Memorandum submitted by the Law Society
of England and Wales
1. SUMMARY
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. CORONERS REFORM
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. REFORM OF
CRIMINAL LAW
AND PROCEDURE
ETC
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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