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

Memorandum submitted by the Law Society of England and Wales


  1.1 The Law Society ("The Society") is the professional body for solicitors in England and Wales representing over 115,000 solicitors. The Society represents the interests of the profession to decision makers within Parliament, Government and the wider stakeholder community, and has an established public interest role in law reform.

  1.2 The Society welcomes the opportunity to comment on the Human Rights aspects of the Bill. Many of the Society's members are involved in the coronial and criminal justice system, representing and providing legal advice to the bereaved family and those who have been accused of a crime.

  1.3 Regarding the coroners provisions, the Society has not done major work on compliance with of its provisions with Article 2, but has some general concerns which it sets out here.

  1.4. Regarding the provisions reforming the criminal law, the Society focuses solely on Clauses 89-93 relating to Live Links.


  2.1 While the Law Society has not undertaken a detailed Human Rights analysis of the Bill, it notes the concerns expressed by other organisations.

  2.2 Coroners have three major roles: to investigate the causes of the death, to reach a verdict on the cause of death and as has been recognised by recent changes to the existing legislation, to take action to prevent further deaths.

  2.3 The Society considers that it is crucial that these duties should not be fettered and that there should be no reduction in the ability of the Coroner to for investigate deaths, particularly those where Article 2 is engaged.

  2.4 Inquests should be full, fair, open and transparent. This will be important both to maintain public confidence and to ensure that the aim of protecting the lives of others is fully achieved.


  3.1 Clause 89 (3) would remove the requirement that a defendant consent to the use of a live link for a preliminary hearing in the Magistrates' Court where the defendant is at the police station, a so-called "virtual court hearing". The Society is strongly opposed to removing this requirement. The Society believes that that both Article 6, specifically the "right to participate in proceedings' aspect of the Right to a Fair Trial, and Article 5, specifically the right to be "brought promptly before judge", are compromised by this provision.

  3.2 When Section 57C was inserted into the Crime and Disorder Act 1998 (as amended by the Police and Criminal Justice Act 2006), Parliament saw fit to require that the defendant at a police station should have the right to consent to appear in court by live link, or to choose to appear in the usual way.

  3.3 Since then, there has been a limited experiment known as the "Camberwell prototype", which was designed to assess whether the technology was capable of facilitating the appearance of the accused from a police station. Having established that it is so capable, a larger pilot of the system is currently being planned, which is understood to commence in April 2009. No change to the consent requirement should occur until this pilot takes place, and is fully and independently evaluated.

  3.4 The Society believes that there is a significant difference between the use of live link facilities for a first hearing from the police station to court, which will usually take place a short time after arrest, from that of a prison-to-court link. In the case of a prison-to-court live link, some time will have elapsed since the prisoner's arrest and it is likely that they will have received detailed legal advice in person in relation to the case, and they will have appeared in person in court to apply for bail. In contrast, police station live links are expected to happen within hours of arrest, as a substitute for the customary first appearance in a court room. Important decisions in relation to bail and plea will need to be made immediately, and only a short time after their arrest.

  3.5 In these circumstances, the accused may not have adequate time to access proper disclosure of the prosecution case, or to take legal advice. Their ability to participate effectively in the hearing might thereby be compromised. If the solicitor and client are unable to gather the necessary information to support a bail application, or locate people who may be prepared to act as surety, people who would currently in normal circumstances be held overnight and released on bail the following day, will instead be remanded in custody for many days or even weeks. This could increase the prison population, because of purely procedural factors and not because of any public policy decision that bail should be denied.

  3.6 If the solicitor is physically located away from the client at the court, and therefore has to communicate with the defendant by telephone (or video conference, if that facility is available for this purpose), the ability of the solicitor to take detailed initial instructions and to assess the defendant's mental state and level of comprehension, is likely to be significantly compromised. In addition, concerns may arise as to the confidentiality of communications between solicitor and their client.

  3.7 The Law Society believes that the defendant should have the right to appear physically in a court room for their first hearing, in the usual manner, particularly where the case is complex, or where bail and their right to liberty are an issue.

