Legislative Scrutiny: Coroners and Justice Bill

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

Letter to Rt Hon Jack Straw MP, Secretary of State for Justice, dated 12 February 2009

The Joint Committee on Human Rights is currently scrutinising the Coroners and Justice Bill for compatibility with the United Kingdom's human rights obligations. This is a lengthy Bill covering a number of discrete areas and raising a number of significant human rights issues. It is one of the Committee's priorities for legislative scrutiny for this session.

I would be grateful if you could provide me with some further information about the Government's views on compatibility. For ease of reference, I have separated our questions into three sections: a) Coroners reform; b) Data protection and c) Reform of criminal law and procedure.

(A) CORONERS REFORM

DUTY TO INVESTIGATE (CLAUSE 1)

The Bill sets a statutory duty on senior coroner's to investigate certain deaths. The Explanatory Notes explain the Government's view that this extension enhances the state's ability to meet its obligations under Article 2 ECHR in relation to a number of cases where the liberty of the subject may have been constrained, for example, in cases of persons who have died while being detained in a variety of contexts (such as, in prisons, by the police, in court cells, in young offender institutions, in secure training centres, in secure accommodation, under mental health or immigration and asylum legislation).

1. Would the Government accept that the extension of the duty to investigate all deaths in mental health institutions, including deaths of patients who had voluntarily undertaken treatment, would be an human rights enhancing measure?

PURPOSE OF INVESTIGATION AND MATTERS TO BE ASCERTAINED (CLAUSE 5)

The Bill provides that the purpose of a coroner's investigation will be to ascertain who the deceased was, and how, when and where the deceased came by his or her death (Clause 5(1)). That provision is qualified to the extent that where "necessary for the purpose of avoiding a breach of Convention rights (within the meaning of the Human Rights Act 1998", the purpose of an investigation includes ascertaining in what circumstances the deceased came by his or her death as contemplated by the House of Lords in R v HM Coroner ex p Middleton [2004] 2 All ER 465 para 35 (Clause 5(2)).

There are cases where the scope of the procedural requirements of the Convention may not be clear, but where the public interest in protecting the right to life may justify a broader investigation into the circumstances of a death. These cases include circumstances where the Convention rights, guaranteed by the HRA, may or may not apply:

— death of a vulnerable person in a private care home;

— death in a private work place;

— death involving British state agents in circumstances where the HRA does not apply because of date of death (ie pre-HRA) or location of death (ie abroad);

— death abroad not involving British state agents but in circumstances where there is no prospect of adequate investigation by host state;

— deaths involving other circumstances which, if allowed to continue or recur, may result in the deaths of other members of the public.

That one of the primary functions of any effective coronial system should be to prevent the recurrence or continuation of circumstances creating a risk of death or to eliminate or reduce the risk of death created by such circumstances has, of course, been recognised elsewhere:

— Schedule 4 paragraph 6 of the Bill itself;

— the recommendations of the Report of a Fundamental Review 2003 (Cm 5831, Chapter 8, p89);

R (on the application of Amin) v. Secretary of State for the Home Department

R (on the application of Takoushis) v. HM Coroner for Inner North London

Inner West London Coroner v Channel 4 Television Corpn

— section 4(7) of the Fatal Accidents and Sudden Death Inquiry (Scotland) Act 1976) which allows the investigating Sheriff in Scotland to determine, amongst other things, (a) where and when the death and any accident resulting in the death took place, (b) the cause or causes of the death and any such accident, (c) the reasonable precautions, if any, whereby the death and any accident resulting in the death might have been avoided, (d) the defects, if any, in any system of working which contributed to the death or any accident resulting in the death, and (e) any other facts which are relevant to the circumstances of the death.

2. Does the Government accept that there may be cases where the HRA may not apply, or where the scope of the Convention may not be clear, but where the wider public interest in the right to life, the right to be free from inhuman and degrading treatment and the common law right to dignity might be served by a wider Middleton-type investigation into the circumstances of an individual death of the kind contemplated under Clause 5(2)?

3. In such cases, does the Government accept that a wider, Middleton-type investigation and inquest would provide an opportunity to learn valuable lessons, to prevent the occurrence or continuation of circumstances creating a risk of other deaths or to eliminate or reduce the risk of such deaths (and so, reduce the risk of future Article 2 ECHR violations)?

