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The public interest was not served by gratuitous details, even though they might have sold papers. The bereaved need privacy. Issues around reporting were considered in 2007 by the Family Division. The court upheld that coroners’ inquests are court proceedings. Section 39 of the Children and Young Persons Act 1933 safeguards children and, if it were properly interpreted, would give children privacy in death, as well providing privacy for those appearing as witnesses.
Why is privacy important? It is because other children have to cope with questions back at school and in the community, and the inquest may occur some time after the death. The inquest lays bare raw wounds that a family have begun to live with, abruptly taking them back in their grieving. For some, the inquest does not herald the closure that they hope for. If afforded privacy, the family can go to the press if they want to; and many do because they want to expose dangers, such as those of carbon monoxide poisoning. However, they need to be afforded some control in their grief.
In the 10 years up to 2008, more than 37,000 deaths were recorded as suicides in England and Wales, and more than 27,000 with an open verdict. Compare that to the figure of 100 quoted earlier as regards people who have gone to Switzerland. Many of the deaths recorded as open verdicts were actually suicides, but some coroners seem to avoid the term “suicide”, perhaps because of stigmatisation; but without consistent reporting, we will never get a true picture. It is essential that deaths are classified, using the World Health Organisation’s international classification codes to provide consistency in verdicts. Deaths can then be centrally collated by the Chief Coroner’s office to reveal trends and clusters of any type—not just suicides—where there is a problem. Any cluster of deaths could then be identified early. Independent research must be encouraged, to provide scrutiny and detect inconsistency.
I welcome the Minister’s opening statements about assisted suicide, and I agree that we should not use this Bill as a Trojan horse to try to revisit the issues that were looked at during three of the Bills of the noble
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In the mean time, I simply welcome the Minister’s statement and I welcome this reform of the coroner system. Some responsible websites are moderated—they have pop-ups from the Samaritans—but others are dangerous. They are already illegal in Australia, and the Byron report recommended that we do the same. The Government are to be commended on picking up those recommendations.
Policing such websites is terribly hard, but it can be done. From 1997 to 2008, the Internet Watch Foundation achieved a 17 per cent fall in child pornography sites through monitoring. I am glad that the Government have included in the Bill provisions on pseudo-photography of children. That inclusion is essential for this work, as some really disturbing images are emerging, particularly out of Japan.
Inquests into tragic events, wherever they are, need to be conducted near people’s homes, so that distressed families do not have to travel. That is to be welcomed. The family must be in control of what is supplied to the media. The Bill and the Explanatory Notes do not go far enough. The press intrusion in Bridgend was terrible. Families describe having to fight their way past reporters to get into the coroner’s court, being pressurised for quotes, and then misquoted, with school friends being bribed for information and photos of the deceased. Sometimes the first time that the bereaved family had ever seen a photograph was when it appeared in the local paper.
The press complaints code of conduct has been in place since 2008, but it was only after the events that I referred to that the editors’ code was tightened, indeed to good effect. The press cannot now disclose the method. This has improved the situation. The press has not reported on subsequent suicides, of which more than 80 per cent are linked, which further demonstrates the effect of social contagion. A complaint against the Reading Chronicle was recently upheld, which was a welcome decision.
The public interest was not served by gratuitous details, even though they might have sold papers. The bereaved need privacy. Issues around reporting were considered in 2007 by the Family Division. The court upheld that coroners’ inquests are court proceedings. The Children and Young Persons Act 1933 in Section 39 safeguards children and, if it were properly interpreted, would give children privacy in death, as well providing privacy for those appearing as witnesses.
Why is privacy important? It is because other children have to cope with questions back at school and in the community, and the inquest may occur some time after the death. The inquest lays bare raw wounds that a family have begun to live with, abruptly taking them back in their grieving. For some, the inquest does not
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In the 10 years up to 2008, more than 37,000 deaths were recorded as suicides in England and Wales, and more than 27,000 with an open verdict. Compare that to the figure of 100 quoted earlier as regards people who have gone to Switzerland. Many of the deaths recorded as open verdicts were actually suicides, but some coroners seem to avoid the term “suicide”, perhaps because of stigmatisation; but without consistent reporting, we will never get a true picture. It is essential that deaths are classified, using the World Health Organisation’s international classification codes to provided consistency in verdicts. Deaths can then be centrally collated by the Chief Coroner’s office to reveal trends and clusters of any type—not just suicides—where there is a problem. Any cluster of deaths could then be identified early. Independent research must be encouraged, to provide scrutiny and detect inconsistency.
