House of Lords - Explanatory Note

Coroners And Justice Bill - continued	House of Lords

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Gathering of evidence

816. Clause 25 and Schedule 4 set out the powers of a senior coroner. These include power to require people to attend and give evidence, to provide evidence by way of a written statement, and to produce documents and things.

817. These powers of compulsion could engage rights under both Article 8 and Article 1, Protocol 1 (“A1P1”). But unless a coroner (or, where relevant, jury) can ascertain all relevant facts and inspect all relevant material it will make it impossible to comply with the obligations under clauses 5 and 10 of the Bill. Powers to compel evidence are also a necessary corollary of the state’s duty to discharge obligations under Article 2. In Edwards v UK⁴, it was held that the lack of any power to compel witnesses diminished the effectiveness of the inquiry as a mechanism to investigate and establish the facts relevant to the death, and thereby to achieve one of the purposes required by Article 2.

818. Whether any interference with the right to privacy is justifiable will depend on the particular circumstances of the case and it will be for the coroner to ensure that he only exercises the powers in a way which ensures that any interference is in pursuit of a legitimate aim and proportionate to the aims, thus falling within Article 8(2).

819. Interference with an A1P1 right may be justified if it is in the public or general interest. The Government is satisfied that any interference here will be justified in the public or general interest because an investigation of a non-natural death must reach conclusions based on all relevant information.

820. There are also safeguards in the Bill to ensure that any interference is not disproportionate. By paragraph 1(4) of Schedule 4, the person required to attend, or produce a document or thing may claim that compliance is either impossible or unreasonable, and the coroner has the power to vary or revoke the notice given. When considering whether to do so, the coroner must take into account the public interest (paragraph 1(5) of Schedule 4). This ensures that the coroner considers whether a fair balance will be struck between the competing interests whenever he considers whether to exercise the powers of compulsion.⁵ Furthermore, a person may not be required to give, produce or provide any evidence or document if he or she could not be required to do so in civil proceedings (paragraph 2).

821. Procedural safeguards will also apply. In particular, any notice of compulsion must tell the person how to make a claim that he or she is unable to comply with the notice or that it is not reasonable to require him or her to comply (paragraph 1(3)(b) of Schedule 4). The coroner’s decision will also be capable of challenge by way of appeal to the Chief Coroner.

822. Equivalent provision will have effect in Northern Ireland by virtue of paragraph 1 of Schedule 9.

Search and seizure

823. Coroners’ new powers of search and seizure may engage Article 8 rights. A coroner may enter and search land and seize property or inspect and take copies of documents. He or she may retain seized property and may also use reasonable force in exercising these powers (paragraphs 3 and 4 of Schedule 4). Any inability to acquire evidence and material may inhibit the coroner’s duty to conduct an effective investigation.

824. The Government considers that the powers are proportionate to the achievement of a legitimate aim. The power to enter and search may only be used if the Chief Coroner (or a senior coroner nominated by the Chief Coroner) has given authorisation (paragraph 3(1) of Schedule 4). Furthermore, authorisation may only be given if the coroner conducting the investigation has reasonable cause to suspect that there may be anything on the land which relates to a matter which is relevant to the investigation, and—

it is not practicable to communicate with a person entitled to grant permission to enter and search the land,

permission to enter and search the land has been refused,

the coroner has reason to believe that such permission would be refused if requested, or

the purpose of a search may be frustrated or seriously prejudiced unless immediate entry to the land is secured (paragraph 3(3) of Schedule 4).

825. The power to seize anything on the premises and inspect and take copies of documents may only be used if the coroner believes that it may assist the investigation and, in the case of seizure, only if it is necessary to prevent the item being concealed, lost, altered or destroyed (paragraph 4(1) of Schedule 4).

826. The power to seize articles may engage A1P1. The Government considers that any interference with such rights is justified in the public interest and is proportionate. Any items seized will only be retained for as long as is necessary in all the circumstances (paragraph 4(4) of Schedule 4). Regulations can also be made if necessary to further regulate practice and procedure in relation to investigations (clause 35), and regulations or rules may provide for functions of coroners other than judicial functions to be delegated, including to properly trained personnel (for example, coroners’ officers, who are commonly police officers) (clauses 35 and 36).

827. It is intended to require a person conducting a search to provide a record of any item seized to the occupier of or person in control of premises from which it was seized. It is also intended that such a person will be allowed access to the item for the purpose of photographing it. Provision will also be made for the return of seized items. Any person aggrieved by the conduct of a search will be able to complain to the Chief Coroner.

Exhumation

828. A senior coroner may order the exhumation of a person’s body (paragraph 5 of Schedule 4). Such an order could engage the deceased’s family members’ right to manifest religious belief under Article 9. The Government considers that the powers are not disproportionate since they may only be exercised if the coroner thinks that exhumation is necessary in order for the body to undergo post-mortem examination or examination for the purpose of criminal proceedings.

Power to report if risk of future death

829. Paragraph 6 of Schedule 4 applies where a senior coroner is of the opinion that there is a risk that other deaths will occur in the future and that action should be taken to prevent such deaths. If so, the coroner may report the matter to a person who the coroner believes has power to take action and such person is then required to give the coroner a written response to the report. Copies of reports and responses are required to be given to the Lord Chancellor (who will monitor them), and Coroner regulations under clause 35 will make provision for copies to be given to interested persons (within the meaning of the Bill) and any other person who may have an interest. The Lord Chancellor is required to include details of reports and response in his annual report to Parliament.

830. This will ensure that Article 2 is complied with - an Article which requires the State to take appropriate steps to safeguard the lives of those within their jurisdiction. The power to issue a report should not be a function of a jury. In Scholes v Secretary of State for the Home Department⁶, Lord Justice Pill said that “as a fact finding tribunal, the jury is well established and valued for its part in the administration of justice in England and Wales. As such, it operated effectively in this case. Questions on factual issues will sometimes be helpful. However, the value of a jury’s views as a tool for assessing and improving procedures is in my view limited in circumstances where further investigation of policies and administrative procedures, as distinct from facts, is required”.

3 [2006] EWCA Civ 1343 at paragraph 70.

831. Recommendations are prohibited (by clause 5(3)) and neither the coroner nor the jury are permitted to express any opinion on any matter other than the questions or particulars mentioned in clause 5. This achieves an appropriate balance of ensuring the coroner’s investigation focuses on the investigation of one particular death whilst also enabling a coroner to consider the possibility of future deaths and to make reports with a view to avoiding them.