4. Accordingly, does the Government accept that the Coroner should have a residual discretion to undertake a Middleton-type investigation and inquest in circumstances where the public interest might be best served by doing so even if those circumstances are outside the strict ambit of Clause 5(2)?

JURIES (CLAUSES 7-9)

The Bill changes current provisions in respect of jury inquests in a number of ways:

— However, a new wide residual discretion is introduced for Coroners to summon a jury if there is "sufficient reason" to do so;

— It is proposed to reduce the number of members of an inquest jury from 7-11 to 6-9.

5. Please explain why the Government considers that it is appropriate to remove the existing provision for compulsory jury inquests in cases where the health and safety of the public may be at risk, bearing in mind the Convention rights that will generally be engaged in such cases.

6. What additional circumstances would be required for a jury to be summoned (what would be a "sufficient reason" for a jury inquest?) and would these circumstances include cases where a risk to the health and safety of the public was engaged and where a report from the coroner may be necessary to avoid future deaths?

7. Does the Government consider that public confidence in the outcome of the inquest, and in the process as a whole, will be diminished by a reduction in jury numbers from 7-11 to 6-9, particularly in cases where Convention rights are engaged, and if not, why not?

OUTCOME OF INVESTIGATION (CLAUSE 10)

The Bill enshrines in primary legislation the existing prohibition on any determination by a coroner or jury which is "framed in such a way as to appear to determine any question of (a) criminal liability on the part of any named person or (b) civil liability".

These words as they currently stand in secondary legislation[3] have been held on a number of occasions[4] to have a meaning such that they could not defeat the purpose of an inquest to determine "how" the deceased came by his or her death.

A narrow reading of the prohibition in primary legislation could serve to prevent verdicts currently open to coroners and their juries such as "unlawful killing" or "death as a result of neglect" or, indeed, to obstruct compliance with Article 2 ECHR. The Convention requires that an investigation compliant with Article 2 ECHR must be capable of leading to the identification and punishment of those responsible for a death, including a determination as to the legality of any act or omission resulting in the death. The Explanatory Notes correctly recognise that this requirement concerns procedure rather than results.[5]

The relevant issue in an inquest is responsibility and not liability. The coroner or jury should be free to describe the acts or omissions which are responsible for a death, without any restriction by reference to whether or not such a description might "appear" to determine liability.

8. I would be grateful if you could confirm that these provisions are not intended to change the current position under the Coroners Rules, and where a finding which might point to responsibility for a death is required by the Convention, that finding would not be inconsistent with the proposals in Clause 10.

9. I would also be grateful if you could confirm that the Government intend verdicts such as "unlawful killing" or "death as a result of neglect" to remain open to coroners?

10. Do you accept that the exclusion of findings which "appear to determine" civil or criminal liability could lead to some ambiguity and unnecessary caution on the part of a Coroner or a jury keen not to appear to determine liability?

11. Is there any reason why the exclusion in Clause 10 should not be limited to findings which determine any question of criminal or civil liability on the part of any named person or body, in order to avoid any such unnecessary ambiguity?

CERTIFIED INVESTIGATIONS (CLAUSES 11-13)

During public bill committee proceedings, the minister was asked to explain how many cases had been affected by the absence of the proposed `certified' investigation procedure. It became clear that the minister considered that there had been two cases which had been affected.[6]

12. I would be grateful if you could confirm (a) how many cases have been affected by the inability to disclose certain information (despite existing special measures, including the potential to apply for pii in respect of that information); and (b) how those cases have been affected.

the committee expressed concerns that these earlier proposals would be incompatible with the obligations of the uk under article 2 echr and proposed that they be reconsidered in the context of this bill.[7]

13. What has happened since these proposals were withdrawn from the counter-terrorism bill during the last session, to persuade the government that it is necessary to broaden the reasons for certification to include a protection for witnesses and a new "public interest" category?

— in what sorts of circumstances does the government envisage issuing a certificate for these purposes? Can you give some hypothetical examples?

— certification for the purposes of protecting a relationship with another country is very broad. In what circumstances would the government envisage issuing a certificate for this purpose? For example, would the government issue a certificate (a) to save embarrassment of uk allies in cases of friendly fire and/or (b) to protect a trade or other commercial relationship between a uk company and a third party government?

The Explanatory Notes explain that Article 2 ECHR does not require, in the Government's view, involvement of the bereaved family in all circumstances:

Article 2 does not | give the public and next-of-kin an absolute right to be present at all times or to see all the material relevant to the investigation. The Government considers that the courts are very likely to accept that it is consistent with Article 2 for sensitive material not to be made public or disclosed to the next-of-kin where this is required by a substantial public interest.