I welcome the Minister’s opening statements about assisted suicide, and I agree that we should not use this Bill as a Trojan horse to try to revisit the issues that were looked at during three of the Bills of the noble Lord, Lord Joffe. I should simply and respectfully correct the noble and learned Lord, Lord Falconer of Thoroton, in that the unit called Dignitas is not a clinic; it has no therapeutic intervention whatever; it is, quite simply, a suicide service, probably for commercial gain. How do you actually provide immunity for those travelling abroad? How do you detect coercion—subtle coercion—whether internal or external? I will not discuss safeguards further, but I am sure that we will revisit those matters.
In the mean time, I simply welcome the Minister’s statement and I welcome this reform of the coroners’ system.
4.54 pm
Lord Pannick: My Lords, as the Minister mentioned, the Secretary of State for Justice made a Written Statement in the other place last Friday. He explained that the Government will table an amendment to remove Clause 11 and its associated Clause 12. One does not want to kick a clause when it is down, but the sorry saga of Clause 11, with its power for the Secretary of State to dispense with a jury in an inquest, deserves to be noted in the hope that the Government and their successors may learn some lessons as to how not to proceed when making legislative proposals in relation to the judicial process. I am also concerned that the Government still do not understand the issues raised by Clause 11.
Clause 7 rightly maintains the principle that inquests into particular categories of death should be heard before a jury. That is in order to maintain public confidence in the exercise of state power; for example, if there is reason to suspect that the deceased died in custody or otherwise in state detention, or as a result of an act or omission of a police officer. Your Lordships will recall that in 2008, the Counter-Terrorism Bill
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The parliamentary Joint Committee on Human Rights then criticised the Secretary of State’s failure to explain how the proposals could be consistent with Article 2 of the European Convention on Human Rights on the right to life. The Government withdrew the proposals, but then this Bill was introduced containing very similar provisions. Again, there was no prior consultation. The Joint Committee on Human Rights repeated its concerns, and concluded that there was no need for the provisions. The proposals generally received a hostile response.
In the light of the criticism, the Secretary of State then tabled amendments to Clause 11 on Report in the other place. Those amendments were inadequate to deal with fundamental defects in Clause 11, as explained fully in the briefing by the organisations Inquest, Liberty and Justice. Any noble Lord who has read that briefing will be puzzled indeed that the Secretary of State still suggested, as he clung to the wreckage of Clause 11 last Friday, that the clause,
When he replies to this debate, will the Minister please assure the House that the Government will learn from an episode that should cause them deep embarrassment? They need to consult before they come forward with legislative proposals on sensitive issues relating to the judicial process, and they need to listen more carefully to what other people say in order that their legislative proposals are coherent and principled.
I remain concerned that although, belatedly, Ministers have now conceded defeat on Clause 11, the Government still do not understand the issues raised by that clause and by the opposition to it. As the Minister told us this afternoon, the Government now say that they will consider establishing in exceptional cases an inquiry under the Inquiries Act 2005 to ascertain the circumstances of a death where evidence cannot or should not be disclosed to a jury. However, those exceptional cases are precisely the ones where the maintenance of public confidence will most require that the evidence is heard by a jury.
The recent inquest into the death of Mr de Menezes, the Brazilian citizen tragically shot by police officers at Stockwell station because of mistaken identity, involved the consideration of highly sensitive evidence concerning the Metropolitan Police’s policies for addressing the threat posed by suicide bombers. A High Court judge sat as the coroner in that inquest with a jury. To the extent necessary, the coroner made a number of rulings restricting the disclosure of sensitive documents and information through the use of public interest immunity certificates, witness anonymity orders and the exclusion of the public, where appropriate.
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If such measures sufficed in the de Menezes case, why is it necessary, I ask the Minister, to dispense with a jury in any other inquest? If and to the extent that the legal problem is that the Regulation of Investigatory Powers Act 2000 prohibits the disclosure of intercept evidence to a coroners’ jury, then the solution is to adopt something similar to Clause 12 of the Bill, no longer being pursued, and that is to allow a High Court judge sitting as a coroner to authorise such disclosure to a coroners’ jury where necessary to ensure a fair inquest.
