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A shopping basket of proposals, gathered without any particularly logical reason—John Cooper introduces the Coroners and Justice Bill
The Coroners and Justice Bill is one of the most wide-ranging and disparate pieces of legislation that has been compiled during this Government’s 11 years in office.
It has the feel of a shopping basket of proposals, gathered without any particularly logical reason, of all the issues that have mounted up over the last few years and need attention, with relative degrees of urgency. When commentators coined the expression “Tesco law” I would venture to suggest that they did not have in mind its hybrid—“Sainsbury’s legislation”—a shopping list of proposals for criminal justice reform, with coronial jurisdiction thrown in as well, just before we leave the legislative check-out.
To understand the full panoply of this proposed legislation, we need to break it down into bite-sized pieces. Although it is divided into nine substantive parts, I will deal with what I consider to be the most far-reaching issues.
Part 1 of the Bill seeks substantially to reform the law, practice and procedure in relation to inquests. This is long overdue. In a letter to the relevant minister in 2004, Lord Luce observed: “During the last three quarters of a century, the Government has twice commissioned reviews of these subjects, in 1936 and 1968, but very little happened in response to their reports. The services are showing the consequences of this neglect. We, and those who we have consulted, hope that this inaction will not continue.”
A series of thoughtful and considered responses were provided to the Government by the Bar on all aspects of the legislation and it is only hoped that the experiences communicated by Lord Luce to the Government in 2004 are not pertinent this time around.
One of the central matters concerning many of those who appear in inquests is the constraint laid down by previous legislation as to the purpose of the investigation. Traditionally, evidence is called before the coroner and/or jury to establish who the deceased was, where the deceased came by his or her death and how the deceased came by his or her death (Coroners Act 1988 s 11(5)(b) and Coroners Rules 1984 r 36). The how part of the jigsaw is defined “by what means the person came by their death” rather than how the deceased died, which might not raise general and far reaching issues. To comply with the Human Rights Act 1998, the Government has already been compelled to state that the investigation must include as a purpose, ascertaining in what circumstances the deceased came by his or her death.
Nevertheless, a significant opportunity has been missed to expand the purpose of a coronial investigation. Some Commonwealth jurisdictions include as a purpose an enquiry as to the way in which death can be prevented. For instance in Canada (Quebec Act: Respecting the Determination of the Causes & Circumstances of Death LRQ R.O.2), the investigative role is focused upon the prevention of situations likely to jeopardise human lives by endeavouring to detect efficiently and fully the causes and circumstances of deaths in a range of bodies that can utilise the information to reduce the incidence of avoidable death. (For an eloquent discussion on this, see Death Investigation & the Coroner’s Inquest: Freckleton & Ranson.)
Bereaved families call for public enquiries into certain tragedies, but the Government response is that the inquest will thoroughly deal with all the questions which need to be asked. Given the straitjacket within which coroners in England and Wales have to proceed, this is somewhat disingenuous; in short, wrong. Sadly, the Bill does nothing to correct this.
The proposals go on to limit the number of jurors who can sit upon an inquest. The jury at an inquest is to consist of six to nine persons. The only reason given by the Government for fewer jurors to serve at an inquest, compared to the 12 in a criminal trial, is to save costs.
It is perplexing why 12 jurors are considered to be cost efficient to determine guilt, but a lesser number to determine matters relating to death. The involvement of the citizen and the community is central to any process within the justice system. It provides for trust of the process and initiates a public involvement in its procedure, sustaining the integrity of its decisions. A cost, however crass, should not be put on that.
One of the most controversial aspects of the Bill are the proposals relating to “certified investigations”—put another way, secret hearings. The provision is virtually unchanged since it was rejected by Parliament last year in the Counter-Terrorism Bill. It is initiated by the Secretary of State (cl 11), and it is for an interested party to challenge such a decision by judicial review. This is topsy turvy. If the Government require secret hearings, they should apply for them before a High Court judge, rather than taking a unilateral political decision in the absence of judicial verification. It should not be for the citizen to argue for open justice, rather, as is the general principle, for those who seek secrecy to establish why they should have it.
On the subject of the bereaved families being expected to be pro-active, this Bill does nothing to extend legal aid for the representation of families and interested parties in the coroner’s court—a matter that right-minded people find inequitable, when they are usually faced by legal teams representing the ministries, police or armed services, all paid for by the taxpayer.
The Government has declared that its intention is not to extend the law in the area of assisted suicide but to clarify it; as Bridget Prentice MP observed, speaking on behalf of the Government at the Bill’s second reading, to “simplify and modernise the law”.