14. I would be grateful if you could provide a more detailed explanation of the Government's view. In particular, please provide any legal authority for the Government's position that the proposals are likely to be compatible with Article 2 ECHR.

There is no express provision on the face of the Bill for special advocates to be available to represent the interests of interested parties in a certified inquest; instead it is suggested that the responsibility of examining any sensitive material and testing it on behalf of the the deceased's family or next of kin could be left to counsel to the inquest "acting in effect as special advocate"[8].

15. I would be grateful if you could provide further reasons for the Government's view that counsel for an inquest will be able to perform the functions of a special advocate on behalf of the deceased's family or next of kin, bearing in mind that the primary duty of counsel to the inquest will be, by definition, to the Coroner rather than any of the interested parties. Specifically:

— in any case involving certification, will the coroner be required to appoint an individual with clearance to act as a special advocate?

— how will that individual reconcile his duty to the inquest and the interests of what may be a diverse range of interested parties?

16. If this is an important safeguard for the rights of interested parties, why should the requirement for the coroner to appoint a special advocate or multiple advocates in cases involving certification not be provided for on the face of the Bill?

The Bill currently provides for the Secretary of State to issue a certificate, subject to judicial review of his opinion that certain information should not be made public.

17. Does the Government accept that the Minister must have reasonable grounds to support his opinion (a) that the relevant information should not be made public; (b) that the relevant reasons are satisfied and (c) that other measures would not be adequate?

18. If so, why shouldn't the Bill should be amended to clearly reflect this requirement?

19. What would the Government do if judicial review led to a certificate being overturned? (Wouldn't this pose the same problem which the Secretary of State considers would be associated with an application for PII?)

20. Given the importance of judicial oversight, why shouldn't the Bill be amended to provide the Secretary of State with the power to certify that certain information should not be made public, but to leave the appropriate measures necessary to achieve this (including the potential for sitting in private and without a jury) to the discretion of the High Court judge hearing the certified inquest?

POWERS TO GATHER EVIDENCE AND TO ENTER, SEARCH AND SEIZE RELEVANT ITEMS (CLAUSE 24, SCHEDULE 4 PARAS 1-5)

The Bill makes provision for enhanced investigatory powers for coroners, including in respect of powers to summon witnesses and compel the production of witnesses. It also makes new provision for enhanced powers of search and seizure.

21. Does the Minister consider that these powers would enable a coroner to compel an individual to produce evidence which would open him or her to criminal liability? If not, I would be grateful if you could explain the Government's view. If so, please explain why there should not be a specific exemption on the face of the Bill to deal with this issue.

22. Will the Coroner be required to disclose evidence gathered using these compulsory powers to interested parties?

23. Does the power to require a person to produce documents include a power to require full and appropriate disclosure and inspection to be provided by each interested party to all other interested parties, reflecting a duty on the Coroner to ensure full and appropriate disclosure and inspection for all interested parties, including bereaved families? If so, why shouldn't this power and duty be reflected on the face of the Bill?

We expressed some concern about the breadth of these powers when they were proposed in the draft Coroner's Bill and suggested that similar safeguards to those in Part II of the Police and Criminal Evidence Act 1984 (PACE 1984) should be provided on the face of the Bill.

The Explanatory Notes indicate that the Government may introduce further safeguards in secondary legislation, including for such coronial functions to be delegated and details of to whom search and seizure powers could be delegated. Additional safeguards could include the provision of a record of items seized and for the return of seized items. They will also provide for a mechanism of complaint, by aggrieved individuals, to the Chief Coroner.

24. I would be grateful if you could explain why comparable safeguards to those in Part II, PACE 1984 should not be provided on the face of this Bill.

25. Has the Government produced any draft Regulations to accompany these powers? If so, I would be grateful if you could provide my Committee with a copy to assist our scrutiny of the Bill.

POWER TO REPORT IF RISK OF FUTURE DEATH (CLAUSE 24, SCHEDULE 4 PARA 6)

This power has the potential to enhance the ability of the state to comply with its positive obligation to take appropriate steps to safeguard the lives of those within its jurisdiction (Article 2 ECHR). However, Schedule 4 does not provide a mechanism for ensuring that recommendations are made, recorded or disseminated. There are no sanctions proposed for failure to respond to a report when one is made.