Power to make rules for holding inquests wholly or partially in private or for withholding names

832. Clause 36 enables Coroners rules to provide for a senior coroner to allow a name or other matter to be withheld from the public in proceedings at an inquest. It also allows rules to confer power on a senior coroner (a) to exclude specified persons from an inquest, or part of an inquest, if the coroner is of the opinion that the interests of national security so require; and (b) to exclude specified persons from an inquest during the giving of evidence by a witness under the age of 18, but only if the coroner is of the opinion that doing so would be likely to improve the quality of the witness’s evidence. Rules may also require a senior coroner to exclude persons from all or part of an inquest that is held without a jury because of clause 11. Subject to any such rules made under the above provisions, an inquest will be required by rules to be held in public.

833. The exercise of powers given by rules made under these provisions could engage Articles 2, 8 and 10, although Article 2 would only be engaged in relation to inquests carried out in order to fulfil obligations under that provision. In all cases the person making rules must do so in a way which respects Convention rights (section 6 of the HRA). The following therefore does not go to the compatibility of the Bill, but may be useful by way of context.

834. The key is the extent to which Article 10 includes the right to receive information. In Leander v Sweden⁷ the ECtHR made it clear that Article 10 was understood to include a right to receive information that others wish to impart but it does not impose an obligation on any authority to provide any particular information. There are conflicting authorities in the UK, but the Government considers that the better view is that Article 10 is not engaged by a decision to hold a statutory inquiry in private, except possibly in the most special and unusual cases (the only example of which has been the Shipman inquiry).⁸

835. The Government’s view is that it is most unlikely that Article 10 would be engaged by a decision to hold an inquest (or part of an inquest) in private in the interests of national security. In the event that Article 10 is engaged, this falls squarely within Article 10(2) ensuring that there will be no violation of Convention rights. If provision is made enabling a coroner to make a direction for persons to be excluded from the inquest while a person under the age of 18 gives evidence, further provision will be made so that one member of the Press will be entitled to remain to ensure that the proceedings may be reported (subject to any reporting restriction imposed in relation to the identification of the witness) and that there is no interference with Article 10 rights.

836. In relation to the withholding of names and other matter(s), at present coroners have power to regulate their own proceedings and so could order a name to be withheld, for example on the grounds that disclosure of the name would cause substantial harm to the public interest or on Article 2 grounds. Provision is made in subsection (2)(e) of clause 36 so that rules could enable coroners to withhold a name in other circumstances. The intention is that provision will be made dealing specifically with the withholding of the names of United Kingdom Special Forces personnel although this will not prejudice a coroner’s common law powers to, for example, enable witnesses to give evidence anonymously where their safety is threatened. Once an order is made for the name of the deceased to be withheld, section 11 of the Contempt of Court Act 1981 will give the coroner power to direct that the name may not be made public. Where United Kingdom Special Forces family members’ Article 2 rights are engaged, a balancing exercise must be undertaken by the coroner who will weigh carefully the arguments in favour of exercising the power against Article 2 and Article 8 considerations and the important public interest in open justice. Accordingly, the Government considers that any interference with Article 10 rights is justified in accordance with Article 10(2).

Abolition of freehold office of coroner

837. By paragraph 9 of Schedule 3, the offices of senior coroner, area coroner and assistant coroner will no longer be regarded as freehold offices. This provision may engage rights under A1P1 since a court could find that the right to hold or exercise the office of coroner is a “possession” for the purposes of this Article. Deprivation of property will ordinarily give rise to an obligation to compensate. The Government has not made any provision for the payment of compensation and considers that it is unlikely that the office of coroner would be considered a possession for the following reasons.

838. A senior coroner, area coroner or assistant coroner must vacate office on reaching the age of 70. But this does not apply to persons who are appointed as coroners under the 1988 Act, who will be treated as appointed as either a senior coroner or an assistant coroner by virtue of this Bill (paragraph 3 of Schedule 20). The right to hold or exercise office as a coroner cannot be willed or sold and given that a coroner can continue to hold office after the age of 70, the fact that the office will no longer be regarded as a freehold office will have no practical effect, and. no material loss will be caused to anybody.

Removal from office

839. The Lord Chancellor, with the agreement of the Lord Chief Justice, may remove a senior coroner, area coroner or assistant coroner from office (paragraph 13 of Schedule 3). The Lord Chief Justice may, after consulting the Lord Chancellor, remove the Chief Coroner or a Deputy Chief Coroner from office (paragraph 3 of Schedule 7). Removing such a person from office may amount to a deprivation of property and engage rights under A1P1. However, any interference can only occur in the very restricted circumstances set out in those paragraphs, namely on the grounds of incapacity or misbehaviour, and it is subject to the procedural safeguards described. In these circumstances, it is the Government’s view that removal would be in the public interest and strike a fair balance between the interests of the office-holder and those of the public.

Part 2: Criminal Offences

Murder and Infanticide

840. Clauses 42 to 48 reform the law in relation to the partial defences of diminished responsibility and provocation and the law on infanticide (which operates both as a partial defence and an offence in its own right). Where a partial defence to murder is established, the defendant is liable to be convicted of the offence of manslaughter instead of murder. These provisions potentially engage the right to life under Article 2 and the right to a fair trial under Article 6.

841. The current definition of the partial defence of diminished responsibility will be replaced with a modernised definition. The partial defence will be available where the defendant was suffering from an abnormality of mental functioning arising from a recognised medical condition which substantially impaired their ability to understand the nature of their conduct, form a rational judgment or exercise self control, and the abnormality provided an explanation for their conduct. It will be for the defendant to establish on the balance of probabilities that the partial defence applies.

842. The existing partial defence of provocation will be abolished and replaced. A partial defence will instead apply where the defendant’s conduct resulted from a loss of self-control which had a qualifying trigger and a person of the defendant’s age and sex with a normal degree of tolerance and self-restraint and in the circumstances of the defendant might have reacted in the same or similar way to the defendant. A loss of self-control has a qualifying trigger if it was attributable to fear of serious violence from the deceased or another identified person; to a thing or things said or done which constituted circumstances of an extremely grave character and caused the defendant to have a justified sense of being seriously wronged; or to a combination of both of the above. Where sufficient evidence is adduced to raise an issue as to the partial defence, the prosecution must disprove it to the criminal standard.

843. These clauses will also amend section 1 of the Infanticide Act 1938 and Infanticide Act (Northern Ireland) Act 1939 respectively. The effect of the amendment is to make clear that the offence and defence of infanticide will only apply in circumstances where the defendant would otherwise be liable to be convicted of murder or manslaughter.

844. Article 2 requires states to take appropriate steps to safeguard life. While much of the Strasbourg case law is concerned with killings by law enforcement officers who are agents of the state, the State also has a positive obligation to protect the lives of citizens from unjustifiable deprivation by other individuals. In this context, the state must secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law enforcement machinery for the prevention, suppression and sanctioning of breaches.

