Legislative Scrutiny: Coroners and Justice Bill - Human Rights Joint Committee Contents


6.  Changes to the criminal law

Reform of partial defences to murder

BACKGROUND

1.146 The Bill reforms the law in relation to the partial defences to murder of diminished responsibility and provocation.[128] Where a partial defence to murder is made out, the defendant is liable to be convicted of manslaughter instead of murder. As we have pointed out in previous reports,[129] the scope of defences to murder engages Convention rights. The State is under a positive obligation under Article 2 ECHR to take appropriate steps to protect lives, including against deprivation by other individuals. This obligation requires the State to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person. On the other hand, the State is also under positive obligations to protect people against inhuman or degrading treatment and to protect their physical integrity and privacy, and these obligations underpin some of the defences to the criminal law provisions which protect the right to life.

1.147 It follows that if a partial defence to murder is drawn too widely, it may interfere with the right to life in Article 2 ECHR because it does not provide sufficient protection; if it is drawn too narrowly, it may interfere with other competing rights such as the right to physical integrity of respect for private life in Article 8 ECHR, by providing insufficient protection for the right served by the defence.

1.148 Both the Explanatory Notes to the Bill and the Minister's reply to our letter explain that the Government accepts that the Bill's provisions reforming the partial defences to murder potentially engage the right to life in Article 2 ECHR.[130] They acknowledge the positive obligation on the State under Article 2 to protect the lives of others from unjustifiable deprivation by other individuals. However, the Government considers that its proposals for reform of the partial defences to murder do not in any way reduce the existing high level of protection for the right to life in the comprehensive legal framework of homicide offences. It points out that partial defences do not operate to determine whether or not criminal liability exists. Rather, they reduce liability from murder to manslaughter, which is itself an extremely serious offence carrying a maximum sentence of life imprisonment.

DIMINISHED RESPONSIBILITY

1.149 The Bill replaces the current definition of the partial defence of diminished responsibility with a modernised definition. According to the new definition, the partial defence will be available where the defendant was suffering from an abnormality of mental functioning arising from a recognised medical condition which substantially impaired their ability to understand the nature of their conduct, form a rational judgment or exercise self control, and the abnormality provided an explanation for their conduct. The Government's aim is to modernise and clarify the law rather than alter the scope of cases caught by the partial defence.

1.150 There is some concern that the new definition of diminished responsibility means it will no longer be available to those accused of so-called "mercy killing". In their review, the Law Commission recognised that the current law was broad enough to allow, in some cases, the criminal law authorities, including courts and prosecutors, to bring those alleged of mercy killing within the diminished responsibility defence.[131] The new provisions are clear that the defence will only arise where the individual is acting as a result of an abnormality based on an existing, recognised medical condition. Dignity in Dying argue that this will create unjust outcomes for individuals who "have acted rationally in response to persistent requests from a seriously ill loved one".[132] They argue that the new defence of diminished responsibility should be extended to include those who commit "mercy killings".[133]

1.151 Professor Jeremy Horder, Law Commissioner, in his evidence to the Public Bill Committee, said that one of the most common kinds of mercy killing cases that end up in the courts is one in which a man has become clinically depressed as a result of long term care for a partner who has become increasingly ill.[134] The new definition of the partial defence is apt to cover this sort of case because it is the defendant's depressive illness that has left him with less than full rational judgment, and that is a recognised medical condition. At least some mercy killings will therefore be covered, but as Professor Horder points out, the problem is that there may be a paucity of medical evidence to demonstrate this, because historically men have been less likely to admit to having, and to needing treatment for, depressive illness. However, he adds "I don't think there is an obvious solution."

1.152 The Law Commission's 2006 report also recommended that the Government should undertake a public consultation on whether and, if so, to what extent the law should recognise either an offence of 'mercy' killing or a partial defence of 'mercy' killing. So far the Government has not taken up this recommendation. We recommend that they should. We note the Government's statement that the reformulation of the partial defence of diminished responsibility is not intended to change its scope in any way, and that it therefore continues to cover the sorts of "mercy killing" cases identified by the Law Commission.

