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CORONERS AND JUSTICE BILL
EXPLANATORY NOTES
INTRODUCTION
1. These explanatory notes relate to the Coroners and Justice Bill as brought from the House of Commons on 25th March 2009. They have been prepared by the Ministry of Justice in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
3. A glossary of abbreviations and terms used in these explanatory notes is contained in Annex A to these notes.
SUMMARY
4. The Bill is divided into 9 Parts.
5. Part 1 reforms the law in relation to coroners and to the certification and registration of deaths. It replaces the existing framework for the investigation of certain deaths by coroners in the Coroners Act 1988 (the 1988 Act); that Act was a consolidation of existing coroner legislation, dating back to the early 1900s. In replacing the 1988 Act, this Part introduces a few new concepts. There will be a Chief Coroner to lead the service, with powers to intervene in cases in specified circumstances, including presiding over an appeals process designed specifically for the coroner system. There will be a senior coroner for each coroner area (presently known as coroner districts) with the possibility of appointing area coroners and assistant coroners to assist the senior coroner for the area (in place of the existing deputy coroners and assistant deputy coroners). The 1988 Act refers almost exclusively to “inquests” as what coroners work is about. However, there is a significant amount of work that goes on which does not lead to court proceedings and which is largely unrecognised in the current Act. This work is reflected in the Bill as it imposes a duty on a senior coroner to conduct an “investigation” into a death - it also reflects that senior coroners may need to make preliminary inquiries to establish whether the death comes within his or her jurisdiction.
6. Chapter 1 of Part 1 makes provision for investigations into deaths by senior coroners and enables the Secretary of State to certify an investigation if it will concern or involve a matter that should not be made public (“protected matters”). Such certified investigations will be referred to, and conducted by, a High Court judge nominated by the Lord Chief Justice. The judge will determine whether an inquest which forms part of the investigation will be held with a jury. Chapter 2 relates to the notification of deaths to the coroner and provides for the appointment of medical examiners and for the independent scrutiny and confirmation of medical certificates of the cause of death. Chapter 3 makes further provision in respect of investigations concerning treasure. Chapter 4 makes provision for coroner areas and for the appointment of senior, area and assistant coroners and provides for their funding. Chapter 5 sets out the powers of senior coroners and offences relating to jurors, witnesses and evidence, and makes provision for payments to jurors, witnesses and others. Chapter 6 provides for the appointment of a Chief Coroner and Deputy Chief Coroners, provides for inspection of the coroners system and establishes a new appeals system in respect of certain decisions made by a senior coroner. The Chapter also enables the Chief Coroner, or a judge appointed by the Lord Chief Justice at the request of the Chief Coroner, to conduct an investigation into a person’s death, instead of the senior coroner who would otherwise have jurisdiction. Chapter 7 contains other supplementary provisions, including conferring powers on the Lord Chancellor to make “Coroners regulations” in respect of coroners’ investigations and for “Coroners rules” in respect of coroners’ inquests to be made by the Lord Chief Justice or his nominee. This chapter also provides for the abolition of the office of coroner of the Queen’s household.
7. Part 2 contains amendments to the criminal law. Chapter 1 amends the law in respect of the partial defences to murder and the offence and defence of infanticide, and simplifies the wording of the offence of assisting suicide. Chapter 2 creates a new offence of possession of prohibited images of children. Chapter 3 makes provision about conspiracies to commit offences in other parts of the UK. It also repeals section 29A of the Public Order Act 1986 which contains a saving for discussion or criticism of sexual conduct in respect of the offence of inciting hatred on grounds of sexual orientation.
8. Part 3 contains amendments relating to criminal evidence, investigations and procedure. Chapter 1 contains provisions for investigation anonymity orders. Chapter 2 re-enacts the Criminal Evidence (Witness Anonymity) Act 2008 (CEWAA) with some modifications. Chapter 3 contains provision about measures taken in court proceedings for vulnerable and intimidated witnesses. Chapter 4 contains provision about the use of live links in criminal proceedings. Chapter 5 contains other miscellaneous provisions including provision extending the Queen’s evidence provisions in the Serious Organised Crime and Police Act 2005 to the Financial Services Authority (FSA) and the Department for Business, Enterprise and Regulatory Reform (BERR), and provisions about the grant of bail in cases where a defendant is charged with murder.
