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


Memorandum submitted by Justice

INTRODUCTION

  1.  JUSTICE is a British-based human rights and law reform organisation, whose mission is to advance justice, human rights and the rule of law. JUSTICE is regularly consulted upon the policy and human rights implications of, amongst other areas, policing, criminal law and criminal justice reform. It is also the British section of the International Commission of Jurists.

  2. The Coroners and Justice Bill is a large "portmanteau" Bill and contains extremely important changes to the law in several of its Parts. Where we have not commented upon a certain provision in the Bill here that should not be taken as an endorsement of its contents.

PART 1: CORONERS ETC

Clause 5; Sch 4, para 6

  3.  Inquests will often raise matters of cogent public interest; jury inquests in particular, if restricted to the circumstances outlined in clause 7 (regarding which, see below), will by their nature concern these issues. The "muzzling" of the jury and coroner by cl5(3) in these circumstances will often, we believe, be contrary to the public interest and may violate Article 10 ECHR.

  4.   Further, we are concerned that there is no provision in the Bill for the senior coroner's report under para 6 of Sch 4, and the written response to that report provided for in para 6, to be made public where appropriate. The publication of rule 43 recommendations by coroners has on previous occasions provided powerful ammunition to those pressing for change in public services; for example, in relation to deaths in custody.

Clause 7

  5.  We believe that in addition to the circumstances set out in clause 7(2), an inquest should take place with a jury wherever the senior coroner has reason to suspect that the death resulted in whole or in part from the act or omission of a public authority or an entity which falls to be considered as a public authority for the purposes of the Human Rights Act 1998. Further, while the number of jurors may vary we believe that rules should provide that the more significant the public interest in the inquest, the larger the jury should be within the band of six to nine people.

Clause 11

  6.  Clause 11 is essentially the same as what was previously clause 77 of the Counter-Terrorism Bill, although clause 11 purports to offer some additional safeguards.[47] The effect of this clause is that in any case where the state is alleged to be responsible for a person's death—for example the killing of Jean Charles de Menezes by Metropolitan Police or the death of Baha Mousa at the hands of British soldiers in Basra—the Secretary of State will be free to appoint a coroner to sit in closed session without a jury so long as he or she is satisfied that it is in the public interest to do so because of the sensitive nature of the material that is likely to be considered. This would also be applicable to inquests into deaths of individuals outside of state custody but raising issues of the state's broader conduct, eg an inquest into the death of a soldier killed in Iraq or the inquest into the death of Dr. David Kelly.

  7.  Nor do we think any of the additional safeguards introduced since the Counter-Terrorism Bill make the proposed use of closed coronial proceedings any fairer or more transparent. For instance, the provision in cl11(5) for staying proceedings pending judicial review of the decision to certify does no more than what would undoubtedly be in the inherent power of the coroner in any event. The involvement of the Lord Chief Justice in selecting the judge (clauses 11(3)(a) and 11(7) does not ameliorate the unfairness caused by the exclusion of the jury, members of the public and the next-of-kin. Lastly, notwithstanding the proviso in cl11(1)(b) that the Secretary of State may only certify a closed inquest if satisfied that "other measures" for protecting sensitive material would be inadequate, there is no requirement on the Secretary of State that such certification be necessary to protect eg "the safety of a witness" (cl11(2)(b)).

  8. Unfortunately the government's explanation for its view only serves to highlight the deficiencies of its legal analysis. In particular, the government claims that "Article 2 does not ... give the public and next-of-kin an absolute right to be present at all times or to see all the material relevant to the investigation":[48]

    The Government considers that the courts are very likely to accept that it is consistent with Article 2 for sensitive material not to be made public or disclosed to the next-of-kin where this is required by a substantial public interest.

  9. However, the government appears to dramatically overestimate the extent to which the European Court of Human Rights (ECtHR) would allow the wholesale exclusion of the public and next-of-kin from coronial proceedings for the sake of some "substantial public interest" in non-disclosure of sensitive material. In the case of Rowe and Davis v United Kingdom, for instance, the ECtHR observed in the context of criminal proceedings that "the entitlement to disclosure of relevant evidence is not an absolute right".[49] Nonetheless, the ECtHR in that case never suggested that it would be appropriate to exclude a jury altogether for the sake of safeguarding the public interest in non-disclosure.

