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Lord Thomas of Gresford: This amendment was put forward by the Joint Committee on Human Rights and is supported by Inquest. For no reason that can be ascertained, the Government propose to change the
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- “are required to undertake means they do not need to be of the same size as juries in the criminal courts”.
Why not? The issues that are involved concern someone’s death. Juries are to be summoned, in accordance with the Bill, only in circumstances where agents of the state have caused, or may have caused, that death. There is an even greater need to ensure that the decision-making remains of a high standard.
We submit that it is wholly wrong for issues as crucial to the public interest as the deliberate killing of a civilian by an agent of the state—and noble Lords know the case to which I am referring—to be determined by a jury possibly consisting of as few as six members. What is the purpose of the reduction? The limited research that has been done in other jurisdictions into the composition of juries has discovered that the best quality of decision-making is found when there are 12 members of a jury, who discuss all the issues. That is what the research has shown. We have operated for many years with much smaller juries in inquests, but I can see simply no reason to reduce them as proposed in the Bill. I beg to move.
Baroness Finlay of Llandaff: I support this amendment and have put my name to it. I have a concern about the way in which a group of people behaves when its number becomes very small. If you have a group of only six people, you do not have the ability for someone to hold a balance. In a very small group, if one person feels outside the group, it is quite easy for them to feel intimidated and, perhaps, to begin to doubt their own sense. As the noble Lord, Lord Thomas of Gresford, has pointed out, the evidence shows that decision-making is sounder when a slightly larger number of people is involved. I would be interested to know the reasoning. We now have compulsory jury service for a much wider base of the population than previously, so I do not believe that it can be because there is difficulty in getting a jury when one is needed. The marginal cost of having the extra people on the jury must be so small as to be relatively insignificant.
Of all the events that can ever happen to anyone, death is the most final and absolute. Where somebody’s life has been taken by the wrongful deed of an agent of the state, nothing at all can be done to bring that life back. If people have been defrauded or have lost all their goods or their livelihood, there is at least the possibility of compensation, however terrible the event has been. With death, there is absolutely nothing.
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Lord Neill of Bladen: When I saw from this amendment the alteration to the law that the Government want to make, it seemed that it could have the effect only of diminishing public confidence in the jury system. That point has already been made. One would seek a powerful explanation from the Government as to why they are making this change. It looks like tinkering for no good reason whatever and with one very serious adverse consequence of lowering confidence.
Baroness Butler-Sloss: I, too, support the amendment, which clearly and simply puts back the present situation. To my knowledge, there is nothing wrong with the present system. I have not come across any criticism of it. Unlike a jury in a criminal trial, which requires 12 members, the current situation requires a minimum of seven. It is not necessary to have 11, and there may be any number between the two. However, to bring the number back down to six, seven, eight or nine means that if there is dissent at six, the jury would be unable to do its job because at least six of the jury must agree under Clause 9(2)(a). A number of six would not make it possible for the jury to have a disagreement. A jury of seven would be very difficult if there was a disagreement. Just as the noble Lord, Lord Neill of Bladen, has said, the significance of a jury will be diminished if, out of only seven people, one or possibly two disagreed. There is no good reason to change this. If something works, why drop it?
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bach): Will the noble and learned Baroness give way? I have listened to the arguments around the Committee. I have no doubt that the noble Lord, Lord Henley, would support them—or perhaps he would not. Whether he does or does not, I am persuaded that we need to look at this again. If the noble Lord, Lord Thomas, will withdraw his amendment tonight, I will take it back to the department and hope to come back with a positive decision for those who have spoken tonight.
Lord Henley: I am sure that everyone is grateful that the Minister is going to have another look at this, but before the noble Lord withdraws his amendment, I want to underline what the noble Lord, Lord Neill, and the noble and learned Baroness, Lady Butler-Sloss, said about what the Government are doing: they are diminishing public confidence in the whole jury system. I ought to point out to noble Lords that the Government’s desire to diminish public confidence in the jury system is probably a strong motive for them.