LOSS OF CONTROL

1.153 The Bill abolishes the existing partial defence of provocation and replaces it with a new partial defence of loss of self-control.[135] The new partial defence based on loss of control will be available in circumstances where the killing resulted from a loss of self-control attributable to a qualifying trigger. The qualifying triggers for the loss of self-control are that it was attributable to a fear of serious violence,[136] or to things done or said which (a) constitute circumstances of an extremely grave character, and (b) caused the defendant to have a "justifiable sense of being seriously wronged".[137]

1.154 This raised a concern which the Committee has previously raised about compliance with the positive duty to protect against unjustifiable breaches of the right to life, where defences may be based on subjective assessments not grounded in reasonable, objective assessments of the circumstances of their actions. We asked the Government whether this defence would apply, for example, in circumstances where a homophobic male defendant reacted violently to the advances of a man in a nightclub, or a racist defendant reacted particularly violently to an assault by a black or Asian person?

1.155 In both the Explanatory Notes to the Bill and the Government's response to our questions, the Government is clear that the test of what is a "justifiable sense of being seriously wronged" will be an objective one. First, it would be open to the judge to withdraw the question from the jury if there was not sufficient evidence for the defence to be left to the jury and second, if it went to the jury, it would be an objective question for it to determine. This follows from the use of the word "justifiable." If the defendant's sense of being seriously wronged is rooted in prejudice or bigotry, that cannot be regarded as "justifiable".

1.156 We accept that whether a sense of being seriously wronged is "justifiable" will be an objective question for the judge or jury to determine. However, we note that in relation to the "fear of serious violence" trigger, the test is subjective. As the Explanatory Notes put it, "As in the complete defence of self-defence, this will be a subjective test and the defendant will need to show that he or she lost self control because of a genuine fear of serious violence, whether or not the fear was in fact reasonable."[138]

1.157 Here, the Government relies on another requirement of the partial defence: that a person of the defendant's sex and age "with a normal degree of tolerance and self-restraint and in the circumstances of the defendant" might have reacted in the same or a similar way to the defendant.[139] "The circumstances of the defendant" exclude any circumstances whose only relevance to the defendant's is that they bear on the defendant's general capacity for tolerance of self-restraint.[140] These provisions, the Government claims, prevent the defendant from seeking to obtain the benefit of the partial defence on the basis of intolerance, and the homophobic or racist defendant described by the Committee in its letter should not therefore be able to rely on their prejudices to avail themselves of the defence.

1.158 We note the Government's explanation.

Encouraging or assisting suicide

1.159 The Bill replaces the current offences of aiding, abetting, counselling or procuring suicide[141] and of attempting to do so[142] with a single offence of encouraging or assisting suicide.[143] The Government says that the purpose of these provisions is to modernise the language of the current law with the aim of improving understanding of this area of the law. It is not intended to change the scope of the existing law.[144]

1.160 The new provisions make it clear that it will be 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, if he or she intends the act to encourage another person to commit or attempt to commit suicide. This includes people or a group of people not known to the defendant and including whether or not anyone does attempt suicide.

1.161 On its face, the reformulation appears to be wider than the current offence. In any event, uncertainty around the scope of the offence could create uncertainty with a corresponding chilling effect on certain forms of speech. The scope of the offence appears to be broad enough to capture the publication of morbid poetry or song lyrics advocating suicide, whether online or otherwise. Individuals suffering from mental health problems, who may or may not have been suicidal, may be at risk of being criminalised when sharing their experiences or problems with others, whether online or otherwise. In addition, it is unclear whether the advertisement and promotion of lawful services rendered outside the UK would be covered by the proposed new offence: would it be an offence to gather or distribute information about the Swiss Dignitas Clinic in the UK? We wrote to the Minister to raise these concerns.

1.162 The Minister confirmed that it was the Government's view that these proposals did not change the scope of the existing law and that in any event:

They will not represent any greater incursion on Convention rights than the existing law, which has never successfully been challenged on grounds of non-compliance. Any possible interference with Article 8 or Article 10 is fully justified as necessary in a democratic society.