9. Part 4 relates to sentencing. Chapter 1 establishes the Sentencing Council for England and Wales (replacing the Sentencing Guidelines Council (SGC) and the Sentencing Advisory Panel (SAP)) and makes provision about the Council’s functions and the duties of courts to follow its guidelines. Chapter 2 contains other provisions relating to sentencing. These provide for extended driving bans for persons also given custodial sentences and amend the law relating to extended sentences for dangerous offenders.
10. Part 5 contains some further criminal justice provisions. It makes amendments relating to the Commissioner for Victims and Witnesses established under the Domestic Violence, Crime and Victims Act 2004; enables criminal offences created by regulations (under section 2(2) of the European Communities Act 1972) implementing Directive 2006/123/EC on Services in the Internal Market (the Services Directive) and Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (the E-Commerce Directive) to have penalties exceeding those permitted by the European Communities Act 1972; amends a range of criminal procedure legislation to take account of the European Union Framework Decision 2008/675/JHA regarding the treatment in the UK of criminal offences committed elsewhere; and makes provision about the retention of knives confiscated from persons entering court and tribunal buildings.
11. Part 6 contains provisions about civil and criminal legal aid, including provision for pilot schemes in relation to civil legal aid, and provisions about the enforcement of contribution orders made in cases where criminal legal aid is granted.
12. Part 7 introduces a new civil recovery scheme through which courts can order offenders to pay amounts in respect of assets or other benefits derived by them from the exploitation of accounts about their crimes, for example, by selling their memoirs, or receiving payments for public speaking or media interviews.
13. Part 8 makes a number of amendments to the Data Protection Act 1998 (the 1998 Act), including extending the inspection and audit powers of the Information Commissioner.
14. Part 9 sets out supplementary provisions about orders and regulations, commencement, extent, repeals and so forth.
BACKGROUND
15. The purpose of the Bill is to establish more effective, transparent and responsive justice and coroner services for victims, witnesses, bereaved families and the wider public. It seeks to achieve this by:
- updating parts of the criminal law to improve its clarity, fairness and effectiveness;
- giving vulnerable and intimidated witnesses, including in respect of gun and gang related violence, improved protection, from the early stages of the criminal justice process;
- introducing a more consistent and transparent sentencing framework;
- improving the service bereaved families receive from a reformed coroner system;
- giving those who are suddenly or unexpectedly bereaved opportunities to participate in coroners’ investigations, including rights to information and access to a straightforward appeals system; and
- putting in place a unified system of death certification that includes independent scrutiny and confirmation of the causes of death given on death certificates.
16. In addition, the Bill will confer stronger inspection powers on the Information Commissioner to improve the way that data is held and used.
Part 1 - Coroners etc
17. The legislative changes proposed in the Bill are part of an overall package of reform aimed at addressing the weaknesses in the present coroner and death certifications systems, identified in the reports of the Fundamental Review of Death Certification and Investigation and the Shipman Inquiry, both published in 2003 (http://www.archive2.official-documents.co.uk/document/cm58/5831/5831.pdf and http://www.the-shipman-inquiry.org.uk/thirdreport.asp, respectively).
18. A draft Coroners Bill was published in June 2006 (http://www.justice.gov.uk/docs/coroners_draft.pdf) and the public consultation on it ran until September 2006. This consultation took a number of different forms, including by inviting written representations - more than 150 responses were received from a range of organisations and individuals. A summary report of the responses was published in February 2007 (http://www.dca.gov.uk/consult/coroners/cb684907b.pdf). A document setting out the changes to the proposals made in response to consultation was published in March 2008 (http://www.justice.gov.uk/docs/coroners-bill-changes.pdf).
19. The draft Coroners Bill was subject to pre-legislative scrutiny by the then Constitutional Affairs Select Committee (CASC - now the Justice Committee). CASC’s report on the draft Bill was published in August 2006 (http://www.publications.parliament.uk/pa/cm200506/cmselect/cmconst/902/902i.pdf). The Government responded to the CASC report in November 2006 (http://www.official-documents.gov.uk/document/cm69/6943/6943.pdf).