  10.  Indeed, we note that juries regularly hear serious criminal cases that may behind the scenes involve some very difficult questions of disclosure of sensitive information, eg terrorism cases involving informants or surveillance evidence. If the exclusion of a jury is not deemed to be a proportionate measure in such criminal proceedings, it is very difficult to see how it would be a proportionate measure in the context of an inquest investigating the death of an individual allegedly at the hands of the state. We remain of the view that the Secretary of State's resort to closed inquests sitting without a jury will almost certainly be incompatible with the obligation under Article 2 ECHR to provide an independent and effective investigation, one that properly safeguards the interests of the victim's family and the public at large.

PART 2: CRIMINAL OFFENCES

Clauses 39 to 43

  11.  We are concerned that in the new formulations proposed in this Chapter there may be deserving cases where no partial defence can be made out. In particular, a consensual mercy killer will be guilty of murder unless, under the new definition of "diminished responsibility", he can prove that he is suffering from a "recognised medical condition" such as clinical depression. Further, in relation to "diminished responsibility", we are concerned that the removal of the Law Commission's "developmental immaturity" limb of the partial defence means that it will be available to an adult who due to a mental condition functions like a 10 year old child, but not to an ordinary 10 year old child charged with murder.

  12.  In relation to "loss of self-control", we are concerned that where a person acting in self-defence or defence of another person (including for example an armed police officer) uses a degree of force that a jury judges to be unreasonable, resulting in a person's death, he will be guilty of murder under these provisions unless he lost his self-control. Further, the retention of the requirement of "loss of self-control" may continue to prejudice women who kill abusive husbands or partners due to ongoing abuse and fear.

  13.  We are further concerned by the "words and conduct" element of the loss of self-control partial defence: defendants with unpopular views or unusual lifestyles may not be found by a jury to have had a "justifiable sense of being seriously wronged".

 Clause 46

  14.  The new clauses relating to encouraging or assisting suicide fail to deal with the situation highlighted by recent cases reported in the media: that of a seriously ill person who wishes to end his or her life but is physically unable to do so without assistance and therefore will require the aid of a partner, relative or friend to do so. We are concerned at the issues raised by these cases—in particular, while suicide itself has been decriminalised, those who due to physical incapacitation cannot end their own lives without assistance are denied the opportunity to do so.

PART 3—CRIMINAL EVIDENCE, INVESTIGATIONS AND PROCEDURE

Clauses 59-68

  15.  The concept of the police informant, who can be protected by public interest immunity proceedings, is well known, and therefore we question why this different procedure is necessary—in particular, since it covers only a narrow category of cases.

  16.  Further, we are concerned at the effect of such a formal order upon subsequent judicial proceedings; if a defendant is charged and the subject of such an order provides information or evidence that may be relevant to a bail application or to the criminal case (as evidence or unused material), what will be the procedure? We will be concerned to ensure during the passage of the Bill that proper safeguards will be in place to protect procedural rights under Articles 5 and 6 ECHR. We also seek assurances that a person made the subject of an investigative anonymity order would not be subject to the unfair use of self-incriminatory statements or material provided by them to police in any future proceedings against them.

Clauses 69-80

  17.  The right of a defendant to know the identity of a witness against him in criminal proceedings is both a common law principle and a constituent part of the right to a fair trial under Article 6 ECHR, which provides inter alia for the minimum right of a defendant "to examine or have examined witnesses against him" in criminal cases. The Court of Appeal has made clear in the recent case of R v Mayers in relation to the Criminal Evidence (Witness Anonymity) Act 2008 (which this Bill would supplant), that:[50]

    Notwithstanding the abolition of the common law rules, it is abundantly clear from the provisions of the Act as a whole that, save in the exceptional circumstances permitted by the Act, the ancient principle that the defendant is entitled to know the identity of witnesses who incriminate him is maintained.

