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.
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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