1.163 The Minister emphasised that the proposals retained the element of intent which existed in the existing law. It would not be an offence to do something capable of encouraging or assisting suicide without the intent that your actions would do so. The Minister explained that in many of the cases we provided as examples, there "may well be no such intent". The Minister added that no prosecution could be brought without the permission of the Director of Public Prosecutions.

1.164 When asked about the scope of the proposals during his evidence to the Public Bill Committee in the House of Commons, the current DPP, Keir Starmer QC, confirmed that in his view, posting morbid song lyrics or poetry would not carry the relevant intent to support a prosecution. He was not asked to consider any other circumstances where the offence might apply or whether its scope could have a chilling effect in the circumstances we addressed in our letter to the Minister. When asked whether, in his view, these proposals changed the current law, he said:

We have approached this on the basis that the measure does not extend the existing law, and I am therefore not anticipating that there will be a greater number of prosecutions resulting from the rewording of the offence.[145]

1.165 We are concerned that the scope of the new offence of encouraging or assisting suicide is sufficiently uncertain that it might have a chilling effect on speech. We accept that the intent elements of the offence add clarity. However, given that the Bill applies to the encouragement or assistance of suicide, but is not related to the suicide of any individual person or group of persons known to the accused, the intent involved may be relatively broad. For example, we consider that the placing of advertisements or information in respect of assisted suicide services abroad could fall squarely within the ambit of the offence. Similarly, an NGO which provided information about these services could equally be liable to prosecution. We consider that the breadth of the offence remains uncertain and has the potential to have a chilling effect on a range of activities involving reference to suicide or the provision of information or support around end of life decision making. We consider that this chilling effect could engage the right to freedom of expression and the right to respect for private life (Articles 8 and 10 ECHR) and would require justification.

1.166 There have been a number of cases in recent years in respect of the Suicide Act 1961 offences which these proposals replace. These cases have sought to require the DPP to either (a) give an undertaking that he will not bring a prosecution in respect of an assisted suicide, where an individual has helped a loved one to die, at their request or (b) to give clear guidance on the factors which will be taken into account when a prosecutor will decide whether to bring a prosecution in the public interest.[146] Whether the DPP is under any duty to provide this guidance is currently being litigated in the courts but it is clear that the DPP has the power to issue such guidance.[147] In the light of the potential for uncertainty in the proposals on encouraging and assisting suicide, we recommend that the DPP consult on and publish guidance on the factors which he would take into account in deciding whether it would be in the public interest to bring a prosecution for the new offence of encouraging or assisting suicide.

Possession of a prohibited image of a child

1.167 The Bill creates a new offence of possession of a prohibited image of a child.[148] In order to be a prohibited image, an image must be pornographic, fall within subsection (6)[149] and be grossly offensive, disgusting or otherwise of an obscene character. The definition of "pornographic" is set out in subsection (3). An image must be of such a nature that it must reasonably be assumed to have been produced solely or mainly for the purpose of sexual arousal. Where an individual image forms part of a series of images, the question of whether it is pornographic must be determined by reference both to the image itself and the context in which it appears in the series of images. Excluded from the scope of the offence are images which form part of a series of images contained in a recording of the whole or part of a classified work. According to the Explanatory Notes, "the main intention is to regulate obscene pornographic drawings (typically computer generated) or 'cartoons'".[150]

1.168 Clause 51 sets out a series of defences to the new offence which are the same as those for the offence of possession of indecent images of children under section 160(2) of the Criminal Justice Act 1988:

  • that the person had a legitimate reason for being in possession of the image;
  • that the person had not seen the image and did not know, or have reasonable cause to suspect, that the images held were prohibited images of children; and
  • that the person had not asked for the image and that s/he had not kept it for an unreasonable period of time.

1.169 An image is defined as including still images such as photographs, or moving images such as those in a film. It also includes any data which is stored electronically and is capable of conversion into an image. It does not include an indecent photograph or indecent pseudo-photograph of a child, as these are governed by other legislation.[151] References to an image of a person include references to an imaginary person.

