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6: After Clause 29, insert the following new Clause-
"Duty to notify Coroner for Treasure etc of acquisition of certain objects
(1) After section 8 of the Treasure Act 1996 (c. 24) there is inserted-
"8A Duty to notify coroner of acquisition of certain objects
(a) acquires property in an object, and
(b) believes or has reasonable grounds for believing-
(i) that the object is treasure, and
(ii) that notification in respect of the object has not been given under section 8(1) or this subsection,
must notify the Coroner for Treasure before the end of the notice period.
(2) The notice period is fourteen days beginning with-
(a) the day after the person acquires property in the object; or
(b) if later, the day on which the person first believes or has reason to believe-
(i) that the object is treasure; and
(ii) that notification in respect of the object has not been given under section 8(1) or subsection (1) of this section.
(3) Any person who fails to comply with subsection (1) is guilty of an offence if-
(a) notification in respect of the object has not been given under section 8(1) or subsection (1) of this section; and
(b) there has been no investigation in relation to the object.
(4) Any person guilty of an offence under this section is liable on summary conviction to-
(a) imprisonment for a term not exceeding 51 weeks;
(b) a fine of an amount not exceeding level 5 on the standard scale; or
(c) both.
(5) In proceedings for an offence under this section, it is a defence for the defendant to show that he had, and has continued to have, a reasonable excuse for failing to notify the Coroner for Treasure.
(6) If the office of Coroner for Treasure is vacant, notification under subsection (1) must be given to an Assistant Coroner for Treasure.
(7) In determining for the purposes of this section whether a person has acquired property in an object, section 4 is to be disregarded.
(8) For the purposes of an investigation in relation to an object in respect of which notification has been given under subsection (1), the object is to be presumed, in the absence of evidence to the contrary, to have been found in England and Wales after the commencement of section 4.
(9) This section has effect subject to section 8B.
(10) In this section "investigation" means an investigation under section 26 of the Coroners and Justice Act 2009.
(11) In its application to Northern Ireland this section has effect as if-
(a) in subsection (1), for "Coroner for Treasure" there were substituted "coroner for the district in which the object is located";
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(b) in subsection (3)(b), for "investigation" there were substituted "inquest";
(c) in subsection (4)(a), for "51 weeks" there were substituted "three months";
(d) in subsection (5), for "Coroner for Treasure" there were substituted "coroner";
(e) in subsection (6), for the words from "Coroner for Treasure" to "Assistant Coroner for Treasure" there were substituted "coroner for a district is vacant, the person acting as coroner for that district is the coroner for the purposes of subsection (1)";
(f) in subsection (8), for "investigation" there were substituted "inquest" and for "England and Wales" there were substituted "Northern Ireland";
(g) in subsection (10), for ""investigation" means an investigation under section 26 of the Coroners and Justice Act 2009" there were substituted ""inquest" means an inquest held under section 7"."
(2) In section 10 of that Act (rewards), in subsection (5) (persons to whom reward may be paid), at the end insert-
"(d) any person who gave notice under section 8A in respect of the treasure."
(3) In relation to an offence under section 8A of that Act (inserted by subsection (1) above) committed before the commencement of section 280(2) of the Criminal Justice Act 2003 (c. 44), a reference in the inserted section to 51 weeks is to be read as a reference to three months."
Clause 35 : Reports and advice to the Lord Chancellor from the Chief Coroner
7: Clause 35, page 17, line 19, at end insert-
"( ) the number and length of-
(i) investigations in respect of which notification was given under subsection (1)(a) or (b) of section (Investigations lasting more than a year), and
(ii) investigations that were not concluded or discontinued by the end of the year and in respect of which notification was given under subsection (1)(a) of that section in a previous year,
as well as the reasons for the length of those investigations and the measures taken with a view to keeping them from being unnecessarily lengthy;"
8: Clause 35, page 17, line 21, at end insert-
"( ) the matters recorded under paragraph 3A of Schedule 5;"
Lord Bach: My Lords, we return to the powers in paragraph 3 of Schedule 5 for a coroner conducting an investigation to enter and search land or premises and seize any items or inspect or take copies of any documents.
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On Report, the noble and learned Baroness, Lady Butler-Sloss, spoke very eloquently of her concerns and those of the Coroners' Society about the workability of these powers. In essence, she was concerned that the scope of the powers was insufficient as, in the time it would take to obtain written authorisation from the Chief Coroner, valuable evidence might be lost, which could affect many coroner investigations. She therefore tabled amendments to Schedule 5 on Report to remove the requirement for Chief Coroner authority and to enable coroners to authorise the police and other specified persons to enter and search premises on their behalf.
With the Minister, my honourable friend Bridget Prentice, I have subsequently had a very useful meeting with the noble and learned Baroness and the Coroners' Society. I am pleased that, as a result of that meeting, we have been able to agree a way forward.