20. In 2008, a consultation paper on the introduction of a statutory duty for medical practitioners to report deaths to coroners was published (http://www.justice.gov.uk/docs/cp1207.pdf). The Government decided that the statutory duty to report would be placed on registered medical practitioners only, and a draft list of the type of death to be reported was included in the response document (http://www.justice.gov.uk/docs/cp1207-response.pdf).
21. A further consultation was carried out in April 2008 regarding sensitive reporting in coroner’s courts (http://www.justice.gov.uk/docs/sensitive-reporting-coroners.pdf). The Government concluded that the Press Complaints Commission Code would not be amended and that instead consideration would be given to finding ways of drawing the Code to the attention of the bereaved families. The response to the consultation was published on 14th January 2009 (http://www.justice.gov.uk/docs/sensitive-reporting-coroners-courts.pdf).
22. A consultation was carried out on a draft Charter for bereaved people who come into contact with the coroner service in June 2008 (http://www.justice.gov.uk/docs/draft-charter-bereaved.pdf). The consultation resulted in the Charter being revised, and the revised Charter was published on 14th January 2009 (http://www.justice.gov.uk/docs/charter-bereaved.pdf).
23. A consultation on Improving the Process of Death Certification was published by the Department of Health in July 2007 (http://www.dh.gov.uk/en/ Consultations/Closedconsultations/DH_076971). The public consultation ran until October 2007 and a summary of responses was published in May 2008 (http://www.dh.gov.uk/en/Consultations/Responsestoconsultations/DH_084949). The Department of Health received 157 written responses to the consultation and additional feedback through meetings with national stakeholder organisations and with councillors and representatives from local communities.
24. The majority of respondents and participants in the consultative meetings recognised and acknowledged the problems with the current process of death certification described in the consultation paper and supported the proposed improvements. The main concerns raised by respondents and participants were that the new scrutiny process should not cause significant delays to funerals and that medical examiners should be able to carry out their duties with the necessary degree of independence from the NHS and other public authorities. These two concerns have been critical factors in designing the improved process and will remain so in development of regulations and guidance.
Part 2 - Criminal Offences
25. On 28th October 2004 the Home Secretary announced (Hansard cols 1579-1580) that the Home Office, the Department for Constitutional Affairs and the Attorney General’s Office would jointly review the law on homicide, with the first stage of the review being undertaken by the Law Commission and the second stage by the Government. In November 2006, the Law Commission published a report Murder, Manslaughter and Infanticide (available at http://www.lawcom.gov.uk/docs/lc304.pdf) - this completed the first phase of the review. On 12th December 2007 the Ministry of Justice announced (Hansard col. 43WS) the second stage of the review, stating that having considered the Law Commission’s recommendations carefully the Government had decided to proceed on a step-by-step basis, looking first at the recommendations relating to:
- reformed partial defences to murder of provocation and diminished responsibility;
- the law on complicity in relation to homicide; and
26. In July 2008, the Government published a consultation paper Murder, Manslaughter and Infanticide: proposals for reform of the law including draft clauses (available at http://www.justice.gov.uk/publications/cp1908.htm). The Government received 74 responses to the consultation as well as running a number of stakeholder workshops and one-to-one meetings with key stakeholders. Having considered the responses to this consultation the Government decided to proceed with reforms to the partial defences to murder of provocation and diminished responsibility and reform of the law on infanticide. The strong message from the consultation was that complicity in relation to homicide should be reviewed in the context of the wider law on complicity, and the Government accepts that there are significant benefits to this approach. The summary of responses and a statement of the Government’s position was published on 14th January 2009 (http://www.justice.gov.uk/publications/consultations-with-response.htm).
27. Child psychologist Tanya Byron’s report published in March 2008 (http://www.dcsf.gov.uk/byronreview/) identified websites promoting suicide as an area where there is some confusion about the application of the law to on-line activity. It recommended that the law on harmful and inappropriate material (including suicide websites) should be investigated to see if it could usefully be clarified.
