Letter from Bridget Prentice MP to the
Chairmen of the Public Bill Committee on the Coroners and Justice
Bill dated 12 February 2009
CORONERS AND
JUSTICE BILL:
COMMONS COMMITTEE
STAGE GOVERNMENT
AMENDMENTS
I am writing to let you have details of the
amendments I have tabled today to Parts 2 to 9 to the Bill (copy
attached for ease of reference).
Details of the amendments are as follows.
PARTIAL DEFENCE
TO MURDER:
LOSS OF
CONTROL (AMENDMENT
TO CLAUSE
41)
Clause 41 replaces the existing partial defence
of provocation with a new partial defence in circumstances where
the killing resulted from a loss of self control. Under the current
law, where there is evidence that a person has been provoked to
lose their self control, the judge must leave the issue of provocation
to the jury even if in circumstances where it would unreasonable
for the jury to find the defence made out. The current law does
not serve the interests of justice because the need to put the
defence to the jury in these circumstances increases the likelihood
that an unmeritorious claim may succeed. The Law Commission recommended
that the law be changed so that the judge should not be required
to leave the partial defence to the jury unless there was evidence
on which a reasonable jury properly directed could conclude that
it might apply.
It was always our intention that clause 41(6)
be read as including a reasonableness requirement. During the
drafting of the Bill it was felt that there was no need to refer
explicitly to "reasonableness" as the natural reading
of the clause implied as much. However, on further reflection,
we have concluded that a reference to reasonableness would be
of greater practical assistance to the courts than the current
wording.
INVESTIGATION ANONYMITY
ORDERS (LAO)
(AMENDMENTS TO
CLAUSES 60, 61, 63, 64, 65, 68,
160 AND 161 AND
SCHEDULE 20 AND
NEW CLAUSE
(PUBLIC INTEREST
IMMUNITY))
These are technical and drafting amendments.
The most significant address the following points:
— The prohibition on disclosure of
information conferred by an investigation anonymity order under
clause 61(1) includes reference to an individual's assistance
or willingness to assist in an investigation. Inconsistencies
between the use of these terms here and elsewhere in clause 61
need to be removed and the terminology refined.
— Under clause 61 it is an offence
to disclose information in contravention of an lAO. The Bill provides
for a penalty following conviction on indictment, but inadvertently
makes no provision for summary trial (I note that Edward Gamier
has already tabled a similar amendment to address this point).
— Clause 61 further provides that an
lAO is not contravened in certain specified circumstances, including
where disclosure of information is to a person employed in public
administration. Following further consultation with the police
this provision is no longer required. As a result subsections
(8) and (12) of this clause can be omitted.
— Clause 64 provides for appeals against
the refusal of an lAO and provides that the hearing on appeal
under this clause is to be by way of a rehearing. It is our intention
that such appeals may be dealt with on the papers given that an
oral hearing may not be needed in every case; the amendment to
clause 64 makes this clear.
— Clause 65 deals with the discharge
of an lAO. It is important that where an application for discharge
is made the Bill covers the situation where the subject of the
order can no longer be contacted. The amendment to clause 65 will
make similar provision in respect of investigation orders as is
already made by clause 75 which relates to the discharge of witness
anonymity orders.
— Clause 78 provides that the provisions
in respect of Witness Anonymity Orders do not affect the common
law rules on public interest immunity. On reflection a similar
saving is required in respect of lAOs.
WITNESS ANONYMITY
ORDERS (WAO) (AMENDMENTS
TO SCHEDULES
19 AND 20)
Again these are essentially technical amendments.
They deal with two substantive points:
— The Court of Appeal is empowered
to vary or discharge a WAO made in a lower court. Given that applications
for leave to appeal are usually determined by a single judge it
is necessary to confer the power to make, vary or discharge a
WAO on a single judge rather than the full Court.
— The provisions in respect of WAOs
extend to the armed services. They anticipate that the Armed Forces
Act 2006 will be in force in advance of the provisions in the
Bill. Transitional provisions are required to cover the possibility
that this might not be the case and will also result in consequential
amendment to the commencement/extent provisions in Part 9.
