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


Conclusions and recommendations


1.  We welcome the inclusion of detailed Explanatory Notes on the implications of the Bill for Convention rights and we commend to other Departments the approach taken in relation to this Bill. (Paragraph 1.4)

2.  We welcome the prompt response provided by the Secretary of State to our request for further information, which has assisted parliamentary scrutiny of the Bill. (Paragraph 1.5)

3.  We welcome the engagement of the public and interested organisations in our legislative scrutiny work. (Paragraph 1.7)

4.  The breadth and size of the Bill and the legal complexity and diversity of the topics it covers have been the subject of concern during the Bill's passage through the House of Commons given the limited time provided for scrutiny.[203] We add our voice to those concerns. Large, multi-purpose bills of this sort are almost impossible to scrutinise effectively within the limited timescale provided by the Government. Given the range and significance of the human rights issues raised in this bill, the Government should have introduced two or three separate bills, each of which would have been substantial pieces of legislation in their own right or ensured that there was sufficient time for full pre-legislative and Committee stage scrutiny in the House of Commons. We welcome the fact that two days have been given over for Report stage in the House of Commons, a step not taken in relation to previous Bills of similar size, including the Criminal Justice and Immigration Bill, which we considered in the last session. (Paragraph 1.11)

Certified or "secret" Inquests

5.  Some press reports suggest that additional safeguards [to the proposals for certified inquests] have been introduced since these proposals were withdrawn from the Counter-Terrorism Bill. In our view, for reasons we explain below, the proposals are broadly the same and raise the same concerns. (Paragraph 1.14)

6.  We consider that there remains a significant risk that the proposed scheme [for certified inquests] will operate in a way which is incompatible with Article 2 ECHR. (Paragraph 1.20)

7.  We note that the Government had intended to tighten up the grounds for certification, but consider that the changes have not significantly altered the very broad scope of the original proposals. In the light of the fact that the right to life is so clearly engaged in this case, we are alarmed by the Government's concession that a broad public interest test has been deployed "just in case" a future unforeseen concern might arise. (Paragraph 1.26)

8.  The Government has not explained fully how the ability of the coroner to appoint counsel to the inquest will assist the participation of bereaved family members in certified inquests. There remain a number of difficulties with the Government's proposal in the Explanatory Notes that counsel for the inquiry act 'as special advocate', including how the counsel would resolve any potential conflict of interest between individual interested parties and whether counsel would need to be approved by the Secretary of State if they were not special advocates with appropriate security clearance. In our view, if the family of the bereaved are to be excluded from any part of the inquest, it is vital that they be represented in the closed proceedings by a special advocate whose function is to represent the interests for family. (Paragraph 1.30)

9.  We do not consider that the Government has provided a satisfactory justification for its view that there is no need to set out, on the face of the Bill, a requirement that the Minister's view be honestly and reasonably held. Despite the Government's assertion that the judicial oversight proposed is adequate, we are concerned that Clause 11 is designed with this purpose in mind: to secure greater protection for information which the Government considers should not be disclosed in the public interest without the rigorous scrutiny which would be applied by the court on an application for PII, where the onus clearly rests on the Secretary of State to persuade the coroner, and if necessary, the court, that there are good reasons why certain information should not be disclosed.[204] (Paragraph 1.34)

10.  We welcome the decision to remove the power for the Secretary of State to appoint a coroner to hear a certified inquest. We are concerned however that the proposals have [otherwise] been amended in a way which widens their scope without introducing any additional significant safeguards. (Paragraph 1.36)

11.  We are not satisfied that a case has been made for the broad provisions under Clauses 11-13, and we would recommend that they be deleted from the Bill. We recommend amendments to the Bill.[205] (Paragraph 1.42)

Data Protection

Information Sharing Orders and the right to respect for private life

12.  We reiterate our view that, in principle, information sharing powers should be adequately defined in primary legislation, accompanied by appropriate safeguards and subject to the application of the Data Protection Act 1998. (Paragraph 1.45)

13.  We would welcome confirmation that the Government has decided to drop these proposals. We recommend that the relevant amendments are tabled as soon as possible and that the Secretary of State should make a statement to Parliament on his decision and the Government's plans for taking this issue forward. No Government amendments have yet been tabled to the Bill for this purpose. We recommend amendments to the Bill. (Paragraph 1.46)