5.02 pm
Baroness Jay of Paddington: My Lords, I have listened with care to those Members of the House who have spoken critically about the size and wide-ranging nature of this large Bill. Personally, however, I congratulate the Government and welcome their intentions of trying to improve the clarity and fairness of some aspects of the legal system when they touch people’s lives, when they are often at their most vulnerable. It is worth saying in this debate, which is led by a number of very distinguished members of the legal profession, that however humane and sympathetic their individual intentions, they represent a system that—if you are a bereaved family, a person confused by the complexities of the legal aid system, or indeed an intimidated witness—can be very daunting.
From a lay perspective, many aspects of the Bill seem consistent in their attempts to change laws as far as the general populace is concerned. I particularly welcome, for example, the improved services for bereaved families mentioned in Part 1. However, I should like to focus my contribution on Part 2, on criminal offences. Again, there is much in this part to commend the Bill. I particularly welcome the change to the laws on infanticide and those on provocation, and I say to the noble Lord, Lord Thomas of Gresford, that I am certainly not speaking to a feminist agenda. I have some concerns about changes to the partial defence which falls under the issue of diminished responsibility. This is in a particular area, as it has sometimes been pleaded successfully by those charged with so-called mercy killing. I am sure that we will turn to the detail when we consider those parts of the Bill in Committee, but it is important to note that although it is sometimes said that people charged with mercy killing rarely reach the courts and certainly never go to prison, I was disturbed to read just this weekend of another 80 year-old gentleman arrested on suspicion of murdering his wife, who was suffering from advanced Parkinson's disease. That sort of person might well have pleaded diminished responsibility under the previous arrangements, but might find it difficult now.
My main concerns are about Clauses 49 to 51, on encouraging or assisting suicide. As the Minister reminded us at the beginning of the debate, we have had several opportunities to discuss the principles and details of some proposals in that area in recent years in your Lordships' House. I remain strongly in favour of a change to the law that would enable mentally competent but terminally ill adults to commit assisted suicide. However, I am also of the opinion—as expressed eloquently by my noble and learned friend Lord
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None the less, the Bill refers to modernising some aspects of the law that relate to helping people who wish to end their lives. I agree with the noble Baroness, Lady Finlay of Llandaff, that it is important that the Bill will now include issues relating to the potentially pernicious influence of the internet. I heard with great concern what she said about the continuing situation in south Wales, where vulnerable young people have been unduly influenced in that way.
However, I think that the Government have missed an opportunity and an important chance to update the law on assisting suicide in another important area—the one to which my noble and learned friend Lord Falconer referred. I, too, am strongly of the view that we should use the Bill to lift the threat of criminal prosecution from people who, with the best of intentions, accompany loved ones who are terminally ill abroad so that they can get help to die in countries where assisted suicide is legal. My noble and learned friend Lord Falconer has expressed the case for that in very strong legal terms. Perhaps I can now put a more personal case to do it from the point of view of some people who have struggled with and been concerned about that question themselves.
For many people who have travelled abroad in those circumstances, the extraordinarily difficult decision to confront their terminal illness and end their lives has been compounded by intense concern about the possible consequences for people who may accompany them to jurisdictions where that is legal. For that reason, some have gone on that very sad last journey alone. For example, Dorothy Robbins, who suffered from motor neurone disease, was very fearful for her family. She did not want her husband to risk prosecution, so he stayed at home when she went to Switzerland by herself. After her death, Mr Robbins said:
“The crime wasn’t about flying out of the country to die. The crime was not being able to go out with her and hold her hand”.
Recently, noble Lords may have read reports in the newspapers about a couple called Penelope and Peter Duff who were both terminally ill and went to Switzerland together a few months ago. They supported each other without any other family member being present, but afterwards, their daughter, while saying that her parents had done a beautiful and remarkable thing, still openly feared the possibility of legal consequences.