26. There are a number of actions which could enhance the effectiveness of the Coroners Report, and so, enhance the protection for the right to life. I would be grateful if you could explain the reason the Government chose not to use the Bill to:

— Impose a duty on the coroner to make a report if he considers that action is required;

— Impose sanctions for failure to respond on the part of the authorities receiving the report;

— Require disclosure of the report and response thereto to all interested persons, and publication where appropriate;

— Create a mechanism for monitoring and scrutinising such reports and responses thereto in the interests of ensuring that lessons are learnt.

GOVERNANCE: CHIEF CORONER ETC (CLAUSES 27-31, SCHEDULES 7-8)

The Explanatory Notes explain that the Chief Coroner will introduce training requirements which would "ensure that all those working within the service are aware of and apply best practice, relevant guidelines and standards |. and other developments in legislation". Nothing on the face of the Bill requires the Chief Coroner to establish training requirements, nor does the Bill require any training to include information on relevant guidelines or standards.

27. Why shouldn't the Bill require the Chief Coroner to institute a system of mandatory national training requirements for coroners, including provision for training in respect of Convention rights and the requirements of the HRA 1998?

The Bill provides that the Chief Coroner will hear appeals against certain decisions of coroners, subject to further appeal to the Court of Appeal on a point of law.[9] The Lord Chancellor will have discretion to add or remove appeal rights.[10]

28. I would be grateful if you could clarify whether it is the Government's intention that a decision that can be the subject of appeal to the Chief Coroner may no longer be subject of challenge by judicial review? When an appeal to the Chief Coroner is not available, will it be open to an Interested Party to seek judicial review?

29. In view of the importance of the role in the proposed new scheme and the nature of the powers that go with that role, including the power to determine appeals, does the Government agree that it would be appropriate for the Chief Coroner to be a High Court judge (rather than a circuit judge)?

30. I would be grateful why you could explain why the Government consider that it is appropriate to allow the Lord Chancellor to remove proposed appeal rights by secondary legislation.

The Bill provides the Chief Coroner with the power to conduct and carry out any inquest, or to invite the Lord Chief Justice to nominate a High Court or a Circuit judge to do so, in cases where that may be appropriate by virtue of "particularly complex legal characteristics".[11]

31. I would be grateful if you could provide further information about the breadth of this test. For example, would cases such as the investigation of the shooting of Jean Charles de Menezes or the inquiry into the death of the Princess of Wales, be covered by this power?

32. In high-profile cases engaging Convention rights, but not necessarily raising any new or complex legal characteristics, would the Chief Coroner still have the option to take over the conduct of an inquest or to ask for the appointment of a senior judge to hear it in the place of a senior coroner?

GOVERNANCE: GUIDANCE, REGULATIONS AND RULES (CLAUSES 32-34)

33. Does the Government intend to seek any substantive changes to existing Coroners Rules, other than those made on the face of the Bill? If so, will draft Regulations and Rules be provided for scrutiny during the passage of this Bill?

34. In the light of the nature of the positive duty of the state in arranging inquiries into deaths where the Convention obligations of the state may be engaged, I would be grateful if you could explain the role that the Lord Chancellor will play in the setting of practice and procedure rules. In addition, I would be grateful if you could set out the Government's view that this continuing involvement is appropriate.

35. I would be grateful if you could explain how coroners and practitioners will be involved in the setting of practice and procedure rules. Would it be appropriate to create a new Rules Committee, similar to the rules committees operating in relation to the Civil Procedure Rules?

LEGAL AID

In our correspondence with the Minister on the draft Coroners Bill, we highlighted the availability of legal aid for bereaved families as an important consideration for the purposes of facilitating their effective participation and ensuring compliance with Article 2 ECHR. Our predecessor Committee recommended that legal aid should be available for families in any case involving a death in custody.[12] During the second reading debate on the Bill, the Lord Chancellor explained that the Government would consider amendments to the Bill for the purpose of broadening access to legal aid for bereaved families. He made the following qualification, explaining the Government's views:

During the Public Bill Committee debates on the Bill, the Minister, Bridget Prentice MP, also indicated that the Government would consider again the provision of legal aid to assist bereaved families participating in inquests.

36. I would be grateful if you could explain further the Government's view that the current provision for legal aid for families participating in inquests which engage Article 2 ECHR is adequate to meet the requirements of the Convention for effective participation by the family.

