|
Additional memorandum from
About
http://www.liberty-human-rights.org.uk/publications/1-policy-papers/index.shtml
Overview
1. Given the size of the Coroners and Justice Bill Liberty has submitted evidence on Part 1 of the Bill (Coronial system), while this deals with the remainder of the Bill. Liberty's Second Reading Commons Briefing[1] on the Bill details several areas of specific concern. Here we produce a shorter summary of our key concerns, in particular the introduction of a sweepingly broad power for any Minister to make an order that would allow any person to distribute any information that they hold on someone to any other person regardless of the purpose the information was originally gathered for or a lack of consent to so share this data, simply to achieve the government's policy purposes.
Part 2 - Criminal Offences
Murder, Infanticide and Suicide
2. Clauses 41 to 43 sets out the proposed amendments to the partial defence to murder because of a loss of self-control (generally known as provocation). We consider the proposal to allow the defence where the defendant's loss of self-control is attributable to his or her fear of violence from the victim to be a reasonable response to some of the current problems arising under this partial defence. However, the proposal to reduce murder to manslaughter where, in circumstances of an extremely grave character, things done or said caused the defendant "to have a justifiable sense of being seriously wronged" should be treated with extreme caution. The concept of being "seriously wronged" is entirely subjective, and therefore the defence would add little certainty or clarity to the current law. It is particularly concerning that this applies where the victim said something that caused the offence. Given the amendment provides that the loss of control need not be sudden, this could give rise to a situation where the killing has a vigilante element to it or a sense of revenge. We appreciate that proposed clause 41(4) provides that this will not apply if the defendant acted in a considered desire for revenge, but we are concerned by the qualifier "considered" and what this mean when coupled with the broadly drafted notion of a sense of being "wronged".
Suicide
3. Currently, section 1(1) of the Suicide Act 1961 makes it an offence for a person to aid, abet, counsel or procure the suicide or attempted suicide of another person. Clause 46 proposes amendments to this Act to expand this definition. It will make it an offence if a person intentionally does something, or arranges for someone to do something, that is capable of encouraging or assisting suicide or attempted suicide of any person, including people or a group of people not known to the defendant and including whether or not anyone does attempt suicide. The explanation given for the need for these amendments is that the clause "modernises the language of the current law with the aim of improving understanding of this area of the law" and does not "change the scope of the current law".[2] Given the complex nature of this area of the law and the body of case-law surrounding it, it is extremely hazardous to rewrite such provisions merely to improve understanding. This is a matter that can be done through education if necessary. The way clause 46 (and clause 47 in relation to Northern Ireland) is currently drafted seems to go further than merely modernising language. There is a real concern that this change could further open up the possibility of prosecution of friends and family members of those who help loved ones to go overseas for assisted suicide. Enacting these provisions in this Bill will arguably make it more difficult for the DPP to decide in a given case, that it is not in the public interest to prosecute family members who help a terminally ill relative to commit suicide, given Parliament will have recently sent a clear signal that this is an offence under UK law.
4. The extension of this law to cover situations where an offence is committed even when the defendant does not know the specific person or class of persons who is being encouraged or assisted to commit suicide, appears to cover where material is posted on the internet. In many cases this material may be posted by depressed teenagers who honestly believe there to be little point in life. Any post that expresses this disenchantment with the world, stating for example that it would be better to kill oneself, would be criminalised under this section. It does not seem a helpful or appropriate response to criminalise those who are expressing an opinion distorted by their own depression. This could be more appropriately dealt with by removing such postings from the internet and providing counselling and understanding rather than invoking the criminal law (particularly as a breach of this provision can lead to up to 14 years imprisonment).
Part 3 - Criminal Evidence, Investigations and Procedure
Chapter 1 - Anonymity in Investigations
5. Liberty broadly welcomes the introduction of investigation anonymity orders which should help encourage vulnerable witnesses to come forward. We are, however, unsure about the reasoning and rationale for some of the conditions that need to be fulfilled before the orders can be granted. In particular the limitation that the person thought to have committed the offence has to be between 11 and 30. The explanatory notes state that "the provisions are targeted at informants who are afraid of reprisals from street gangs. The age range set out is the understood age range for membership of such gangs, and the activities are the understood activities of such gangs". While we can understand the policy objective in targeting fear associated with a perceived gang culture, it is difficult to see how the results can lead to anything other than arbitrariness. It also presumes that the investigating authorities must already have some intelligence implicating a suspect before an order can be granted. This seems to run contrary to the purpose of these orders - namely to encourage witnesses to come forward where there are little or no leads. We also question the unlimited applicability of the orders and the creation of a criminal offence for breach. We believe that the orders should bind those working in public administration who are involved in the investigation and prosecution of the qualifying offence. Breach of an order could then be dealt with more proportionately through a employment obligation.