845. The partial defences to murder form part of a comprehensive legal framework of homicide offences that are supported by suitable law enforcement machinery for the prevention and punishment of such offences. The Government considers that its proposals for reform of provocation, diminished responsibility and infanticide do not lower the high level of protection for the right to life afforded by these existing legal and procedural frameworks. In particular, the effect of successfully pleading a partial defence to murder is that a person stands convicted of manslaughter, itself a very serious offence carrying a maximum sentence of life imprisonment. A conviction for infanticide also carries a maximum sentence of life imprisonment.

846. The proposals in relation specifically to the partial defence of diminished responsibility would not alter the current position under which the burden of proof lies on the defendant to establish the defence on a balance of probabilities. The Government considers this reverse legal burden is compatible with Article 6(2). Whilst reverse legal burdens constitute an interference with Article 6(2), such a burden will be compatible with the Convention where imposed in pursuance of a legitimate aim and proportionate to achieving it. The Government considers that the reverse burden does pursue a legitimate aim - namely ensuring that a person who kills another person with the relevant intent should be convicted of the offence of murder unless his or her mental state at the time was such as to diminish his or her responsibility. Establishing diminished responsibility is predominantly a matter for defence evidence and it would be extremely difficult for the burden to be placed on the prosecution to prove the contrary, particularly in the light of the fact that an accused cannot be required to submit to a medical examination. It is therefore proportionate. The existing reverse legal burden relating to diminished responsibility was found by the Court of Appeal in R v Lambert and Ali [2002] QB 1112 to be compatible with Article 6(2). The same conclusion was reached by the European Commission on Human Rights in Robinson v UK, Application 20858/92 (unreported, 5th May 1993).

Encouraging or Assisting Suicide

847. Clauses 49 and 50 amend the Suicide Act 1961 and the Criminal Justice Act (Northern Ireland) 1966. They replace the offences of aiding, abetting, counselling and procuring suicide and of attempting to do so (under the Criminal Attempts Act 1981) with a single offence cast in modernised statutory language. The offence will apply where a person does an act capable of encouraging or assisting a suicide or attempted suicide intending to so encourage or assist. The scope of the existing law (when section 2 is read with the Criminal Attempts Act 1981) will not be changed.

848. Human rights arguments in respect of the current law have been considered by the domestic and Strasbourg courts since the HRA came into force. In Pretty v Director of Public Prosecutions (Secretary of the Home Department intervening) [2002] 1 A.C. 800, the House of Lords held that none of the claimant’s Article 2, 3, 8, 9 or 14 Convention rights were engaged but that if any were infringed, there were ample grounds to justify it.

849. The claimant took her case to the ECtHR (Pretty v United Kingdom (2002) 35 EHRR 1). The Strasbourg court found that the applicant’s rights under Article 2, 3 and 9 were not engaged at all. The court did not make a clear finding as to whether Article 8 was engaged, holding that it was “not prepared to exclude” that the prohibition on assisted suicide constituted an interference with her right to respect for private life. On that conditional basis, the court considered Article 8(2), which permits an interference if done in accordance with law and if necessary in a democratic society for particular interests, including the protection of the rights and freedoms of others. ”Necessity” implies a pressing social need and an interference that is proportionate to the legitimate aim pursued; and States are entitled to regulate activities which are detrimental to the life and safety of other individuals. It concluded that the domestic law here is designed to safeguard life by protecting the weak and vulnerable and especially those who are not in a condition to take informed decisions against acts intended to end life or to assist in ending life. The court considered that the ban on assisted suicide was not disproportionate to this aim; it was not arbitrary for the law to reflect the importance of the right to life by prohibiting assisted suicide while providing for a system of enforcement and adjudication which allows due regard to be given in each particular case to the public interest in bringing a prosecution, as well as to the fair and proper requirements of retribution and deterrence. Any interference with Article 8 was therefore justified.

850. Accordingly, the Government considers that the proposal in respect of encouraging and assisting suicide is compliant with the Convention.

Prohibited images of children

851. Chapter 2 of Part 2 makes new provision in relation to certain pornography images involving children. At its centre is a new offence of possessing prohibited images of children. These are images which are pornographic; grossly offensive, disgusting or otherwise obscene; and which have certain prescribed content. Its does not include photographs or pseudo-photographs: the main intention is to regulate obscene pornographic drawings (typically computer generated) or “cartoons”.

852. Whether an image is pornographic depends on whether, considered both alone and in context, it must reasonably be assumed to have been produced solely or principally for the purposes of sexual arousal. This means, for example, that a scene from a film which taken on its own may well be found to be pornographic may be found not to be pornographic if possessed in its original context as part of that film. The prescribed content includes images which focus solely or principally on a child’s genitals, or involve certain sexual acts (clause 52(7)). The new offence does not apply to indecent photograph, or indecent pseudo-photograph, of a child. These are subject to other controls.

853. The maximum penalty for possession of a prohibited image of a child is 6 months on summary conviction, and three years on conviction on indictment (clause 56). The maximum penalty for summary conviction will rise from 6 months to 12 months on the commencement of section 154 of the 2003 Act. Paragraph 59 of Schedule 19 provides for the offender to become subject to notification requirements under the Sexual Offences Act 2003 if the offender was aged over 18 at the time and was sentenced to a term of imprisonment for at least 2 years. It also provides for the offence to be added to the list of child sex offences for the purposes of provisions about disclosure of information to the public under Schedule 34A to the 2003 Act.

854. These clauses could constitute an interference with Convention rights under Articles 8 and 10, but the Government considers that such interference is plainly justified. It is intended to achieve a legitimate aim and is necessary to meet that aim. The provisions are a proportionate response to a pressing social need and any consequent interference with Convention rights would be in accordance with the law, and necessary in a democratic society for the prevention of crime, for the protection of morals, and for the protection of the rights and freedoms of others.

855. The publication of such material could already contravene the Obscene Publications Act 1959. However, the use of the internet has meant that controls on the circulation of this material are easier to by-pass as sources may be from outside the UK or in circumstances where prosecution for publication is not feasible. As a result this material has a potentially wide public circulation.

856. There are examples of such images having been advertised as a “legitimate” alternative depiction of child sexual abuse. Viewing such images can desensitise the viewer to acts of child abuse, and reinforce the message that such behaviour is acceptable. Banning its possession is justified in order to establish clearly and in accordance with the law that it is not. The material is frequently found alongside illegal collections of images depicting real abuse, but currently is returned to the owner after the illegal collections have been forfeited.

857. The offence is required to protect children. The images can be used as a grooming tool, preparing children for acts of abuse. The images can also be used to catalogue real abuse of real children. Moreover, the provisions protect children or vulnerable adults who are more likely to come across this material involuntarily because of the amount of this material on the internet.

