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I did not hear the Minister say earlier whether it was the Government’s intention also to reinstate in the Bill the provisions that were in Schedule 3 to the draft Bill. That schedule would have brought forward three amendments to the Treasure Act, all uncontroversial and all recommended in the 2002 review. The first provision would widen the obligation to report finds of treasure to anyone who comes into possession of it, not just finders. That would put pressure on dealers and others such as people operating internet sites, notably eBay. The second alteration would provide a power for the coroner to require anyone reporting a find of treasure also to deliver that treasure—if it was in their possession—to the coroner. The third reform would extend the limitation period for prosecutions, which is currently six months. If coroners take a year to establish the evidence, it is very difficult indeed for the police to proceed.

The system created by the Treasure Act is a success. The number of finds reported has risen from some 25 a year before 1997 to more than 800 in 2008, but the

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delays which have infested the system have tended to bring it into disrepute and to undermine its effectiveness. Parliament would, therefore, do well to legislate the solution that the Government themselves originally proposed.

6.23 pm

Baroness Fookes: My Lords, I share with many other speakers my disapproval of the unholy mishmash of provisions in the Bill. The noble and learned Lord, Lord Lloyd of Berwick, gave a devastating critique of this in relation to the criminal justice system. Unfortunately, there is a pernicious trend in all legislation to put together disparate elements in ever longer, bulkier and more complicated Bills. I detected from my noble friend Lord Kingsland that he disapproves of this trend. I trust that if and when there is a change of Government, any Front Bench will take this to heart and reverse the trend by introducing better legislation and less of it.

However, we have to deal with what is before us. I am at least grateful for the new aspects of the coroners’ legislation, which was certainly in need of an update. I want particularly to consider military inquests. I declare an interest as the president of the War Widows’ Association of Great Britain. This is a matter of great concern to the association because, as everybody in this House will appreciate, sadly there have been many military inquests as a result of recent and continuing conflicts in Iraq and Afghanistan. Nothing can, of course, detract from the misery and tragedy for widows and close family members when a young man or woman dies prematurely in the service of this country. However, the way in which inquests are conducted can make a great deal of difference for better or for worse. Unfortunately, in the past some very unhappy situations have developed, partly because, initially, coroners were not familiar with the military background, which made it more difficult for them to conduct inquests—at any rate to the satisfaction of the families. Worse still, there were horribly long delays in having an inquest either brought forward or dealt with. I am talking not simply of months but of years in some cases. Just imagine the impact on bereaved members of a family of inordinately long delays, for which they can see no justification. This arose in part from the fact that bodies repatriated from abroad often go to the same place. The one good point about this is that some coroners, particularly in Oxfordshire and Wiltshire, have developed great expertise as a result of dealing with many such inquests.

The noble Lord, Lord Thomas of Gresford, referred to legal aid in the context of the horrible incident of the Puma helicopters that came down in Iraq, and the difficulties the bereaved families faced in obtaining aid in that important inquest. Therefore, this new Coroners and Justice Bill presents a very good opportunity to ensure that none of the problems I have outlined ever recurs. However, there are shortcomings in the Bill’s drafting and I should like to suggest changes that should be made. The present system comprises a chief coroner and deputy chief coroners. I suggest—in this I am supported by a number of service personnel and the War Widows’ Association—that one of the deputy

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chief coroners should have specific responsibility for military inquests, thereby enabling real expertise and the ability to discern patterns to be developed over the years. Furthermore, it is absolutely essential that the expertise that has been built up among a few coroners should not be dissipated or lost over time. For that reason it is essential that any coroner who undertakes a military inquest should have proper training. At the moment, there is a “may be” as regards training generally. This should be strengthened so that there is a training requirement, at least for military inquests—a “must” rather than a “may”. That would constantly bring the whole issue to the attention of the coroners’ service and we should not then lose any expertise.

I am less clear how legal aid should be dealt with but I leave that in the Minister’s hands to look at very carefully. All in all, I regard the coroners’ part of the Bill as providing a good opportunity to assist those who sadly lose their lives in war at least to have their inquests sympathetically and kindly dealt with. We owe them that at the very least.

6.29 pm

Baroness Stern: My Lords, it is a great pleasure to follow the contribution of the noble Baroness, Lady Fookes. I remember that years ago, when she was in the other place and chaired the expenditure committee, she produced many excellent reports on penal policy, whose contribution to the subject still stands up today.

