Coroners and Justice Bill

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Q 213Mr. Howarth: One of the arguments is that requiring the court to follow sentencing guidelines—particularly in determining tariffs, for example—would be an undue fetter on the discretion of sentencers. Do you think the phrase,
“ would be contrary to the interests of justice to do so”,
is a weak test or a strong test?
Paul Cavadino: I think that it is a reasonable test. It is clearly stronger than the current test. At the moment, legislation requires courts to have regard to sentencing guidelines and to give reasons if they are passing a sentence outside the range prescribed by sentencing guidelines. This is a slightly stronger test. It requires the court to follow the guidelines, unless it is satisfied that it would not be in the interest of justice to do so. That seems to me to be an entirely reasonable test. I cannot think of any other valid reason for departing from the guidelines, and because it is slightly stronger, I think that it would aid greater consistency and therefore reduce the degree of injustice that results from inconsistency in comparable cases. It would also help to aid predictability, which is important if policy makers are to plan to resource the penal system in line with the likely results of sentencing guidelines.
Q 214Mr. Howarth: I wonder whether the remaining three witnesses could comment on the suitability of that test for departure from the guidelines.
Professor Hough: I think that it is a sensible test—better than the previous one. The system proposed in the Bill could never really be described as a set of tram lines.
Gillian Guy: I think it is a test that will make sense to the general public and to victims and witnesses. The aim that we would like to see throughout this is to make things more transparent for those people using the system.
Q 215Jeremy Wright: Gillian Guy, can I ask you about special measures? If any other witnesses want to come in, please feel free, but I suspect this is more for you than for them. Clause 82, as you know, gives the absolute right for witnesses in specified offences involving guns and knives to have special measures when they give evidence, and, as we all understand, the purpose of special measures is to enable witnesses who are anxious or frightened, or otherwise concerned about giving evidence, the opportunity to do so with certain extra help.
Is there any logic, in your view, to making a specific category of offences eligible for witnesses to have special measures, or is it more sensible simply to say, as we do now, that if the witness can demonstrate particular anxiety or concern, they should have the special measures, and if they cannot they should not?
Gillian Guy: This provision highlights the confusion around the debate on special measures, or indeed the lack of a debate around special measures. I think that the confusion arises from the fact that evidence would be worse without them, but we do not talk about the fact evidence is better with them. From our point of view, there are very few witnesses who enter a witness box who are not in some way anxious, at the very least, and who do not find the whole scenario and experience quite difficult to deal with.
Our contention is that in many circumstances, regardless of the actual crime complained of, people would benefit from some form of special measures. What has happened here is that a particular type of crime has been identified—we know that a particular thing is going on in society at the moment—where the Government have obviously felt that, without anyone having to get through any degree of proof of that anxiety, those special measures should be available. As I say, our contention is that special measures should be designed for the individual, and the individual—no matter what the crime, no matter what their background or what might be perceived as their level of vulnerability—should be afforded the ability to get special measures, if that would make the evidence better. That is our contention.
The difficulty that we have is that we are not understanding what that debate is about, such as whether it is about better evidence, whether it is about wanting to put witnesses through the most difficult scenario in order to test them thoroughly, where the boundaries of that treatment ought really to lie—we act on behalf of defence witnesses as well as prosecution witnesses, and the whole scenario involves getting to justice and getting to the truth, hopefully—and whether we are dealing with expense or difficulty in providing special measures, which again almost brings us into the realms of rationing and how that is dealt with. It is important that we understand what we are actually aiming to achieve.
From our point of view and experience with witnesses—we help 250,000 of them a year through the court process—we believe that justice ought to be built around those individuals, so that they are comfortable with giving evidence and the court gets the best possible stab at the truth. In that context, we are most alarmed that in a year 18,000 witnesses, eligible under existing legislation for special measures, were not identified as vulnerable and intimidated witnesses, let alone trying to open up eligibility. Once you have eligibility, you certainly have to be able to identify people and offer those measures. Let us be honest about what we are trying to achieve here.
Q 216Jeremy Wright: You know that one of the arguments made against special measures, in particular circumstances, is that they make the defendant look more guilty when a witness is given certain measures through which they can give evidence. To counter that argument, would it be better for all witnesses, particularly those under the age of 18, for example, to be entitled to special measures, as a matter of course, so that no jury could look at a particular witness and say, “The fact that that witness has special measures must mean that the defendant is a little more guilty”?
Gillian Guy: It assists the argument around allowing people generally to understand the system and to get special assistance in giving the best evidence possible. Obviously, it would not identify particular defendants as being in cases where witnesses feel particularly vulnerable. There would be a broad approach, which would not act to the detriment of either party. As I say, however, making then breaking that promise is worse than not making it in the first place. We must ensure that we make good on the promise. We also have to be clear, when we talk about special measures, that the whole gamut of special measures does not apply to everybody. It offers what would help in individual circumstances to help us get to the truth.
Q 217Mrs. Madeleine Moon (Bridgend) (Lab): I have a particular question about the coroner’s duty to investigate, especially following a violent death or a death by suicide in prisons. On the issue of the prevention of further deaths, I am concerned that the current system does not necessarily investigate fully the background to the individual’s death and their history that perhaps led to that death. I am aware of psychological autopsy studies that have increased the background investigations into an individual’s personal history. They have produced tremendous evidence in relation to suicide in particular. What is your view on the best way to structure investigations to give us far greater information and evidence to help to prevent future deaths and which might even influence sentencing in relation to deaths in custody? Can you comment on that?