858. The material to be covered by this offence is at the extreme end of the spectrum of material which is likely to be thought abhorrent by most people. The three requirements for an image to be prohibited by this offence (the image is pornographic, it is of one of the prescribed acts, and it is grossly offensive, disgusting or otherwise of an obscene character) sets a high threshold. The threshold is significantly higher than that required for photographs, pseudo-photographs (and derivatives of photographs and pseudo-photographs) of children under the Protection of Children Act 1978 and the Criminal Justice Act 1988, which must be indecent. Moreover, many of the images will depict illegal acts. Prosecutions must be instituted by or with the consent of the Director of Public Prosecutions.

859. Clause 54 sets out defences to the offence. These are the same as those available for the offence of the possession of indecent images of children in section 160(2) of the Criminal Justice Act 1988 and the offence of possession of extreme pornographic images in section 65 of the 2008 Act. The Government considers that placing a legal burden on the defendant is compatible with the presumption of innocence contained in Article 6(2). Offences of strict liability do not violate Article 6(2) providing that the prosecution retains the burden of proving the commission of the offence which will be the case here.

860. These are matters which will be peculiarly within the knowledge of the defendant, who will be in a position to explain, for example why he or she was in the possession of the image if he is relying on the defence of legitimate reason, or that he or she had not seen the image, nor did he or she know or believe it to be a prohibited image. The particular circumstances concerning how and why the defendant came into possession of the images will be peculiarly within the defendant’s own knowledge, and it does not place an onerous burden upon him or her to prove it. He or she will have ready access to such information. As with all such cases, the standard of proof will be the balance of probabilities.

861. There is also an exclusion for unaltered versions of films which have been classified by the body designated under the Video Recordings Act 1984, currently the BBFC. This exclusion extends to versions of such films recorded from the television, and includes recordings with, for example, advertisements or other breaks in transmission. This will provide protection and certainty for those people purchasing or recording such films that they are not committing an offence so long as they do not alter the film in any way.

862. Clause 59 extends the defence of marriage and other relationships in section 160A of the Criminal Justice Act 1988 and section 1A of the Protection of Children Act 1978 to indecent pseudo-photographs. These each give rise to an issue under Article 6(2). In each case, the Government considers that placing a legal burden on the defendant is compatible with the presumption of innocence. In particular, the prosecution retains the burden of proving the commission of the offence. These are matters which will be peculiarly within the knowledge of the defendant, and it does not place an onerous burden upon him or her to prove it. He or she will have ready access to such information. As with all such cases, the standard of proof will be the balance of probabilities. The defences are as follows:

As for indecent photographs, the defendant must prove that the pseudo-photograph was of the child aged 16 or over, and that at the time of the offence the child and he were married or civil partners of each other or lived together as partners in an enduring family relationship. The pseudo-photograph must not show a person other than the child and the defendant. Under section 160A of the Criminal Justice Act 1988, the defendant must also show that there is enough evidence to raise an issue as to whether the child consented to the pseudo-photograph being in the defendant’s possession or as to whether the defendant reasonably believed that the child consented. If these conditions are met the prosecution must prove that the child did not consent and that the defendant did not reasonably believe that the child consented.

For offences under section 1(1)(a) of the Protection of Children Act 1978, the defendant must also show that there is enough evidence to raise an issue as to whether the child consented to the pseudo-photograph being taken or made or as to whether the defendant reasonably believed that the child consented. If these conditions are met the prosecution must prove that the child did not consent and that the defendant did not reasonably believe that the child consented. For an offence under section 1(1)(b) the prosecution must prove the showing or distributing was to a person other than the child.

For an offence under section 1(1)(c) of that Act the defendant must also show there is enough evidence to raise an issue as to whether the child consented or the defendant reasonably believed the child consented to the pseudo-photograph being in the defendant’s possession, and whether the defendant had the pseudo-photograph in his possession with a view to distributing or showing it to a person other than the child. If these conditions are met the prosecution must prove that the child did not consent, that the defendant did not reasonably believe that the child consented or that the defendant had the pseudo-photograph in his possession with a view to its being distributed or shown to anyone other than the child.

Hatred against persons on grounds of sexual orientation

863. Clause 61 amends Part 3A of the Public Order Act 1986 by removing section 29JA (protection of freedom of expression). That section relates to the offences of stirring up hatred on grounds of sexual orientation. It provides that that “for the avoidance of doubt” discussion or criticism of sexual conduct or practices or urging others to refrain from or modify such conduct or practices shall not be taken of itself to be threatening or intended to stir up hatred.

864. The Government considers that the offences of stirring up hatred on grounds of sexual orientation are compatible with Conventions rights regardless of section 29JA.

865. The offences engage in particular the right to freedom of thought, conscience and religion under Article 9(1) and the right to freedom of expression under Article 10(1). The Government considers that interference with these rights is justified under Articles 9(2) and 10(2) respectively. The offences are prescribed by law, and so capable of being justified if they have a legitimate aim and are a proportionate response to a pressing social need to advance that aim. The legitimate aims are the protection of the rights of others to be free from abuse, and the protection of public order.

866. As was made clear when the offences were created (by the 2008 Act), the Government considers that a compelling case can be made that there is a pressing social need because of the evidence of hatred against homosexual people being stirred up by, amongst others, some extreme political groups and song lyrics, and of widespread violence, bullying and discrimination against homosexual people. The Government considers that legislation which prohibits the stirring up of hatred will deter such behaviour and send a message that it is unacceptable, leading to homophobic hatred becoming less widespread and in turn reducing the number of incidents of violence, bullying and discrimination.

867. Examples of written material appearing to incite hatred in the form of homophobic lyrics, leaflets and magazines was provided to the Government at the time of the creation of the offence. In addition, oral evidence to this effect was provided to the Public Bill Committee by the gay rights lobby organisation Stonewall on 16th October 2007 (Official Report col. 74 to 86). The Government believes it is widely accepted that incidences of homophobic behaviour (including violence, bullying and discrimination) are relatively commonplace. It has also received representations from Stonewall (including “The School Report”, 2007, on bullying in schools) and the Lesbian, Gay, Bisexual and Transgender community safety organisation Galop. The Joint Committee on Human Rights (paragraph 1.62, Fifth Report, session 2007-08) agreed that there is considerable evidence that homosexual people in particular are often the subject of material inciting people to violence against them.

868. The Government remains persuaded that there is a link between the availability of material liable to incite homophobic hatred and levels of homophobic violence, and considers that the offences fill a gap that existed in the law in that incitement which is directed at stirring up hatred against the community as a whole rather than specific offences against individuals was not covered.