37. Is there any reason why this Bill should not be amended to make express provision for access to legal aid for family members of the deceased in any inquiry engaging Convention rights (ie any inquiry under Clause 5(2))?

(B) DATA PROTECTION

NEW POWERS FOR THE INFORMATION COMMISSIONER

In its commentary on these parts of the Bill, the Information Commissioner's Office (ICO) points out that most complaints and risks in respect of data arise in private organisations and argues that these new powers should apply both to the public and private sector.

38. Does the Government accepts that a breach of Article 8 ECHR could arise as a result of the failure of a private individual or a company to comply with the data protection principles:

— If not, why not?

— If so, does the Government accept that greater scrutiny of the private sector by the ICO would reduce the risk that such a breach could arise?

Information sharing and the right to respect for private life Clause 152 of the Bill provides relevant Ministers, including Ministers in the devolved regions, with a broad power to open an information sharing gateway between two or more persons, by statutory instrument (ISO). The recent Walport review, on which these proposals are based, suggested that the Government might require an exceptional power to create new information sharing powers by secondary legislation, but that such a power should be accompanied by safeguards to ensure adequate parliamentary and wider scrutiny for compatibility with the right to respect for personal information.[14] We have a number of questions about the scope of these proposals and the safeguards for the protection of the right to respect for personal information (Article 8 ECHR).

39. I would be grateful if you could explain why the Government consider it would be appropriate to subject any and all types of information to wider information sharing by ISO. For example, are there any reasons why the Government considers that the Bill should not be amended to exclude, for example:

— Information which would otherwise be protected as "sensitive personal data" for the purposes of the DPA 1998;

— medical records or medical or clinical information (other than anonymous patient data from which no patient can be identified);

— information held on the National DNA Database and other samples held by the police or others for the purposes of criminal investigation;

— information held on the national children's database created pursuant to the Children Act 2004;

— records of criminal allegations or accusations;

— information held or gathered pursuant to the Safeguarding Vulnerable Groups Act 2006 (express provisions for information sharing for the purposes of safeguarding children and vulnerable groups are already provided on the face of that Act)?

40. Does the Government consider that the power to modify any enactment, by ISO, includes the power to modify or disapply the provisions of the HRA 1998, including the Section 6 duty to act in a manner compatible with Convention rights?

41. Does the Government consider that this provision would prevent an individual from making a claim, under the HRA 1998, that the treatment of his or her personal information, despite being authorised by the ISO, had led to a breach of his or her right to respect for personal information (Article 8 ECHR)?

42. If so, why shouldn't the Bill be amended to include a savings clause similar to that inserted in the Civil Contingencies Act 2006, in order to provide a guarantee that individual public authorities processing information pursuant to an ISO will be subject to the requirement to act in a manner compatible with Article 8 ECHR?

43. I would be grateful if you could confirm that once information has been processed in accordance with an ISO, the final data controller of any personal data must hold and process it in a manner which is compatible with the Data Protection Act (DPA) 1998.

44. Is there anything in the Bill which would prevent the Government proposing the permanent amendment or modification of the DPA 1998?

The relevant Minister may make an ISO if he or she is "satisfied (a) that the sharing of information enabled by the order is necessary to secure a relevant policy objective, (b) that the effect of the provision made by the order is proportionate to that policy objective, and that the provision made by the order strikes a fair balance between the public interest and the interests of any person affected by it." In order to be compatible with Article 8(2), information can only be shared for the purpose of one of the "legitimate aims" identified by that Article. The proportionality test engaged by Article 8(2) does not equate to the "striking of a fair balance" between the public interest in meeting the policy interests of a Minister and the interests of an individual or a group of individuals. The correct test 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.

45. I would be grateful if you could provide a fuller explanation of the Government's view that the test for an ISO is appropriately defined. In particular:

— Please explain why the Government considers it appropriate to link the making of an ISO with an individual Ministerial policy? Are there significant reasons why the Bill should not be amended to limit information shared under ISO to information which is necessary to meet the public functions of the Minister or any other public authority exercising public functions?

— Why should the Bill not be amended to link the making of an ISO more closely to the legitimate aims identified in Article 8(2) ECHR?

The Walport review recommended that the relevant Minister proposing an Order under these provisions should be required to perform a Privacy Impact Assessment. The Explanatory Notes accompanying the Bill do not refer to the requirement to make a Privacy Impact Assessment.