Lord Bach: I am sorry that the noble Lord has said that. This has nothing whatsoever to do with diminishing the role of the jury in the English legal system. I do not pretend that the arguments were the strongest in the world, but the noble Lord has compelled me to say what they were.
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There have been problems in a number of coroner districts with summoning jurors. The process is not centralised, as it is in the Crown Court, and we do not wish to create a new administrative burden by making it so. There have been occasions when inquests have had to be adjourned, causing unnecessary delay to bereaved families.
Another argument that could be prayed in favour—again, I do not argue it strongly—is that the purpose of an inquest is to establish the factual matters set out in Clause 5. Jurors, like coroners, do not have to make judgments between the merits of arguments of opposing parties. They do not award costs or make recommendations in respect of costs. Neither they nor the coroner can make an enforcement judgment or order. They do not determine anyone’s civil rights or obligations for the purposes of Article 6. At the most basic level, coroners and juries simply do not sit in judgment.
Those two arguments have led us to putting those numbers into the Bill. However, as I said when I got to my feet the first time—and I hope that this is acceptable—I am persuaded by what I have heard so far that there is a strong argument the other way. In order not to delay the Committee any further, I ask the noble Lord, when he is ready, if he will, to withdraw the amendment and we will come back to the matter.
Lord Thomas of Gresford: I am interested in the first reason given by the Minister because, going back to my early years, as I mentioned, I worked in a coroner’s office. I recall that it was customary to pray a tales and get the necessary numbers for a jury by simply going around the town and finding people. Perhaps that is not the best way of doing it.
While welcoming the Minister’s indication, I have one more point. The noble Lord, Lord Dubs, before he had to leave, asked me to mention his Amendment 22. The Bill could currently mean that you could have a decision by coroner’s jury of 5:3, which is not much more—only one more—than a simple majority verdict. The noble Lord, Lord Dubs, representing the Joint Committee on Human Rights, had asked to insert that the minority in any circumstances should consist,
I ask the Minister to consider that amendment as he considers the amendment that has been moved.
Lord Thomas of Gresford: In those circumstances, I am happy to beg leave to withdraw the amendment.
Clause 9 : Determinations and findings by jury
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24: After Clause 9, insert the following new Clause—
“Death of a minor: possibility to exclude press from inquest
If the deceased is a minor, the senior coroner responsible for the inquest may exclude the press from the inquest if such exclusion is in the interest of surviving siblings of the deceased.”
Baroness Finlay of Llandaff: The amendment concerns the death of a minor and the possibility of excluding the press from an inquest. We have a charter for the bereaved. In 1971, the Brodrick committee on death certificates and coroners recommended that the coroner needed discretion to hold an inquest in private and to balance public interest against private grief.
The grieving process after suicide, especially when the death has been of a young person, is often different in nature from the grief after other causes of death. The fact that the loved one’s death involved an element of choice raises painful questions that do not necessarily arise when the death has been from natural or accidental causes. The grieving is characterised by agonising questions and a search for some explanation of what happened. Those bereaved often feel a strong sense of guilt—indeed, abandonment—and rejection.
Legal processes can make this worse, particularly when there are delays in an inquest and communication with the coroner’s office is difficult. Giving evidence and public reporting have been shown in studies by Biddle and Wertheimer to be particularly problematic. The feeling of guilt is worsened by questioning in public, and the process can induce stigma and shame. These are worsened by public reporting of highly personal information.
In 2006, the Coroners Bill, published in draft, contained new powers for coroners to impose anonymity in any case where the coroner believed there to be no public interest in the names of families being made public. Consultation on this covered adult and child deaths, so it is understandable that on balance it was not pursued, because it might raise an unfair expectation among families when it should be used only in exceptional cases. The Press Complaints Commission code of practice has also been amended since that time and now includes an important provision to avoid intrusion into grief and shock.