869. In relation to the offences being a proportionate response to the need, the offences are modelled on the existing offences of incitement to racial and religious hatred. The latter have only relatively recently been brought into force, but the former are relatively long-standing provisions whose ECHR compatibility has not been successfully challenged. Moreover, in two key respects the sexual orientation offences represent a lesser interference with the Convention rights than the racial hatred offence. First, they apply only to “threatening” conduct rather than “threatening, abusive or insulting” conduct, and secondly they apply only to conduct “intended” to stir up hatred rather than conduct intended or “likely” to stir up hatred. The offences of stirring up racial hatred have been prosecuted only rarely with a total of 84 prosecutions (resulting in 60 convictions) between 1988 and 31st August 2007, and it can reasonably be anticipated that the figures will be even lower for the new, narrower offences.

870. The Government considers that the “protection of freedom of expression” provision in section 29JA is unnecessary for achieving compliance with Article 10. The HRA ensures that an appropriate balance is struck between freedom of speech and the prevention of homophobic incitement, and there is no need in an offence which applies only to “threatening” conduct intended to stir up hatred for a saving for discussion and criticism of sexual conduct or practices or urging others to refrain from or modify such conduct or practices. The Government also notes that the section is expressly stated to be “for the avoidance of doubt”.

871. The Government notes that the Government’s original proposals for the offences introduced in the Criminal Justice and Immigration Bill did not include the provision that now forms section 29JA. The Joint Committee on Human Rights’ conclusion on the Government’s original proposals in respect of protection for freedom of speech was that “[w]e welcome the fact that the new offences concerning incitement to hatred on grounds of sexual orientation are narrowly defined so as to apply only to threatening words or behaviour intended to incite hatred against people on the basis of their sexuality. In our view this provides an appropriate degree of protection for freedom on speech” (paragraph 1.64, Fifth Report, session 2007-08). The original proposals were also welcomed by the Chair of the Equality and Human Rights Commission, who observed “It’s essential we balance freedom of speech against any need for anti-incitement legislation. Having looked at the government's proposals we think they have struck the right balance, the Commission is persuaded the proposals are fair and needed”.

872. It is also relevant to note that, as with the existing offence of incitement to racial hatred, any prosecution in relation to homophobic hatred will require the consent of the Attorney General. In taking this decision the Attorney General as a public authority will be obliged by the HRA to consider the ECHR. Similarly, in a prosecution for homophobic incitement courts will be required to act in a way that is compatible with Convention rights and interpret legislation as far as is possible compatibly with such rights. The Government considers that the offences and, in particular, the term “hatred” can, and will, be interpreted by the courts in a way that respects Convention rights.

873. In considering the offence the Attorney and the courts would have regard to Articles 9, 10 and 17. Article 9 includes a right to manifest one’s religion. This includes the right to proselytise which the Government considers can be carried out without stirring up hatred.

874. The effect of Article 17 is to deprive people of the freedom of expression under Article 10 insofar as they use that freedom in a matter which is “incompatible with the values proclaimed and guaranteed by the Convention, notably tolerance, social peace and non-discrimination”, as the ECtHR held in Norwood v United Kingdom 89 (Application No. 23131/03, decision of 16 November 2004, unreported). The Government notes the Joint Committee on Human Rights’ previous conclusion that “Where words, signs, etc., are used with the intention of stirring up religious hatred, we cannot imagine circumstances in which such behaviour would fall outside Article 17” (paragraph 2.61, Eighth Report, session 2004-05) and considers that this view has equal force in respect of the new offence, which, as previously noted, will apply only in cases of intentional incitement.

Part 3: Criminal evidence and procedure

Anonymity in investigations

875. Chapter 1 of Part 3 creates a new kind of anonymity order intended to apply to a witness during the investigation of a gang-related homicide caused by gun or knife. The order is different in kind to a witness anonymity order obtained for the purposes of a trial. The purpose of the new order is to encourage witnesses to come forward and give information to investigators where they would not otherwise do so because of a fear of repercussions should it become known they have been in touch with investigators.

876. It is arguable that this Chapter gives rise to issues under Articles 2, 6 and 10. However, in the Government’s view either those rights are not engaged or there is sufficient protection such that no impermissible interference with the right will occur.

877. Tackling gang-related gun and knife crime is a top priority for the Government. Whilst gang-related violence remains a rare and localised problem in the country as a whole, for the communities and families affected it is devastating. The Government’s Action Plan for Tackling Violence 2008-11, published in February 2008, includes a commitment to reduce gun and knife crime and gang related violence. An important element in the Government’s approach is to ensure that those tasked with investigating or prosecuting certain offences have the right tools to do so and that the perpetrators are brought to justice as soon as possible.

878. Witnesses are vital in providing assistance to the police and in giving evidence at trial. However, there is increasing concern about the difficulty in investigating and prosecuting the perpetrators of gang-related gun and knife crime because of the reluctance of witnesses to come forward through fear of reprisal. In some cases this has resulted in serious crimes remaining unsolved or violent perpetrators remaining at large for longer than they should because of lack of evidence to identify a suspect or to bring charges. This is a particular problem in gang related gun crime. Police investigations into the shooting of Jesse James in Moss Side in Manchester and Rhys Jones in Croxteth in Liverpool, for example, were hindered by the reluctance of witnesses to provide information to the authorities. The intention of the provisions is to provide further tools to investigators and further protection for witnesses in addition to what is already available.

879. Clauses 62 to 64 make an investigation anonymity order available only for an investigation into a qualifying criminal offence. The offences are limited at this stage to gang-related murder or manslaughter caused by gun or knife. In addition, the order may only be granted once the conditions set out in clause 66 have been satisfied, further limiting their availability. The conditions in clause 66 seek to capture the concept of a “gang”. There will, however, be a power to extend the offences where, or circumstances in which, the order might be available.

880. The availability of an investigative tool in relation to some deaths but not others arguably gives rise to certain Article 2 issues. That Article engages not only the State’s negative obligation to refrain from taking life but also a positive obligation on the State to protect life. In that regard the law must ensure that unlawful killing is subject to criminal sanctions, but, more importantly in the context of these proposals, that all deaths are properly investigated. There is an argument that relatives of those who have died (who would be regarded as victims for the purposes of Article 34) could complain that the absence of an investigative tool which, if it were available, could assist in the investigation of the death of their relative amounts to an interference with their Article 2 rights because the State has failed to conduct a proper investigation into the death.

881. In the Government’s view, such an argument is very unlikely to succeed. Nothing in the Bill affects the continuing duty of the State to investigate all deaths. Current investigative standards will not be lowered. The investigative order is an additional tool to assist in an increasingly difficult gang-related problem. The Government does not consider that the availability of an additional tool by implication means that all investigations which do not have that tool at their disposal do not comply with Article 2. In considering whether or not the State has complied with its Article 2 obligations a court must consider the case on its merits. A thorough investigation without the use of an investigative anonymity order is entirely capable of meeting Article 2 standards.