  18.  While it may be necessary for a witness to be anonymised in exceptional circumstances, these should be narrowly defined. In particular, we do not believe that the risk of "any serious damage to property" is sufficient to displace the primary right of the accused to a fair trial and the public interest in the fair and transparent administration of justice. The only legitimate circumstances, in our view, where a witness should be even considered for anonymity are in order to prevent a risk of death or serious physical harm to the witness or another person, or where the witness is an undercover officer (police, security services, etc). The criterion of "real harm to the public interest" in sub-clause 71(3) is in our view too broad, and should be replaced by a criterion referring to undercover officers.

Clauses 81-88

  19.  Special measures for witnesses often create a difference between the way that one or more prosecution witnesses, and other witnesses (often including the defendant) give evidence in a case, affecting the principle of equality of arms; they may also, despite any directions given, prejudice a tribunal of fact against the defendant in some cases. They should therefore only be used, apart from any other appropriate criteria (such as age or vulnerability of the witness), where they are necessary and effective to maximise the quality of the witness's evidence.

  20.  We are therefore strongly opposed to clause 82 which provides that in relation to listed weapons offences all witnesses will be eligible for special measures under s17 Youth Justice and Criminal Evidence Act 1999 unless they inform the court of their wish not to be so eligible. This is in our view incompatible with Article 6 ECHR. To allow witnesses to be eligible for special measures unnecessarily may indeed compromise the quality of their evidence and will be prejudicial to the defendant. We recommend strongly that this provision be removed from the Bill. We are also disturbed by the provision in clause 82 that the list of offences to which the clause applies should be amendable by the Secretary of State via the negative resolution procedure.

  21.  In relation to child witnesses, the effect of clause 83 is that where a child does not wish to give evidence via video recording plus video link, the presumption will be that they should be screened. However, in our view it should always be demonstrated that the special measures concerned are necessary and effective to maximise the quality of the witness's evidence. It is particularly important that where the defendant is also a child or young person, his trial is not prejudiced through the use of special measures for prosecution witnesses which are not available to him when he gives evidence. This is particularly important bearing in mind that the defendant in a case could be, say, 11 years old but the witness given special measures could be 17.

  22.  We are also strongly opposed to clause 87, which provides for "intermediaries" to be used to assist mentally vulnerable defendants to give evidence in court. The right to participate effectively in criminal proceedings is a constituent part of the right to a fair trial under Article 6 ECHR. As the ECtHR said in S.C. v United Kingdom:[51]

    ... "effective participation" in this context presupposes that the accused has a broad understanding of the nature of the trial process and of what is at stake for him or her, including the significance of any penalty which may be imposed. It means that he or she, if necessary with the assistance of, for example, an interpreter, lawyer, social worker or friend, should be able to understand the general thrust of what is said in court. The defendant should be able to follow what is said by the prosecution witnesses and, if represented, to explain to his own lawyers his version of events, point out any statements with which he disagrees and make them aware of any facts which should be put forward in his defence....

  23.  If the defendant is unable to do all these things then the mere presence of an intermediary when he gives his evidence cannot "cure" this defect. We also believe that there are inherent dangers in the use of an intermediary when a defendant gives evidence; the intermediary may not be independent of the defendant or the case (for example, a parent or carer) and may, whether independent or not, misinterpret the defendant's speech and that of those asking him questions. If an individual is mentally compromised to the extent that they cannot understand and answer questions in simple language from a lawyer or judge, then we believe that they will not be able to participate effectively in their trial and should therefore be judged unfit to plead.

Clauses 89-93: Live links

  24.  These provisions will extend the circumstances in which criminal proceedings can take place via live link. This is an ongoing trend in recent legislation, against which we counsel caution. The physical presence of the accused in court is a very important safeguard not only against physical ill treatment of persons arrested and detained, but also against police and prosecutorial oppression and misconduct in the investigation.[52] We therefore believe that live link hearings should take place only with the defendant's informed consent.

Clauses 97-98: Bail

  25.  We do not believe that there should be specific rules for bail in murder cases, since although murder is a charge of the utmost seriousness, the circumstances of a murder charge can vary widely. Further, there are other offences that can be committed at an equal degree of seriousness—for example, certain terrorist offences. The seriousness of the charge, while it may be a relevant factor in relation to bail, cannot alone determine whether bail can be granted.