Chapter 2 - Anonymity of Witnesses
6. Chapter 2, Part 3 essentially re-enacts the Criminal Evidence (Witness Anonymity) Act
2008 (CEWAA) (with some modifications) addressing the extent to which the
identity of a witness can be hidden from a defendant, his/her lawyers and the
public. The right to a fair trial is absolute. The risk of convicting and
incarcerating the innocent cannot be balanced against the desire to obtain a
conviction. What, indeed, could be the countervailing public interest in
allowing the guilty to walk free and paying to keep the innocent behind bars?
Chapter 2, Part 3 recognises this and clarifies that a court cannot allow
witness anonymity where to do so would "be inconsistent with the defendant
receiving a fair trial".[3]
What exactly is required to ensure a fair trial may, however, differ from case
to case.
7. Clause 71 sets out three conditions that must
be fulfilled before a judge may grant an order for anonymity, including that the
measures must be necessary to protect the safety of a witness or another
person, to protect any serious damage to property, or to pr
Chapter 3 - Vulnerable and Intimidated Witnesses Eligibility for Special Measures: offences involving weapons
8. Section 17 of the Youth Justice & Criminal Evidence Act 1999 (YJCEA) provides
that a witness is eligible for assistance if the court is satisfied that the
quality of the witness' evidence would be reduced on the grounds of fear or
distress about testifying. Clause 82 would extend section 17 to give automatic
eligibility for assistance to witnesses in proceedings related to "relevant
offences". Relevant offences are specified gun and knife crimes which are
listed in Schedule 12. Under clause 82 the court would not need to be satisfied
that the quality of the witness' evidence will be diminished and a witness can
inform the court that he or she does not wish to be eligible for assistance.
Clause 87 - Examination of accused through intermediary
9. Under the YJCEA, there are only limited
powers with regard to the evidence of accused persons when compared with
special measures powers applicable to other witnesses. Clause 87 increases the
powers available providing for the use of an intermediary where certain
vulnerable accused persons are giving evidence in court. While
Clause 97: Bail: assessment of risk of committing an offence causing injury
10. Clause
97 amends Schedule 1 to the Bail Act 1976
(BA) and provides that a defendant who is charged with murder may not be
granted bail unless the court is of the opinion that there is no significant
risk that, if released on bail, he or she would commit an offence that would be
likely to cause physical or mental injury to another person. It is rare for
persons charged with murder to be granted bail at all. The 'exceptionality' of
the murder charge is already catered for as under the present statutory
framework, the tribunal already has recourse to paragraph 9 of Part 1 of
Schedule 1 to the BA. We believe that, as currently drafted, clause 97(1) will
be inconsistent with article 5(3)
of the EC
Part 5 - Miscellaneous Criminal Justice Provisions
11. Clause
124 and Schedule 15 amend various Acts to implement an EU Directive to ensure
that previous convictions imposed by an EU member state are taken into account
in criminal proceedings in
Part 6 - Legal Aid
12. Section
6 of the Access to Justice Act 1999
allows the Lord Chancellor to make a direction to require funding of cases that
would not otherwise be funded in the circumstances specified in the
direction. Clause 128 seeks to amend this
to provide that this may apply to one or more areas or localities or specified
courts or tribunals. It may also provide
that the direction allows funding only for specified classes of persons or
persons selected by reference to specific criteria or on a sampling basis. While we do not take specific issue with the
use of pilot schemes we wonder why this is being done now and are concerned by
the potential impact this may have on funding of legal aid in the area of
inquests. Representation of bereaved
relatives at an inquest is not given automatic funding - there is only some
funding because the Lord Chancellor has given a Direction under section 6 for
exceptional funding for certain inquests.
We are concerned that this amendment could allow, for example, only
inquests held in
13. Clause131 introduces amendments to allow the Legal Services Commission to not only recover the cost of the legal representation but also the cost of trying to enforce an order to pay (which would necessarily include legal costs). This could quite conceivably mean that a person who has been given legal aid funding in a criminal matter but later required to pay for some of his or her legal representation is charged with costs that could exceed the amount of the initial representation. As part of requiring the person to pay, these amendments also introduce the ability for the court to make an order to sell a person's car in order to pay the debt. We have particular concerns about the ability for such an order to be made in respect of motor vehicles in which the person whom the order has been made against only has an interest in the motor vehicle.[7] This could clearly impact not only on the property rights of the person concerned but also any co-owner of the motor vehicle. No provision has been made to set out the rights of any co-owner to object to such an order being made or to recover their interest in the vehicle, and as such, this seems to clearly breach the right to property in the HRA.[8]
14. We are particularly concerned about the proposal in clause 131(3) which would allow regulations to be made that could "provide for the withdrawal of an individual's right to representation in certain circumstances". Article 6 of the HRA provides for the fundamental right to a fair trial and the right to free legal assistance in the interests of justice. The withdrawal of legal aid for representation in criminal cases is an extremely important matter and should be fully explored in legislation and not left to secondary legislation, particularly in light of the obligations under article 6.
