Part 7 - Criminal Memoirs etc

50.     In November 2006, the Government published a consultation paper Making sure that crime doesn’t pay: proposals for a new measure to prevent convicted criminals profiting from published accounts of their crimes (http://www.homeoffice.gov.uk/documents/cons-ensure-crime-doesnt-pay.pdf/). The summary of responses was published on 14th January 2009 (http://www.justice.gov.uk/publications/consultations-with-response.htm).

Part 8 - Data Protection Act 1998

51.     On 25th October 2007 the Prime Minister asked Dr. Mark Walport and Richard Thomas to conduct an independent review of the framework for the use of personal information in the public and private sectors. The Review’s report was published on 11th July 2008 (http://www.justice.gov.uk/reviews/datasharing-intro.htm) and the Government response was published on 24th November 2008 (http://www.justice.gov.uk/publications/response-data-sharing-review.htm).

52.     The Government published a consultation paper on 16th July 2008, The Information Commissioner’s inspection powers and funding arrangements under the Data Protection Act 1998. A summary of the responses to the paper and the Government’s response were published on 24th November 2008 (http://www.justice.gov.uk/publications/cp1508.htm).

53.     In November 2007, the Prime Minister asked the Cabinet Secretary to lead a review of data handling procedures within Government. Data Handling Procedures in Government: Final Report was published by the Cabinet Office in June 2008 (http://www.cabinetoffice.gov.uk/reports/data_handling.aspx).

TERRITORIAL EXTENT

54.     In the main the Bill’s provisions extend to England and Wales only, but certain provisions also extend to Scotland or Northern Ireland or both (there are also some bespoke Scottish or Northern Irish provisions mirroring equivalent provisions for England and Wales). In relation to Scotland, Wales and Northern Ireland, the Bill addresses both devolved and non-devolved matters.

55.     The provisions of the Bill relating to the following reserved matters extend to Scotland:

• Amending the Fatal Accident and Sudden Deaths Inquiry (Scotland) Act 1976 to facilitate investigations in Scotland into the deaths of service personnel killed abroad (clause 41).

• Driving disqualification following conviction (Schedule 14);

• Implementation of the E-Commerce Directive (clause 127);

• Amendments to the 1998 Act (Part 8); and

• Amendments to (military) service law consequential upon other provisions in the Bill.

56.     The Bill contains provisions that trigger the Sewel Convention. The provisions relate to the implementation of the Services Directive (clause 127) and criminal memoirs etc (Part 7). The Sewel Convention provides that Westminster will not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament. If amendments are made to the Bill which trigger the Convention, the consent of the Scottish Parliament will be sought for them.

57.     The provisions of the Bill relating to the following excepted or reserved matters also extend to Northern Ireland;

• The amendments to the Coroners Act (Northern Ireland) 1959 made by clause 40 and Schedule 9; and the amendments to the Regulation of Investigatory Powers Act 2000 (RIPA) made by clause 12;

• Reform of the law on murder, infanticide and suicide (Chapter 1 of Part 2);

• The new offence of possession of non-photographic images of child sex abuse (Chapter 2 of Part 2);

• The offence of conspiring in Northern Ireland to commit an offence in England and Wales or Scotland (clause 60);

• Investigation anonymity orders and witness anonymity orders (Chapters 1 and 2 of Part 3);

• Extension of the Queen’s evidence powers to the FSA (clause 100);

• Driving disqualification following conviction (clause 123 and Schedule 14);

• Enabling courts to pass an indeterminate sentence for public protection for certain terrorist offences (clause 125);

• Implementation of the E-Commerce and Services Directives (clause 127);

• Implementation of the Framework Decision on the taking account of convictions of member States in the course of new criminal proceedings (clause 128 and Schedule 15);

• Provision for the seizure and retention of knives taken into court buildings (clause 131);

• Criminal memoirs etc (Part 7);

• Amendments to the 1998 Act (Part 8); and

• Amendments to (military) service law consequential upon other provisions in the Bill.

