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

Memorandum submitted by the Ministry of Justice in reponse to the Committee's letters of 12 and 17 February



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?

  The Government does not consider that extending the duty in clause 1 to include any death in mental health institutions where the person was there voluntarily would be a human rights enhancing measure.

  Deaths in mental health institutions involving patients who had voluntarily undertaken treatment do not necessarily engage Article 2 of the ECHR and in those circumstances an obligatory investigation is not considered necessary. Article 2 is most likely to be engaged in relation to deaths which are unnatural or where the cause of death is unknown and a death in those circumstances would fall to be investigated under clause 1(2)(a) or (b) in any event.

  The Government has decided that there should be a statutory requirement for an investigation only when a person is detained in a mental health institution involuntarily. If there was a requirement for an investigation into the natural death of a patient voluntarily in a mental health institution this could arguably extend to a requirement for a coroner's investigation into deaths in any kind of state care, including in hospitals where there was no suggestion of negligence. This would neither be practical nor be in the interests of bereaved families.


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)?

  The Government does accept that deaths may occur in circumstances where Convention rights are not engaged but where, nonetheless, the broader circumstances of a death should be investigated. The Government accepts that in answering the statutory questions in clause 5(1)(a) (who the deceased was and how, when and where the deceased came by his or her death), a coroner has discretion to investigate the broader circumstances of a death where appropriate, even where Convention rights are not engaged.

  The purpose of clause 5(2) is to confirm that the purpose set out in clause 5(1)(b) of a coroner's investigation to determine how, when and where the deceased came by his or her death includes ascertaining in what circumstances the deceased came by his or her death where necessary to avoid a breach of Convention rights. Whilst clause 5(2) only requires the circumstances of a death to be investigated where necessary to avoid a breach of Convention rights, it does not prevent the circumstances of a death from being investigated in any other case. The scope of a coroner's investigation is a matter of discretion for the coroner and clause 5(2) merely sets out the minimum requirements.

  The deaths which will fall within the ambit of clause 5(2) will often require a narrative verdict, but a narrative verdict may be given by a coroner (or jury) in a case falling outside clause 5(2) and the clause does not prevent this.


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.

  It is rare for juries to be appointed under what is currently section 8(3)(d) of the Coroners Act 1988 (we believe that, at least in part, this is due to there being some confusion about what the criterion means in practice), consequently we consider that the provision is no longer needed. There are three further points to make—firstly, a coroner will have discretion to call a jury under clause 7(3), secondly, a jury is not necessarily required in cases where Convention rights are engaged, and thirdly coroners will remain independent judicial office holders under the Bill and with their specialised expertise drawn from a wealth of coronial experience will be better qualified than most to assess when the health and safety of the public may be at risk.

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?

  A coroner has discretion to summon a jury in any case falling outside clause 7(2) where he or she thinks there is sufficient reason for doing so (clause 7(3)). For the reasons given above, this is unlikely to include cases where there was a risk to the health and safety of the public or where a report under paragraph 6 of Schedule 4 might be given (which would seldom be known in advance of the inquest). It is far more likely to include cases where it is felt that the public interest in a case was such that the coroner considered that the additional scrutiny and independence of a jury would be beneficial. However, when in post, it is likely that the Chief Coroner will want to consider further how coroners should exercise their discretion in relation to summoning juries, and he or she is likely to issue appropriate guidance.

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?

  In the vast majority of jury inquests, the number of jurors will be 9, two more than the current minimum. Having a lower number of 6, only one less than the current minimum, simply means that if jurors drop out during a long inquest, there is greater flexibility for proceedings to continue. The Government does not think public confidence will be affected. During the extensive public consultation on the coroners' provisions since 2006, concern about this issue has been negligible.


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.

  We can confirm that it is not intended that clause 10(2) should change the current position under rule 42 of the Coroners Rules 1984. Clause 10(2) is concerned with the way that a determination is framed and it is not intended that it should prevent a coroner or jury considering facts bearing on civil or criminal liability in order to reach a determination. A determination pointing to responsibility for a death will not offend clause 10(2) provided it is framed so as not to appear to determine any question of criminal liability on the part of a named person or any question of civil liability.

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?

  The content and format of determinations will be considered, and consulted on, when the rules are drafted.

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?

  Clause 10(2) was taken from the equivalent provision in rule 42 of the Coroners Rules 1984, which in turn was taken from rule 33 of the Coroners Rules 1953 and so it has been followed by coroners and juries for decades. There has been caution in the past but it is now clear that verdicts of `unlawful killing' and `death as a result of neglect' do not offend rule 42 and consequently would not offence clause 10(2).

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?

  As indicated in response to question 10, given that rule 42 has operated for many years without apparent difficulty we do not consider an amendment along the lines proposed is required. Moreover, an amendment along these lines would be a fundamental change which would widen the scope of an investigation. It would enable a coroner or jury to conclude that there was negligence or other civil liability (for example, harassment, assault, nuisance) and the only thing that would be prevented is to state who was liable. This is likely to lead to inquests becoming more adversarial rather than inquisitorial with evidence being adduced to establish civil liability which could then be used in civil courts in an action for damages.


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.

  I am aware of one inquest, involving a police shooting, in which the coroner has determined that there is material which is relevant for the purposes of the inquest into the death but which, as a matter of law, neither the coroner nor the jury may see and where the law requires a jury to determine the facts of the death. This inquest is stalled. There was a possible second case, also involving a police shooting, but I understand that the relevant coroner has recently concluded that it would be possible to proceed with the inquest in the normal way, without disclosure of the sensitive material.

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?

  In the Counter-Terrorism Bill, the criteria for certification were that material could not be made public on the grounds of national security, to protect the interests of a relationship between the UK and another country; or otherwise in the public interest. I accepted that the phrase `otherwise in the public interest' was far too broad and the redrafting of clause 11 was a genuine attempt to respond to the criticisms levelled at the provision in the earlier Bill. The inclusion of the additional criteria of `preventing or detecting crime' and protecting "the safety of a witness or other person" were intended to add specificity and therefore narrow the circumstances in which a certificate might be issued. The Government also sought to raise the bar by replacing a test that was based simply on "the public interest" with one that could only be invoked to "prevent real harm to the public interest". We are, however, taking a further look at the criteria.