Part 8 - Data Protection Act 1998
15. Clause152 introduces a new Part into the Data Protection Act 1998 (DPA) to allow
for 'information sharing' of data if approved by an Order made by a
Minister.
16. If these amendments are enacted it will give Ministers
the power, through secondary legislation, to effectively nullify the protections
contained within the DPA, and indeed the very purpose of the DPA. In effect, these amendments would allow a
Minister to allow any person (including a company or another government
department) to share information about any person (including company
information) as well as personal information that they hold on any person (e.g.
name, address, date of birth, ethnicity, credit history, medical records, DNA
and genetic information, tenancy records, social work records etc, the list
goes on and on), if to do so serves the government's policy objectives. We do not have to look far for a disturbing
example of what could be the subject of an order: the government's own
Explanatory Notes to this Bill suggest an order could be made to allow "NHS Trusts in
17. These amendments clearly engage the right to privacy under the Human Rights Act 1998 (HRA).[11] Any attempt to interfere with this right must be for a legitimate purpose,[12] in accordance with the law and proportionate. It is impossible to know what purpose the orders are intended to achieve, other than a "policy objective". There is no limit on this other than the very general requirement that all Ministers are prohibited under the HRA from acting in a way that is incompatible with human rights. The government argues that this is enough to demonstrate that "all such orders will be in pursuit of a legitimate aim as per Article 8(2)".[13] It is not enough for legislation to give such broad and sweeping powers to make secondary legislation and simply hope that the purpose for which an order is made will be a legitimate one under the HRA.
18. A "relevant policy objective" must be limited to the types of matters that could be considered to be a legitimate aim under article 8. A blanket discretionary power to allow an order to be made to amend any Act or confer any power to achieve a government policy could never be said to be proportionate and necessary in a democratic society. Further, the requirement to "strike a fair balance" between the public interest and the interests of an individual is a convenient yet misleading analysis that involves weighing up the greater good against a particular individual or group of individuals, who will often be hard pressed to show that their interest outweighs the greater public interest. It is only by aggregating the impact of the order across the many people who may be affected that the real extent of the privacy infringement can become clear.
19. Once the details of the proposed amendments are considered more questions arise. If data is shared pursuant to an information-sharing order will any record be made of this and the purpose for which it was shared? Who will monitor this, given the Information Commissioner is given powers to ensure compliance with the data protection principles, not with any orders made under this Part? The only role the Information Commissioner has is the ability to write a report about the order (within 21 days of being given a copy of the order) which must be laid before Parliament. If an order amends the DPA to revoke the data protection principles in any given case the Information Commissioner will have no authority to investigate any such breach, nor will he have the power to even investigate compliance with the order.
20. Furthermore, proposed section 50B would allow for any Act of Parliament to be amended by way of secondary legislation. This would therefore allow the order to amend the DPA itself and, on the face of it, amend the Human Rights Act 1998. The concern that secondary legislation could amend the HRA was raised when the Civil Contingencies Bill was going through Parliament which led to an amendment to ensure that the HRA could not be amended in this way.[14] If these provisions are not removed from this Bill (as we strongly propose they should be) at the very least a provision should be included to make it clear that the power to "modify any enactment" does not extend to the HRA.
21. If there is a need to share information between government departments to ensure that government services are appropriately distributed, this can be dealt with by obtaining the consent of the people whose data is to be shared. Alternatively, if this is not possible, interference with personal privacy should be regulated by primary legislation and fully considered by Parliament. Secondary legislation is not the appropriate vehicle to achieve any of these aims.
February 2009 [1] Available at http://www.liberty-human-rights.org.uk/pdfs/policy-09/coroners-and-justice-second-reading-briefing.pdf [2] Paragraph 327 of the Explanatory Notes. [3] Clause 71(4). [4] Explanatory Notes, para 31. [5] See R (O) v Crown Court of [6] See paragraph 1 of Schedule 15 which allows for a conviction in "any country" to be considered in ascertaining whether a defendant has a propensity to commit the offence with which he or she is now charged. Additionally, paragraph 6(3) of Schedule 15, provides that a previous conviction by a court either in or outside of a member state, can be treated by the court as an aggravating factor (see also paragraph 7 in relation to service offences). [7] As provided for in Schedule 16, proposed new Schedule 3A, clause 5(2). [8] See article 1of Protocol 1
to the EC [9] Note that different terms
are used in [10] Paragraph 700 of the Explanatory Notes. [11] Article 8 of the European Convention of Human Rights as
incorporated by the [12] The
legitimate purposes permissible under Article 8 are in the interests of
national security, public safety or the economic well-being of the country, for
the pr [13] Paragraph 964 of the Explanatory Notes. [14] See section 23(5) of the Civil Contingencies Act 2004. |