1.170 The Government accepts that publication of such material could already contravene the Obscene Publications Act 1959, but notes that some material may be published via the internet from sources outside the UK or where prosecution for publication is not feasible. However, the Explanatory Notes suggest that the new offence is required as:

… viewing such images can desensitise the viewer to acts of child abuse, and reinforce the message that such behaviour is acceptable. Banning its possession is justified in order to establish clearly and in accordance with the law that it is not.[152]

1.171 Whilst the human rights parts of the Explanatory Notes in relation to the new offence are relatively lengthy, in reality they provide very little explanation of the Government's rationale, and merely recite the applicable test. The main paragraph states:

These clauses could constitute an interference with Convention rights under Articles 8 and 10, but the Government considers that such interference is plainly justified. It is intended to achieve a legitimate aim and is necessary to meet that aim. The provisions are a proportionate response to a pressing social need and any consequent interference with Convention rights would be in accordance with the law, and necessary in a democratic society for the prevention of crime, for the protection of morals, and for the protection of the rights and freedoms of others.[153]

1.172 We had concerns about the potential subjectivity of the offence[154] and whether the definition of the new offence is sufficiently precise and foreseeable to satisfy the requirement that any interference with Articles 8 (right to respect for private life) and 10 (freedom of expression) ECHR rights be "in accordance with the law". In addition, the Explanatory Notes do not make clear why the proposed new offence is necessary to meet the aims specified, nor how it is proportionate to those aims so as to be compatible with the right to respect for private life and the right to freedom of expression. We wrote to the Secretary of State to ask him to explain how the proposed new offence satisfies the "in accordance with the law" requirement of Articles 8(2) and 10(2) ECHR, why the offence is necessary and how it is proportionate to the Government's stated aims.

LEGAL CERTAINTY

1.173 In his reply to us, the Minister stated that any interference with Articles 8 and 10 ECHR would be in accordance with the law as "the offences will be set out in clear terms in primary legislation".[155] However, in the Public Bill Committee, some Members expressed concern at the breadth and subjectivity of the definitions and the fact that people could be caught by the new offence for possessing images that they had created themselves without any harm to children or distribution to others.[156] The Director of Public Prosecutions, when asked by Members of the Public Bill Committee about the inclusion of the term "disgusting" in the proposed new offence, stated that this was "a familiar formula" which would be subject to Article 10 ECHR consideration.[157]

1.174 Criminal offences should be drafted in clear and accessible terms to ensure that individuals know how to regulate their conduct. We remain concerned at the broad definition of the offence and, as a result, its potential application beyond the people whom the Government is seeking to target.

NECESSITY AND PROPORTIONALITY

1.175 On our question of the necessity of the new provisions, the Minister replied that "the Government is satisfied that there is evidence to demonstrate a pressing social need" and referred us back to the Explanatory Notes.[158] Summarising the Government's view of the need for the new offences, she stated that such material was being currently exploited as a form of permissible child pornography; there is a need to protect children from abuse and to protect children and vulnerable adults from coming into contact with the material; such material can desensitise people to child abuse and reinforce people's inappropriate and potentially dangerous feelings towards children; and that the impact of the internet meant that existing laws did not cater for the potentially wide sphere of circulation for this material.[159]

1.176 In the Public Bill Committee, Jenny Willott MP pursued the question of necessity, asking the Parliamentary Under-Secretary of State for Justice for the evidence for the Government's assertion that the possession of such images causes harm and generates more problems to children, noting that "we have to have clear evidence to show that the change is needed" and "I am a little concerned that we are legislating without any evidence".[160] The Under-Secretary Maria Eagle MP did not address this point directly, but noted:

The development of this new offence … has been prompted by the concerns of the police and child protection agencies, dealing with an emerging, serious gap in the law that they have perceived, about the rise and discovery of explicit, non-photographic images depicting the kind of horrific sexual abuse of children that all of us would want to prevent, including, for example, computer-generated images that would not meet the definition of pseudo-photographs, and explicit cartoon and hand-drawn images.[161]

1.177 Dealing with our question as to the proportionality of the new provisions with the Government's aims of the prevention of crime, the protection of morals and the protection of the rights and freedoms of others, the Minister again referred us to the Explanatory Notes, stating that the proposed offence has a high threshold, includes specific defences, contains an exclusion for classified films and requires the consent of the Director of Public Prosecutions for a prosecution to be brought.[162]