  An example of a case involving material that should not be made public in order to protect the safety of a witness or other person is one that is likely to concern covert human intelligence sources. For example, if a covert human intelligence source, such as an undercover police informant, provides the police with information concerning an impending criminal enterprise—say the armed robbery of a bank—and the police shoot and kill one of those involved while taking action to prevent the robbery from taking place, the source's evidence will be of key relevance to the degree of force used, and to the assessment by a coroner, if the case comes to him or her, of the circumstances which led to the death. If the information provided by the source is such that it would be clear that only he could have informed the police of the details of the planned robbery (that is, so that anonymity and screening would be insufficient to secure his safety), the public disclosure of his evidence could put his life in danger and might also discourage others from providing critical information to the police in similar circumstances if it became known that the police were unable to properly protect their sources.

  "Real harm" to the public interest is the test used in the courts when an application is made, by the organisation which owns the material, for public interest immunity (that is that material should not be disclosed because it would be injurious to the public interest to do so). This test has a longstanding and well understood legal meaning in the PII context and it was incorporated in clause 11(2)(c) for this reason.

  Clause 11(2)(c) is intended to capture any circumstance not captured under the provisions in clause 11(2)(a) or (b). For that reason it is not possible to provide a firm example of the type of case that would fall within this provision. Inquests which are subject to a certificate are likely to be very rare and it is accepted that paragraphs (a) and (b) are likely to cover most of the scenarios where an investigation may need to be certified. However, it is never possible fully to anticipate all the circumstances that might arise. It is therefore important to preserve the ability to certify in any case where the inquest will involve a matter that should not be made public for a public interest reason—and this is achieved by including paragraph (c). Whilst this may appear to widen the grounds for certification there is an important qualifying requirement of "real harm" to that public interest and without these words, there is a real danger that it would not be possible to certify a future case despite there being real harm to the public interest.

  An investigation may be certified if it involves material that should not be made public in the interests of the relationship between the United Kingdom and another country. The Government would not issue a certificate simply in order to save embarrassment or to protect trade or commercial relationships. An example of a case where an investigation may be certified on this ground concerns circumstances where the non-disclosable material has been provided in confidence by a foreign state. For instance, the Mexican authorities provide the UK police with information concerning a major Class A drugs smuggling operation into the UK, including the likely time and location when the drugs will change hands on UK soil. The information provided suggests that all those present when the deal takes place are dangerous and will be heavily armed. The police accordingly send armed officers to keep watch on the location. When the police move to arrest those involved one of the suspects is shot and later dies.

  In this scenario, the information provided by the Mexican authorities is clearly directly related to the degree of force used by the officers and should therefore form a central part of the assessment by the coroner of the circumstances which led to the suspect's death. However, if the material was disclosed publicly despite assurances given to the Mexican authorities regarding the manner in which the material would be treated, the UK's relations with Mexico could be damaged and they would be extremely unlikely to provide any further information which could be of critical importance in tackling drug-related crime in the UK. In addition, the disclosure of information provided to the UK in confidence by another country might discourage other countries from providing similar information if it became known that the UK could not be trusted to properly protect sensitive material.

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.

  First and foremost, an inquest is an inquiry conducted on behalf of the Crown for the purpose of establishing certain factual matters concerning a death. Where an inquest is the appropriate forum by which the State discharges its obligations under Article 2, there must be an independent and effective investigation, conducted expeditiously, and with a sufficient element of public scrutiny to secure accountability in practice as well as theory. And `the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests' (Jordan v UK[18] and approved in R v Secretary of State for the Home Department ex parte Amin[19]2).

  The Government accepts that Article 2 does not simply require an independent and effective investigation of the circumstances of the death. It also requires (as well as public accountability) an opportunity for participation in the process by the next-of-kin which includes the disclosure to them of core documents, attending the proceedings and being able to cross-examine the witnesses.

  But the Government's view is that these interests do not require the public disclosure of sensitive material in circumstances where it would be injurious to a substantial public interest to do so. It is consistent with Article 2, as it is consistent with Articles 5 and 6, for sensitive information not to be made public or disclosed to the next-of-kin where this is required by a substantial public interest. In Jordan itself it was said, at paragraph 121:

    "As regards the lack of public scrutiny of the police investigations, the court considers that disclosure or publication of police reports and investigative materials may involve sensitive issues with possible prejudicial effects to private individuals or other investigations and, therefore, cannot be regarded as an automatic requirement under art 2".

  In these cases there will be full disclosure of evidence save for any matter which should not be made public. Redacted material and gists will be provided where possible. Only the part of the inquest at which the sensitive material or matter is considered will take place in private. If part of the inquest is held in private the interests of the next-of-kin will be fully protected by the appointment of a person as counsel to the inquest who can be directed by the coroner to take responsibility for representing their interests and testing the evidence which cannot be disclosed. This ensures that even though the next-of-kin cannot ask questions themselves, there is an independent counsel doing so on their behalf. The Government considers that this procedure will be sufficient to secure compliance with Article 2.

  The case of Ramsahai and others v Netherlands[20] is further authority for this. This concerned a case brought by the relatives of Moravia Ramsahai who was shot dead by a police officer in the Netherlands in 1998. The public prosecutor found that the officer had acted in legitimate self-defence and that no prosecution should be brought and the Amsterdam Court of Appeal agreed. The Grand Chamber of the European Court of Human Rights upheld a finding of the Chamber that there was no violation of Article 2 in relation to the shooting itself but that there was a violation of the investigative obligation because the investigation was inadequate and insufficiently independent. The Court held that:

    "The disclosure or publication of police reports and investigative materials may involve sensitive issues with possible prejudicial effects for private individuals or other investigations. It cannot therefore be regarded as an automatic requirement under art 2 that a deceased victim's surviving next-of-kin be granted access to the investigation as it goes along...The Court does not consider that art 2 imposes a duty on the investigating authorities to satisfy every request for a particular investigative measure made by a relative in the course of the investigation".

  R (on the application of Catherine Smith) v the Assistant Deputy Coroner for Oxfordshire and Secretary of State for Defence[21] challenged the lawfulness of decisions taken by a coroner in an inquest held into the death of a soldier who had been serving in Iraq. The soldier had suffered a cardiac arrest and died due to hyperthermia. Only one of two reports into the soldier's death produced by the Army Board of Inquiry investigation was provided to the coroner. On finding out about the existence of the other report the coroner decided it was not necessary to consider it as the procedural obligations implicit in Article 2 did not apply to the inquest. The Administrative Court held that Article 2 did apply in the circumstances and therefore there was a presumption in favour of as full a disclosure as possible to both the coroner and interested persons. However, the court also said that:

    "Any specific claim that a witness's identity should not be disclosed because, for example, he or she might be put at risk of harm or because there was a particular request and need for confidentiality, can be made and should be considered by the coroner. Equally, any claim that material should not be disclosed on national security grounds must be considered by the coroner".