14.  If these proposals are part of the Bill introduced to the House of Lords, we may consider a further report to address our detailed concerns about the Government's proposals for ISOs. (Paragraph 1.48)

15.  Ideally, safeguards should be provided in primary legislation. If adequate safeguards were in place in the enabling primary legislation, a narrow fast-track ISO procedure could be a positive development in terms of parliamentary oversight of information sharing proposals, particularly given the limited scrutiny of existing information sharing provisions in primary legislation. However, for the reasons set out below, we have significant concerns about the scope of these proposals and the associated safeguards in clause 154. (Paragraph 1.50)

16.  We have previously ,made clear that such a wide order-making power is not acceptable. Ministers should never be given the power to amend, by order, legislation as significant for human rights as the HRA and the DPA.[206] (Paragraph 1.51)

17.  We recommend that the Government should take up the Information Commissioner's suggestion that a clear savings clause for the continued application of the DPA 1998 and the HRA 1998 is necessary. (Paragraph 1.54)

18.  The correct test [to be applied Article 8 ECHR] is whether the interference with the rights of those individuals which happens when their information is shared is necessary and proportionate to the pressing social need which the sharing proposes to address. (Paragraph 1.56)

19.  We welcome the Minister's reassurance that any ISO would automatically be accompanied by a Privacy Impact Assessment, which would be provided to the Information Commissioner and generally published more widely. We do not consider, however, that this would provide an adequate safeguard to meet our other concerns about the breadth of the proposals in clause 154. (Paragraph 1.57)

20.  We are concerned at the limitations on the role of the Information Commissioner in these proposals and note that he shares some of our concerns.[207] (Paragraph 1.58)

New powers for the Information Commissioner

21.  We recommend that the Government reconsiders the Information Commissioner's request that the proposed power to issue assessment notices be extended to data controllers in the private sector. Extension of these proposals to the private sector should include safeguards for data controllers' rights to respect for private life, if necessary. We do not consider that an amendment together with any necessary safeguards should be overly complex and we propose an amendment for the purposes of debate. (Paragraph 1.66)

22.  We consider that these additional powers [to sanction public authorities] for the Information Commissioner would be a human rights enhancing measure. While we note the Government's view that it would be unusual for a department or other public body to ignore an Assessment Notice, or to fail to comply with its terms, there is no reassurance on the face of the Bill that this will not be the case. We propose an amendment to meet the Information Commissioner's concerns, for the purpose of debate. (Paragraph 1.67)

Coroners Reform

Coroners reform as a human rights enhancing measure

23.  We welcome the long-awaited introduction of the Government's proposals for [coroners] reform. In so far as the Bill has the potential to support the UK's obligation to protect the right to life, by enhancing the ability of families to discover the truth about the deaths of their loved ones and by increasing the likelihood that public services and others will learn lessons from often tragic circumstances, we consider Part 1 of this Bill to be a human rights enhancing measure. (Paragraph 1.70)

Duty to investigate

24.  We welcome the new extended duty to investigate deaths in state detention, which is a human rights enhancing measure. However, we are concerned that the only clarification of the scope of this provision is found in the Explanatory Notes accompanying the Bill. We recommend that the Bill is amended to include an interpretative clause which sets out a non-exhaustive list of circumstances when an individual should be considered to be in custody or in state detention. (Paragraph 1.74)

25.  We have one outstanding concern, which relates to individuals without capacity who may be deprived of their liberty in residential care homes or hospitals, so-called "Bournewood patients". Individuals in these circumstances are particularly vulnerable, whether resident in a state institution or a private facility. The Government should clarify whether the Bill will impose a duty to conduct an investigation in these cases. We recommend that any illustrative list should make clear that a duty should apply. (Paragraph 1.75)

Purpose of investigation and matters to be ascertained

26.  We welcome clause 5 to the extent that it seeks to enshrine in primary legislation the principle, recognised by the House of Lords in Middleton, that the focus of an investigation into a death governed by Article 2 of the Convention should be on the circumstances of the death. We welcome this legislative clarification of the law to give better effect to a court judgment in which the court used the interpretative power in section 3 of the Human Rights Act to change the settled interpretation of the meaning of a statutory provision.[208] As the Explanatory Notes state, "the new provision makes the position expressly clear" and "therefore ensures that investigations into deaths under the Bill are compatible with the ECHR as determined by Middleton". (Paragraph 1.77)