The modernisation aspect appears in the sensible extension of the proscription of assisting suicide on the internet. Apart from that, the Bill subsumes much of the provisions of the Suicide Act 1961, maintaining the basic position that the crime of assisting suicide requires that the accused should know that the suicide was contemplated, that he or she approved of or assented to it and that the accused’s attitude in respect of the potential suicide in fact encouraged the principal offender to perform (or attempt to perform) the suicide (Attorney General v Able [1984] QB 793 and the Suicide Act 1961 s 2). It is not anticipated that this will lead to any increase in the already low charging rate for this offence.
In R v Davies [2008] UKHL 36, the House of Lords unanimously held that the protective measures imposed by the trial court in the prosecution of the appellant for murder had hampered the conduct of the defence in a manner and to an extent which had been unlawful and which had rendered the trial unfair. The Government then introduced the Criminal Evidence (Witness Anonymity) Act
2008, which received Royal Assent on 21 July 2008, and which the Justice Secretary undertook to review. The Bill is that review and effectively transposes the 2008 Act into the Bill.
Of course, witness intimidation is a blight upon the criminal justice system, but the correct balance should be struck between protecting witnesses and enabling the defence properly to test the evidence, so as to ensure a fair trial. Just as I observed when commenting upon secret juries in coroners’ courts, that open justice is the norm and those arguing that it should be restricted should bear the burden of establishing that, so too the anonymity of witnesses; it should not be taken to be commonplace.
The terms of the proposed legislation is that witness anonymity orders are widely drawn and will inevitably erode a defendant’s right to a fair trial. Defence counsel are not included in the group of people who are entitled to information about the witness, which will impact upon counsel’s ability properly to engage a witness in cross-examination. But most fundamental is the deprivation of either party, deprived of the witness identification, to put pertinent questions which would discredit the witness’s evidence, had that witness been indentified—for instance, if the defendant knows that a witness has a personal grudge, that can only be put on instructions if the witness is identified.
Clause 100 establishes a Sentencing Council for England and Wales. Its objective is to “promote consistency in sentencing” (see also cl 102(11) for further objectives ). The Bill then goes on to direct (cl 107) that every court must follow any sentencing guidelines which are relevant to the offender’s case, unless the court is satisfied that it would be contrary to the interests of justice to do so.
The Bar Council has referred to these proposals as “a dangerous politicisation” and commentators have expressed the understandable concern that despite the general “interests of justice” reference, judges may consider that their discretion is being fettered, which will inevitably lead to more rigid sentencing. Put another way, the tenor of the sentencing proposals resound of imprisonment and in the present situation, there are limited places to put those sent into custody.
These proposals are essentially Sentencing Guidelines Council “Plus”. The importance of that regime was in the title. There is one word missing from the new organ—“guidelines”.
Even as this article goes to press, the Government is back pedalling upon some of the more extreme suggestions in the Bill.
Hidden away in cl 152 of the Bill was a provision that the Government may enable any person to share information, even though it might include personal data. Had this proposal become law, it would have allowed personal information about a citizen held by any organisation, to be shared with government, without the protection afforded by the Data Protection Act 1998.
It would have been for ministers to decide what further disclosure of personal information could be made to third parties, the basis of that sharing being whether it was “necessary to secure a relevant policy objective” (defined “as matters within the legislative competence of a government or functions exercisable by a minister”—see cl 152(1)).
The ambit of this proposal was breathtaking, removing at a blow all the protection offered by the Data Protection Act 1998 and Article 8 of the European Convention on Human Rights. But gone it is...for the time being. The lurking doubt remains, it will return, like secret inquest hearings in new legislation in the future.
In the second reading debate in the House of Commons (20 January 2009 col 122), the Government minister, Bridget Prentice MP, stated: “at its heart, the Bill is about delivering more effective and responsive public services to victims, witnesses, bereaved families and all those who come face to face with the justice and coroners system.” Of course, terminology is always revealing. The Bill seeks to deliver “public services”, an interesting alternative to justice, open hearings, fair trial and protection of privacy.
Furthermore, in analysing, as we must, the fundamental deficiencies of this Bill, it is important to stress that there are positives. Coronial law and procedure was and remains, despite this Bill, in drastic need of reform and the provisions relating to special measures for children in court are to be welcomed.
The restrictions relating to criminal memoirs will be seen as sensible and equitable and the refining of the law relating to prohibited images of children is positive as is the clarification of the offence of assisting suicide.
But essentially, this shopping basket of proposals misses opportunities to make a long lasting and positive impact upon the criminal and coronial systems, and just as concerning, heralds an onslaught of legislation which, rather than presenting “responsive public services”, seems to enhance the control of the Government over matters such as secret hearings and sentencing parameters, whilst eroding a defendant’s right to a fair trial and even a full complement of jurors on the grounds of cost.
The Chairman of the Bar, Desmond Browne QC, has been leading the eloquent response of the Bar to these proposals. The months ahead will be crucial.
John Cooper is a barrister at 25 Bedford Row. His book Coronial Jurisdiction—The Voice of the Bereaved will be published by Hart Publishing later this year.