882. An investigation anonymity order continues to have effect in relation to an individual until it is discharged. However, if the individual is to be called as a witness at trial the order will not be sufficient to allow the witness to give anonymous evidence. In such circumstances a trial anonymity order under the provisions of Chapter 2 of Part 3 of the Bill will need to be sought. In the Government’s view, the Article 6 considerations which apply to trial anonymity orders will not apply to investigation anonymity orders. If it has not been possible to obtain a trial anonymity order in relation to a witness in whose favour an investigation anonymity order is in force, but that witness is compelled to give evidence in his or her real identity the investigative order will not operate to prevent such compulsion.

883. An order will be breached where a person knows the witness has been in contact with investigators and that an investigation anonymity order has been made in that witness’s favour, discloses to another person information likely to lead that person to identify the witness as having assisted or been willing to assist in that investigation (clause 64). Breach will be punishable under a new criminal offence. Where the investigation anonymity order has been breached but it is nevertheless to continue in favour of the witness (that is, it is not discharged) Article 6 is likely to be engaged during the prosecution of the breach if the court in which the breach is being prosecuted is to maintain anonymity (for example by a hearing in camera, or the imposition of reporting restrictions) because for example the exception - that disclosures required by law will not breach an investigation anonymity order - cannot be relied upon.

884. Article 6 provides an accused in criminal proceedings with the right to be tried in a public court (Deweer v Belgium (1980) 2 EHRR 439). This right will conflict with the witness in whose favour the investigation anonymity order has been made. However, the right to a public hearing is subject to the restrictions in Article 6(1). There will be no explicit provision to the extent that an accused’s hearing must not be in open court, so it will be for the court to decide - as it is required to do - whether restricting the right to a public hearing complies with Article 6(1). Where the prosecution considered that an investigation anonymity order must be maintained it would seek to argue that the right to a hearing in public may be abrogated “to the extent strictly necessary.. in special circumstances where publicity would prejudice the interests of justice”. Where a court decided that it was not necessary the prosecution would need to consider whether to proceed. It may also be possible for the court to use common law powers to order that the witness should be referred to by a pseudonym, as in blackmail proceedings.

885. Article 6 also requires that there be “equality of arms” between the parties in order to strike a fair balance and not put one party at a disadvantage compared to the other. This principle may be engaged by the fact that investigation anonymity orders will not be available to the defence. The Government’s view is that as investigative orders are designed to assist criminal investigations, which are conducted only by the prosecution, an application by the defence is unlikely. The Government does not consider that the defence is put at any disadvantage by the absence of being able to apply for an investigation anonymity order. In any event, the defence will be able to apply for a trial anonymity order where appropriate.

886. Article 10 guarantees the right to freedom of expression and is a qualified right. It is usually a natural consequence of the making of an investigation anonymity order in respect of a witness that the press or others will be prevented from learning, during the course of the investigation, the identity of a witness. In addition it will prevent the individual in whose favour the order has been made from disclosing information in certain circumstances. Only a judge may make such an order and in accordance with the conditions set out in clause 66 which include that the safety of the informant would be at risk should it become known that informant had been in contact with investigators. The Government is satisfied that the making of orders under such conditions meets the qualifications of Article 10 under which the exercise of responsibilities may be restricted in the interests of national security, public safety, for the prevention of disorder or crime or for the protection of the rights of others.

887. The Bill also makes provision for the discharge of orders for example, where the order is no longer necessary or to enable a witness to publicise their involvement in a particular investigation (clause 68). The court may do so on application by the police or prosecutor, or by the informant to whom the order applies, giving all those who may apply for discharge the opportunity to make representations. This safeguard of judicial control enables the court to consider the general desirability of discharging the order including whether there would be a continuing risk to the informant’s safety were the order discharged. To the extent Article 10 is engaged, the Government considers that this mechanism is necessary in pursuance of one or more of the considerations outlined above in Article 10(2) and safeguards the rights of the witness and others in conjunction with rights to freedom of expression.

Anonymity of witnesses

888. Chapter 2 of Part 3 concerns the use of anonymous witness evidence at trial. The CEWAA received Royal Assent on 21st July 2008. That Act was brought forward on an emergency basis following the House of Lords’ judgment in R v Davis [2008] UKHL 36 handed down on 18th June 2008. The appeal concerned the use of anonymous witness evidence at trial governed by the common law. The Act provides for the making of witness anonymity orders in criminal proceedings where witnesses are intimidated or where disclosure of identity will cause real harm to the public interest. The purpose of the Act was to replace the rules of the common law considered in the House of Lords judgment with a statutory framework to secure anonymity of witnesses in those proceedings, where to do so will be compatible with the defendant’s right to a fair trial guaranteed by Article 6.

889. As the CEWAA was brought on an emergency basis the Government undertook to re-enact its provisions to allow further and fuller Parliamentary debate. (Section 14 of CEWAA made provision concerning the expiry of power to make witness anonymity orders under that Act.) This Chapter fulfils that undertaking.

890. Article 6 is clearly engaged by the provisions of the Bill in relation to criminal trials. The core provisions are substantially the same as those in CEWAA.

891. R v Davis concerned the use of anonymous witness evidence at trial governed by the common law. The Court of Appeal’s judgment on 19th May 2006 had previously approved the practice of granting anonymity to fearful or intimidated witnesses and held that the Crown Court’s inherent jurisdiction at common law to control its own process extended to permitting witnesses to give evidence anonymously. It also concluded on a review of the Strasbourg authorities that witness anonymity is not inconsistent with the right to a fair trial, as guaranteed by Article 6. But the House of Lords held that:

The erosion of a defendant’s right to be confronted by his accusers, as represented by the anonymising measures taken in that case, is not permitted by the common law;

The use of anonymous evidence in the particular case of Davis did not satisfy the requirements of Article 6;

The use of anonymous evidence which implicates the accused where the anonymity of the witness limits the challenge to the evidence by cross-examination can only be permitted by legislation and not by the courts alone.

892. In his opinion, Lord Bingham cited the common law principle that -

“Subject to certain exceptions and statutory qualifications, the defendant in a criminal trial should be confronted by his accusers in order that he may cross-examine them and challenge their evidence”.

893. Their Lordships’ judgment makes clear that the courts had gone too far under the common law and had arrived at a position which was irreconcilable with long-standing principle and that any changes in the law on the way that witnesses give their evidence was to be achieved by primary legislation, and cannot be achieved through developments on the common law.

894. The CEWAA therefore replaced the common law rules relating to the power to make an anonymity order in relation to a witness in criminal proceedings with a statutory framework. That framework restored to the criminal courts the power to consider case by case whether it is appropriate and compatible with the requirements of Article 6 for an order for anonymised evidence to be made. This framework draws on the model provided by the New Zealand legislation cited by Lord Bingham in his opinion where the New Zealand legislature has permitted anonymised evidence to be admissible in certain circumstances.