27.  We welcome the Minister's reassurance that coroners will retain a broad discretion to undertake a wider investigation into the circumstances of a death in cases other than those where one is necessary in order to avoid a breach of Convention rights. Unfortunately, there is nothing on the face of the Bill or in the Explanatory Notes to make clear whether or not it is the Government's intention that coroners should be able to exercise their discretion in this way. Nor is there any indication of the circumstances in which a coroner may wish to exercise his discretion. We recommend the following amendment to the Bill for the purpose of debate. (Paragraph 1.81)

Outcome of investigation

28.  We welcome the Minister's reassurance that the Government does not intend to narrow the scope of the existing law by incorporating in statute the existing limitation on coroners determinations "appearing to determine" civil or criminal liability. However, since clause 5 and clause 10 together will serve to determine the scope of a coroners investigation, we remain concerned that this relationship should be clearly defined. As matters stand, it is not clear how the requirement in clause 10(1) - that any determination should address the purpose of an investigation, by determining how or in what circumstances the deceased came by his death - relates to the prohibition in clause 10(2) against findings that appear to determine civil or criminal liability. Without clarity, there is a risk that the prohibition in clause 10(2) could serve to undermine the very purpose of a coroners investigation as envisaged in clause 5. This could undermine the ability of the inquest to meet the requirements of Article 2 ECHR. We propose the following amendment to the Bill. (Paragraph 1.85)

Juries

29.  The Government's justification for removing the requirement for a compulsory jury inquest in cases where the health and safety of the public, or a section of the public, is at issue is not clear. We recommend that the Bill is amended to reflect the existing legal position unless a clear argument against doing so is provided. We propose an amendment for the purposes of debate. (Paragraph 1.92)

30.  We are not persuaded that the Minister has provided adequate justification for the proposed change [to the composition of inquest juries]. We recommend that clauses 8(1) and 9(2) be amended to maintain the existing provision to the effect that the minimum number of members required on a jury is seven and the maximum is eleven. We propose an amendment for the purposes of debate. (Paragraph 1.95)

Powers to gather evidence and to enter, search and seize relevant items

31.  In principle, we welcome the proposals to extend the compulsory powers of the coroner as a human rights enhancing measure. (Paragraph 1.98)

32.  The participation of any interested party in the investigation will necessarily be contingent upon access to all relevant material, and such participation on the part of the deceased's next of kin to the extent necessary to safeguard their legitimate interests is an essential part of an effective investigation in the context of a death governed by Article 2. We welcome the Government's recognition that evidence obtained using compulsory powers will be subject to the ordinary rules of disclosure in the coroners rules (which will be covered in secondary legislation under this Bill). However, we consider that the Government has missed an opportunity in this Bill to ensure that the disclosure rules will be applied in a way which will support the rights of bereaved families to effective participation. In addition, we regret that draft coroners rules are not available for scrutiny. (Paragraph 1.100)

33.  We have previously expressed our disagreement with Government over whether safeguards in respect of compulsory powers, and in particular, powers of search and seizure, should be provided in primary legislation.[209] We agree that some degree of detail may be left to secondary legislation, but consider that the substance of the relevant safeguards should be provided in primary legislation. We are concerned that draft regulations setting out the proposed safeguards which will accompany the compulsory powers of the coroner will not be available for scrutiny during the passage of the Bill. (Paragraph 1.102)

Power to report if risk of future death

34.  We do not have adequate information to assess whether last year's amendments to rule 43 have been sufficiently successful to obviate the need for a further formal mechanism for collating, monitoring and disseminating coroners' reports, or any further provision for sanctions. The changes to rule 43 have been in force for such a short period of time that the experience of their operation may not be as useful as the Minister suggests. In the light of the potential value which coroners' reports may provide in allowing lessons to be learnt from often tragic circumstances and in avoiding unnecessary risk to life, we recommend that the Government reconsider whether more formal arrangements for the treatment of coroners' reports should be included on the face of the Bill. (Paragraph 1.106)

35.  We regret that no draft regulations dealing with the proposed treatment of coroners' reports have been produced to assist parliamentary scrutiny. (Paragraph 1.107)