The Bill helpfully has provision in Clause 36(3)(b) for witnesses under 18 to give evidence in private to try to lessen the ordeal and to improve the evidence that they give. I am sure that everyone will welcome that. It also provides for a person’s name to be withheld under the coroner’s direction, as specified in Clause 36(2)(e).
In a letter to Madeleine Moon MP on 23 March 2009, the Minister in the other place, Bridget Prentice, described the provision as applying when it is needed to protect that person’s safety. Therefore, it would mainly apply during inquests into the deaths of UK Special Forces personnel or when witnesses and bereaved families need to remain anonymous to protect their safety. Of course, on the other side of the coin, many families want to expose the horror of the death—for
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Where families wish to talk to the press, they should of course be allowed to do so. What I am asking for is consideration for the surviving siblings of the deceased. They have feelings of culpability, and possibly even inadvertent complicity, in the death, which can be even more acute than in more adult members of the family. For example, they may think, “If only I had not gone out”, “If only I had told Mum about that remark made in confidence”, “If only I had asked who the internet friends were”, and so on.
At school, the child can be subject to desperately cruel remarks, sometimes from other children repeating comments overheard at home, such as, “They’re a strange family”, or, “They blame the mother”. These can be inferred from reading newspaper reports, often in the local paper, which provide details within the Press Complaints Commission code of conduct. Sadly, our experience in Bridgend, before the code of conduct was amended, was that some statements appeared in the press that had not been made at all. There had been a misinterpretation in the reporting. This caused enormous distress to families. I do not suggest that the press are breaching the new code; they are not. We had bad experiences previously, but press reporting seems to have improved. However, we have seen friends of a dead teenager goaded to disclose details about the deceased or to supply a photograph. Sometimes the first time the bereaved see the picture is when it appears in the papers.
The grieving relatives of a suicide victim are themselves at increased risk of suicide. The Children and Young Persons Act 1933 gives coroners the power to prohibit publication in newspapers of the name of a child in relation to inquests. This appears to be limited to living children and does not apply to the name of the dead child, yet the sibling is of course easily identified because they usually share the same surname and, in a small community, they are often known to have been at the same school.
In 2008, one in five of the 4,698 complaints to the Press Complaints Commission related to intrusion into privacy. In the experience of Bridgend, PAPYRUS—a UK charity committed to the prevention of young suicides—found that,
- “judgment by many journalists was based on their personal reaction to news, revealing a lack of understanding that vulnerable young people could become severely distressed, suicidal even, by reading that another young person had killed themselves”.
A crucial aspect of modern reporting is that news is now on the internet immediately and is archived, effectively becoming available for ever.
Bereavement for any child is a cruel wake-up call to the cold realities that lie beyond childhood years. It is like a rapid removal of the comfort blanket beautifully hemmed with childlike ideals. Sadly, there are some realities that we cannot shield our children from, but exacerbating and compounding their grief when their siblings die is something that we can and should think about preventing. I believe that it should be a priority. The purpose of my amendment is to allow the grieving family to be given a choice and the coroner to have the
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Baroness Knight of Collingtree: The very presence on any amendment of the name of the noble Baroness, Lady Finlay, normally has me agreeing with it before I have even read it, so greatly do I respect her judgment on the range of matters with which she frequently enlightens us. I am speaking briefly now not because I am against this amendment, but because it worries me a bit.
I fully understand that sometimes the press have behaved outrageously—we have all seen it. I have no particular brief for the press, because many times they have reported a sudden and perhaps particularly bloody death by murder or in a road accident, and I have seen them ask members of the family, “How do you feel?” and things of that kind. I agree that that is very bad behaviour indeed. On the other hand, I am nervous about banning the press. We are an almost-free country—I would not say that we are completely free, but we are pretty free—and that is very much allied to the fact that the press are able to observe and report what they think to be right. I have also seen reporters with great sensitivity dealing with cases that we are all worried about.