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?

  The Government's view is that the interests of the deceased's family can properly be protected by counsel whose task it is to represent their interests, ask the questions which the family would ask if the material was disclosed to them and probe the evidence on their behalf. The functions of "counsel to the inquest" will vary depending on the requirements of the coroner and the circumstances of any particular inquest. In some cases, the role of counsel to the inquest will be limited to performing the traditional role of advising the inquest on legal matters and presenting evidence. In other cases, counsel (or several counsel) may be appointed by the coroner solely to represent the interests of the next-of-kin. The material or matter which cannot be made public will be disclosed to counsel to the inquest and the coroner will direct counsel to the inquest to take responsibility for testing the evidence which cannot be disclosed publicly or to the deceased's family. That counsel can probe the evidence on the family's behalf and can give considered advice on whether or not there are grounds for challenge to the outcome of the process or to the process itself. The Government considers that if counsel to the inquest performs the task of testing the evidence diligently then Article 2 will be satisfied and it is not necessary for a special advocate to be appointed.

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 Government's view is that the procedure described above in answer to question 15 will be Article 2 compliant. Counsel to the inquest will be acting in effect as a special advocate but we do not think that Article 2 formally requires a special advocate to be appointed.

  There is no provision on the face of the Bill for the appointment of a person as counsel to the inquest as it is clear that a coroner has power to appoint such a person. It is noted in Jervis on Coroners[22] that a coroner has such power and engagement of such counsel has survived criticism by next-of-kin in Re Devine and Breslin's Application.[23]

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?

  The Government does accept the opinion of the Minister must be honestly held and must rest on a reasonable basis. However, we do not feel that it is necessary to state this on the face of the Bill as this precedent already exists in other legislation and the Minister's decision would be tested on this basis at any judicial review.

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?)

  The Government considers that a court reviewing the lawfulness of the Secretary of State's decision to certify an investigation under clause 11(1) would recognise that the nature of such a decision points to the need for a wide margin of appreciation and that a court would be slow to overturn such certification.

  In Secretary of State for the Home Department v Rehman[24] Lord Hoffman said at paragraph 62:

    "It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove".

  In the Queen on the application of Al Rawi and Others v the Secretary of State for Foreign and Commonwealth Affairs and another[25] it was said that the court's role is to see that the government strictly complies with all formal requirements, and rationally considers the matters it has to confront. It noted that if the subject matter relates to foreign relations or national security the law accords to the executive an especially broad margin of discretion.

  If a certification were overturned on judicial review then the Government would seek leave to appeal to the Court of Appeal.

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?

  The Government is actively considering ways in which the clause could be amended so as to include some additional judicial oversight. We are grateful for the Committee's suggestion and will consider whether the clause could be amended in this way.


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.

  The powers in paragraph 1 of Schedule 4, which enable a coroner to require a person to give, produce or provide evidence, are subject to paragraph 2(1) of that Schedule. Paragraph 2(1) provides that a person may not be required to give, produce or provide any evidence or document if he or she could not be required to do so in civil proceedings in a court in England and Wales. By section 14 of the Civil Evidence Act 1968 a person is entitled to refuse to answer any question or produce any document or thing if to do so would tend to expose that person to proceedings for an offence. Accordingly a person is not required to answer any question or produce or provide any document or thing to a coroner if it would tend to incriminate him or her.

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

  Provisions on disclosure to interested persons will be revised as part of the development of associated secondary legislation. Disclosure will not be dependent on the method of obtaining material, but rather the nature of the material and its relevance to the investigation. In those circumstances, it is likely that material gathered under these powers will be disclosable. Further consideration will be given to this when the secondary legislation is drafted.

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?

  There is no intention to require one interested person to disclose material to other interested persons. This is inappropriate in an inquisitorial process and the power in paragraph 1(1)(b) or (2)(b) of Schedule 4 will not be used in this way.

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.

  Equivalent provision to the safeguards in sections 15, 16 and 21 of the Police and Criminal Evidence Act 1984 will be made in Coroners regulations under clause 33(3)(g) and (h). This has been left to delegated legislation as it is considered that the detail of the safeguards is more suited to secondary legislation.

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.

  The Government has not yet produced a draft of the Regulations that will be made under clause 33 of the Bill.


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.

  The Government has chosen not to impose a duty on a coroner to make a report at the end of an investigation and not to impose sanctions for failure to respond as it considers that such provisions are unnecessary following the success of the amendment in July 2008 to rule 43 of the Coroners Rules 1984 (see S.I. 2008/1652). Indications are that coroners and the persons to whom they send reports take their responsibilities very seriously and no reports made since July 2008 have not had at least an interim response. Furthermore, any obligation to make a report would impose unnecessarily on the coroner's judicial independence.

  Accordingly it is not necessary to impose an obligation on coroners to make a report or to create sanctions for failing to respond. Should a coroner refuse to exercise the power to make a report or exercise the power irrationally, that would be subject to judicial review, but we are confident that coroners will continue to make full and appropriate use of the power as they do currently.

  It is intended that further provision on reports under paragraph 6 of Schedule 4, including requirement to send copies of reports and responses to the Chief Coroner, interested persons and any other person with an interest, will be made in Coroners regulations under clause 33(3)(i). Provision will also be made enabling reports, or parts thereof, to be published.

  Reports and responses are currently copied to the Lord Chancellor and are being collated and scrutinised by the Department and those parts of interest to the wider public will be published in due course. This mechanism works well and it is intended to be continued under the Bill and so it is not necessary for formal provision to be made on the face of the Bill.


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 enables the Chief Coroner to make regulations about training for coroners and other staff who work with them. These regulations may make provision for the kind, amount and frequency of training to be undertaken. These matters will be considered further when the Chief Coroner takes up post, but the Government has deliberately left open the possibility that some training could be mandatory. The Government agrees that proper knowledge of the HRA should be essential for coroners but it is necessary to provide flexibility so that that training needs can be assessed and so that changes in training needs and materials can be accommodated in response to changes in the law.

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?

  The possibility of judicial review of a decision which may be appealed under clause 30 has been left open but it is intended that an interested person should exhaust any right of appeal under clause 30 before seeking judicial review and it is rare for the Administrative Court to grant permission to an applicant for judicial review if alternative remedies have not been exhausted. When an appeal to the Chief Coroner is not available, it will be possible for an interested person 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)?

  The Government considers that the position of Chief Coroner should be held by a senior judicial office holder such as a High Court judge or senior Circuit judge. Such a person will have the requisite skills and experience to lead the newly reformed coroner system and will also have sufficient adjudicative experience to enable them to deal with appeals from the decisions of senior coroners.