I begin with a general point, echoing the remarks of the noble and learned Lord, Lord Lloyd of Berwick, that there seems to be no halt in the changes to criminal law. Not so long ago, the Minister was good enough to provide me with the answer to a Written Question: how many new imprisonable offences have been created since 1997? On that date, the answer was that, up to July 2007, Parliament had created 1,472 new imprisonable offences—1,032 in primary legislation and 440 through regulations. These ranged from ships receiving trans-shipped fish under the Merchant, Shipping and Maritime Security Act 1997 to the attachment of earnings order, finding the debtor’s current employer, under the Tribunals, Courts and Enforcement Act 2007. That figure of 1,472 new imprisonable offences seemed to be rather a large number and I think that it might be worth while keeping that figure up to date. I wonder whether the Minister can tell the House how many new imprisonable offences, if any, are to be created by this Bill and subsequent regulations.

That leads me to a few remarks on the proposal in Part 4 for a Sentencing Council for England and Wales. The proposal derives, as I understand it, from the 2007 report by the noble Lord, Lord Carter of Coles, suggesting that, if sentencing were more structured and predictable, the provision of resources to implement sentences would be more easily manageable. He suggested Minnesota and North Carolina as models. In this respect, it is perhaps worth noting that prison numbers have risen in Minnesota from 6,200 to 9,900 in six years, a rise of 60 per cent. In North Carolina, they have risen from 31,200 to 39,000, a rise of 25 per cent. The evidence suggests that the countries where there are sentencing councils or commissions that lay down guidelines or other strictures are the countries with high and rising prison populations.

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I have endeavoured to try to establish from earlier debates, and from the Minister’s most helpful opening remarks, what exactly the Sentencing Council will be for. A number of those who support it think that the idea is to reduce, or at least control, the prison population. Yet, in the other place, the Lord Chancellor was adamant that he was not aiming to reduce the prison population through this measure. He said that the,

Presumably, that is not the aim of the Sentencing Council. The Minister suggested that it would give predictability with regard to the demands on criminal justice resources. However, it is not clear how that can be achieved when sentencing is but one of the factors, and perhaps not the largest factor, to influence prison population size.

The Minister mentioned that consistency was a possible reason for such a body. On that, there seems to be considerable wisdom in the words of Lord Justice Rose that,

There is a question about the measuring of consistency. What will the Sentencing Council mean by consistency? Is its aim, as some have suggested, to ensure that no member of the judiciary is tempted to be independently creative, locally relevant, unconventional, problem-solving or imaginative in trying out new approaches or finding new ways? In particular, I am thinking here of the excellent work of the community court in Liverpool as an example of a creative, locally relevant sentencing disposition. A sentencing council will certainly curb any tendencies in that direction, making judges, as the noble Lord, Lord Kingsland, suggested, more like civil servants. That is a great reduction in the quality and vitality of our legal tradition.

Have the Government given any thought to the merits of a sentencing advisory council, such as the one in Victoria, Australia, which does not get involved in designing guidelines for the judiciary, but has the role of researching sentencing policy, collecting and analysing sentencing information, providing information on sentencing to the Government, judiciary and the public and providing feedback on the effectiveness of sentences? Would that not be a model that could command the widest support and lead to the best outcome while preserving the independence of our much respected judiciary?

I should like to move on briefly to Part 5 and to the Government’s decision to introduce, by amendment, a provision in the Bill regarding the responsibility for deciding on the release of prisoners serving a sentence of 15 years or more under the Criminal Justice Act 1991. The transfer of this decision-making power from the Secretary of State to the Parole Board is very welcome. As the Minister will be aware, the amendment has been welcomed by the Joint Committee on Human Rights as a human rights-enhancing measure. It is

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always important to note and celebrate decisions that make the criminal justice system more respectful of human rights.

Finally, perhaps I may say a few words on the proposal for exploitation proceeds orders, which could be caricatured as clamping down on ex-prisoners who are so successfully rehabilitated that they give up crime and become writers instead. Clearly, there is an argument here. Broadcasters and publishers may well try to get those who have committed horrendous crimes to talk about them so that they can attract an audience and boost their profits. The fear is, however, that, as with other government measures, there will be creep. It will start with only two a year but anyone with a criminal conviction who wants to become a writer, broadcaster or newspaper columnist will feel under pressure about what they write, presumably, for the rest of their lives—if I have understood that correctly.

If, for example, a man called Jimmy Boyle, who was in prison in Scotland in the 1980s, wrote some rather well known books about it, and is now a successful businessman, decided to write his memoirs in his old age, his royalties could be appropriated, even today. Will the Minister confirm that that is what is being proposed? I should have thought that it is an achievement when a convicted person turns to writing in order to make a living. As the Minister will know, there are concerns about the drafting of this measure, particularly,

Is the Minister satisfied that the court will be able to decide whether people are offended? How will the prospective author know how to conduct his or her new non-criminal career as a writer in this context?