Legal aid

36.  We are concerned by the evidence which we have received on the difficulties faced by families who seek legal assistance and representation to support their effective participation in an inquest where their loved one has died. Article 2 ECHR does not require legal aid to be provided in all cases. However, Article 2 ECHR will require legal aid to be provided where it is necessary to ensure that next-of-kin participation is effective. This may include legal aid for representation throughout an inquest. Evidence appears to suggest that current legal aid rules are being applied in a way which fails to recognise when legal aid may play an integral role in supporting effective participation for many families and that, in many cases, families are faced with unrealistic choices based upon the current application of the means testing rules. We welcome the undertaking of the Secretary of State and the Minister to look again at these rules. We recommend that the Government make a concrete commitment to an independent review of the current system for assessing access to legal aid and other funding for bereaved families to access legal advice and assistance, preparation and representation at an inquest. (Paragraph 1.113)

37.  We suggest a new clause for inclusion in the Bill which would ensure that the Government commissioned such a review and reported its conclusions to Parliament. (Paragraph 1.114)

Witness anonymity

38.  We […] welcome the early opportunity to give further consideration to the human rights issues raised by witness anonymity orders. (Paragraph 1.115)

39.  We welcome the CPS's initiative in compiling this register of all applications: it provides an important source of information to enable the practical operation of the witness anonymity provisions to be independently scrutinised and is a valuable human rights safeguard. (Paragraph 1.118)

40.  We welcome the express acknowledgment of the exceptional nature of witness anonymity orders in both the Attorney General's Guidelines and the DPP's Guidance. We also welcome the Minister's acceptance that "anonymity orders should not become routine instead of exceptional."[210] We do not consider the number of witness anonymity orders applied for in the first 6 months of the legislation's operation to suggest that the orders are being treated as other than exceptional. We therefore do not regard it as necessary for the legislation to be amended to insert an express reference to the exceptional nature of witness anonymity orders, such as that contained in the equivalent New Zealand legislation. (Paragraph 1.124)

41.  We recommend that appropriate guidelines be drawn up for the police concerning their role in the application for witness anonymity orders, which reflects, in a manner accessible to front line police officers, the clear guidance to prosecutors that witness anonymity orders are justified only in exceptional circumstances. (Paragraph 1.125)

42.  We recommend that future editions of the Director's Guidance, which expressly states that it will be kept under review, provides some guidance as to what the Director is likely to regard as constituting "serious damage to property" when considering whether to make an application for a witness anonymity order. In particular, guidance would be welcome as to whether, in the DPP's view, there will usually need to be some kind of risk to persons for the damage to property to be "serious", which was the human rights compatible interpretation of the same phrase by the Attorney General of New Zealand. (Paragraph 1.129)

43.  We therefore remain of the view that the legislation should be amended to place on an express statutory footing the trial judge's discretion to appoint special counsel and the right of the defence to request the appointment of such special counsel. Alternatively, we recommend that such express provision be made in the new rules of court on witness anonymity being drafted by the Criminal Procedure Rule Committee chaired by the Lord Chief Justice.[211] (Paragraph 1.137)

44.  We also recommend that the DPP's Guidance covers the assistance prosecutors should be prepared to provide to the court to consider whether, in the particular circumstances of the case, fairness requires the appointment of special counsel; and that the DPP's register of anonymity applications should additionally record whether any request or application was made to the court to appoint special counsel and the outcome of that request or application. (Paragraph 1.138)

45.  We therefore recommend that the Bill be amended to require the consent of the DPP before an application for an investigation witness anonymity order is made. (Paragraph 1.145)

Changes to the criminal law

Reform of partial defences to murder

46.  The Law Commission's 2006 report [on partial defences] 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. (Paragraph 1.152)

Encouraging or assisting suicide

47.  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. (Paragraph 1.165)

Possession of a prohibited image of a child

48.  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 [of possession of a prohibited image of a child] and, as a result, its potential application beyond the people whom the Government is seeking to target. (Paragraph 1.174)

49.  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. (Paragraph 1.178)

Public order offences

Incitement to hatred on the grounds of sexual orientation and freedom of expression

50.  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. (Paragraph 1.179)

"Insulting" words or behaviour

51.  We consider that this Bill provides an opportunity to address our concern [about the current scope of the Public Order Act 1988] and therefore suggest the following amendment. (Paragraph 1.180)

Release of long term prisoners

52.  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. (Paragraph 1.182)