46. I would be grateful if you could confirm whether the Minister proposing an ISO would be required to make a Privacy Impact Assessment of the proposed Order and whether (a) that assessment would be made available to the Information Commissioner together with the draft Order and (b) it would be published to assist wider public scrutiny?

The Bill provides that the Information Commissioner must be given at least 21 days to consider whether to issue an opinion on any draft ISO. He is not required to publish an opinion, but where he does, that opinion must be laid before Parliament, together with the draft Order. The Information Commissioner is not required to report, nor is the relevant Minister required to do anything other than lay his report before Parliament. The Commissioner can only report on whether the effect of a provision is proportionate to the policy objective that the Minister seeks to meet and whether the order strikes a fair balance between the public interest and the interests of any person affected by it. The Commissioner is not permitted to question whether the sharing of information is necessary to meet the specified policy objective, nor is he permitted to report on wider issues in respect of the compatibility of the provisions with Article 8 ECHR or the implications of disregarding the data protection principles in this case.

There is no requirement on the face of the Bill for Government to respond a negative report of the Information Commissioner, whether by publishing their rebuttal of the Information Commissioner's view or by withdrawing their draft ISO.

47. Does the Government accept that, under the proposals in the Bill, the report of the Information Commissioner can have little effect, other than to inform public and parliamentary opinion?

— If not, what will be the practical effect of a negative report of the Information Commissioner?

— If you agree, wouldn't it be more appropriate to allow the Information Commissioner to report on the proposal for the ISO in any terms that fall within his remit, including commentary on the necessity for the ISO and its implications for the right to respect for personal information?

We have written separately to the Information Commissioner to ask him for his views on these questions.

The CPS has been maintaining a register of all cases in which an application for a witness anonymity order has been made. During the Public Bill Committee proceedings on the Bill, the Minister and the Director for Public Prosecutions gave statistics on the number of cases involved and the broad types of cases in which applications have been made.

48. In how many cases where witness anonymity orders sought in respect of risk to property alone? Please indicate in how many cases orders were sought by (a) the police and (b) the CPS.

49. In each of those cases, were applications for witness orders actually made? Please indicate in how many applications orders were originally sought by (a) the police or (b) the CPS.

An investigative witness anonymity order can be applied for by the police, or other investigative body, as well as by the DPP. There is an obvious practical problem about the effectiveness of such orders: unless the witness is also confident that their anonymity will be protected at trial they are unlikely to come forward. But the investigating authorities are not in a position to know whether such a trial anonymity order is likely to be given.

50. Is there any reason why the Bill should not be amended to require the consent of the DPP before an application for an investigative witness anonymity order is made?

REFORM OF EXISTING LAWS ON MURDER, INFANTICIDE AND SUICIDE (PART 2)

The Bill proposes to reform the law in relation to the partial defences to murder of diminished responsibility and provocation. The Explanatory Notes explain that the Government accepts that these provisions potentially engage both the right to life and the right to a fair hearing in criminal proceedings (Articles 2 and 6 ECHR). The Committee has previously reported that the duty in Article 2 ECHR on the state to take positive steps to protect the right to life includes the need to ensure that appropriate steps are taken to punish individuals who unlawfully breach the right to life. The Government accepts that this duty extends to a duty to protect citizens from unjustifiable deprivation of life by other individuals. The state also has a duty under Article 6 ECHR and the common law to ensure that the criminal law applies with adequate legal certainty to allow an individual to regulate his or her conduct accordingly.

A number of concerns have been raised in debate over the scope of these provisions, including:

— The exclusion of anything related to "sexual infidelity" from the triggers for the partial defence based on loss of control may lead to inequitable situations, where a genuine, reasonable, loss of control has arisen.

— The Bill expressly provides that the loss of control which triggers the new defence need not be "sudden". Liberty has welcomed this, as it would ensure that victims of domestic violence who react violently after a "slow burn" of consistent ill-treatment would be able to benefit from this defence. The Bar Council is not persuaded and considers that the requirement for loss of control would exclude the defence from this group of individuals, where time has passed between the last instance of abuse and the victim's death.

— Should, and would, a child be able to benefit from the defence of diminished responsibility?

— 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. 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".

51. In light of the number of concerns raised about the scope of these provisions, I would be grateful if you could provide a fuller explanation of the Government's view that these provisions (a) comply with the requirement that the criminal law is framed in a way which allows for adequate legal certainty and (b) complies with the positive obligation on the State to protect the right to life.