895. Like the CEWAA, the present clauses provide for a “witness anonymity order”. This is an order that requires specified measures to be taken to ensure that the identity of the witness is not disclosed, as long as certain conditions, specified in the Bill, can be met. These conditions are -

the order is necessary -

to protect the safety of the witness or another person or to prevent serious damage to property ; or

to prevent real harm to the public interest;

the effect of the order is consistent with the defendant receiving a fair trial; and

the importance of the witness’s testimony is such that, in the interests of justice, the witness should testify, and the witness would not testify if the order were not made or there would be real harm to the public interest if the witness were to testify without the order being made.

896. Of fundamental importance to Article 6 are the specific guarantees in the criminal context. Article 6(3)(d) guarantees the right of the accused to examine or have examined against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him. This right applies to prosecution witnesses and to any co-accused of the defendant.

897. Although their Lordships found, on the facts of Davis, that the measures taken in the specific circumstances of that case infringed Article 6, the statutory framework in CEWAA and in this Bill include safeguards to the exercise of this statutory power which in the Government’s view will ensure that the defendant’s right to a fair trial will not be prejudiced. These conditions are discussed below. Lord Mance in his conclusions in Davis, noted that “It may well be appropriate that there should be a careful statutory modification of basic common law principles. It is clear from the Strasbourg jurisprudence discussed in this judgment that there is scope within the Human Rights Convention for such modification”.

898. The ECtHR approach is that “the admissibility of evidence is primarily a matter for regulation by national courts” (Davis, paragraphs 25 and 66). The key factor is whether “the proceedings as a whole, including the way in which evidence was taken, was fair” (paragraph 75 and considering Doorson v The Netherlands (App No 20524/92) (1996) 22 EHRR, paragraph 67, Van Mechelen v The Netherlands (App Nos 21363/93,21364/93 and 22056/93) (1997) 25 EHRR 647, paragraph 50 and PS v Germany (App No 3390/96) 2001) 36 EHRR 1139, paragraph 19).

899. The House concluded that “[t]he Strasbourg Court has repeatedly stated that the use of anonymous evidence is ‘not under all circumstances incompatible with the Convention’”. Importantly, Lord Mance held that it is not certain that “there is an absolute requirement that anonymous testimony should not be the sole or decisive evidence, or whether the extent to which such testimony is decisive may be no more than a very important factor to balance the scales” (paragraph 89). He also cautioned against “treating the Convention, or apparently general statements by the Strasbourg courts in different contexts, as containing absolutely inflexible rules” (paragraph 90).

900. Accordingly the CEWAA provided, as do these new clauses, a statutory framework for the consideration of the use of anonymous evidence, where the court seized of the matter, which is in the best position to assess the impact on the case, is satisfied that the safeguards are met. An application can be made in respect of a prosecution witness or in respect of a defence witness.

901. The Government considers that the Bill is compatible with the Convention. One of the principal conditions which must be satisfied if an order is to be granted is that taking measures must be consistent with the defendant’s right to a fair trial (clause 75(2) and (4)). In addition, the Bill also -

sets out the only circumstances where consideration can be given to a witness anonymity order. These are -

Davis

o where the court is satisfied that the order is necessary to prevent real harm to the public interest. This is intended to address the situation where it is vital for their security or for ongoing operational effectiveness that the identity of undercover police officers or agents is withheld.

requires that the Court is satisfied that the importance of the testimony is such that in the interests of justice the witness ought to testify. This means that in addition to ensuring that the defendant receives a fair trial the court must also consider an interests of justice test.

902. The Bill also sets out the relevant considerations to which the Court must have regard before deciding that the statutory conditions are met, and for deciding what measures might be appropriate. Of particular relevance to the Article 6 specific guarantee, and the House of Lords’ judgment on the facts of Davis, are the considerations dealing with -

the witness’ credibility; and

the extent to which the witness’ evidence can be properly tested (whether on the grounds of credibility or otherwise).

903. These considerations are designed to ensure that the trial court considers whether the specific guarantee in Article 6(3)(d) can be met in the circumstances of the particular case before it if a witness anonymity order is to be made.

904. The Bill also requires that a warning is given to the jury (or to the members of a service court) where evidence has been given pursuant to a witness anonymity order. The judge is required to warn the jury is such terms as he or she considers appropriate to ensure that the defendant’s right to a fair trial is not prejudiced.

905. There is a possibility that a particular order might engage Article 10. However, even if it does, the Government takes the view that any interference is justified in order to protect the safety of the witness or others or in order to prevent real harm to the public interest. In any event, the court remains under the general duty to respect Convention rights and so there is no question of incompatibility.

906. The Bill also makes provision for the discharge or variation of orders giving the parties and witness the opportunity to make representations (clause 79). This safeguard of judicial control enables the questions of safety to the witness and others and the public interest to be considered before discharge of an order, for example to enable a witness to publicise their involvement in a particular trial. To the extent Article 10 is engaged, in the opinion of the Government, this mechanism is necessary in pursuance of one or more of the considerations outlined above in Article 10(2) and safeguards the rights of the witness and others in conjunction with rights to freedom of expression.

Vulnerable and intimidated witnesses

907. Clause 91 confers a power for a court to make a direction that provides for examination of a defendant during trial to be conducted through an intermediary, that is, a person who is able to help the accused understand questions put to him or her and to communicate to the person asking the questions the answers the defendant gives. The provision applies in relation to vulnerable defendants, that is to say those under 18 whose ability to participate effectively in the proceedings as a witness in court is compromised by his or her level of intellectual ability, or those over 18 who suffer from a mental disorder or who otherwise have significant impairment of intelligence and social function.

908. The court has power to make such directions on the application of the accused. It may grant such direction only if satisfied that the conditions of vulnerability are met and that the making of the direction is necessary in order to ensure the accused receives a fair trial. This trigger linked as it is to those cases where such direction is necessary to ensure a fair trial secures the rights of the defendant and is compatible for the purposes of the HRA and ECHR.

Live links

909. Clause 93 amends the Crime and Disorder Act 1998 in relation to the use of live video links for the purposes of preliminary hearings where the accused is at a police station, for continued use of a live link for a sentencing hearing following a preliminary live link hearing, and for sentencing hearings following conviction where it appears to the court before which a person is convicted that he will be likely to be in custody at the time of the sentencing hearing. The amendments remove for the purposes of all three sections the earlier requirement that the accused must consent to the use of a live link for his hearing and the removal of the requirement that the accused must consent to giving oral evidence by live link.