Procedural changes

Bail and murder cases

53.  We welcome the Government's reassurance that clause 98(2) is not intended to create a presumption against bail or to reverse the burden of proof in bail applications in murder cases. In either case, we consider that there would be a clear risk of a breach of the right to liberty (Article 5(3) ECHR). We remain doubtful whether clause 98(2) can have any practical effect on bail decisions. (Paragraph 1.190)

Vulnerable and intimidated witnesses

Automatic application of special measures to selected witnesses

54.  We recognise that the court will retain control over whether or not special measures will be in the interests of justice in an individual case. We accept that this discretion will provide a valuable safeguard for the right to a fair hearing as guaranteed by Article 6 ECHR and the common law. However, we remain concerned by the decision of the Government to provide blanket eligibility for special measures to any witnesses in proceedings related to a whole category of offences and the power to extend eligibility to a wider category of offences without further parliamentary debate. The Minister should explain clearly why automatic eligibility is necessary when the existing law already provides for special measures in cases where witnesses' fear or distress is likely to diminish the quality of his or her evidence. (Paragraph 1.195)

Extension of availability of intermediaries to vulnerable defendants

55.  We share the concerns of the Prison Reform Trust, Justice and other witnesses that individuals who cannot effectively participate in criminal proceedings, whether as a result of any mental health disability, intellectual impairment, or otherwise, should not be subject to prosecution, but should be diverted from the criminal justice system. The right to a fair hearing, guaranteed by the common law and Article 6(1) ECHR requires nothing less. However, we welcome the aim of these proposals to support vulnerable defendants when the court considers that an intermediary would be "necessary" to secure a fair trial. We consider that this provides a valuable safeguard against the use of these provisions in circumstances which would lead to prosecutions of individuals who should rightly be considered unfit to plead. We recommend that the Government consider asking the CPS and the Judicial Studies Board to consider issuing guidance to accompany these proposals, making clear the scope of the right to effective participation in criminal proceedings and highlighting circumstances where the use of an intermediary would be inappropriate. We understand that intermediaries will be funded by Primary Care Trusts (PCTs). We recommend that the Government monitor and review how these provisions operate in practice. We consider that this monitoring exercise could be conducted effectively by the CPS or by the CPS with the input of information from PCTs, individual intermediaries, defence lawyers and defendants. (Paragraph 1.200)

Live links

56.  The Minister's response does not help us understand the benefits which the Government consider will flow from the increased use of live link hearings, only the Government's view that live links should be used in as many cases as possible. We recommend that the Government provide evidence of the benefits which it considers will flow from the increased use of live links. (Paragraph 1.209)

57.  The Minister should be able to explain why the Government considers that there is adequate evidence to show that in the circumstances in which live links may be implemented more widely, they are currently operating in a manner which allows the defendant to participate in the hearing and to consult and instruct his legal adviser in confidence. (Paragraph 1.212)

58.  We welcome the Minister's reassurance that the Government's view is that the court would automatically consider the defendant's capacity to participate when considering whether a live link was in the interests of justice. (Paragraph 1.213)

Criminal memoirs

59.  We remain concerned that making an Exploitation Proceeds Order (EPO) in part dependent on the degree to which a victim, their family or the general public are offended in a particular case could unnecessarily risk arbitrary application of these proposals. We recommend that the Government should consider an amendment to the Bill to remove any reference to the degree of offence aroused by the relevant profits, while retaining the ability of the court to consider the wider public interest in making an EPO. (Paragraph 1.220)


203   See for example, HC Deb, 26 Jan 2009, Col 66. Back

204   The law of public interest immunity (PII) already applies to inquests. Applications may be made to the coroner to seek a PII certificate to prevent disclosure of certain categories of information on the grounds of damage to the public interest. Back

205   We understand that similar amendments were tabled on 11 March 2009, to delete clauses 11 and 12 from the Bill. For completeness, we recommend the deletion of all three clauses. Back

206   Fourth Report of 2003-04, Scrutiny of Bills: Second Progress Report, HL Paper 34, HC 303, paragraphs 1.23-1.24. Back

207   Ev 36 Back

208   Section 3(1) HRA provides: "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights." Back

209   See for example, Twentieth report of 2005-06, paragraphs 2.41 - 2.49 (Compensation Bill); Eighth Report of 2003-04, paragraph 4.28 (Housing Bill). Back

210   PBC, 5 March 2009, Col. 563. Back

211   See PBC, 5 March 2009, Col. 542. Back


 
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