First, these government amendments remove the requirement for authorisation from the Chief Coroner, or from a senior coroner nominated by the Chief Coroner to give authorisation, to be in writing, which will enable authorisation to be sought and given over the telephone. Secondly, they add a requirement for the person giving authorisation to make a record of why they agreed the authorisation. Finally, they add a requirement for the Chief Coroner's annual report to include a summary of the reasons given for authorisations granted in the calendar year to which the report relates. This will help to ensure public transparency for the use of these powers. I beg to move.
Baroness Butler-Sloss: First, I thank the Minister for seeing a representative of the Coroners' Society and myself, and, as far as they go, for the government amendments. Taking out the words "in writing" is a help. But the senior coroners remain very concerned that they are trained to be coroners and they do not have the power to search or to seize. That is slightly odd because, on the assumption, which may be brave of me, that the Times is accurate, a few days ago, the Times stated:
"Councils and other bodies had access to asset recovery powers before but only with the authorisation and involvement of the police. Now they will be able to act independently of any police force or law enforcement agency".
Apparently, such groups as the Gangmasters Licensing Authority, councils, Counter Fraud and Security Management Service, the Gambling Commission, the Rural Payments Agency, the Vehicle and Operator Services Agency, Transport for London and Royal Mail, among others, will be able to search premises and seize, none of them probably being either lawyers or trained to do this, whereas coroners who are trained will not have those powers.
However, the coroners recognise that this is as far as the Government would go. They remain concerned and I want it on the record that they are concerned, and they will look to see what problems arise from time to time through the failure to get their approval, which will not now have to be in writing, in time. I thank the noble Lord for the amendment as far as it goes, but he needs to know that the coroners retain considerable concerns.
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Clause 43 : Treasure regulations
Amendments 10 and 11 not moved.
Clause 47 : Interpretation: general
12: Clause 47, page 25, line 35, at end insert-
""active service" means service in-
(a) an action or operation against an enemy (within the meaning given by section 374 of the Armed Forces Act 2006 (c. 52)),
(b) an operation outside the British Islands for the protection of life or property, or
(c) the military occupation of a foreign country or territory;"
13: After Clause 49, insert the following new Clause-
"Public funding for advocacy at certain inquests
(1) Schedule 2 to the Access to Justice Act 1999 (c. 22) (Community Legal Service: excluded cases) is amended as follows.
(2) In paragraph 2, at the end insert ", and
(5) proceedings at an inquest under Part 1 of the Coroners and Justice Act 2009 to which sub-paragraph (1), (2) or (3) of paragraph 4 applies."
(3) After paragraph 3 there is inserted-
"4 (1) This sub-paragraph applies to an inquest into the death of a person who at the time of the death-
(a) was detained at a custodial institution or in a custody area at a court or police station,
(b) was detained at a removal centre or short-term holding centre,
(c) was being transferred or held in pursuance of prison escort arrangements or immigration escort arrangements,
(d) was detained in secure accommodation,
(e) was a detained patient, or
(f) was in service custody.
(2) This sub-paragraph applies to an inquest into the death of a person that occurred in the course of the person's arrest by a constable or otherwise in the course of the execution or purported execution of any functions by a constable.
(3) This sub-paragraph applies to an inquest into the death of a person who at the time of the death was subject to service law by virtue of section 367 or 369(2)(a) of the Armed Forces Act 2006 and was engaged in active service.
(4) Paragraph 2(5) does not authorise the funding of the provision of services to anyone who is not an interested person within section 46(2)(a) of the Coroners and Justice Act 2009.
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"active service" means service in-
(a) an action or operation against an enemy (within the meaning given by section 374 of the Armed Forces Act 2006),
(b) an operation outside the British Islands for the protection of life or property, or
(c) the military occupation of a foreign country or territory;
"custodial institution" means a prison, a young offender institution, a secure training centre or a remand centre;
"detained patient" means a person who is detained in any premises under Part 2 or 3 or section 135(3B) or 136(4) of the Mental Health Act 1983;
"immigration escort arrangements" means arrangements made under section 156 of the Immigration and Asylum Act 1999;
"prison escort arrangements" means arrangements made under section 80 of the Criminal Justice Act 1991 or under section 102 or 118 of the Criminal Justice and Public Order Act 1994;
"removal centre" and "short-term holding facility" have the meaning given by section 147 of the Immigration and Asylum Act 1999;
"secure accommodation" means accommodation, not consisting of or forming part of a custodial institution, provided for the purpose of restricting the liberty of persons under the age of 18."
Lord Bach: My Lords, these amendments would extend the scope of the community legal service in England and Wales to cover advocacy at inquests into deaths of military service personnel who die on active service. They would also put the Legal Services Commission's ability to fund inquests into deaths in state custody and inquests into deaths that occurred in the course of a police action or arrest on a statutory footing. The amendments cover only advocacy because legal advice and assistance under the legal help scheme is already available.
Currently, legal aid for advocacy at inquests into the deaths of military personnel on active service is outside the ordinary scope of civil legal aid, but it is nevertheless available under the exceptional funding procedure and is granted, sadly, on a regular basis. The current procedure requires that applications are considered by the Legal Services Commission and Ministers before they can be granted.