The Coroners and Justice Bill is one of the most wide-ranging and disparate pieces of legislation that has been compiled during this Government’s 11 years in office.
It has the feel of a shopping basket of proposals, gathered without any particularly logical reason, of all the issues that have mounted up over the last few years and need attention, with relative degrees of urgency. When commentators coined the expression “Tesco law” I would venture to suggest that they did not have in mind its hybrid—“Sainsbury’s legislation”—a shopping list of proposals for criminal justice reform, with coronial jurisdiction thrown in as well, just before we leave the legislative check-out.
To understand the full panoply of this proposed legislation, we need to break it down into bite-sized pieces. Although it is divided into nine substantive parts, I will deal with what I consider to be the most far-reaching issues.
Part 1 of the Bill seeks substantially to reform the law, practice and procedure in relation to inquests. This is long overdue. In a letter to the relevant minister in 2004, Lord Luce observed: “During the last three quarters of a century, the Government has twice commissioned reviews of these subjects, in 1936 and 1968, but very little happened in response to their reports. The services are showing the consequences of this neglect. We, and those who we have consulted, hope that this inaction will not continue.”
A series of thoughtful and considered responses were provided to the Government by the Bar on all aspects of the legislation and it is only hoped that the experiences communicated by Lord Luce to the Government in 2004 are not pertinent this time around.
One of the central matters concerning many of those who appear in inquests is the constraint laid down by previous legislation as to the purpose of the investigation. Traditionally, evidence is called before the coroner and/or jury to establish who the deceased was, where the deceased came by his or her death and how the deceased came by his or her death (Coroners Act 1988 s 11(5)(b) and Coroners Rules 1984 r 36). The how part of the jigsaw is defined “by what means the person came by their death” rather than how the deceased died, which might not raise general and far reaching issues. To comply with the Human Rights Act 1998, the Government has already been compelled to state that the investigation must include as a purpose, ascertaining in what circumstances the deceased came by his or her death.
Nevertheless, a significant opportunity has been missed to expand the purpose of a coronial investigation. Some Commonwealth jurisdictions include as a purpose an enquiry as to the way in which death can be prevented. For instance in Canada (Quebec Act: Respecting the Determination of the Causes & Circumstances of Death LRQ R.O.2), the investigative role is focused upon the prevention of situations likely to jeopardise human lives by endeavouring to detect efficiently and fully the causes and circumstances of deaths in a range of bodies that can utilise the information to reduce the incidence of avoidable death. (For an eloquent discussion on this, see Death Investigation & the Coroner’s Inquest: Freckleton & Ranson.)
Bereaved families call for public enquiries into certain tragedies, but the Government response is that the inquest will thoroughly deal with all the questions which need to be asked. Given the straitjacket within which coroners in England and Wales have to proceed, this is somewhat disingenuous; in short, wrong. Sadly, the Bill does nothing to correct this.
The proposals go on to limit the number of jurors who can sit upon an inquest. The jury at an inquest is to consist of six to nine persons. The only reason given by the Government for fewer jurors to serve at an inquest, compared to the 12 in a criminal trial, is to save costs.
It is perplexing why 12 jurors are considered to be cost efficient to determine guilt, but a lesser number to determine matters relating to death. The involvement of the citizen and the community is central to any process within the justice system. It provides for trust of the process and initiates a public involvement in its procedure, sustaining the integrity of its decisions. A cost, however crass, should not be put on that.
One of the most controversial aspects of the Bill are the proposals relating to “certified investigations”—put another way, secret hearings. The provision is virtually unchanged since it was rejected by Parliament last year in the Counter-Terrorism Bill. It is initiated by the Secretary of State (cl 11), and it is for an interested party to challenge such a decision by judicial review. This is topsy turvy. If the Government require secret hearings, they should apply for them before a High Court judge, rather than taking a unilateral political decision in the absence of judicial verification. It should not be for the citizen to argue for open justice, rather, as is the general principle, for those who seek secrecy to establish why they should have it.
On the subject of the bereaved families being expected to be pro-active, this Bill does nothing to extend legal aid for the representation of families and interested parties in the coroner’s court—a matter that right-minded people find inequitable, when they are usually faced by legal teams representing the ministries, police or armed services, all paid for by the taxpayer.
The Government has declared that its intention is not to extend the law in the area of assisted suicide but to clarify it; as Bridget Prentice MP observed, speaking on behalf of the Government at the Bill’s second reading, to “simplify and modernise the law”.
The modernisation aspect appears in the sensible extension of the proscription of assisting suicide on the internet. Apart from that, the Bill subsumes much of the provisions of the Suicide Act 1961, maintaining the basic position that the crime of assisting suicide requires that the accused should know that the suicide was contemplated, that he or she approved of or assented to it and that the accused’s attitude in respect of the potential suicide in fact encouraged the principal offender to perform (or attempt to perform) the suicide (Attorney General v Able [1984] QB 793 and the Suicide Act 1961 s 2). It is not anticipated that this will lead to any increase in the already low charging rate for this offence.