58.     In relation to Wales, the Bill does not relate to devolved matters or confer functions on the Welsh Ministers, except for the following:

• Coroners - functions relating to the investigation of deaths by coroners are not devolved, but coroners are appointed and funded by local authorities. Under Schedule 2 to the Bill, the Lord Chancellor will be required to consult the Welsh Ministers before making an order to specify the coroners areas for England and Wales or subsequently alter coroner area boundaries in Wales, and before he determines which one of a group of local authorities - which form a coroner area - should act as the lead authority to liaise with coroners for various administrative purposes;

• Death certification - the Bill places a duty on Local Health Boards (LHBs) to appoint medical examiners and clause 19 gives the Welsh Ministers the power to make regulations about various matters relating to medical examiners;

• Sentencing - clause 118 places a duty on the Sentencing Council to assess the impact on prison and probation resources of policy and legislative proposals, including proposals put forward by the Welsh Assembly Government, referred to the Council by the Lord Chancellor. Where an assessment relates to a proposal of the Welsh Ministers, the Bill requires them to lay a copy of the Council’s report of the assessment before the National Assembly for Wales;

THE BILL

COMMENTARY ON CLAUSES

Part 1 - Coroners etc

Chapter 1: Investigations into deaths

Clause 1: Duty to investigate certain deaths

59.     This clause sets out the circumstances when a senior coroner will investigate a death. It mirrors the requirements of section 8(1) of the 1988 Act, except that the requirement to investigate where the death has occurred “in prison” (section 8(1)(c)) has been altered so that it applies to deaths where the deceased “died while in custody or otherwise in state detention”.

60.     The location of the body of the deceased will determine the senior coroner who will have a duty to investigate the death, as is currently the case under section 5(1) and 8(1) of the 1988 Act. This is to ensure that more than one coroner does not begin an investigation. Under the new system, senior coroners will, as now, be allocated to a geographical area, although later clauses in Part 1 of the Bill set out the circumstances when these boundary restrictions can be relaxed.

61.     Subsection (2) sets out the types of death that a senior coroner must investigate. A coroner must investigate a death that he or she suspects was violent or unnatural, where for example, the deceased might have been murdered or taken his or her own life, or if the cause of death is unknown. A coroner must also investigate a death, whatever the apparent cause, if it occurred in “custody or state detention” (“state detention” is defined in clause 39(2)), such as while the deceased was detained in prison, in police custody or in an immigration detention centre, or held under mental health legislation irrespective of whether the detention was lawful or unlawful. The circumstances in which a coroner must investigate a death are broadly similar to those in section 8(1) of the 1988 Act. The requirement that a death be “sudden” has been removed. (Where other authorities have a statutory requirement to investigate particular deaths, such as the Health and Safety Executive or the Independent Police Complaints Commission, the coroner will await those authorities’ reports before deciding how to proceed. This is apart from the commissioning of post-mortem examinations, where appropriate, and associated duties in relation to the body of the deceased person.)

62.     Subsection (1) is subject to clause 2 (which makes provision for a senior coroner to request another senior coroner to conduct the investigation), clause 3 (under which the Chief Coroner may direct that an investigation be conducted by a different senior coroner from the one who would otherwise be under a duty to conduct it), clause 4 (which makes provision for an investigation to be discontinued), clause 11 (which provides for the certification of investigations) and Schedule 8 (which makes provision for persons other than the senior coroner in the area where the body is to conduct the investigation).

63.     A senior coroner’s initial decision as to whether to conduct an investigation will be subject to appeal to the Chief Coroner under clause 32.

64.     Subsections (4) to (6), which correlate to section 15 of the 1988 Act, set out the arrangements for investigating deaths when the senior coroner thinks that a death has occurred which should be investigated but there is no body; and so the duty to investigate the death in subsection (1) does not apply. This includes circumstances such as where a body has been lost at, or swept away to, sea, or if someone is suspected to have lost their life in a fire and there are no remains, or if someone has already been legitimately cremated and information previously unavailable comes to light which the senior coroner believes should lead him or her to investigate.

65.     Subsection (4) allows a senior coroner to report the details of such a death to the Chief Coroner. In effect, the coroner is seeking the Chief Coroner’s permission to investigate the death and presenting evidence why he or she should do so.

66.     Under subsection (5), after considering the senior coroner’s report, the Chief Coroner can direct an investigation to take place. Under the 1988 Act it is the Secretary of State who could direct a coroner to conduct an inquest in the absence of a body. In the reformed system, the Chief Coroner might also decide that no investigation is necessary. If the Chief Coroner decides that action should be taken, the senior coroner directed to carry out the investigation does not have to be the same coroner that reported the death although in most circumstances it is likely that it would be. An example of a reason the Chief Coroner might have for allocating the case to a different coroner is that it might be more convenient for the bereaved relatives for the investigation to take place in an alternative area.