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 intention of clause 30(5), by which the Lord Chancellor may make an order to amend the list of decisions that can be appealed, is to give the Lord Chancellor the flexibility to add to the list if it is considered that other decisions made by a coroner ought to be made subject to appeal. Any order made under this power will be open to full Parliamentary scrutiny since it is subject to the affirmative resolution procedure.

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?

  Paragraph 2 of Schedule 8 to the Bill enables the Chief Coroner to request the Lord Chief Justice to nominate a judge to conduct any investigation. While the power in paragraph 2 is at large, it is clear from the generality of the structure of Part 1 of the Bill that the investigation into a death would in the normal course of events be conducted by the local senior coroner and that consequentially the provisions in Schedule 8 would only apply exceptionally. It is anticipated that the provision will be used sparingly and particularly when the inquest is likely to involve complex legal issues. Had it been available, I do consider that the provision would have been used in the de Menezes and the Diana, Princess of Wales, inquests.

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?

  Yes, it would be open to the Chief Coroner to conduct the investigation him or herself or to request the Lord Chief Justice to nominate a judge to conduct it.


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?

  Draft regulations and rules, which are likely to be substantially rewritten to support the primary legislation, will not be available for scrutiny during the passage of the Bill. Such a task will be a major undertaking requiring extensive consultation and will be dealt with as part of the implementation programme, possibly under the supervision of the new Chief Coroner who it is hoped will appoint as soon as practicable after Royal Assent.

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.

  Coroners regulations under clause 33 will set out the practice and procedure in relation to investigations (other than the practice and procedure at an inquest) and Coroners rules under clause 34 will set out the practice and procedure in relation to inquests. The former will be made by the Lord Chancellor, with the agreement of the Lord Chief Justice, or his nominee and the latter by the Lord Chief Justice, with the agreement of the Lord Chancellor. An inquest is broadly similar in nature to a court hearing held in other types of proceedings and, since the Lord Chief Justice makes other rules concerning the practice and procedure in courts (for example, in relation to the Court of Protection and Probate), it is appropriate for the Lord Chief Justice to make these rules. However, the Government considers that it is appropriate for the Lord Chancellor to make regulations about the pre-inquest stage of an investigation. The Lord Chancellor retains power to make regulations about practice and procedure in other areas, for example in relation to certain tribunals. We consider that this reflects the proper balance between the roles of the judiciary and the executive in setting rules concerning practice and procedure in courts and tribunals. The Chief Coroner will issue guidance to coroners.

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?

  The Government is considering setting up an informal rule committee, involving senior and experienced practitioners, who could oversee the rule and regulation making process. There will certainly be full consultation on the new secondary legislation.


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))?

  Representation can be granted exceptionally for inquests where it is necessary to enable a coroner to conduct an effective investigation, under Article 2 ECHR, or where there is a significant wider public interest in the applicant being represented. Cases involving deaths in prison and police custody, for example, are already "in scope" for funding because the Article 2 duty on the state in such cases is clear. However, funding must remain means-tested to protect the limited resources of the legal aid budget. To extend legal aid to all inquests involving a public authority, for example (around 800 per year) would cost in the region of £6.4 million.

  The Government does intend that this funding should remain available in the future, together with the greater opportunities for accessible family participation—as set out in the Charter—that will be possible in a reformed coroner system.



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?

  Private individuals and companies are subject to the Human Rights Act 1998 (HRA) only to the extent that they are exercising "public functions" within the meaning of that Act. In such circumstances only, it is possible that a failure to comply with the data protection principles may also involve a breach of Article 8.

  The Government does not agree that the power to issue Assessment Notices in clause 151 of the Bill should apply in relation to bodies that are not Government Departments or public authorities within the meaning of section 1(1) and new section 41A(12) of the Data Protection Act 1998 (DPA). The Information Commissioner already has a broad range of powers to ensure that such bodies comply with the data protection principles and other provisions of the DPA. The terms of section 43 of the DPA (governing Information Notices) are framed broadly and allow the Information Commissioner to request any information in any specified form from any data controller, which would allow him to establish compliance with the data protection principles. This provides the opportunity to uncover bad practice. The scope of Information Notices is being further widened by the Bill (Part 3 of Schedule 18). Additionally, if the Commissioner is satisfied there are reasonable grounds for suspecting any data controller's non-compliance with the data protection principles, he may apply to the court for a warrant under Schedule 9 to the DPA. This allows him to enter and search the data controller's premises for evidence of whether the data controller has contravened or is contravening the principles.

  It is important to remember that Assessment Notices are intended to assist in raising the awareness and compliance of public bodies with the data protection principles. The public sector holds a large amount of personal data about UK citizens, the processing of which is often necessary to safeguard rights and responsibilities. This means, in contrast to the private sector, that individuals usually have no choice over whether their data is processed. It is therefore appropriate that those public sector organisations that process information in what the Information Commissioner regards as high risk circumstances should be subject to inspection without necessarily granting prior consent. This is a complementary measure to support the existing investigatory and enforcement powers of the Commissioner.


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)?

  The Data Sharing Review carried out by Richard Thomas and Sir Mark Walport identified information sharing orders (ISOs) as a way of lifting the "fog of uncertainty" currently surrounding data sharing. The provisions of the Bill have been drafted broadly so as to allow for a large number of varied situations: we simply cannot predict every single instance where an ISO would be necessary. That said, individual ISOs would be tightly drawn setting out those classes of information which may be shared, who is enabled to share, and for what purposes. Some of the exclusions listed would limit unacceptably the use to which an ISO could be put.

  However, the Government is listening carefully to the concerns expressed by the British Medical Association and others and agrees that different standards could be applied to different sets of data. We will reflect further on the comments that have been made so far about certain categories of information.

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?

  The power to make an information sharing order does include power to modify or disapply other legislation. Whilst theoretically that covers provisions of the HRA, the Government certainly never intended that an ISO should be capable of including provisions modifying or disapplying the HRA, and it is not readily apparent how the power could be exercised in that way given the limits on the power which are already contained in the Bill.

  First, the only purpose for which an ISO can be made is to enable the sharing of information that includes personal data. The substantive scope of such orders is therefore limited including the associated power to amend other legislation.

  Secondly, the exercise of the power to make an ISO is dependent on the person making the order first being satisfied that information sharing is necessary to secure a policy objective, that the effect of an order is proportionate to the policy objective to be secured, and that the provisions of the order strike a fair balance between the public interest and the interests of any person affected by the order.Once these tests are satisfied, it is difficult to see how the order could give rise to any breach of Article 8 (or any other Convention right) such that the person making the order would wish to modify or disapply any provision of the HRA.