28. Following such a review, the Government announced by way of a written Ministerial Statement on 17th September 2008 (Hansard col. 142WS) that it intended to simplify the law on assisting suicide to increase public understanding and reassure people that it applies as much on the internet as it does off-line.
29. In reviewing the law, the Government took account of the Law Commission proposals in its report Inchoate liability for assisting and encouraging crime published in July 2006 (http://www.lawcom.gov.uk/docs/lc300.pdf) that the language of section 2 of the Suicide Act 1961 should be updated.
30. In April 2007, the Government issued a Consultation Paper on the Possession of non-photographic visual depictions of child sexual abuse. A summary of responses was published in May 2008 (http://www.justice.gov.uk/publications/non-photographic-depictions.htm).
Part 3 - Criminal Procedure
31. On 18th June 2008 the House of Lords gave judgment in R v Davies [2008] UKHL 36. The case concerned the use of anonymous witnesses and the judgment cast doubt on what the common law had been thought to allow. The Government introduced the Bill that became the Criminal Evidence (Witness Anonymity) Act 2008 and it received Royal Assent on 21st July 2008. The Act makes provision about evidence given by anonymous witnesses. During the passage of the Bill, it was amended so as to provide for the expiry of the power to make witness anonymity orders on 31st December 2009, subject to being extended by order. This amendment became section 14 of the Act. The Justice Secretary undertook to review the provisions of the Act and legislate anew (Hansard col. 516; 26th June 2008). Chapter 2 of Part 3 of this Bill replaces sections 1 to 9 of the CEWAA.
32. In June 2007, the Government published Improving the criminal trial process for young witnesses: a consultation paper. The Government response to the consultation was published in February 2009 (http://www.justice.gov.uk/publications/young-witness-consultation.htm). The proposals in this consultation paper form the basis of the proposed changes in clauses 85 to 90 to the existing provision about the special measures a court may order so as to help young witnesses give evidence.
33. In the Policing Green Paper From the neighbourhood to the national: Policing our communities together, published in July 2008 (http://police.homeoffice.gov.uk/police-reform/policegp/), the Government announced that it intended to remove a defendant’s consent as to whether or not to attend a virtual court, where the participants are in a different location but are joined by live video link. Clauses 93 to 97 give effect to this proposal.
34. The law on admissibility of hearsay and out of court statements was comprehensively reviewed by the Law Commission in 2007 (Evidence in criminal proceedings: hearsay and related topics, July 2007, http://www.lawcom.gov.uk/docs/lc245.pdf). The law of evidence was also considered by Sir Robin Auld in a Review of the Criminal Courts of England and Wales (2001) (http://www.criminal-courts-review.org.uk/). Both recommended that the law on hearsay should be simplified and that as much relevant evidence as available should be able to be heard and considered. These recommendations were taken forward in the White Paper Justice for all published in July 2002 (http://www.cjsonline.gov.uk/downloads/application/pdf/CJS%20White%20Paper%20-%20Justice%20For%20All.pdf).
35. A limited exception to the hearsay rule at common law had developed in relation to sexual offences. Where a complainant gave evidence, it was possible for the court to hear evidence as to the original complaint made by the victim provided the complaint was made spontaneously and at the first reasonable opportunity. The Law Commission recommended that evidence of recent complaint should not be limited to sexual offences. The Law Commission recommendations on recent complaint and other circumstances where previous consistent statements of witnesses are admissible led to section 120 of the Criminal Justice Act 2003 (the 2003 Act). Section 120 made a previous complaint by a victim of an alleged offence admissible subject to certain requirements, including a requirement that it was made as soon as could reasonably be expected after the conduct in question. Section 120 applies to all offences and is not limited to sexual offences.
36. The Consultation Paper Convicting Rapists and Protecting Victims - Justice for Victims of Rape (Spring 2006) sought views on whether the law on previous complaints as set out in section 120 of the 2003 Act should be amended (http://www.cjsonline.org/downloads/application/pdf/Rape_consultation.pdf). In particular, it asked whether the requirement for a previous complaint to have been made “as soon as could reasonably be expected after the conduct in question” should be removed. There is evidence that in cases of rape and other serious sexual offences, victims often delay telling anyone of the offence because of feelings of shame, degradation and humiliation.