My noble and learned friend Lord Falconer has already referred to the case of Debbie Purdy, who has progressive multiple sclerosis and wants to end her life when she finds her condition intolerable. She has pursued her personal quest to achieve legal clarity for her husband through the courts. She feels that, apart from her husband’s emotional support, she would need her husband to take her to Switzerland when the time comes as she is physically unable to travel alone. In February, her plea for clarification was turned down by the Appeal Court. Nevertheless, she thought that the judges had been sympathetic and, in her words,
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The truth, as the noble and learned Lord, Lord Falconer, emphasised, is that although returning relations are often questioned by the police, to date there have been no prosecutions. In other words, the law as it stands is a fudge, and under this Bill will remain a fudge. Accompanying a loved one abroad to die is an offence but, in practice, will not be prosecuted. It is not surprising that senior lawyers are now questioning this position and asking Parliament to act. I quote the noble and learned Lord, Lord Bingham, who said on the radio last week, when asked whether this was unsatisfactory:
“I don’t think this is a legal judgement, I think it’s a political one. But I think we are approaching a point at which the law does not match the expectations of reasonable people ... we’re approaching the point at which the law does need overhauling”.
In conclusion, I re-emphasise that the Bill misses the opportunity to lift that fog of confusion and anxiety which surrounds a growing practice of British citizens getting assisted suicide in another country. The lack of clarity simply creates a series of paradoxes. No clear signal is sent as to who should be prosecuted and, consequently, as to who should be able to travel abroad. Obviously, Parliament is unable to regulate foreign assisted-dying institutions, but by building on the Government’s proposals in this Bill—modernising the Suicide Act, as it has been described—we could clarify the law to prevent the needless threat of prosecutions on one hand and better protect vulnerable people on another.
I shall refer to the procedures of another place. Noble Lords will be aware that an amendment to this effect was promoted by my right honourable friend Patricia Hewitt, the ex-Secretary of State for Health. As various noble Lords have pointed out, these clauses in the Bill were not reached. I very much hope that we shall be able to discuss similar amendments in your Lordships’ House and, very appropriately, give them the scrutiny that they deserve. I ask my noble friend on the Front Bench one more question. The noble Lord, Lord Kingsland, has already referred to this being a matter of conscience. I hope that, if amendments of this nature are proposed, we on the government Benches will be allowed a free vote.
5.12 pm
Lord Patel: My Lords, this is a very important Bill, which touches on a wide range of issues relevant to medicine. I shall mention some briefly. There are difficulties, particularly for those who practise psychiatry. My noble friend Lady Murphy could not take part in today’s debate. I am pleased to speak on her behalf as an honorary psychiatrist and will support her in Committee.
First, the new system of accountability and the office of the Chief Coroner are very welcome and long overdue. Coroners have not always been keen to take up the benefits of the extensive training programmes that are now expected of the judicial classes, leaving some of them way behind in medical and legal knowledge and public expectations. The new system will, in time, cure that and create a better career structure for coroners. Other parts of the Bill are more worrying. One area of difficulty is the new rules on the partial defence of
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The key problem here is the Government’s failure to accept the Law Commission’s recommendations to introduce two levels of homicide—tiers of murder—which, at a stroke, would have given the judiciary, rather than the Executive, the powers to sentence those who, at present, are all given a mandatory life sentence. Thus we will be stuck with highly unsatisfactory partial defences, such as diminished responsibility for murder only, but not for cases where the victim does not die. In those cases of attempted murder, a defendant can plead only the highly unsatisfactory “insanity”, but not the more flexible “diminished responsibility”.
is an improvement on the current concept of an abnormality of mind, as it emphasises mental processes rather than a static condition. The new inclusion of the idea that the abnormality arose from a recognised medical condition is welcome, as it ensures that the defence must conform to accepted psychiatric diagnostic criteria and avoid the idiosyncratic diagnosis offered by some experts. There is however, concern that the word “medical” might rule out psychological evidence and conditions, but we will need to explore this more in Committee.
The introduction of the notion of relative incapacity is consistent with civil law, for example as expressed in the Mental Capacity Act. In some ways, however, the description of the impairment that must be demonstrated harks back to the restrictiveness of the early 19th century and the so-called M’Naghten rules, which were highly dependent on the defendant’s intellectual grasp of the nature of the act and which largely ignore the power of delusions and emotions on behaviour. We will need to explore further in Committee what impact this narrowing of the defence will mean. It could mean that more mentally disturbed perpetrators of homicide end up with a prison, rather than a hospital, disposal: surely not what is intended. A defendant with severe schizophrenia might quite determinedly kill and with full self-control but on the basis of psychotic thinking. Such psychotic thinking could easily fall short of satisfying the criteria in Clause 44(1)(a) or (b). Thus a severely mentally ill man would be denied any psychiatric defence.
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