In R v Davies [2008] UKHL 36, the House of Lords unanimously held that the protective measures imposed by the trial court in the prosecution of the appellant for murder had hampered the conduct of the defence in a manner and to an extent which had been unlawful and which had rendered the trial unfair. The Government then introduced the Criminal Evidence (Witness Anonymity) Act
2008, which received Royal Assent on 21 July 2008, and which the Justice Secretary undertook to review. The Bill is that review and effectively transposes the 2008 Act into the Bill.
Of course, witness intimidation is a blight upon the criminal justice system, but the correct balance should be struck between protecting witnesses and enabling the defence properly to test the evidence, so as to ensure a fair trial. Just as I observed when commenting upon secret juries in coroners’ courts, that open justice is the norm and those arguing that it should be restricted should bear the burden of establishing that, so too the anonymity of witnesses; it should not be taken to be commonplace.
The terms of the proposed legislation is that witness anonymity orders are widely drawn and will inevitably erode a defendant’s right to a fair trial. Defence counsel are not included in the group of people who are entitled to information about the witness, which will impact upon counsel’s ability properly to engage a witness in cross-examination. But most fundamental is the deprivation of either party, deprived of the witness identification, to put pertinent questions which would discredit the witness’s evidence, had that witness been indentified—for instance, if the defendant knows that a witness has a personal grudge, that can only be put on instructions if the witness is identified.
Clause 100 establishes a Sentencing Council for England and Wales. Its objective is to “promote consistency in sentencing” (see also cl 102(11) for further objectives ). The Bill then goes on to direct (cl 107) that every court must follow any sentencing guidelines which are relevant to the offender’s case, unless the court is satisfied that it would be contrary to the interests of justice to do so.
The Bar Council has referred to these proposals as “a dangerous politicisation” and commentators have expressed the understandable concern that despite the general “interests of justice” reference, judges may consider that their discretion is being fettered, which will inevitably lead to more rigid sentencing. Put another way, the tenor of the sentencing proposals resound of imprisonment and in the present situation, there are limited places to put those sent into custody.
These proposals are essentially Sentencing Guidelines Council “Plus”. The importance of that regime was in the title. There is one word missing from the new organ—“guidelines”.
Even as this article goes to press, the Government is back pedalling upon some of the more extreme suggestions in the Bill.
Hidden away in cl 152 of the Bill was a provision that the Government may enable any person to share information, even though it might include personal data. Had this proposal become law, it would have allowed personal information about a citizen held by any organisation, to be shared with government, without the protection afforded by the Data Protection Act 1998.
It would have been for ministers to decide what further disclosure of personal information could be made to third parties, the basis of that sharing being whether it was “necessary to secure a relevant policy objective” (defined “as matters within the legislative competence of a government or functions exercisable by a minister”—see cl 152(1)).
The ambit of this proposal was breathtaking, removing at a blow all the protection offered by the Data Protection Act 1998 and Article 8 of the European Convention on Human Rights. But gone it is...for the time being. The lurking doubt remains, it will return, like secret inquest hearings in new legislation in the future.
In the second reading debate in the House of Commons (20 January 2009 col 122), the Government minister, Bridget Prentice MP, stated: “at its heart, the Bill is about delivering more effective and responsive public services to victims, witnesses, bereaved families and all those who come face to face with the justice and coroners system.” Of course, terminology is always revealing. The Bill seeks to deliver “public services”, an interesting alternative to justice, open hearings, fair trial and protection of privacy.
Furthermore, in analysing, as we must, the fundamental deficiencies of this Bill, it is important to stress that there are positives. Coronial law and procedure was and remains, despite this Bill, in drastic need of reform and the provisions relating to special measures for children in court are to be welcomed.
The restrictions relating to criminal memoirs will be seen as sensible and equitable and the refining of the law relating to prohibited images of children is positive as is the clarification of the offence of assisting suicide.
But essentially, this shopping basket of proposals misses opportunities to make a long lasting and positive impact upon the criminal and coronial systems, and just as concerning, heralds an onslaught of legislation which, rather than presenting “responsive public services”, seems to enhance the control of the Government over matters such as secret hearings and sentencing parameters, whilst eroding a defendant’s right to a fair trial and even a full complement of jurors on the grounds of cost.
The Chairman of the Bar, Desmond Browne QC, has been leading the eloquent response of the Bar to these proposals. The months ahead will be crucial.
John Cooper is a barrister at 25 Bedford Row. His book Coronial Jurisdiction—The Voice of the Bereaved will be published by Hart Publishing later this year.
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