  Moreover section 6 of the HRA does not generally permit Ministers, exercising powers under a later enactment, to make subordinate legislation that is incompatible with the Convention rights, and the Government does not consider that the exceptions identified in section 6(2) apply here.

  Having said that, we note the concerns that have been expressed about the scope of this power and the potential for it to be used in a way which was not intended, and are considering the matter further.

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)?

  As indicated above, the Government never intended that the power to make an ISO be used to modify or disapply protection under the HRA and considers that it is not readily apparent how the power could be exercised in that way given the limits on the power which are already contained in the Bill but is considering this matter further. Insofar as a data controller is exercising public functions within the meaning of the HRA, it will therefore be possible for a victim to bring a claim against them under the HRA for a breach of Article 8.

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?

  As indicated above, it is not readily apparent how an ISO could meet the test in the Bill but at the same time give rise to a breach of Article 8. However, we are looking further at this issue.

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.

  We can confirm that any person that becomes a data controller of personal data under an ISO would be required to process that personal data in a manner which is compatible with the DPA.

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

  As the Information Commissioner pointed out in evidence to the Public Bill Committee, any processing of personal data which takes place further to an ISO would still need to comply with the DPA. It is true that the power in clause 152 could be used to amend the DPA. Indeed, given the subject matter of any order it is possible that an amendment to other provisions of the Act would be needed, for example, to add further exceptions or protections.

  The Government has no intention whatsoever of undermining the DPA and the data protection principles within it. The Act gives effect in UK law to EC Directive 95/46EC and substantial changes to it could put the UK in breach of its EC obligations: that fact alone rules out us making significant amendments.

  However, we recognise that concerns have been expressed about the possibility of amending the DPA and we are considering the matter further.

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 provisions as drafted strike the right balance between ensuring that an ISO has at its heart the furtherance of a public and government policy objective, while allowing the flexibility to make an order in relation to any body exercising a public function. This flexibility is desirable with the move towards a greater use of private sector organisations to deliver public services. A focus on functions would be too narrow and would lose this flexibility.

  As we have indicated above, it is not readily apparent how an order could meet the test in the Bill but be incompatible with the Convention rights.

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?

  Further to the findings of the Hannigan review into Data Handling, all Government proposals which potentially involve handling personal data require a Privacy Impact Assessment (PIA) to be produced. This obviously includes ISOs. To ensure maximum scrutiny we envisage that draft PIAs would be made available to the Information Commissioner when he is invited to comment on a draft order. Equally, we envisage that PIAs would be made publicly available. For instance, a PIA would be made available to MPs and Peers when a draft order was laid before Parliament. However, in some cases, particularly sensitive details would need to be removed (for example, legal advice or commercially sensitive information).

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?

  As we have made clear, the procedure leading to an order being put before Parliament is one which involves a high degree of collaboration. Just as those Government departments or other bodies directly concerned in any information sharing proposal would be in early and continuous discussion, so too would the department proposing an order be in early discussion with the Information Commissioner. The Information Commissioner has indicated that he would like to see as early as possible any proposals and we would encourage Departments to ensure this happens. Richard Thomas has told the Bill Committee:

    "Frankly, it would be a brave Department that came forward and said, `We insist on this particular data-sharing measure, even though the commissioner has said that it is unacceptable".

  We agree with this assessment. An adverse report from the Information Commissioner would naturally mean in practice that a Minister would have to consider very carefully whether to proceed. However, ultimately the Government considers that it is for Parliament to have the final say on any proposal.


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.

  None of the applications for a witness anonymity order made under the Criminal Evidence (Witness Anonymity) Act 2008 related to risk to property alone.

  Applications for anonymity orders may only be made by the parties to criminal proceedings, that is either the prosecution or the defence. In the case of the prosecution, the police will ask the CPS for a witness anonymity application to be made, providing the relevant information and if the CPS agree, they will make an application to the court.

  As the Committee notes, the DPP provided details to the Public Bill Committee of the number of applications made under the 2008 Act.

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.

  Of the 346 witnesses that the police referred to the CPS, during the period 21 July to 31 December 2008, the CPS applied for orders for 135 of them. Of these 135 witnesses, the courts granted orders for 129 of them (and refused for 6 of them)

  As noted in the answer to question 48 above, the police do not apply to the court for witness anonymity orders, this is the responsibility of the CPS.

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?

  Investigation anonymity orders and witness anonymity orders serve different purposes at different stages of the case and must be viewed separately.

  An investigation anonymity order is designed as a police tool to assist the investigation of a particular type of crime-gang related gun and knife homicides—with the aim of encouraging witnesses in fear of intimidation to come forward and speak to the police safe in the knowledge that their identity will not be revealed. The granting of an investigation anonymity order does not mean that an application for a trial witness anonymity order will necessarily follow. The witness may be able to provide information that is crucial to the success of the police investigation, but the witness may not be needed to give evidence at any subsequent trial. No-one will know at an early stage of a police investigation whether a charge will be brought or whether a trial will take place.

  When approaching the witness about an investigation order, it will be necessary for the police to explain its effect and to make clear that if the witness is required to give evidence at a later date, it would be necessary to make a separate application for a trial order and there is no guarantee this will be granted. However, in circumstances where a witness is the subject of an investigation anonymity order and an application for a trial order is refused by the court, rather than put the witness at risk, the prosecution will have the option of withdrawing the witness from the case or even dropping the prosecution altogether depending on the nature of the witness's evidence.

  As indicated above, the investigation anonymity order is designed as a police investigative tool which may be used at the early stage of an investigation before there is necessarily a suspect and before the CPS are involved—the CPS make decisions on charging in these homicide cases. While both the police and the CPS will be able to apply for investigation anonymity orders, as this is essentially an investigative tool, we do not consider it appropriate to require the DPP to consent before the police apply for these orders.


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 Government agrees that there is a requirement for legal certainty in the substantive criminal law. Citizens should be able to foresee with a reasonable degree of certainty the consequences that a given action may entail. Absolute certainty is not required however and is often unattainable. In the context of criminal law, the requirement of legal certainty is usually said to mean that the law should be sufficiently precise so that an individual knows in advance whether his or her conduct is criminal.

  In the Government's view, the clauses on diminished responsibility and provocation significantly enhance legal certainty.

