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It has been said that infanticide is a distinctive kind of human tragedy. Indeed it is, and it is one that has always generated enormous sympathy and understanding, but it is not so very different from other homicides in which health and mental health are involved. It seems extraordinary that the Bill proposes to retain this Victorian offence; it should surely be abolished. Cases that would otherwise come under that offence should be dealt with through the diminished responsibility provisions. The Butler committee recommended as much in 1975. If the killing was committed in the

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context of an abnormality of mind, it is covered by diminished responsibility. If it was not, a pseudo-psychiatric defence is not appropriate.

Another problem is that the Bill withdraws the requirement for inquests into deaths in custody to be heard automatically before a jury. The noble Baroness, Lady Murphy, has extensive experience of inquiry panels into the deaths of detained patients in special hospitals for mentally disordered offenders and in NHS mental health units, and she will be greatly concerned about this part of the Bill. Again, I believe that there will be amendments to explore this further in Committee.

The Bill provides that deaths in custody and detention will be heard before juries only if one of a limited set of circumstances is satisfied. This is not sufficient to ensure that such deaths are fully and independently investigated or to give the public the confidence that justice is being done. Deaths that occur in state detention are often complex and may require the detailed scrutiny of systems and procedures as well as of individual acts, and these cases are always best dealt with by juries.

Clauses 49 and 50 deal with suicide. I welcome the Government’s efforts better to protect young and vulnerable people who may be encouraged by others to commit suicide. However, as other noble Lords, including the noble Baroness, Lady Jay, have stated, the Government’s reforms fail to address a wider problem with the law; it fails to distinguish between those who maliciously encourage suicide and those who compassionately assist the death of a terminally ill adult who is suffering but mentally competent. I look forward to debates on this issue in Committee.

I turn briefly to one or two other areas that relate to medicine and medical research issues. I welcome the proposal for greater involvement of bereaved families and hope that the reforms will improve the processes for healthcare professionals and others who greatly contribute to the investigation. I support Clause 18, which would make it a statutory duty for doctors to report certain deaths. Clause 19, which creates a new role of medical examiners, is welcome. Like other noble Lords, however, I would like to see greater details about the skill, training, experience and other eligibility criteria for the appointment of a medical examiner and the nature of the independence and accountability of a medical examiner. Clause 20, which makes provisions for regulations about preparatory scrutiny and confirmation of medical certificates of causes of death, is welcome and may lead to fewer deaths requiring coroners post-mortem.

There is, however, concern about the difficulty in integrating coroners’ post-mortems into research protocols. For some research areas—for example, sudden adult death—the need for tissue samples obtained at post-mortem for diagnosis and research will have to be discussed with relatives at a time that is sensitive for them. The ability in such circumstances for coroners to retain material for a post-mortem examination for a limited period to allow for appropriate discussions by potential research studies with families is important. Examples are the recent brain bank networks established by the Medical Research Council and others for storage of brain tissue for diagnosis and research. I hope that coroners’ offices do not impede such research.

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Finally, I welcome the Government’s decision to withdraw the information-sharing order-making power from the Bill. However, if they are planning a fresh public consultation in relation to information sharing, I hope that they will listen carefully to the medical and biomedical research communities and others so that any new proposals do not impede medical research, while preventing inappropriate use and disclosure of sensitive information.

5.21 pm

Lord Goodlad: My Lords, like the noble Lord, Lord Patel, I view the Bill with great gravity. My late father, who was a psychiatrist, was also a deputy coroner in Lincoln many years ago, and some of the issues before us were, even then, a subject of family discussion.

Your Lordships’ Select Committee on the Constitution, as mentioned by the noble Lord, Lord Pannick, issued a report on the Bill last Thursday, 14 May, and I should like to mention three points. First, the committee expressed the view that the ability of Parliament to examine the many provisions of the Bill risks being made less effective by the inclusion in a single Bill of so many issues. I acknowledge the political realities animating the support of the noble and learned Lord, Lord Falconer, for so-called Christmas tree Bills. This Bill, however,

Your Lordships’ committee took the view that the,

Secondly, it says:

Your Lordships’ committee recommended that it should be clear on the face of the Bill that a High Court judge, when faced with a certificate, is not merely to accept a ministerial assertion that the national interest is at stake but that the Secretary of State should be expected to demonstrate to the satisfaction of the judge that such a national interest does in fact exist. I am most grateful to the noble Lord, Lord Bach, for his correspondence, and I welcome the Government’s decision to table amendments to the Bill, withdrawing provisions in respect of certified coroners’ investigations by removing Clauses 11 and 12.