67.     Provision is made in subsection (7) enabling a coroner to make whatever enquiries that are thought to be necessary in order to help the coroner decide whether the duty under subsection (1) (to conduct an investigation into a death) or the power under subsection (4) (to report a death where there is no body) arises.

Clause 2: Request for other coroner to conduct investigation

68.     This clause gives the senior coroner the power to transfer responsibility for the investigation of a death to another coroner, where that coroner agrees. It is broadly similar to the section 14 of the 1988 Act, which allows a coroner in one district to ask a coroner of another district to assume jurisdiction to hold an inquest into the death. This clause also extends to treasure investigations by virtue of clause 21, except for subsection (4)(b), which is not relevant in that context.

69.     Under subsection (2), a senior coroner who agrees to conduct an investigation on behalf of another coroner must carry out that investigation as soon as possible. No other coroner can conduct the investigation. The coroner who agrees to deal with the investigation will have powers to move the body, in order to ensure a more efficient inquiry. How costs will be apportioned in transferred cases may be dealt with in regulations under clause 35.

70.     This clause is subject to the provision in clause 3, by which the Chief Coroner can direct another coroner to conduct an investigation.

71.     Examples of cases where the coroner may wish to ask another coroner to conduct the investigation include cases where the bereaved relatives and/or most of the witnesses in the case live in the other coroner’s area; and cases where there is a major incident which spreads across more than one coroner area, and the Government believes that it is more efficient for only one coroner to lead the investigation and to be seen as the point of contact for bereaved people.

Clause 3: Direction for other coroner to conduct investigation

72.     This clause gives the Chief Coroner the power to direct a senior coroner who is not the coroner under a duty to investigate a death under clause 1 to conduct an investigation. It is developed from section 14(2) of the 1988 Act. The Government intends that this provision will enable the Chief Coroner to take control and respond effectively to an emergency situation, or to reallocate work between coroners in the event of backlogs of work building up in a particular area. Reallocations of this type should take account of the needs of bereaved relatives for both a prompt investigation and one that remains fairly local to them. This clause also extends to treasure investigations by virtue of clause 21 (except for subsection (3)(b), which is not relevant in that context).

73.     Under subsection (2), a coroner who is directed by the Chief Coroner to carry out an investigation must do so. No other coroner can conduct the investigation. The coroner directed to deal with the investigation will have powers to move the body, in order to ensure a more efficient inquiry. How costs will be apportioned in transferred cases may be dealt with in regulations under clause 35.

74.     The Chief Coroner may give more than one direction under clause 3. For example, if the coroner who has been directed to conduct an investigation is unable to deal with it, the Chief Coroner may direct another coroner to investigate instead.

Clause 4: Discontinuance where cause of death revealed by post-mortem examination

75.     This clause allows a senior coroner to discontinue an investigation which was started because the cause of death was unknown. The coroner may discontinue such an investigation if a post-mortem examination under clause 16 reveals the cause of death, and the coroner thinks that it is not necessary to continue the investigation; an inquest will not therefore be required. This may be because, for example, the death is proved to be due to natural causes and there are no other circumstances associated with the death - for example it occurred in state detention - which means that the investigation needs to continue to an inquest. The coroner may not discontinue the investigation if he or she suspects the deceased died a violent or unnatural death, or died whilst in state detention. This is developed from section 19 of the 1988 Act.

76.     If a senior coroner discontinues an investigation under this clause he or she is not permitted to go on to hold an inquest into the death or make any determination. The clause includes a new requirement for the coroner to explain why an investigation has been discontinued if asked to do so. There is also provision for a fresh investigation to be conducted if, for example, new information comes to light.

Clause 5: Matters to be ascertained

77.     This clause sets out the purpose of a senior coroner’s investigation.

78.     The two purposes of an investigation are: (1) to establish who the deceased was and how, when and where the deceased came by his or her death, and (2) to establish the details needed to register the death (such as the cause of death). These purposes are currently contained in rule 36(1) of the Coroners Rules 1984 (“the 1984 Rules”), and in section 11(5)(b) of the 1988 Act.