Juliet Lyon: I would like to respond to that both because we run an advice and information service that responds to about 5,000 prisoners and their families each year and because I recently attended an inquest with a mother who had been using that service. The inquest was four years late. We have asked that consideration be given in the Bill to limiting the amount of time that people have to wait, which puts a huge strain on bereaved families. In the course of being asked to represent herself, she was means-tested and had to consider remortgaging her property in order to afford to discover why and how her son died in prison. That concerns an omission in the Bill that we would very much like amended. In answer to your specific point, in this instance the young man was severely mentally ill and had been for a long time. The inquest allowed us, from the prison gate onwards, to understand what had happened to him once the sentence was passed. He found it impossible to cope with custody. He was a very intelligent young man and he found it very hard. He was put into a segregation unit for his own protection and was dead within a matter of days. He was facing a five-year sentence. We discovered in the course of the inquest that the staff had left a plastic bag in his cell, which allowed him the means to kill himself.
What was missing, clearly—this is the point that you are raising—is the question, “What about the decision to imprison in this particular individual’s case?” There had been information in court about his mental health history and a report from a psychiatrist offering to take him in for further in-patient treatment. He had a previous history of about 11 years of treatment. In that case—it would not be true in every case—the information about the decision to imprison would clearly have been pertinent to understanding not only how that young man came to take his own life in a very bleak situation in prison but the issue for other vulnerable people, particularly mentally ill people, in similar circumstances. It is a great regret that that could not be investigated. It was a great regret to the coroner himself; he said so.
Q 218Mrs. Moon: Do you think that it would be helpful if there were national guidelines to be followed in investigations so that consistent information came through, rather than leaving it to individual coroners to conduct their own form of investigation? Do we need to establish the nature of the issues to be investigated? Professor Hough, with your research experience, can you comment on that?
Professor Hough: I am not in a position to comment on those issues at all.
Juliet Lyon: The only issue with guidelines is that one would still have to take clear account, obviously, of the individual and their circumstances.
The Chairman: For practical purposes, I will move on to live links.
Q 219Mr. David Kidney (Stafford) (Lab): In a moment, I will ask the witnesses about the significance of removing the safeguard of requiring the consent of the accused before using live links. First, though, will John Thornhill and Gillian Guy say something about the present use of live links and the existing law? How does it work practically in magistrates courts, and are there any implications for the delivery of justice? Gillian, what is the experience of victims of crime with access to live links?
John Thornhill: Many courts now conduct cases, sentences and administrative hearings over live links. We have found no serious problems with them so far, and no problems have been reported to us. Clearly, there are concerns about whether the defendant fully understands what is happening. There are issues about the defendant not wishing to engage, and how we manage that particular situation. Contempt of court issues may arise, and that is something that we need to look at. In principle, at the moment, we find no serious problems with them, but we are concerned about the defendant’s ability to say that they do not want to be involved. That is what concerns us in the proposed legislation.
Gillian Guy: The experience thus far has been that they have been broadly welcomed. They are a way to ease the situation of giving evidence, which is the aim. The issues have been around early decisions about whether live links are to be used or not, so that witnesses can get to grips with what that means, whether they have been successful in giving that facility, consistency in their availability and an explanation of what they actually mean. For example, there are certainly witnesses who did not have a full explanation and thought that they could not be seen. They were shocked to find that that was not the situation. It is really about early application, early decision and early explanation. Live links are but one method of helping people feel at ease with the process.
Q 220Mr. Kidney: That is helpful to start with, but can I now go through the witnesses? Juliet Lyon, I do not think that the written response that you sent us covers that particular point. A lot of the links are from prison to court. Do you have concerns about changing the present system by removing the consent, and if so, can you suggest any safeguards in its place?
Juliet Lyon: We have not covered it in our written evidence. I have some concerns about the permission being removed. That would be the issue. The other issue, which overlaps with information that we provided, was under clause 87, which discusses examination of the accused through an intermediary. Having just conducted three years of work on people with learning disabilities and learning difficulties in prison, we are acutely aware how many people have gone through the criminal justice system not fully understanding their role in it or the procedures at police stations, at courts or after they enter prison. We welcome some of the suggestions for improving information, which would be relevant here. There are issues that arise prior to that, such as fitness to plead. They are not in the Bill at the moment and need to be reinforced.
Q 221Mr. Kidney: Others are expressing concerns about the potential for the abuse of prisoners. First, they would not be seen because they did not appear in court, and they could be subjected to subtle pressure to plead in a way that they might not plead in a courtroom. Do you share those concerns?
Q 222Mr. Kidney: Gillian Guy, do you welcome the change and do you have any concerns about it?
Gillian Guy: The concerns are in terms of ensuring that justice is seen to be done. That is clearly about ensuring that the procedure is in the best interests of getting to the truth, but it is also about expediting the procedure. Some of the damage that is inflicted on witnesses and victims is often because of the long drawn-out process of trying to get into courts in the first place and, as Juliet said, the long travelling distances involved. People sometimes hang around for days and have to go backwards and forwards, and that does not help the situation or people’s anxiety. Expediting the procedure has helped.
Arriving at a decision quickly is good for witnesses, but I do not think that we want to lose the primary objective of justice by overriding the rights of the defendant. The decision ought to be made in the interests of the case, not the individual.
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