The Joint Committee on Human Rights says of the criterion of being offended:

“There is no Convention or common law right to be protected from offence. The Bill introduces a degree of legal uncertainty which will be entirely dependent on the subjective reaction of a small group of people or the wider public to an individual’s actions”.

I look forward to hearing the Minister’s response to this critique by the Joint Committee on Human Rights. I assure the noble Lord, Lord Borrie, who is not in his place, that if he wants to delete these provisions, I would be happy to support him.

6.39 pm

Lord Alderdice: My Lords, I welcome a Bill that addresses inadequacies in the coroners service. I am simply struck that this major aspect of our administration of justice could not justify a Bill on its own, and that it comes to your Lordships’ House so many years after the Shipman inquiry, when the Government moved with great alacrity to address the medical consequences required, while the coronial consequences have taken a much longer time. In that regard, I declare an interest as a consultant psychiatrist working in the National Health Service, and my wife is a consultant pathologist in the National Health Service in Northern Ireland, although I should point out that she does not provide and has not for many years provided services to the coroners in Northern Ireland.

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The noble Lord, Lord Imbert, pointed out that the coroner for Westminster was medically qualified and was a qualified barrister. It has always been my view that the ideal arrangement for coroners was that they should be dually qualified as lawyers and doctors. It seemed obvious that they needed to be legally qualified, of course, to carry through the legal and judicial aspects of their work; but if the inquest was to find out the cause of death, it was rather obvious that they needed some expertise on the medical side. However, that is neither to be, nor perhaps is entirely practical, at least in the short term. Therefore, I welcome the Government’s proposal to institute a medical examiner service.

There are a number of questions to be raised. Will these examiners be properly qualified? Will they be professionally independent? Will they be appropriately accountable? Will they be adequately resourced? Without these things, they will not provide a proper service to the coroners. Will they be professionally qualified? In the Bill, all that I note is that they have to be qualified as doctors who are registered, practising and with five years’ experience. I hope that the Minister can lay my mind to rest on this; it would be welcome if there have been formal discussions with the Royal College of Pathologists to look at whether it might institute some form of qualification for medical examiners—perhaps a diploma with appropriate training. Or are we to assume that these examiners will simply have tired of their other work as general practitioners and have chosen this as part-time work? That would not be adequate.

Will they be professionally independent? My noble friend Lady Williams of Crosby and the noble Baroness, Lady Finlay of Llandaff, raised this question, given that in the Bill it is clear that the examiners will be appointed by, paid by and accountable to PCTs. However, the PCTs themselves may well be at fault when it comes to any inquest into causes of death. It would be wholly inappropriate that medical examiners could be required to confront their own employers, to whom they are financially, clinically and professionally accountable. I can think of no other circumstance whereby new legislation making such a proposition would be brought in. That is not necessary; there are other ways of addressing this issue.

Will the examiners be appropriately accountable? It appears that in the first instance we will see their numbers growing, but there is no indication that there will be a chief medical examiner, as there is a Chief Coroner. Yet, if there is to be accountability and establishment of standards to ensure that local medical examiners live up to their professional requirements, surely there is a strong case to include in the Bill provision for the appointment of a national medical examiner.

Will the examiners be adequately resourced? My noble friend Lady Miller of Chilthorne Domer raised the question of the current delays in the provision of inquests. On 3 July 2008 a Member in another place, Mark Durkan, received an Answer from the Minister saying that there were 47 cases in Northern Ireland where the coroner had indicated a need for an inquest, but none had been commenced for five years. The deaths had occurred more than five years previously, and no inquest had yet been commenced. Given that

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difficulty, I welcome the notion of partial inquests—because that is what they really are—or partial post-mortems proposed in the Bill. There has been a combination of difficulties with resources and, since the human organs inquiry, a considerable resistance by many members of the public to have post-mortems conducted on their departed. The idea that there might be partial post-mortems may have some merit. It is clear that the coroner may ask a person whom he deems appropriate to conduct an investigation which he deems appropriate. That person does not have to be medically qualified; it has generally been assumed that an investigation is large, like an MRI scan, but it does not have to be that at all—there could simply be, for example, a fine needle aspiration biopsy, which might be taken by a non-medically qualified person, such as a medical laboratory scientific officer, and some kind of presentation would be provided. The only way to ensure the quality of such a thing is the medical examiner. That is why I welcome the idea of a medical examiner.