The defence based on loss of control will be available in circumstances where the loss of self control is attributable 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". The Explanatory Notes explain the Government's view that this test would be an objective one. This raises 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 (Article 2 ECHR).[15] For example, would this defence apply 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?

52. I would be grateful if you could provide a further explanation of the Government's view that the requirement that the defendant have a "justifiable sense of being seriously wronged" would (a) be applied by the courts as an objective test; (b) comply with the positive duty on the State to protect the right to life (Article 2 ECHR); (c) complies with the duty on the State to protect the right to life without discrimination (Article 2 and Article 14 ECHR).

BAIL IN MURDER CASES (CLAUSE 97)

53. I would be grateful if you could explain whether the Government intends this provision to (a) create a presumption against bail or (b) shift the burden of proof to the defendant to show that bail should be granted (and that he does not pose a significant risk):

— If so, does the Government accept that this provision is likely to be incompatible with the right to liberty (Article 5(3)) and that it will be read down by the courts in order to ensure its compatibility? (in a similar way to Section 25 of the Criminal Justice and Public Order Act 1994 (as amended) (O v Crown Court at Harrow))

— If not, what does the Government intend the practical effect of these proposals to be?

VULNERABLE AND INTIMIDATED WITNESSES (PART 3, CHAPTER 3)

Automatic Application of Special Measures to Selected Witnesses

The Bill proposes to extend special measures automatically to proceedings in relation to certain types of offences. The Explanatory Notes accompanying the Bill provide no explanation of the Government's view that the automatic application of special measures in any case would be compatible with the right of the defendant to a fair hearing for the purposes of Article 6 ECHR.

54. I would be grateful if you could provide an explanation of the Government's view that the automatic application of special measures in relation to certain types of offences will be compatible with the individual right to fair hearing (Article 6(1) ECHR and the common law).

LIVE LINKS (PART 3, CHAPTER 4)

Article 6(1) ECHR includes the individual right to be present and to participate freely in the determination of a criminal charge. An individual retains due process rights under the common law which UK courts have held are no less extensive than those in Article 6.

55. I would be grateful if you could provide a fuller explanation of the Government's view that:

— these proposals are necessary;

— these proposals are compatible with Article 6(1), despite the requirement that an individual should be present at and participate in the determination of the charges against him; and

— why the Government considers that live links satisfy the requirement that an individual is "present" at a hearing.

56. Does the Government agree that the production of defendants at court provides a valuable safeguard against abuse of their rights under Article 3 ECHR?

Although the judge will have the power to stop a hearing, or to refuse a live-link, where the link would not be in the interests of justice, it is not express that the interests of justice require that the accused must be able to participate fully in the hearing.

57. Is there any reason why the Bill should not be amended to make it clear that a live link will not be in the interests of justice in any case where the link would restrict the ability of the accused to participate fully in the hearing?

POSSESSION OF A PROHIBITED IMAGE OF A CHILD (PART 2, CHAPTER 2)

The Explanatory Notes fail to explain why the Government considers that the proposed new offence is necessary to meet the aims specified, or why it considers that they are proportionate to those aims in order to be compatible with the right to respect for private life (Article 8 ECHR) and the right to freedom of expression (Article 10 ECHR).

58. I would be grateful if you could explain how the proposed new offence satisfies the "in accordance with the law" requirement of Articles 8(2) and 10(2), why the offence is necessary and how it is proportionate to the Government's stated aims.

CRIMINAL MEMOIRS (PART 7)

The issues which the High Court must consider when deciding whether to make an exploitation proceeds order include "the extent to which any victim of the offence, the family of the victim or the general public is offended by the respondent obtaining exploitation proceeds from the relevant offence". This consideration is in addition to "the extent to which the carrying out of the activity or supplying of the product is in the public interest" and "the seriousness of the relevant offence to which the activity or product relates". Discretionary powers may be sufficiently precise to meet the "prescribed by law" standard, but only where the way in which the discretion will be exercised is indicated with sufficient clarity to give adequate protection against arbitrary interference.[16]

59. I would be grateful if you could explain the Government's view that these provisions are "prescribed by law" for the purposes of Article 10(2), in the light of the requirement that the Court take into account whether individual victims, their families, or the general public may be "offended" in the absence of any order.

60. Is there any reason why this direction to the court should not be omitted from the Bill?