My question is, how does the coroner know, prior to the particular circumstances, whether the press will act in such a way? I am bothered by another question. If there is a reason to seek to ban the press because you assume that they will behave badly—and perhaps that assumption is absolutely right—if there are no siblings, you would not be able to ban the press anyway. I do not understand why that is in the amendment. If a coroner is certain that bad behaviour is going to happen, and it is going to be so bad that it must be stopped by banning the press, the fact that the person who has been killed or has had a very bad accident has no siblings would rule out a ban anyway. I seek answers to these concerns. I may support the amendment all the way—as I said, I usually support anything from this quarter—but I am troubled on those points.
Baroness Butler-Sloss: This amendment presents certain difficulties. It would be desirable to have this power available, but in exceptional circumstances. The family courts have now been opened to the press, but judges have the power to exclude the press in exceptional circumstances. The welfare of children in the family law system is paramount. It is very important that we should recognise, with regard to the welfare of child siblings of a child who has died—particularly a child or young person under 18 who has died in the manner of the very sad deaths in Bridgend—that the effect is absolutely devastating.
There are various ways in which this might be dealt with. Under Clause 36(2)(e), I hope that the,
- “provision for a senior coroner to have power to give a direction, in proceedings at an inquest, allowing or requiring a name or other matter not to be disclosed except to persons specified in the direction”,
would meet the need for what I might call the muzzling of the press in appropriate cases—if I have read that clause correctly. That would seem to be the more
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Perhaps I may hypothesise on what the noble Baroness, Lady Knight, said. I can see the situation arising in which the family would say to the coroner, “We have already had the press around us on this suicide. We are desperate that the press behave themselves, and the only way for that to happen is not to allow them to come into the inquest”. Therefore, I see this issue being brought by the family, or by the lawyers or friends of the family, to the senior coroner at the start of an inquest rather than during the hearing. I can see an exceptional circumstance but I should not have thought that it would be appropriate for most siblings. Therefore, I believe that the press should be there but with the requirement that they cannot publish the name or any facts that the coroner says they cannot publish.
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Lord Neill of Bladen: I, too, start from the premise that anything proposed by my noble friend Lady Finlay is almost certainly correct. However, I have a problem here which is different from the one that has been mentioned. The thrust of the noble Baroness’s argument depends to a very large extent on cases of suicide, but this provision is not written in terms of suicide. I may be missing a very obvious point but it is not linked to any section of the Bill that refers to suicide; it is simply a proposed new clause that deals with the death of a minor. In this context, the only interests being considered are those of the surviving siblings. It is not difficult to imagine cases in which, due to the parents’ mental state, publicity about the death of a young child will be unbelievably distressing. Here, we are picking out the interests of one class of people, whereas, as the noble Baroness, Lady Knight, said, perhaps we should be thinking of amending the Bill by using better language relating to exceptional circumstances. My plea to my noble friend Lady Finlay is to take away the amendment and to see whether it can be drafted in a tighter way, specifically limited to very special circumstances, of which suicide is the outstanding example.
Lord Pannick: I, too, understand the force of the arguments that have been advanced by the noble Baroness, Lady Finlay, although I have a more fundamental objection to her amendment. The public nature of the process serves a very valuable function in encouraging the maintenance of the highest standards in inquests. It serves the valuable function of avoiding allegations of cover-ups and, perhaps more prosaically, it avoids the promulgation of rumours about what may or may not be the facts of a particular case. It seems to me that it would be very undesirable to confer a power to exclude the press from an inquest because the event, understandably, is very upsetting, particularly to an adult sibling of the deceased. I suggest that the correct remedy for this very real problem is to apply the code of practice for the press and, if necessary, to enhance that code of practice.
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Lord Davies of Oldham: I shall not add to the troubles that the noble Baroness, Lady Finlay, has experienced in trying to convince the Committee of this amendment. She will already have appreciated that she still has quite a case to argue, given the reservations that have been identified by noble Lords, on which I shall not comment at this stage. I hope that, although I cannot accept the amendment, my response will be constructive. I understand the points and reservations that have been made as noble Lords have contributed to the debate.
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