1.178 The question is whether or not the proposed restrictions on the rights to freedom of expression and respect for privacy are necessary and proportionate to the aims that the Government seeks to achieve. The Government has stated that the offence is needed to protect children and vulnerable adults and to fill a gap in the law. However, unlike the rapid evidence assessment it produced when introducing provisions in the Criminal Justice and Immigration Act 2008 relating to extreme pornography, it has provided no concrete evidence to demonstrate the need for the new offence. We reiterate our view, which we have expressed on previous occasions, that legislation should be evidence-based. Such evidence should be published in time to assist parliamentary scrutiny. Whilst we fully support appropriately targeted criminal offences which will prevent children from abuse, itself a gross violation of their human rights, we are disappointed that the Government has failed to provide sufficiently weighty reasons for the need of the new offence that they propose in this Bill.

Public order offences

INCITEMENT TO HATRED ON THE GROUNDS OF SEXUAL ORIENTATION AND FREEDOM OF EXPRESSION

1.179 The Bill proposes to remove a savings clause inserted by the House of Lords into the Public Order Act 1986 in respect of the offence of stirring up hatred on the grounds of sexual orientation. This provision currently provides that "discussion or criticism of sexual conduct or practices or urging persons to refrain from or modify such conduct is not, in itself, to be taken to be threatening or intended to stir up hatred". The Explanatory Notes explain that the Government considers that this savings provision is unnecessary as the incitement offence is expressly limited to threatening conduct intended to stir up hatred. In addition, it is subject to a requirement that the DPP consent to prosecution. In the Explanatory Notes, the Government explains that we considered the original offence, without the savings clause, and concluded that the provisions provided an "appropriate degree of protection for freedom of speech".[163] We reiterate our earlier view that the offence of incitement to hatred on the grounds of sexual orientation contains adequate safeguards for the right to freedom of expression without the addition of a savings clause. Clause 58 would not lead to a significant risk of incompatibility with Article 10 ECHR.

"INSULTING" WORDS OR BEHAVIOUR

1.180 During our recent inquiry into policing and protest, we received evidence from witnesses who expressed concerns about the operation of section 5 of the Public Order Act 1986 on peaceful protesters. This section provides that if someone uses threatening, abusive or insulting words or behaviour "within the presence of a person likely to be caused harassment, alarm or distress" and intends the words to be threatening, abusive or insulting or is aware that they may be, he or she may be guilty of an offence. Some witnesses to our inquiry complained that this provision has a potential chilling effect on free speech. In our view, section 5 of the Public Order Act gives the police a wide discretion to decide what language or behaviour is "threatening, abusive or insulting". Whilst arresting a protester for using "threatening or abusive" speech may, depending on the circumstances, be a proportionate response, we doubted whether "insulting" speech should ever be criminalised in this way. We consider that the Government should amend section 5 of the Public Order Act 1986 so that it cannot be used inappropriately to suppress the right to free speech, by deleting the reference to "insulting" language.[164] This amendment would provide proportionate protection to individuals' right to free speech, whilst continuing to protect people from threatening or abusive speech. We consider that this Bill provides an opportunity to address our concern and therefore suggest the following amendment.

To move the following clause:

Harassment, Alarm or Distress: Insulting Words or Behaviour

"(1) The Public Order Act 1986 (c. 64) is amended as follows.

(2) In sections 5(1)(a) and 5(1)(b) , the words "abusive or insulting" are replaced by "or abusive.""

Release of long term prisoners sentenced under the Criminal Justice Act 1991

1.181 On 12 February 2009, the Minister wrote to the Chair of the Public Bill Committee to explain a number of Government amendments. This correspondence was helpfully copied to our Chair.[165] Among other amendments, the Government proposed to introduce a new provision to transfer from the Secretary of State to the Parole Board responsibility for deciding on the release of prisoners serving a sentence of 15 years or more under the Criminal Justice Act 1991. As the Minister explained, this amendment involved the last remaining category of prisoner where the Parole Board makes a recommendation on release but the final decision still rests with the Secretary of State.[166]

1.182 This case follows a decision of the House of Lords that the current law is not in breach of the right to liberty (Article 5(4) ECHR), overturning an earlier declaration of incompatibility made by the Court of Appeal.[167] The Government explains that although the House of Lords overturned the declaration of incompatibility, it was critical of the ongoing involvement of the Secretary of State. We welcome the proposal to remove the power of the Secretary of State to overturn or disregard decisions of the parole board on the release of prisoners serving more than 15 years, pursuant to the Criminal Justice Act 1991, as a human rights enhancing measure.