79.     Subsection (2) requires the scope of the investigation to be widened to include an investigation of the circumstances of the death where this wider investigation is necessary to ensure compliance with the European Convention on Human Rights (ECHR), in particular Article 2. Article 2 relates to the State’s responsibility to ensure that its actions do not cause the death of its citizens. The Bill does not define the precise circumstances where a coroner should conduct an Article 2 investigation. This will allow for flexibility in the future should case law determine that Article 2 inquests should extend to cover additional matters.

Clause 6: Duty to hold inquest

80.     Clause 6 provides that the coroner must conduct an inquest as part of the investigation unless he or she has had reason to discontinue it under clause 4, following a post-mortem examination.

81.     The 1988 Act is expressed in terms of a duty to “hold an inquest”. This does not reflect the entirety of what coroners do. In 2007, some 230,000 deaths were reported to a coroner, and there were about 30,000 inquests. Under the Bill, the inquest will form, when relevant, the final part of the investigation process. The Government does not anticipate that the number of inquests will increase or decrease significantly in a reformed system.

Clause 7: Whether jury required

82.     This clause sets out the circumstances in which a senior coroner is required to hold an inquest into a death with a jury. It also gives the coroner the power to decide to hold an inquest with a jury in any case where he or she thinks it is appropriate. It is modelled on section 8(3) of the 1988 Act.

83.     The general rule is that an inquest must be held without a jury. Subsections (2) and (3) set out the exceptions to this rule. A jury must be summoned where the deceased died while in custody or otherwise in state detention, and the death was violent or unnatural, or of unknown cause; where the death was as a result of an act or omission of a police officer or member of a service police force (defined in clause 39) in the purported execution of their duties; or where the death was caused by an accident, poisoning or disease which must be reported to a government department or inspector. This includes, for example, certain deaths at work. Although a jury is not required in any other case the coroner will be able to summon one in any case where he or she believes there is a reason for doing so.

84.     The Government will in secondary legislation make further, more detailed provision about the conduct of inquests (in the Coroners rules to be made under clause 36).

85.     Under clause 32 interested persons, as defined in clause 38, will be able to appeal against a coroner’s decision to summon a jury or not to do so in those cases where the senior coroner has discretion.

Clause 8: Assembling a jury

86.     This clause sets out the arrangements for summoning and swearing in a jury.

87.     Subsection (1) sets out the numbers of jurors for a coroner’s jury. There must be no fewer than six and not more than nine people. This reduces the maximum number of jurors which is currently eleven (section 8(2)(a) of the 1988 Act). While there is recognition of the need for inquests to continue with juries, the nature of the inquisitorial task they are required to undertake means they do not need to be of the same size as juries in the criminal courts.

88.     The senior coroner calls people to attend for jury service by issuing a summons stating the time that they are needed and the place that they must attend (subsection (2)), as under present arrangements. Before beginning their responsibilities, the coroner will require jury members to swear they will make their decisions according to the evidence (subsection (3)).

89.     Subsection (4) makes qualifications for jury service at a coroner’s inquest the same as for the Crown Court, the High Court and the county courts, in accordance with section 1 of the Juries Act 1974. This reproduces the requirements of section 9(1) of the 1988 Act.

90.     Subsection (5) enables the coroner to check that a juror meets the qualification requirements, in the same terms as section 9(4) of the 1988 Act.

Clause 9: Determinations and findings by jury

91.     A jury will be initially directed by the senior coroner to reach a unanimous determination or finding. If the coroner thinks that they have deliberated for sufficient time without reaching a unanimous verdict, under subsection (2), he or she may accept a determination or finding on which, if there are nine jurors, at least six of them agree, and if there are six to eight jurors, at least five of them agree. Also under subsection (2), the jury spokesperson should announce publicly how many agreed. If the required number of jurors does not agree, under subsection (3) the coroner may summon a completely new jury and the case will be heard again.

Clause 10: Determinations and findings to be made

92.     This clause explains what happens at the conclusion of the inquest. It sets out the possible outcomes and explains their effect.

93.     Subsection (1)(a) requires the senior coroner - or the jury, where there is one - to make a “determination” (a short summary) at the end of the inquest as to who the deceased was, and how, when, where the deceased came by his or her death. This is broadly equivalent to current requirements, under section 11(3)(a) and (4)(a) of the 1988 Act and rule 36 of the 1984 Rules. In an Article 2 investigation, the coroner must also include a determination, or direct a jury to include a determination, as to the circumstances of the death.