However, it is not clear that the coroner has any requirement to consult the medical examiner. The coroner could say to himself: “I think it might be such and such. Let’s ask this fellow here to take a biopsy, a few cells or to check up something or other, and we will see whether or not this is appropriate”. However, we all know perfectly well—for example, from the sad death of the gentlemen at the G20 disturbances—that what may initially appear to be a potential cause of death may not be the cause of death at all. One has to be very careful when conducting a less than full post-mortem that one does not head down the wrong track, doing a partial investigation that leads one to the wrong outcome. There needs to be some reassurance on serious consultation by the coroner with a medical examiner.

That brings me again to the question of a chief medical examiner, because if a senior coroner can refer locally to a medical examiner, is there not a case for having a national medical examiner to whom the Chief Coroner may refer? The Chief Coroner would require someone of that stature and experience who was fully independent of any local medical examiner or the coronial service.

There is another important issue. Some of these deaths, sadly, come by the hand of the deceased, and coroners are required to investigate a number of suicides. Madeleine Moon MP, in whose constituency there was a tragic rash of suicides by young people, raised this question on 26 January at cols. 76-80 in Hansard. She subsequently received some response in writing from the Minister. However, she raised the question of whether or not there could be psychological autopsies, which would, in other words, try to understand what was going on in the mind of the person, because it was what was going on in those young people’s minds—not their bodies—which led to their deaths. One of the difficulties is that if there is not some psychological sophistication on the part of the coroner or the medical examiner, the case will be difficult for them to judge and assess.

For example, there were a number of deaths of young men by suicide in north and west Belfast a couple of years ago. There was a lot of talk about the

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psychological contagion, mentioned by the noble Baroness, Lady Finlay of Llandaff, whereby one or two young people harmed and killed themselves, and other young people followed suit. It began to come to my attention from healthcare workers in the field that many of these young men had been grossly abused by paramilitary organisations or members. I went to the police and asked whether any investigation had been done. They said, “No crime has been committed. Suicide is not a crime”. I said, “No, no; the cause of the suicide might well have been a crime”. The answer was that there had been no investigation, because there had been no serious understanding of the question as to why young people might commit suicide. The attitude was simply: “Well, suicide was the cause of death”. No; that was the mode of death, not the cause. The cause of death was what led those young people to harm themselves. As I subsequently found on my further investigations, it was clear that “bullying” does not address what they suffered; finding no way out, they took the only way that came to their hands—to kill themselves.

If there is to be a real understanding of what happens, it must not be a superficial gloss—“We have a number of young people killing themselves, so it is obviously a psychological contagion”. There has to be the capacity for the coroner to look seriously at the matter, to get underneath it and to have the advice of medical examiners who will themselves have sufficient training in that regard that they will be able to address it.

Like other noble Lords, I finish not because I have exhausted the possibilities of speaking on the issues here but because my time has passed. I have to refer to Clauses 44 to 46 on provocation, which have already been referred to by my noble friend Lord Thomas of Gresford and other noble Lords. I have struggled to work out how the Bill’s clauses make sense and I would welcome what the Minister has to say. Loss of control does not have to be sudden. I find it difficult to work out how it could then be anything other than a premeditated act—one thought about in advance—because if it is not sudden, it is taking place over time. If it has happened, then it has been thought about over a period of time. I cannot for the life of me understand how one can have a premeditated loss of control. One of the things that would be most likely to produce an emotional reaction, the discovery of sexual infidelity, is to be ruled out completely. If some poor lady has the serious disadvantage of a partner who snores heavily, and she decides after many years to poison him slowly over a period, she could well call on this possibility. But if some day a similar lady was to discover that her husband was being unfaithful and she hit him over the head with a frying pan, she could not call on this. That does not make any sense. However, I will welcome any enlightenment that can be showered on us by the Minister on this or any of the Bill’s other aspects that I have raised.

6.51 pm

Lord Neill of Bladen: My Lords, I am the 24th speaker in the batting order, so it is hardly surprising that some of the points one wishes to make have already been enunciated. Your Lordships may be pleased to hear

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that I want to be relatively brief and, by taking less than eight minutes, possibly return some of the time that one or two errant noble Lords have taken. One of the main topics to which I wanted to speak was the failure to deal with the law on murder, following the noble Lords, Lord Kingsland and Lord Thomas of Gresford, and the noble and learned Lord, Lord Lloyd of Berwick. I also deplore the inadequate and almost laughable manner in which provocation has been dealt with. I supported the noble Lord, Lord Waddington, some 11 months ago on his free speech clause, and I support his view now. The provision is in Section 29JA of the Public Order Act 1986 and in my view it should remain there. I will just say something about the manner of seeking to repeal it.

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