128   Clauses 39-43. Back

129   See for example, reports on the defence of self defence and use of force to prevent crime in the Criminal Justice and Immigration Bill last session: Fifth Report of Session 2007-08, Criminal Justice and Immigration Bill, HL Paper 37, HC 269 at paragraphs 1.66-1.73 and Fifteenth Report of Session 2007-08, Legislative Scrutiny, HL Paper 81, HC 440 at paragraphs 2.21-2.35. Back

130   EN, paragraphs 845 and 849-50 Back

131   Law Commission Report No. 290, Partial Defences to Murder, August 2004. Back

132   Ev 44 - 45 Back

133   The British Humanist Association make a similar argument. See Ev 37 - 38. Back

134   PBC, 3 Feb 2009, Written Evidence (CJ 01) Back

135   Clause 41. Back

136   Clause 42(3). Back

137   Clause 42(4). Back

138   EN, paragraph 316 Back

139   Clause 41(1)(c). Back

140   Clause 41(3) Back

141   Section 2(1) Suicide Act 1961. Back

142   Section 2(1) Suicide Act 1961 read together with Section 1 Criminal Attempts Act 1981. Back

143   EN, paragraphs 327 and 825 Back

144   Clauses 46-48 Back

145   PBC, 5 Feb 2009, Col 106. Back

146   See for example, R (on the application of Pretty) v DPP (2001) UKHL 61, (2002) 1 AC 800, Pretty v UK (2002) 35 E.H.R.R 1, and Purdy v DPP [2009] EWCA Civ 92 Back

147   In Pretty, the European Court of Human Rights recognised that the right to respect for private life may be engaged in cases involving end of life decisions. In the same case, the House of Lords concluded that Article 8 ECHR was not engaged. Under domestic rules of precedent, domestic courts are bound to follow the decision of the House of Lords. The same constraints do not apply to our analysis. See Purdy v DPP [2009] EWCA Civ 92. We have previously commented on the implications of our domestic rules of precedent on the implementation of judgments of the European Court of Human Rights. See Sixteenth Report of 2006-07, Monitoring the Government's Response to Court Judgments finding Breaches of Human Rights, HC 128/HL Paper 728, paragraphs 9 - 13. Back

148   Clause 49(1). Back

149   Subsection 6 specifies that the image must focus on a child's genitals or anal region or must portray one of a number of sexual acts involving children.  Back

150   EN, paragraph 856. Back

151   The Protection of Children Act 1978, as amendment by Sections 69 - 70, Criminal Justice and Immigration Act 2008. Back

152   EN, paragraph 861. Back

153   EN, paragraph 859. Back

154   i.e. the image must be pornographic, be of one of the prescribed acts and be grossly offensive, disgusting or otherwise of an obscene character. Back

155   Ev 27 - 28 Back

156   PBC, 3 March 2009, Cols 473-490. Back

157   PBC, 5 Feb 2009, Col. 104. Back

158   Ev 27 Back

159   Ev 28 Back

160   PBC, 3 March 2009, Cols 481-2. Back

161   PBC, 3 March 09, Col. 488. Back

162   Ev 28 Back

163   Fifth Report of Session 2007-08, paragraph 1.64. The Parliamentary under Secretary for State, Maria Eagle MP, also referred to the Committee's view during the debates in Public Bill Committee, see PBC, 2008-09, 3 Mar 2009, Col 498. Back

164   Seventh Report of Session 2008-09, Demonstrating respect for rights? A human rights approach to policing protest, HL Paper 47, HC, Report to be published 23 March 2009. Back

165   Ev 30 - 31 Back

166   NC 31 Back

167   R (Black) v Secretary of State for Justice [2009] UKHL 1 Back


 
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