Thirdly, Part 8,

your Lordships’ committee in the,

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Your Lordships’ committee welcomed,

The committee recommended that the Government reconsider the matter and stated:

“Organisations which refuse to allow the Commissioner to carry out inspections are likely to be those with something to hide ... the protection of citizens' data may in the absence of legislation be vitiated”,

in the light of,

The report says that it is disappointing,

The committee said that,

It added:

“The failure to provide any sanctions for non-compliance by public sector bodies with Assessment Notices calls into question the efficacy of the power that is created”.

I hope that your Lordships' House will return to this point during later consideration of the Bill.

The committee said that,

is welcome, and that,

of the report of your Lordships’ committee, Surveillance: Citizens and the State, which I hope will be debated soon, is of considerable importance.

I know that the noble Lord, Lord Bach, will address the issues raised in this debate, including, I hope, those on which I have touched, with his invariable wisdom.

5.27 pm

Lord Imbert: My Lords, I realise that I am but one of the 43 Members of your Lordships’ House who have indicated their wish to speak on the Coroners and Justice Bill. No doubt, noble Lords will be relieved to know that I do not intend to speak for the allotted eight minutes, but I hope that my few remarks about this catch-all Bill may carry some weight despite their brevity. I shall not touch on some of the more controversial parts of the Bill, which have been or will be adequately covered by other noble Lords, and I shall reserve my judgment about those important sections until the next stage.

However, if these measures are intended to reform the coroners’ system as a whole in this country, why do we not bite the bullet and make it a centrally funded national coroners’ service that is overseen by the Lord Chancellor through the Ministry of Justice? That would thereby give power, as well as formal and adequate support, to the new Chief Coroner and subsequently give help and support to bereaved families. If this is

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not done, I can already hear the arguments regarding the adequacy by the “relevant authority”, whomsoever that might be, which, according to Clause 24,

duty. It adds that the,

My final two short and practical points relate to the requirement that a senior coroner needs authority from the Chief Coroner before he can carry out searches and the fact that, throughout the whole Bill, there seems to be no mention whatever of that most important person in the coroners’ system, the coroner’s officer. He or she is the person whom the coroner would ask, “Make sure you get the suicide note or the pills”. Alternatively, to use a hypothetical example of what happens at present, where perhaps an unusual number of deaths have occurred in a nursing home or hospital, and when time is of the essence, the coroner might wish to send his officer post-haste to obtain the hospital operations notes, or copies of them or other material relating to the deceased persons.

The nearest coroner to your Lordships’ House is the coroner for Westminster, a man of 30 years’ experience, who is both a medical doctor and a barrister. He has in his time conducted an incredible 12,000 inquests, including those covering the Iranian embassy siege, the “Marchioness” disaster and 10 fatal bombing incidents. Must he and those other equally experienced coroners waste vital time in the future seeking authority from the Chief Coroner for a search, rather than immediately sending the coroner’s officer to gather evidence—dare I say it—before it is destroyed or mishandled?

In the Metropolitan Police area, which of course includes the City of Westminster, the coroner’s officer would be a police officer or member of police staff provided from the commissioner’s budget. However, the office in which he works, the paper on which he writes his reports and the chair on which he sits are provided by Westminster City Council. Similarly, in Surrey, the chief constable provides the coroner’s officer from the budget for his agreed establishment of officers and staff, but the premises and all equipment used by the coroner and his staff are paid for by the county council as the relevant authority. There seem to be different and piecemeal systems throughout the 100 or so coroner areas in England. Should not the requirement to provide staff and accommodation be formalised nationally, be dealt with through the Ministry of Justice and centrally funded, as the noble Lord, Lord Thomas of Gresford, suggested?