The amendments would bring these inquests within the ordinary scope of civil legal aid for the first time. The practical effect of the amendments will be to simplify and speed up the application process as Ministers will not need to approve individual applications before funding can be granted. Funding for inquests into deaths in custody and inquests into deaths that occurred in the course of a police action or arrest is already in scope, but the amendments put that on a statutory footing.
This change is intended to provide funding for a legal representative for a family or families, but not separate representatives unless there is a conflict of interest. Funding for advocacy and legal help at these inquests will continue to be subject to financial means tests and contributions towards legal aid costs. Presently, the financial eligibility limits and contributions towards costs can be waived and it is our intention to amend the relevant secondary legislation to ensure that the Legal Services Commission continues to have the power to waive the means test and contributions where that is appropriate.
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I know that some noble Lords, including the noble Lord, Lord Thomas of Gresford, have called for this funding to be provided without being subject to means limits. It is a general principle of the legal aid scheme that those who can afford to pay for their legal expenses should be expected to do so. Indeed, means-free legal aid is provided only in very narrow circumstances, such as for those detained under mental health legislation or for parents engaged in child protection cases and at risk of losing their children. In domestic violence cases where people are seeking protection from harm, the eligibility limits can be waived. I do not consider that means-free funding is appropriate for these inquests, but it is right that financial eligibility limits and contributions should be waived where appropriate.
All legal aid funding is subject to the funding criteria set out in the funding code created under Section 8 of the Access to Justice Act 1999. The current funding code criteria do not apply to inquests, which are instead considered against the exceptional funding criteria. We therefore need to introduce a new section into the funding code to ensure that applications for representation at these inquests can be considered properly against relevant criteria, as they are now. We will consult with key stakeholders on this in the coming weeks. The change to the funding code will require the affirmative approval of both Houses and therefore will be considered further by Parliament in due course.
Before I move the government amendment, I thank the noble Lord, Lord Thomas of Gresford, for his efforts on this matter. I think he will say that he has not achieved all that he set out to do, but he has achieved quite a lot. I beg to move.
Lord Ramsbotham: My Lords, I am grateful to the Minister for the amendment he promised on Report and for what is included in it. However, he will remember that at that stage he also undertook to hold a meeting with the noble Lord, Lord Thomas of Gresford, which I would have attended but unfortunately it was not offered. Having heard about all the meetings that the Minister has had since Report, I can only presume that there was no time to fit this one in. Had there been a meeting, I would have used it to suggest my amendment rather than perforce have to put it forward in the House. I would have liked to have discussed it with the Minister before the government amendment was tabled.
I remind the House that the purpose of this Bill as set out in the Explanatory Notes is to establish more effective, transparent and responsible justice and coroners' services for victims, witnesses, bereaved families and the wider public. In March 2008 in another place, the right honourable Harriet Harman said:
"We need to give bereaved relatives at inquests a real sense of fairness and support ... it is important to improve the Coroner Service so that bereaved relatives can get answers to their questions".-[Official Report, Commons, 20/3/08; col. 1088.]
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On an earlier occasion she said:
"If bereaved relatives, with no legal representation, turn up on the steps of a coroner's court and find that the Ministry of Defence and the Army",
or the Ministry of Justice and the Prison Service,
- "have a great battery of solicitors and QCs, they cannot help but feel that the position is unfair".-[Official Report, Commons, 13/3/08; col. 420.]
During Second Reading in another place, the right honourable Jack Straw said:
"Successive governments have resisted the notion that legal aid should be made available. There are exceptions to that-I have been party to agreeing to them ... but there are some complexities. We must also consider the overall issue of cost, in the context that the legal aid budget for England and Wales is now the same amount that we spend on prisons ... but I understand the concern that has been well expressed by Members in all parts of the House".-[Official Report, Commons, 26/1/09; col. 27.]
At present, only a few families are awarded funding for representation by the Legal Services Commission, and then only following a lengthy, complicated, intrusive and time-consuming application process. Therefore I am particularly glad that the Minister has said that the process is to be simplified. In addition, the exceptional funding may be awarded if the inquest requires the participation of the deceased's parents or if the state's obligation to investigate the death has not been fulfilled through other processes, including police investigations and internal inquiries. But as the Minister indicated, very few applications have been granted. Of the 69 applications in 2007-08, only 12 were agreed; and of the 104 applications in 2006-07, only 16.
12.15 pm
My amendment to the Minister's amendment takes that exceptional funding a stage further and suggests that, because they know the circumstances of each inquest, coroners should be required to decide and recommend whether every family listed in the Minister's amendment should be entitled to state-funded legal representation. Such decisions would be based on, for example, the level of representation the state will have at the inquest, and the likelihood of the inquest containing issues that are so complex that the bereaved family is likely to be at a disadvantage. I had hoped to be able to expand on this but I am advised that that is not possible at Third Reading or in the context of the Access to Justice Act 1999, cited in the Minister's amendment, so a fuller amendment may be tabled in the other place.
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