37. The Government concluded in its Convicting Rapists and Protecting Victims - Justice for Victims of Rape: Response to Consultation (November 2007, http://www.cjsonline.gov.uk/downloads/application/pdf/Response%20to%20rape%20consultation.pdf) that the requirement for a previous complaint to have been made “as soon as could reasonably be expected after the conduct in question” should be removed and that this change should affect all offences. Making a general change is consistent with the provision as it currently stands (section 120(7) of the 2003 Act does not distinguish between types of offences) and reflects the fact there are other offences, such as those arising from domestic violence, where factors similar to those applying to sexual offences may cause victims to delay telling anyone about the offence.
38. On 17th June 2008, the Government published a consultation paper Bail and Murder. The Government response to the consultation was published in February 2009 (http://www.justice.gov.uk/publications/cp1108.htm).
Part 4 - Sentencing
39. The Sentencing Commission Working Group was set up by the Lord Chancellor and Lord Chief Justice in response to Lord Carter’s review of the use of custody Securing the Future, December 2007. This review recommended that the Government “should establish a working group to consider the advantages, disadvantages and feasibility of a structured sentencing framework and permanent Sentencing Commission”.
40. The Working Group was chaired by Lord Justice Gage and made up of 15 members including lawyers, academics, judges, criminal justice professionals and others with experience in the field. The Working Group issued a consultation document A structured sentencing framework and Sentencing Commission on 31st March 2008
(http://www.judiciary.gov.uk/publications_media/general/sentencing_consultation310308.htm).
41. In its report, published on 10th July 2008, the Working Group recommended an evolutionary approach building on the existing processes for issuing guidelines and merging the Sentencing Advisory Panel and Sentencing Guidelines Council into one body (http://www.justice.gov.uk/publications/sentencing-commission.htm). Chapter 1 of Part 4 implements the unanimous and majority recommendations of the report.
Part 5 - Miscellaneous Criminal Justice Provisions
42. Clause 127 makes provision about the implementation of the E-Commerce Directive and the Services Directive.
43. The Services Directive was adopted in December 2006 (http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:376:0036:0068:EN:PDF). The Directive seeks to facilitate the provision of services in the internal market ensuring the freedom of establishment and the freedom to provide services. Member States must implement the Directive by 28th December 2009.
44. Chapter VI of the Directive (“Administrative Cooperation”) enables greater cooperation between regulatory agencies (“competent authorities”) across the European Union, so that they communicate more effectively with each other in the supervision of service providers.
45. Article 30 of Chapter VI relates to situations where service providers operate in other member States on a temporary basis (that is where they are not established in that member State). Article 30(2) requires member States to ensure that their competent authorities do not refrain from taking action against service providers established in their territory on the grounds that the service has been provided or caused damage in a different member State.
46. The Government published a consultation document on the implementation of the Services Directive in November 2007 (http://www.berr.gov.uk/files/file42207.pdf). The Government Response to the consultation was published in June 2008 (http://www.berr.gov.uk/files/file46592.pdf).
47. The E-Commerce Directive was implemented generically in the UK in 2002 by the Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/33). The E-Commerce Directive seeks to contribute to the proper functioning of the internal market in the field of electronic commerce by ensuring the free movement of information society services (“ISS”) between the member States.
48. Article 3 of the E-Commerce Directive (“Internal Market”) requires member States to regulate ISS in accordance with the country of origin rules. Article 3(1) requires each member State to ensure that the ISS provided by a service provider established on its territory comply with the national provisions applicable in the member State in question which fall within the coordinated field. “The coordinated field” covers all requirements in national law affecting the provision of information society services.
49. Clause 128 and Schedule 15 implement the Council Framework decision (2008/675/JHA) of 24th July 2008 on taking account of convictions in the member States of the European Union in the course of new criminal proceedings (http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:220:0032:0034:EN:PDF). member States are required to implement the Framework Decision by 2010.
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