  In respect of diminished responsibility, clause 39 of the Bill will replace the current definition of the partial defence with a new modernised definition. The new definition of the partial defence in clause 39 is set out in clearer and more detailed terms than the existing definition, which itself has never been successfully challenged on grounds of uncertainty. A specific example of increased clarity relates to new section 2(1)(a) and (1A) of the Homicide Act 1957 (as inserted by clause 39(1)). In their report in relation to murder, the Law Commission highlighted that the current definition of diminished responsibility (requiring an abnormality of mind that substantially impaired the defendant's mental responsibility for the killing) says nothing about what is involved in a substantial impairment of mental responsibility nor in what ways the effect of the abnormality can reduce culpability. Clause 39 addresses this by spelling out with greater clarity what aspects of a defendant's functioning must be affected in order for the partial defence to succeed.

  In relation to provocation the current law, which has never been successfully challenged on grounds of uncertainty, is framed in broad terms. It is derived from a mixture of the common law and statute (section 3 of the Homicide Act 1957). The clauses will abolish that partial defence and replace it with a new partial defence of loss of self control. The requirements of the new partial defence of loss of self-control are set out on the face of the clauses in detailed and plain terms. In accordance with clause 41(1), the partial defence will apply where the killing resulted from a loss of control that had a qualifying trigger (fear of serious violence or things said or done constituting circumstances of an extremely grave character that caused D to have a justifiable sense of being seriously wronged) and a person of the defendant's sex and age with a normal of tolerance and self-restraint might have reacted in the same or similar way. The concept of a "qualifying trigger" is the subject of detailed and clearly set-out provision in clause 42.

  In relation to both diminished responsibility and loss of self-control, the clauses enable a person to foresee, with a reasonable degree of certainty, when the partial defence will apply and hence when conduct that would otherwise lead to a murder conviction will lead to a conviction for manslaughter. The Government considers that these provisions plainly achieve an adequate degree of legal certainty and represent an improvement, in terms of certainty, from the current law.

  The significance of the positive obligation to protect the right to life in respect of reforms to the murder laws was highlighted in the Explanatory Notes. The state must put in place effective criminal law provisions to deter the commission of offences against the person backed up by law enforcement machinery for the prevention, suppression and punishment of breaches.

  The criminal law already makes comprehensive provision for offences relating to the deprivation of life. In addition to homicide offences such as murder, manslaughter, corporate manslaughter and infanticide there are also specific offences such as those relating to causing death by driving. The partial defences to murder form part of this wider legal framework. As noted above, the partial defences do not however determine whether criminal liability exists. Their operation is limited to reducing liability from murder to manslaughter, which is itself an extremely serious offence carrying a maximum sentence of life imprisonment. The Government considers that the existing criminal law provides a high level of protection for the right to life; indeed the courts have never been found to the contrary.

  The Government believes that the provisions in the Bill do not in any way reduce the existing level of protection for the right to life. The provisions on diminished responsibility are designed to modernise the law rather than alter the scope of cases caught by the partial defence. The Government's impact assessment therefore concludes that there will be no significant shift in the number of cases affected by the modernisation of the existing definition. In respect of provocation, the impact assessment concludes that the new partial defence of loss of control will be narrower than the existing partial defence of provocation in respect of killings committed in anger because of the high threshold set by clause 42(4). In respect of killings committed in fear of serious violence, the impact assessment states that the provisions do not significantly extend the existing law but provide a more logical and clear means of reaching outcomes that are broadly being reached now under the current law. The Government's overall assessment is that, owing to the narrowing in respect of killings in anger, there may be a modest increase (10-20 cases a year) in the number of people convicted of murder rather than manslaughter.

  The Government also notes that none of the specific concerns mentioned at pages 13 and14 of the Committee's letter imply that the provisions represent a lessening of the existing level of protection for the right to life.

  The criminal law provisions summarised above are backed up by a comprehensive system of law enforcement for the investigation, prosecution and punishment of offences. The Committee will be well aware of the role of the police, prosecutors and courts in this regard and this will be unchanged by the provisions in the Bill.

  In the light of the matters referred to above, the Government considers that the proposals in the Bill in respect of diminished responsibility and provocation fully comply with the State's positive obligation to protect the right to life.

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).

  In relation to the phrase "justifiable sense of being seriously wronged", we are clear that test will clearly be applied by the courts as an objective one. We anticipate that they way that test will work in practice is that the jury will first need to ask themselves whether the things done or said did indeed cause the defendant to have a sense of being seriously wronged. If so, the jury will then need to decide whether the defendant's sense of being seriously wronged was in fact justifiable. The use of the word `justifiable' is indicative of an objective standard here. Indeed, if the test was intended to be entirely subjective, then there would have been no need to refer to "justifiable" in the clause.

  The "justifiable sense of being seriously wronged" test derived from a Law Commission recommendation. The Law Commission was clear in its 2003 report Partial Defences to Murder that the test would be objective. They commented that fact that the defendant himself thought that his sense of being seriously wronged was justifiable would not suffice; it would a question for the jury to determine as to whether it was in fact justifiable. The Law Commission observed that "the jury may conclude that the defendant had no sufficient reason to regard it as gross provocation,[26] or indeed that the defendant's attitude in regarding the conduct as provocation demonstrated an outlook (e.g, religious or racial bigotry) offensive to the standards of a civilised society". The report provides the example of a white person who kills after being spoken to by a black person because he holds deep-rooted beliefs that it is the gravest of insults for a black person to speak to a white man unless spoken to first. In relation to such a case the Law Commission commented that: "No fair-minded jury, properly directed, could conclude that it was gross provocation for a person of one colour to speak to a person of a different colour. In such a case the proper course would be for the judge to withdraw provocation from the jury".

  In addition, it is a further requirement of the partial defence (clause 41(1)(c)) 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 in a similar way to the defendant. Clause 41(3) is clear that "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 or self-restraint. These provisions are therefore important in the present context as they prevent the defendant from seeking to obtain the benefit of the partial defence on the basis of intolerance. The Law Commission's Partial Defences to Murder points out that a person of ordinary tolerance and self-restraint is "not a bigot or a person with an unusually short fuse". So the homophobic or racist defendant described in the Committee's letter should not be able to rely on their prejudices to avail themselves of the defence.

  In summary, the Government considers that the concept of a "justifiable sense of being seriously wronged" will not give rise to any issues of discrimination or any particular issues in relation to Article 2.


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?

  The purpose of clause 97(2) is to add a new test for bail in murder cases. The general test, that the court need not grant bail where it is satisfied that there are substantial grounds for believing that the defendant would commit offences if released, is reinforced in murder cases by providing that bail is notto be granted unless the court is of the opinion that there is no significant risk of the defendant offending in a way that would cause injury. Establishing that there is such a risk effectively precludes bail.