910. Article 6 is engaged in relation to the removal of consent requirements. The Government is however satisfied that the provisions, as amended, are compatible with Article 6:

For the purposes of these provisions, the accused is to be treated as present in court when, by virtue of a live link direction he attends a hearing through a live link and there is nothing to stop the accused participating effectively in the conduct of his case. (It is also of note that section 57B which concerns the use of a live link for a preliminary hearing where the person is in custody is not subject to any need for consent).

The court in all three cases retains a discretion whether to give live link directions or hear oral evidence via live link.

As a further safeguard the court may rescind a live link direction at any time during the hearing.

Clause 93 also adds to section 57C an interests of justice requirement so that in all situations covered by sections 57C, 57D and 57E the court may not give or continue a live link direction (and in respect of section 57D and 57E hear oral evidence by live link) unless satisfied that it is not contrary to the interests of justice to give the direction. Having an interests of justice test on the face of the Bill acts as a further safeguard.

911. Clause 95 inserts into the Police and Criminal Evidence Act 1984 new provision concerning the search of accused persons attending a police station to attend live link bail. Section 54 of the 1984 Act does not apply to such persons as for the purposes of live link bail they are not to be treated as in police detention. However those attending live link bail do need to enter secure areas in police stations (police custody areas in which the video links are generally found are secure areas) and this provision set outs the powers of constables in that regard.

912. The provision, concerning as it does the search of persons and, where appropriate, the seizure of items, engages Article 8. The provision enables a constable or detention officer to search a person or seize items rather than obliges him to. The Government is satisfied the provision is compatible with Article 8. It enables constables to search in accordance with the law. In the Government’s opinion such power is necessary in the interests of the matters referred to under Article 8(2). The clauses also make provision for personal dignity reasons to ensure that the constable carrying out the search must be of the same sex as the person being searched and no intimate searches are permitted.

913. As far as seizure and retention of items are concerned this also engages A1P1. The clauses build in safeguards in this respect. The power is limited to circumstances in which the constable “reasonably believes a thing in the possession of the person ought to be seized” on one or more grounds. Those grounds are that the thing:

may jeopardise the maintenance of order in the police station,

may put the safety of any person in the police station at risk, or

may be evidence of, or in relation to, an offence.

914. The power to retain articles is limited up until the time the person from whom the article was seized leaves the police station save that:

a constable may retain an article in order to establish its lawful owner, where there are reasonable grounds for believing that it has been obtained in consequence of the commission of an offence; or

a constable may retain an item where that item may be evidence of, or in relation to an offence, whether it was seized for that purpose initially or not, for use as evidence at a trial for an offence or for forensic examination or for investigation in connection with an offence, unless a photograph or copy would suffice for that purpose.

915. The clause also preserves the power of a court to make an order under section 1 of the Police (Property) Act 1897. The Government is satisfied the provision is compatible with A1P1, it allows for deprivation of possessions in the public interest and subject to the conditions provided for by law.

Evidence of previous complaint

916. Clause 99 amends section 120(7) of the 2003 Act to remove the requirement that “hearsay” statements of complaint concerning an alleged offence need to have been made “as soon as could reasonably be expected after the alleged conduct”.

917. Article 6 is engaged. The Court of Appeal has already considered the compatibility of section 114 of the 2003 Act (hearsay statements) with Article 6 in the case of R v Xhabri [2006] 1 Cr.App.R. 26, in the context of considering the admissibility of a statement adduced under section 120(7) or in the interests of justice under section 114(1)(d). The proposed amendment has been considered in the light of that judgment. The Court there found no breach of Article 6.

918. The Government considers that these clauses do not affect the compatibility of section 120(7) with Article 6 for the following reasons:

Statements of complaint would still only be admissible if the maker of the statements is available for cross-examination. This acts as safeguard to the rights of the defence.

The admission of such statements would also be subject to exclusion by the court under section 126 of the 2003 Act. This acts as a further safeguard.

Nothing in the clause precludes the court from considering the question of the timing of the statement in deciding what fairness demands from case to case.

919. The fact the court in R v Xhabri considered that even if the evidence in that case was not admissible under section 120(7), it would have been admissible anyway under the court’s general discretion to admit evidence under section 114(1)(d), also reinforces the view that the proposed relaxation of section 120(7), having regard to the court’s power to exclude evidence, is compatible with Article 6.

Bail

920. Clause 101(2) would add a further test to be applied by the courts in deciding whether to grant bail to a person charged with murder. In the Government’s view, the new provision is consistent with Article 5. That Article, amongst other things, sets out the circumstances in which a person may be detained pending trial. This provision does not affect most of those circumstances, it simply adds a test in murder cases in relation to a particularly serious category of prospective further offences - those which would, or would be likely to, cause harm. The similar test in section 25 of the Criminal Justice and Public Order Act 1994 (as amended) was found by the House of Lords in O (FC) v Crown Court at Harrow [2006] UKHL 42 to be compatible with Article 5 rights.

921. Clause 102 would require all decisions on bail in murder cases to be made by a judge of the Crown Court. This would not affect Article 6 rights, and in the Government’s view could only give rise to an Article 5 point to the extent that it would mean that a person could be remanded in custody by a magistrates’ court without consideration of bail pending their appearance before a Crown Court judge. This sort of approach was found expressly to comply with Article 5 by the Grand Chamber of the ECtHR in McKay v UK (2007) 44 EHRR 41, and in any event the Bill makes added provision (unlike in McKay) limiting the duration of any further period of remand before bail must be considered. The compatibility of the proposed provision is reinforced by two further points. First, that the discretion of the court to make bail decisions in light of all the circumstances of the case remains largely untouched. Secondly, that reservations expressed by some members of the court in Harrow about the impermissibility of placing a burden of proof on the defendant do not arise here, because the burden here would fall on the Crown. In the Government’s view, this provision is therefore compatible with Convention rights.

Part 5 Miscellaneous criminal justice provisions

Treatment of convictions in other member States etc

922. Clause 128 and Schedule 15 insert new provisions in various Acts to implement the EU 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.

923. The purpose of the Framework Decision is to establish a minimum obligation for member States to take into account convictions handed down in other member States where such convictions would be taken into account under national law. By virtue of Article 3.2, this requirement applies at the pre-trial stage, during the trial itself and at the time of execution of the conviction, particularly as regards the rules on provisional detention (essentially our bail law), the definition of the offence, the type or level of sentence and the rules governing the execution of the decision.

924. These provisions constitute the UK implementation of certain international obligations. The Framework Decision is a decision by the Council of the European Union. Recital (12) also provides that “This Framework Decision respects the fundamental rights and observes the principles recognised by Article 6 of the Treaty of European Union and reflected in the Charter of Fundamental Rights of the European Union”. The Government agrees.

Prepared: 26 March 2009