I met the Information Commissioner to discuss the Bill and I am happy to consider those issues further. The Information Commissioner has also said that he would be more than happy to meet members of the Committee if we wish to discuss some of these issues in detail.
The Chairman: We have come to the end of the time allotted for the Committee to ask questions of these witnesses. Thank you very much for your attendance. Please could the next witness take the “Mastermind” seat.
12.20 pm
The Chairman: Professor Jeremy Horder, may I welcome you to our consultations this morning? Professor Horder is from the Law Commission, so he has a lot to answer for and I am sure he is keen to set about answering.
Mr. Garnier: I do not think Professor Horder has anything to answer for.
The Chairman: From you?
Q 60Mr. Garnier: In relation to what is to be found in the Bill.
I wonder whether I could ask you, Professor Horder, to concentrate on part 2, chapter 1, which deals with murder, infanticide and suicide—it is the part of the Bill with which you would be particularly concerned. I mean this in both senses of the word—concerned with and concerned about.
I will not read into the record all that you have said in your memorandum but I wonder if you could give us a brief outline of your worries about the shape of the provisions in this section of the Bill. You have some quite fundamental concerns, I think, about the way the Bill is currently drafted.
Professor Horder: May I start by saying it is a great privilege to be here? I am delighted to be invited to try to give you some assistance on the Bill.
I think you have had my written evidence; I would like to make two main points about the Bill. Clearly, a good deal of it is based on the Law Commission’s recommendations. Unusually, the Law Commission looked at this twice within a short period of time—once in 2004 and then again in 2006. As a result of that, the diminished responsibility provisions, which are in this part, largely follow the Law Commission’s recommendations and those were based on wide consultations, as I indicated. I am not worried about those particularly, although it is possible that others may have some concerns. I want to concentrate, if I may, on provocation; reflection on at least some of the provisions would benefit the changes as a whole.
Perhaps I could just raise this issue of loss of self-control, which I know is a vexed one. I would just like to say a brief word by way of background. Loss of self-control has never been defined as such, in law. It conjures up an image of someone going berserk or something of that kind, completely losing all ability to control themselves, but it has never been as narrow as that. It appeared in the Victorian period, like a lot of “self” words such as “self-restraint”, “self-denial” and so on. Before that time, the law just used phrases like “heat of blood”, and so on. That is important because a lot of cases will involve instances where someone did something—they were affected by the heat of the moment and they allowed it to affect their judgment in some way.
Loss of self-control will be a broad concept—a lot of cases will pass the threshold by being ones where there is evidence of a loss of self-control in that broader sense. It is important to bear that in mind, which brings me to my first point in relation to clause 41(5) which states:
“On a charge of murder, if sufficient evidence is adduced to raise an issue with respect to the defence”
of loss of self-control,
“the jury must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.”
I have a concern about whether that is necessary. The explanatory notes say that it is to clarify the burden of proof, but I do not think there was much ambiguity about the burden of proof and where it lay in provocation cases. I have overplayed my hand a little in my written submission, but the point remains that there is no restriction under clause 41(5) on whose case it may be as to how this evidence is adduced. It could even be the prosecution’s evidence.
One could have a case where an armed officer is charged with murder, that officer wishes to be acquitted on the grounds of self-defence and the prosecution’s case is that the officer lost his or her temper, acted disproportionately and should for that reason be convicted of murder. One of the curious features of the way this clause operates is that, quite conceivably, the prosecution’s case would amount to sufficient evidence adduced to raise an issue and so on. That would mean, according to this, that the jury must assume the defence is satisfied, which means, as a result of subsection (7), that the defendant stands to be found guilty of manslaughter, which is inconsistent with their case as a whole because they want to say that they are not guilty of anything—they claim self-defence.
I am not saying that you cannot get around that, but there is something curious about the way it is set up, and I do not think that that subsection is needed. If you delete it and then you put in subsection (6)—I am sorry if this is a bit detailed— “for the purposes of subsection (1)”, that is, for the purposes of establishing the defence, “sufficient evidence is adduced to raise an issue and so on”, that will pretty much get you where you want to go, without using presumptions and so on.
Q 61Mr. Garnier: Is there another way of dealing with that? If you look at amendment 2, you will see that it states:
“Clause 41, page 25, line 18 after ‘adduced’”.
I make no claims for originality—and you must not accept the blame for this—but I drew that from your submission. Do you think that that amendment would assist in making this Bill marginally better?
Professor Horder: I think that it would. It might be even simpler just to get rid of that subsection altogether. I am not sure that it plays a useful function. I said in my evidence that I was a little uneasy about linking the introduction of a defence solely or mainly to evidence produced by the defence. That goes slightly against the grain. One could do it in that way, but another way, as I have just indicated, is to get rid of clause 41(5) entirely. That is something that might be considered, because I am slightly concerned about how these cases are going to run when it is the prosecution’s case, oddly enough, that there was a loss of self-control. Equally, your amendment might meet the case.
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