ELIGIBILITY FOR
SPECIAL MEASURES:
OFFENCES INVOLVING
WEAPONS (AMENDMENTS
TO CLAUSE
82 AND SCHEDULE
12)
Clause 82 extends automatic eligibility for
special measures to witnesses in certain specified gun and knife
crimes. These crimes are specified in Schedule 12. The list of
offences is incomplete. The amendments to Schedule 12 add the
offences of murder, manslaughter, wounding with intent to cause
grievous bodily harm, malicious wounding, assault with intent
to resist arrest and assault occasioning actual bodily harm where,
broadly, the gun or knife was alleged to have been used during
the commission of the offence.
UNSIGNED INDICTMENT
(AMENDMENT TO
CLAUSE 99)
Clause 99 removes the requirement for a bill
of indictment to be signed by the proper officer of the court.
In specifying the cut off point for making objections to an indictment
the clause inadvertently refers to a jury having been sworn to
consider the fitness of the accused to plead. However, since the
Criminal Procedure (Insanity) Act 1964 was amended by the Domestic
Violence, Crime and Victims Act 2004 the issue of fitness to plead
is now determined by the trial judge. The clause is amended so
that the cut off point for objections to an indictment will now
be once the jury has been sworn to consider the issue of guilt
or whether the accused did the act or made the admission charged.
SENTENCING COUNCIL
(AMENDMENTS TO
CLAUSES 102, 104, 105, 106, 110
AND 115 AND
SCHEDULE 13)
The Justice Secretary indicated at Second Reading
(Hansard, 26 January 2009, col. 41) that we would be bringing
forward a number of amendments to the provisions in the Bill in
respect of the Sentencing Council. These are principally designed
to ensure an appropriately balanced relationship between the Council
and the Lord Chancellor. The amendments:
— Remove the duty on the Council (in
clause 106) to publish reasons for declining to prepare or revise
guidelines following a request to do so by the Lord Chancellor
or Court of Appeal;
— Revise the power conferred on the
Lord Chancellor (clause 115) to facilitate the performance of
the Council of any of its functions' to make it clear that the
Lord Chancellor may only act in response to a request from the
Council;
— Remove the delegated power (paragraph
7(1) of Schedule 13) conferring power on the Lord Chancellor to
regulate the proceedings of the Council. It will instead fall
to the Council to regulate its own proceedings (as the Sentencing
Guidelines Council currently does—a similar delegated power
in the Criminal Justice Act 2003 has not been exercised);
— Clarify the duty on the Council (clause
110) to monitor the level of compliance by the courts with the
sentencing guidelines to avoid any inference that sentences outside
the sentencing ranges amount to a failure to comply with the guidelines
(as opposed to being a departure by the court from the guidelines).
In addition, the amendments to clauses 102 and
104 place a duty on the Council to consult the Justice Select
Committee about draft guidelines. This responds to the following
recommendation in the Justice Select Committee's recent report
on the Bill:
"By convention this Committee has been consulted
by the Sentencing Guidelines Council in advance of the issue of
new definitive guidelines; and has taken evidence in specific
instances when appropriate and practical to do so. It is not clear
from the face of the bill what role is envisaged for Parliamentary
scrutiny of draft guidelines in the future. In our view it is
essential for Parliament to continue to be involved in the process
whatever new structures are put in place".
TREATMENT OF
CONVICTIONS IN
OTHER EU MEMBER
STATES (AMENDMENTS
TO SCHEDULE
15)
Clause 124 and Schedule 15 facilitates implementation
of an EU Framework Decision designed to ensure that criminal convictions
in other member States are taken into account in criminal proceedings
in this country. The amendments to Schedule 15 ensure that mutual
recognition can be given to the equivalent in other member states
of UK (military) service offences.
CRIMINAL MEMOIRS
(AMENDMENTS TO
CLAUSES 137, 142 AND
144)
The provisions in respect of criminal memoirs
address the situation where some or all of the respondent's convictions
to which an exploitation proceeds order relates are quashed. In
such cases the exploitation proceeds order ceases to have effect
or (where not all convictions are quashed) the order may be reviewed.