94.     Subsection (1)(b) also requires the coroner or jury to make a “finding” at the end of the inquest about the details required for registration of the death, as presently required by section 11(3)(b) and (4)(b) of the 1988 Act. This will normally be, for example, a short finding such as accident or misadventure, suicide, industrial disease, natural causes, drug related or, where no clear cause has death has been established, the finding (or verdict) will be known as “open”. Increasingly, coroners make use of “narrative” findings in which they sum up in a few sentences how the person came to die.

95.     Subsection (2) makes clear that a determination may not be worded in such a way as to appear to declare a person guilty of a criminal offence or determine civil liability.

Clause 11: Certified investigations: investigation by judge, inquest without a jury

96.     This clause explains the procedure when an investigation into a person’s death will concern or involve a matter which should not be made public.

97.     Subsection (1) sets out that the criteria under which the Secretary of State may certify an investigation. Under these provisions, an investigation may be certified only a) if an inquest will be held as part of the investigation, b) the inquest would ordinarily be held by a senior coroner sitting with a jury (whether because the coroner must summon a jury under clause 7(2), or because he or she chooses to have a jury under clause 7(3) or because a decision on appeal requires there to be a jury), c) the investigation would concern or involve ‘protected matters’, and d) the Secretary of State is of the opinion that it is necessary for the inquest to be held without a jury to prevent the ‘protected matters’ being made public or unlawfully disclosed. ‘Protected matters’ are matters that should not be made public in order to protect the interests of national security, to protect the relationship between the United Kingdom and another country, to protect the interests of preventing or detecting crime, or in order to protect the safety of a witness or other person.

98.     Under subsection (2), a certified investigation must be conducted by a judge of the High Court, nominated by the Lord Chief Justice, rather than by a senior coroner. When conducting the investigation the judge will be sitting as a coroner and will exercise the same powers and functions as would a senior coroner.

99.     Under subsection (3), if an investigation is certified under this section, the Secretary of State must notify the senior coroner who would ordinarily have conducted the investigation as soon as possible, in order for the senior coroner to notify as soon as possible all interested persons known to him or her that the case has been certified. The Secretary of State must also inform the High Court judge nominated to hear the case as to what the ‘protected matters’ are under subsection (5).

100.     But the certification will not have effect (that is, no judge will be nominated to conduct the investigation, nor will the senior coroner’s functions be removed) until 14 days from the date on which the investigation is certified or, if proceedings for judicial review are brought within that period, until the conclusion of the proceedings (subsection (4)).

101.     The conduct of the inquest is a matter for the appointed High Court judge to decide upon. The judge may consider that the inquest can be conducted using preventative measures which will also be available to a coroner (for example, excluding the public from certain parts of the inquest, allowing witnesses not to be named or to give evidence from behind a screen, or redacting evidence). An inquest held as part of a certified investigation may be held with or without a jury (subsection (6)). The judge must consider whether or not the matter needs to go before the tribunal of fact in the inquest (that is, the jury if there is one, or otherwise the judge). If the matter must go before the tribunal of fact, the judge must consider whether holding the inquest without a jury is necessary to prevent the protected matter being made public during the course of the inquest (or unlawfully disclosed - section 17(1) of the Regulation of Investigatory Powers Act 2000 would prohibit intercept material from being disclosed to a jury). If the judge thinks protected matters might be made public or unlawfully disclosed if the inquest was held with a jury, then the judge will hear the inquest on his or her own.

102.     Various powers short of excluding the jury are available to the judge - for example, producing a summary of the “protected matter” which may be shared with the family of the deceased or their legal representatives if the matter related to is written evidence, or by use of screens if the matter to be protected was a witness. Where the protected matter is intercept evidence and the judge considers that the evidence is relevant to the investigation, the resultant inquest will be held without a jury. If an inquest begun with a jury has to be continued without one by virtue of this provision then that jury must be discharged. Coroners’ rules may make provision for the exclusion of persons from an inquest or part of the inquest certified under clause 11.

103.     Where a decision made by a High Court judge sitting as a coroner in a certified investigation gives rise to an appeal, under subsection (7) that appeal will be heard by the Court of Appeal rather than by the Chief Coroner (who would have heard the appeal if it was made against a senior coroner’s decision). This is to ensure that the appeal is heard by a court of higher seniority than the original decision maker.