  It is not the Government's intention, however, to create a presumption against bail in the sense of shifting the burden to the defendantto establish that bail should be granted. We are aware that section 25 of the Criminal Justice and Public Order Act 1994 was read down by the House of Lords in the Harrow Crown Court case, andclause 97(2) was drafted with close regard to that decision so thatthe clausewould becompatible with Article 5 without having first to be read down. In particular, the drafting—which is not the same as section 25—makes it plain that it is not for the defendant to show that there is no significant risk, but for the Crown to show that there is.



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).

  Special measures were introduced in the Youth Justice and Criminal Evidence Act 1999. These include video recorded evidence in chief, evidence by live TV link, screens round the witness box to shield the defendant from the witness, evidence in private in sex offence cases and those involving intimidation and assistance with communication through an intermediary or communication aids. The purpose of these measures, which may be used singly or in combination according to the needs of the witness, is to assist vulnerable or intimidated witnesses, including children, give their best evidence. These measures are available to eligible defence and prosecution witnesses.

  The availability of special measures are not incompatible with the defendant's right to a fair trial in that the defendant is fully able to examine the witnesses against him or her. There are also a number of safeguards. Courts must determine special measures applications, opposing parties may make representations against applications and before reaching a decision, the court is required to consider whether the proposed measure(s) might tend to inhibit the evidence being effectively tested (section 19 of the Youth Justice and Criminal Evidence Act 1999). The courts may also discharge a direction if it appears to be in the interests of justice to do so. Additionally, by virtue of section 32 of the Youth Justice and Criminal Evidence Act 1999 judges must warn the jury as they consider necessary to ensure that the fact that special measures have been made available to a witness should not prejudice any conclusions that they might draw about the defendant.

  As is already the case with child witnesses and complainants in sexual offence cases, the Bill makes eligibility for special measures in general automatic for witnesses to certain specified gun and knife crimes. But the court will continue to have full discretion to determine which special measures, if any, should be available to any particular witness after being satisfied that the measures(s) would be likely to improve the quality of evidence given by the witness and, if so which measure(s) would be likely to maximise so far as practicable, the quality of that evidence. This is not the automatic application of measures, but of eligibility.


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?

  Live-link hearings are of benefit to the criminal justice system generally and to defendants themselves. Those benefits are maximised if the links are available for use in as many as possible of the cases for which they are suitable. That is the justification for the change.

  The use of live links in this context does not extend to contested trials, but only to preliminary hearings and sentencing hearings. Charges against a defendant cannot be determined at a live-link hearing, except where a guilty plea is entered (or an intention to plead guilty indicated) during a preliminary hearing that is being held in that way. For the limited purposes for which live-link hearings are permitted, the Government is satisfied that the defendant's appearance by live link constitutes being present at the hearing. The person is able to see and hear and to be seen and heard by the court during these hearings. Where it would disadvantage a defendant, the court has discretion not to give a live-link direction or to rescind one that has already been given.

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?

  The right to a fair trial implies the right of an accused to be present so that he may participate effectively in the conduct of his case. As stated above, the accused can see and hear what is going on and is able to be heard by the court. As a matter of general practice the need for participation by the defendant in the sorts of hearing that can take place by live link is limited; but to the extent that the need for such participation arises, the court will as a matter of course have regard to it in assessing whether to give a live-link direction, or (where a hearing by live link has commenced) whether there is any need to rescind the direction. An express requirement along the lines suggested is therefore unnecessary.


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.

  The Government considers that any interference with Articles 8 and 10 of the Convention is justified as it is in accordance with the law and is necessary in a democratic society for the prevention of crime, the protection of morals and the protection of the rights and freedom of others.

  Any interference with Articles 8 and 10 of the Convention will be "in accordance with law" because the offences will be set out in clear terms in primary legislation.

  In relation to the requirement that any interference is "necessary in a democratic society", the Government notes that the concept of necessity implies the existence of a pressing social need and that the interference is proportionate to the legitimate aim pursued.

  The Government is satisfied that there is evidence to demonstrate a pressing social need. The matters relevant to the existence of the pressing social need were addressed at paragraphs 860-862 of the explanatory notes. In summary, they are:

    (a)  Material of the type covered by the offence is being exploited as a form of permissible child pornography. The Government is aware of instances in which the material covered by the offence has been advertised as "legitimate" child pornography. Indeed, police forces have reported that this type of material is often found alongside illegal stocks of images depicting real child abuse.

    (b)  The offence is needed to protect children. The images can be used as a grooming tool for preparing children for actual abuse. The images themselves can also be used to catalogue actual abuse of real children. The offence is also needed to protect children or vulnerable adults who are more likely to come across this material involuntarily because of the amount of this material on the internet.

    (c)  Viewing material of the nature covered by the offence can desensitise people to child abuse. The images can also reinforce people's inappropriate and potentially dangerous feeling towards children. Banning such material is needed to reinforce the important social message that acts of abuse are unacceptable.

    (d)  Although publication of the material covered by the proposed new offence is already criminal under the Obscene Publications Act 1959, that legislation is not sufficient to address the problem of this type of material because of the impact of the internet. Material of this nature now has a potentially very wide sphere of circulation, which existing laws do not adequately cater for.

  The measures proposed in the Bill are a proportionate response to the stated aims. The particular matters pertaining to proportionality were highlighted at paragraphs 863-866 of the Explanatory Notes. In summary:

    (a)  The proposed offence has a high threshold, covering material at the extreme end of the scale. The image must be pornographic (meaning it is of a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal). It also must be grossly offensive, disgusting or otherwise of an obscene character and must focus solely or principally on a child's genitals or anal region, or depict one of the explicit sexual acts listed at clause 49(7). This sets a much higher threshold for the offence than that applicable to photographs and pseudo-photographs of children which are required to be indecent;

    (b)  The clauses include specific defences to the proposed new offence listed at clause 51. A defence will apply where a person had a legitimate reason for possessing the image, had not seen it and did not know or have cause to suspect that it was a prohibited image of a child or was sent the image without prior request and did not keep it for a reasonable time;

    (c)  There is an explicit exclusion in clause 50 in relation to classified films; and

    (d)  A prosecution may only brought with the consent of the Director of Public Prosecutions.

  For these reasons, the Government consider that any interference with Articles 8 and 10 is justified under Article 8(2) and Article 10(2).


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?