5.33 pm

Baroness Miller of Chilthorne Domer: My Lords, this Bill rightly reopens the debate of what to do about inquests that involve particularly sensitive information. We last debated this in your Lordships’ House under the Counter-Terrorism Bill last year. At that time, we certainly did not feel that the Government’s proposals were acceptable. Indeed, today, the noble Lord, Lord Pannick, has spent some time accurately kicking the clause when it was down, as he described it. There is certainly still a problem with the Government’s new proposals.

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The Ministerial Statement last week commended the use of the Inquiries Act 2005 and talked of using a special,

During the passage of this Bill, this House will have to debate exactly what the circumstances will be that need especial scrutiny.

The Inquiries Act 2005 is one answer that the Government have come up with, but that is likely to be deficient in a similar way as was found under the Counter-Terrorism Bill for coroners; the panel will have the same problem in that it is not authorised under the Regulation of Investigatory Powers Act 2000 to receive intercept evidence. The Government will need to address that, as they intend to for coroners.

What this House should not accept is a system that allows the Government to hold secret inquests, or juryless inquests in those cases outlined under Clause 7, for any reason that is not absolutely accepted by this House. It was far from clear when we debated the Counter-Terrorism Bill that there would be any case where that would be justified. There might need to be safeguards. Indeed, we came up with a number of safeguards at that time. I hope that we will do so again.

There is also the principle that inquests should be open to families. The exclusion of families for part or most of the inquest is highly undesirable. As we debate this Bill, we shall need to debate thoroughly the circumstances when a family might be excluded. Recently, the Terry Nicholas case, which was one of those that failed the intercept evidence test, has been resolved by the coroner in a thoroughly practical way. I believe that that will be an example to us as we go through this Bill. The coroner used her common sense; she redacted the sensitive information and the family were not excluded. The delays that the Rodney family have so far suffered because of the difficulties in using intercept evidence are quite unacceptable and I hope that legislation can resolve their case.

Indeed, for families, all delays of many years in holding inquests are equally unacceptable. Going through the inquest process is extremely traumatic for a family member. Not only are they dealing with the grief and shock that such a death brings, but also, if an inquest is being held, it usually means that the death has been unexpected, violent or shocking, and often all three. The state has two duties at such a time. The first is to try to discover the truth of why the death occurred and the second is to learn any lessons for wider society. The fulfilling of these duties should be conducted in such a way as to avoid undue further trauma for the family.

I believe that part of that trauma is induced when there are the sort of delays of which we have had some examples. My local press, the Western Morning News, highlighted such a case only last Saturday. It reported that Mr Pullman has been waiting since 2003 when his only son Adrian died. The inquest opened and adjourned in 2003 and has not resumed. It is not a straightforward case because of the number of agencies involved—care agencies, the local authority, the police et cetera—but it does not involve national security or anything like

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that. I believe that six years is an inhumane time to make a family wait for an inquest to be held. I hope that the timescale within which inquests are held will also be the subject of debate in this House.

My noble friend spoke about legal aid, which I am sure the House will, rightly, dwell on. Another criminal justice issue about which I feel strongly is the treatment of children within the system. I know that my noble friend Lady Linklater will speak on that. Later, I shall address the sloppy drafting of the Bill in relation to criminal memoirs, because I believe that, while the provisions are justified, they have not been drafted as they should be.

Finally, Part 8 is to be welcomed. The Minister is right to worry that the Government need to continue to listen to arguments about the scope of the assessment notice and enforcement for non-compliance. There is no reason in these days of PFI and the way in which the public and private sectors work together to have such a sharp division between the treatment of the public and the private sectors in terms of their duties under data protection.

Of course we welcome the withdrawal of the information-sharing system, but some interesting points were made at the Information Commissioner’s conference last Wednesday that I hope we will have time to expand on in Committee. For example, Michael Wills MP, the Minister for Justice, said that freedom of information requests will be extended to private sector companies holding information of public interest. Since Part 8 deals with ICO powers and that office has responsibility for the Freedom of Information Act, will the Minister consent to introducing those changes into the Bill?