  26.  Furthermore, the right to liberty, as guaranteed under Article 5 ECHR, is not abrogated because a person has been charged with murder. There must still be "relevant and sufficient" reasons for bail to be withheld.[53] We believe that this clause would either have to be read down under s3 Human Rights Act 1998 (like s25 of the Criminal Justice and Public Order Act 1994) or be judged incompatible with Article 5 ECHR.

  27.  Article 5 provides the right for a detained person to be brought before a judicial authority within a reasonable time and in our view, an extra delay of 48 hours before the detainee can be released simply because of the fact of the murder charge is not justifiable. If the Crown Court is to make the bail decision at first instance then the jurisdictional rules should be changed so that the person is brought before the Crown Court when they would otherwise have been brought before the magistrates" court. There is also no good reason why the regime in clause 98 should apply to murder but not to other equally serious cases.

PART 8: DATA PROTECTION

  28.  Although we welcome the introduction of new powers in clause 151 to allow the Information Commissioner to carry out mandatory assessments of data holders, we are profoundly disturbed by the other proposals in Part 8 of the Bill. In particular, clause 152 contains a sweeping power to enable Ministers to authorise the sharing of data for the sake of any "policy objective" of government. As the explanatory notes themselves admit, it creates:[54]

    ... a free-standing power for ministers to enact secondary legislation which will have the effect of removing all barriers to data-sharing between two or more persons, where the sharing concerns at least in part the sharing of personal data, where such sharing is necessary to achieve a policy objective... [emphasis added]

  29.  By contrast, the right to respect for privacy under Article 8 ECHR permits interference with privacy (such as the sharing of personal data by government) only for one of the legitimate aims set out in Article 8(2):

    the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

  30.  In addition, such interference must necessary in a democratic society and be proportionate to the legitimate aim under Article 8(2). In the explanatory notes, the government claims:[55]

    Because the order must be necessary to achieve a policy objective of a minister then reading it in light of the ECHR, combined with the fact that Ministers are bound to act in accordance with the provisions of the HRA, all such orders will be in pursuit of a legitimate aim as per Article 8(2).

  31.  This analysis puts the cart squarely before the horse, for the question of whether or not the terms of any given data-sharing order would be compatible with the requirements of Article 8 ECHR will inevitably depend on the facts of each particular case, the nature of the data being shared, the necessity for it, and—of particular importance—whether the policy objective falls within one of the legitimate grounds identified in Article 8(2).

  32.  We note that the recommendation of provision for data-sharing orders of the Data Sharing Review was far more limited and cautious than the proposals contained in Part 8. In particular, the Review noted the "exceptional and potentially controversial nature" of such orders,[56] and emphasised the need for "necessary conditions and safeguards".[57] In our view, the grossly general provisions of Part 8 in no way constitute an adequate set of safeguards against the potential for disproportionate interference with Article 8 that data-sharing orders are likely to involve.

JUSTICE

February 2009
















47   The main changes are, first, that the Secretary of State must not only be of the opinion that the investigation concerns "a matter that should not be made public" but also that "no other measures would be adequate to prevent the matter being made public" (clause 11(1)). Secondly, the grounds upon which an investigation may be certified have been clarified slightly, including "preventing or detecting crime" and "in order to protect the safety of a witness or other person" (Clause 11(2)(a)(iii) and (2)(b), but also narrowed to the extent that "real harm" to the public interest is now required (clause 11(2)(c)). Thirdly, the investigation will be carried our by a High Court judge (clause 11(3)(a)). Back

48   Explanatory notes, para 803. Back

49   Rowe and Davis v United Kingdom (2000) 30 EHRR 1, para 61. Back

50   [2008] EWCA Crim 1416, para 5. Back

51   App No 60958/00, judgment final 10/11/2004, para 29. Back

52   Cf European Committee for the Prevention of Torture report on 2007 visit to the UK, CPT/Inf (2008) 27, paras 8-10. Back

53   Wernhoff v Germany (1979) 1 EHRR 55. Back

54   Explanatory notes, para 962. Back

55   Ibid, para 964. Back

56   Para 8.40. Back

57   Ibid. Back


 
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