  3.8 The Law Society agrees with the comments made, in the context of extensions of pre-charge detention in terrorism cases, by the European Committee for the Prevention of Torture[58] ("the CPT") and the Joint Committee[59] about the importance of detainees being brought into the direct physical presence of the judge or magistrate. In the Society's view, similar considerations arise in the context of the first hearing in the Magistrates' Court, because important decisions concerning pre-trial detention or bail are made here, as well as the decision on plea.

  3.9 Monitoring the treatment of a detainee and accurately assessing their physical and psychological state will be much more difficult for the court over a video link than when done so in the defendant's physically presence in court. The magistrate or District Judge will not have the same opportunity to witness the demeanour and body language of the defendant, and there is a concern that defendants will feel marginalised and dehumanised by appearing via video link.

  3.10 The Society is concerned that a defendant's right to participate in the proceedings, a significant feature of the fair trial right, will be compromised. While these concerns may be relevant to a sentencing hearing later in the proceedings where a remanded defendant appears by live link, they are much more pressing in the context of the first hearing following arrest, because there will have been less opportunity to obtain prosecution disclosure and access to legal advice.

  3.11 In the case of terrorism offence detention, involving a detainee's voluntary attendance via video link, the Government submitted to the CPT that the fact the judge had ultimate responsibility to decide whether the physical presence in court of the detainee was necessary, was an adequate safeguard. The CPT disagreed, stating that physical presence should be an obligation, not an option, for the judicial authority. Particularly in the instances of pre-charge detention beyond 48 hours, the CPT noted that physical presence would appear to be a requirement of Article 5(3) of the European Convention on Human Rights, as found by the Grand Chamber judgment of the Court of Human Rights in Ocalan v Turkey.[60]

  3.12 The Law Society shares the CPT's view, and notes that in this context, the detainee's consent was required. If the proposals with the Coroners and Justice Bill are enacted, the requirement for consent will be removed. The Society is concerned that the proposed safeguard in the legislation—that the court must be satisfied that a live link direction would not be contrary to the interests of justice—will be even less adequate where the defendant has been afforded no choice but to appear by video link. The Society would support the suggestion contained in question 57 of the Joint Committee's letter of 12 February to the Secretary of State for Justice, that if consent is removed, the Bill should be amended to make clear that a live link will not be in the interests of justice where it would restrict the ability of the accused to participate fully in the hearing. The court, in making this decision, should have regard to the nature of the case, any vulnerability or special requirements of the accused, access to legal advice and importantly, their wishes as to the mode of hearing. In the Society's view, the provisions in this Bill removing consent, should not be enacted until the proposed pilot in has taken place and has been properly evaluated to test whether virtual first hearings are, in reality, a fair way to proceed.

  3.13 As referred to above, we have similar concerns about removing the requirement that a defendant need to consent to appear by way of live link for sentencing and enforcement hearings, particularly when they are to give evidence. The defendant's consent is an important safeguard to ensure that they are able to participate effectively in the proceedings concerned with the final determination of the charge against them. If this safeguard is to be removed, we suggest that the legislation should make clear that a live link will not be in the interests of justice if it restricts the ability of the accused to participate fully in the hearing.

  3.14 Finally, the Society is aware that the European Court of Human Rights has considered the issue of the right to a fair trial and video links in the judgements of Sakhnovskiy v Russia[61] and Marcello Viola v Italy.[62] The Court has said that this form of participation is not as such incompatible with the notion of a fair and public hearing. Instead it must be ensured the applicant is able to follow the proceedings and be heard without technical impediments, and provision must be made for effective and confidential communications with between a lawyer and their client.

February 2009

58   As set out in its Report to the UK Government on its Visit from 2 to 6 December 2007, CTP/Inf (2008) 27. Back

59   As set out in JCHR, "Report on Counter-Terrorism Policy and Human Rights: intercept and post-charge questioning", at paragraphs 77- 79 (30 July 2007, Nineteenth Report of Session 2006-07). Back

60   Application 46221/99, judgment of 12 May 2005. Back

61   ECHR application 21272/03, 5 February 2009. Back

62   ECHR application 45106/04, 5 October 2006. Back

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