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Additional memorandum submitted by Ministry of Justice (CJ 29)
Coroners and Justice Bill
During the discussion of clause 57 of the Coroners and Justice Bill (Official Report col. 490-494), David Howarth asked whether the Law Commissions work in this area would deal with the particular matters which he raised in the debate concerning the exemption currently set out under section IA (14) (b) of the Criminal Law Act 1977 (which will be re-enacted as section 1A (16) under the proposals in the Bill).
The Law Commission is in the process of conducting a wide-ranging review of the law on conspiracy and attempts. They published a consultation document in October 2007 in which, in considering the need for law reform, they touched on defences to and exemptions from liability as a conspirator, including - in the case of undercover police officers - in order to prevent crime or to prevent or limit harm (see paragraph 1.51 of the consultation document available at http//www.lawcomqovuk/docs/cp183 webpf) in the context of a defence of reasonableness. Their provisional proposal was "that the defence of 'acting reasonably' provided by clause 48 of the Serious Crime Bill should be applied in its entirety to the offence of conspiracy" (see paragraph 17.7 of the document), I understand that they are not considering issues of exemption in any wider context.
When. however, the Law Commission reports later in the year it is the Governments intention to consider fully the question of exemption from liability for those acting on behalf of, or holding office under, the Crown in the context of the Law Commission's wider review. We will need to look at this in some depth to consider whether the existing provision remains the right one or whether a different formulation would be preferable.
David Howarth also queried the significance of the provisions in Clause 57 in relation to retrospectivity. As I explained in the debate, new section 1A (14) of the 1977 Act (and the equivalent section 1A (14) (a) of that Act, which prevents the section from having retrospective effect. Section 1A was inserted into the Criminal Law Act 1977 by the Criminal Justice (Terrorism and Conspiracy) Act 1998. The existing section IA(14)(a) provides that nothing in the section applies to a conspiracy entered into before the date that the 1998 Act was passed, that is 4 September 1998. The relevant clause in the Bill therefore does no more than continuing to ensure that section 1A does not impose criminal liability for conduct taking place before the section was passed. Similarly, the proposed new subsection (16) of section 1 A of the 1977 Act will have the effect that the extended section 1A offence, created by clause 57, will not apply in respect of conspiracies entered into before the clause comes into force.
Maria Eagle MP
March 2009 |