Provisions are also required to deal with circumstances where
an offence committed by a third party which is associated with
an offence committed by the respondent is quashed.
DRIVING DISQUALIFICATIONS
(AMENDMENT TO
CLAUSE 155)
The provisions in the Bill in respect to driving
disqualifications include a number of delegated powers to enable
the calculation of the length of a driving ban to be adjusted
to reflect changes in the proportion of a sentence that must be
served by an offender before being entitled to release on parole.
Two of the delegated powers (in paragraph 29 and 30 of schedule
20) relate to sentencing legislation that has been repealed but
is saved for certain offenders. While the power in respect of
England and Wales is subject to the affirmative resolution procedure
that in respect of Scotland is inadvertently made subject to the
negative procedure. The amendment to clause 155(4)(g) brings the
delegated power in respect of Scotland into line with that for
England and Wales.
TRANSITIONAL PROVISIONS:
CORONERS (AMENDMENT
TO SCHEDULE
20)
Paragraph 3(f) Schedule 20 includes a transitional
provision whereby existing deputy coroners continue in office
as assistant coroners in the reformed system. Under the Bill assistant
coroners are entitled to receive fees, but as some existing deputy
coroners are salaried we need to provide that they continue to
be remunerated in this way.
REGULATIONS BY
THE CHIEF
CORONER (AMENDMENT
TO CLAUSE
155)
Clause 28 gives the Chief Coroner power to make
regulations, and under clause 155(1) the power is exercisable
by statutory instrument. There are various provisions in the Statutory
Instruments Act 1946 that need to apply to regulations made by
the Chief Coroner, but those provisions are triggered only if
the power is conferred on a Minister of the Crown. An amendment
to clause 155 is needed to provide that the Chief Coroner shall
be treated as a Minister of the Crown for the purposes of the
1946 Act.
RELEASE OF
LONG TERM
PRISONERS SENTENCED
UNDER THE
CRIMINAL JUSTICE
ACT 1991 (NEW
CLAUSE AND
AMENDMENTS TO
SCHEDULES 20 AND
21)
We have one new provision to add to the Bill
which will transfer from the Secretary of State to the Parole
Board, responsibility for deciding on the release of prisoners
serving a sentence of 15 years or more under the Criminal Justice
Act 1991. This is the last remaining category of prisoner where
the Parole Board make a recommendation on release but the final
decision still rests with the Secretary of State. In all other
cases where prisoners are considered for parole, the Parole Board's
recommendation to release is binding. The new clause will, therefore,
simply bring 1991 Act prisoners serving 15 years or more in line
with the release provisions which apply to those serving less
than 15 years.
This change follows a Judicial Review brought
by Wayne Black, a 1991 Act prisoner serving 20 years who claimed
that his release should be decided by the Parole Board, as a court-like
body, rather than by the Secretary of State, in order to comply
with Article 5(4) of the ECHR. His JR was initially successful
and the Court of Appeal, on 15 April 2008, made a declaration
of incompatibility with the ECHR, However, the Ministry of Justice
appealed to the House of Lords, arguing that it was not a breach
of the ECHR for the Secretary of State to have this power to decide
on the release of determinate sentenced prisoners. Judgment was
handed down on 21 January 2009, in favour of the Secretary of
State. Their Lordships overturned the Court of Appeal judgment
and set aside the declaration of incompatibility.
It was important to have this matter resolved
before including this provision in the Bill. Whilst we have decided
that it makes sense, as a matter of policy, for the release arrangements
for this particular category of prisoner to be brought in line
with those for other prisoners, as we believe it to be preferable
for the Parole Board to be responsible for the release decisions
in these cases, it was nevertheless important as a matter of general
principle to establish that having a power for the Secretary of
State to decide on the release of determinate sentenced prisoners
did not contravene the ECHR. That is why we appealed to the House
of Lords and welcome the judgment. Their Lordships were, however,
strongly critical of the fact that the release of this remaining
category of prisoner remains a decision for the Secretary of State
rather than the Parole Board and this provision responds to that
criticism.
There are a number of other minor technical
and drafting amendments.
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