  The scheme created by Part7 of the Bill ensures that criminals can be stopped from benefiting from publishing material about their crimes. Where offenders benefit from accounts of their crimes, this can in crease the pain and distress to victims and their families and cause understandable public concern. The Government considers that the extent to which this has occurred is one of a number of relevant factors for the court to take into account in the overall balance when deciding whether or not to make an order and, if so, the amount of the order. It is not the sole or determining factor. It forms one of a list of factors to be considered and the court may additionally take account of any other matters that it considers to be relevant. But the Government considers that it is perfectly legitimate (and indeed right) for the court to take into account the impact of publication on victims and thewider public at the same time as considering, for example, the social, cultural or educational value of the publication.

  The Government considers that any interference with Convention rights arising from the scheme plainly satisfies the requirement of being "prescribed by law". The decision whether or not to make an order is discretionary. Laws that confer a discretion are not in them selves inconsistent with the "prescribed by law" requirement provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity to give the individual adequate protection against arbitrary interference. The provisions in Part 7 of the Bill clearly achieve this. The provisions set out the parameters and limits of the discretionary scheme in considerable detail (for example the limit on the recoverable amount in clause 141). The discretion in relation to an application for an exploitation proceeds order is subject to the detailed list of factors in subsection (3) that are required to be taken into account in reaching the decision. Furthermore, the decision on whether or not to make an order and the amount of the order rests with a judge. Any decision may be subject to appeal to the higher courts. There is therefore ample protection against the risk of arbitrary interference with Convention rights.


  I would be grateful if you could provide a further explanation of the Government's view that these proposals will not have a disproportionate, chilling effect on the right to freedom of expression and the right to respect for private life (Articles 8 and 10)?

  I would also be grateful if you could explain whether the Government considers that prosecutions for encouraging or assisting suicide could be brought in respect of:

      —poetry or song lyrics advocating, describing or contemplating suicide, whether online or otherwise;

      —individuals, who may be or may have been suicidal, sharing their experiences or problems with others, whether online or otherwise; and

      —advertising or information in respect of activities or services which are lawful in other countries, which assist individuals who wish to end their own lives.

  If not, I would be grateful if you could provide reasons. If so, I would be grateful if you could provide an explanation of the Government's view that those prosecutions would be compatible with Articles 8 and 10 ECHR.

  As the Committee acknowledges, the new provisions replace the offence in section 2 of the Suicide Act 1961 and the offence of attempting to commit a section 2 offence under the Criminal Attempts Act 1981 with a single offence. The provisions will not extend the scope of the current law when section 2 is read together with the Criminal Attempts Act 1981. The clauses cover acts capable of encouraging or assisting suicide so that the new section 2 properly catches conduct that would previously have been caught by the Criminal Attempts Act as well as the substantive offence. They also include provision to reflect the general position under the 1981 Act that a person may attempt the impossible. As the existing two offences are being replaced with one, the Bill includes provision (Schedule 19, paragraph 53) to the effect that the Criminal Attempts Act 1981 will no longer apply to offences committed under section 2 of the Suicide Act. The Director of Public Prosecutions gave oral evidence to the Public Bill Committee to the effect that the provisions will not extend the current law and he did not therefore anticipate any increase in the number of prosecutions for this type of offence (Official Report, 5 February 2009, col 106).

  The prohibition on aiding, abetting, counselling and procuring suicide in section 2 of the Suicide Act 1961 has been examined in recent years by the House of Lords and European Court of Human Rights. As highlighted in the explanatory notes, in Pretty v UK (2002) 53 EHRR 1 the court did not make a clear finding as to whether Article 8 was engaged, concluding that it was not prepared to exclude the possibility. But if the right to respect for private life is engaged at all by section 2, the court found the interference to be justified. States are entitled to regulate through the general criminal law activities detrimental to the life and safety of individuals. The court found that section 2 is designed to safeguard life by protecting the weak and vulnerable. The blanket nature of the prohibition in section 2 was not disproportionate to the legitimate aim pursued. The court observed that it was not arbitrary for the law to reflect the importance of the right to life by prohibiting assisted suicide while providing for a system of enforcement and adjudication which allows due regard to be given in each particular case to the public interest in bringing a prosecution, as well as to the fair and proper requirements of retribution and deterrence.

  As the provisions in clauses 46 to 48 do not widen the existing law in respect of assisting and encouraging suicide 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 for the protection of the rights of others for the same reasons as those given by the European Court of Human Rights in the Pretty case.

  Whether a prosecution for encouraging or assisting suicide can be brought will always depend on the detailed specific facts and circumstances of individual cases. But it is important to recognise that doing an act capable of encouraging or assisting suicide is not, of itself, an offence under the proposals. As with the current law, the act has to be done with the intention of encouraging or assisting a suicide or suicide attempt. So, whilst the examples you give might (depending on the specific case facts) involve acts capable of encouraging or assisting suicide, they would only amount to an offence if the requisite intent was established. In many cases falling within your examples, there may well be no such intent. Even if the relevant intent is present, a prosecution for an offence under section 2(1) may only be brought with the consent of the Director of Public Prosecutions.It will therefore be for the Crown Prosecution Service to decide whether to prosecute in any individual case. Each case is reviewed individually in the light of all the available evidence and in accordance with the Code for Crown Prosecutors before deciding whether or not a prosecution should be brought. This involves consideration of whether there is sufficient evidence to provide a realistic prospect of conviction and whether prosecution is in the public interest.

  I would be grateful if you could explain whether or not the Government considers that guidance may be necessary in order to enable individuals to understand when prosecutions for encouraging or assisting suicide may be considered by the DPP.

  Whether such guidance is necessary is precisely the point at issue in the case of Purdy v DPP. In October 2008 the High Court dismissed the claim of the appellant, Debbie Purdy, that the DPP had breached her human rights by not publishing a policy with detailed guidance on the circumstances in which a prosecution under section 2 will or will not be brought. That decision has very recently been upheld by the Court of Appeal. Given the possibility of a further appeal to the House of Lords, it would not be appropriate for me to comment on the case save to say that the legal position in relation to the necessity for such guidance will not be affected by the proposals in the Bill.

Ministry of Justice

26 February 2009

18   [2001] 37 EHRR 52, paragraphs 105-109. Back

19   [2004] 1 AC 653. Back

20   [2007] ECHR 52391/99. Back

21   [2008] EWHC 694 (Admin). Back

22   Twelth edition, paragraph 12-14. Back

23   [1988] 14 N.I.J.B. 10, H. Ct of N.I. Back

24   [2003] 1 AC 153 Back

25   [2006] EWCA Civ 1279 Back

26   `Gross provocation' was the label used by the Law Commission to describe the limb of the partial defence applicable to words or conduct causing a person to have a justifiable sense of being seriously wronged. Back

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