We will be able to make a number of improvements to Part 8, including the one suggested in the March 2009 report of the Joint Committee on Human Rights. The Government should reconsider the Information Commissioner’s request that the proposed power to issue assessment notices be extended to data controllers in the private sector. It is not only data controllers who are involved, because other people may fall under the scope of this provision. We may need to debate this in Committee.

5.42 pm

Lord Borrie: My Lords, I want to touch on just two parts of the Bill which have not received a lot of attention so far, although the noble Baroness, Lady Miller, referred to Part 7 as sloppily drafted, which I shall come on to. First, however, I want to talk about Part 4.

I am pleased to see the provisions for the role of sentencing guidelines. They are designed to streamline and strengthen greater consistency in sentencing across our courts. This has already been well developed over some years in order to get rid of random differences in sentences that bear no relation to local crime reoffending rates. I should say in response to the remarks made by the noble Lord, Lord Kingsland, earlier, or to the noble Lord, Lord Henley, who is in his place, that at the same time the Bill maintains the discretion of judges to ensure the justice involved in deciding a particular sentence to fit the particular case and defendant.

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My right honourable friend Jack Straw said as recently as 24 March in the other place:

“We are not fettering the judiciary, but we are saying that there should be a carefully moderated body of guidance”.—[Official Report, Commons, 24/3/09; col. 241.]

He went on to say that that guidance will become the framework that sentencing judges and magistrates will be expected to follow.

I am sure that my noble friend on the Front Bench would agree that consistency in sentencing has been an objective pursued by the present Government practically since they came to office in 1997 with the Crime and Disorder Act 1998, before which sentencing had been the exclusive preserve of the judiciary in the instant case. Over the past few years, the work of my noble friend Lord Carter of Coles and Lord Justice Gage, whose name was mentioned by the noble Lord, Lord Kingsland, has been considerable in terms of the developments since 1998. The majority of Lord Justice Gage’s working party recommended that a court may pass a sentence outwith the guidelines only if it is in the interests of justice to do so. That formula is followed in the Bill. I personally commend it and I doubt we would do better if we were to take the route suggested by the noble Lord, Lord Kingsland, of seeking to amend that phrase.

I come now to criminal memoirs, an entirely different subject, but as we all know, the Bill ranges over many disparate matters. On a number of occasions in recent years there has been public concern—it might be said public outrage—about the publication of memoirs from which convicted criminals have profited. Ian Brady, Mary Bell and Dennis Nilsen are among those who have profited from the publication of memoirs. A number of rules are already applicable. The Prison Rules prevent the publication of such memoirs while the author is in prison, and the Serious Organised Crime Agency is able to seek a confiscation order from the court when money has been obtained in connection with the offence. Many noble Lords may recall the two men who helped the spy George Blake to escape from prison in 1962. They were held by the High Court to repay the royalties they obtained from the publication of their book entitled How We Freed George Blake and Why.

The Bill seeks to introduce a civil recovery scheme whereby the courts could order offenders to pay amounts in respect of benefits derived from the exploitation of any accounts of their crimes. Unlike Part 4 on the matter of sentencing, which I have praised, I rather doubt whether these provisions are really worth while or desirable. I should say to the noble Baroness, Lady Miller of Chilthorne Domer, that that they are not just badly drafted, they are also not needed. The Bill’s own regulatory impact assessment states:

“At most it is projected that two cases a year will arise”.

The Government claim that the changes are desirable to prevent further hurt and distress to victims and their families, and indeed concern for victims and their families is a theme that runs throughout the Bill, as the Minister has indicated. But that is a large claim to make for this part when the Government have to admit that the new measure will in practice “capture

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very few cases”. I am talking about individual cases, but I would argue that the publication of a criminal’s memoirs may sometimes have beneficial outcomes in terms of assisting rehabilitation of the offender, just as learning new skills or discovering one’s artistic talent can help in rehabilitation. In any case, as has already been argued, the Prison Rules and the confiscation provisions of the Proceeds of Crime Act 2002 can be used to recover what I would call overly large royalties in the occasional case where that seems desirable.

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