Coroners and Justice
Bill - Partial defences to murder
Part
2 Chapter 1 (Clauses 39-43) of the Coroners and Justice Bill deals with reform of
the law relating to the partial defences to murder of diminished responsibility
and provocation. In fact, the Bill seeks to abolish the partial defence of provocation and replace it with a new partial defence of "loss of control." The Bill also seeks to
amend the law relating to infanticide (Clauses 44 and 45) and assisting or
encouraging suicide (Clauses 46-48).
Here we take a look at the Bill as it relates to the partial defences.
Historical Background
The partial defences of diminished
responsibility and provocation, if successfully pleaded, result in the defendant
being convicted of manslaughter rather than murder. Diminished responsibility developed in Scots Law
and was unknown to English common law.
It was the Homicide Act 1957 which introduced
it into English criminal law. Provocation
as a partial defence arises from English common law but the 1957 Act made
changes.
The
Homicide
Act 1957 was aimed at reducing
the number of times that capital punishment had to be imposed for murder. The common law “constructive malice” rule was
abolished; only certain categories of murder were to be capital; diminished
responsibility was introduced into English law; provocation law was amended and
Suicide Pact became another partial defence to murder. Subsequently, the Murder (Abolition of the Death Penalty) Act
1965 abolished capital punishment for murder
and substituted the mandatory sentence of life imprisonment. Thus, whilst a murder conviction carries the
mandatory life sentence as well as the stigma of “murderer”, a manslaughter
conviction enables the judge to impose any sentence considered to be
appropriate and the “murderer” label is avoided.
Calls for reform ….
The
Law Commission has recommended reform of the law relating to murder on a number
of occasions – see Partial
Defences to Murder 2004 and “Murder, Manslaughter and
Infanticide – Law Com No 304 – November 2006.”
The Partial Defence Report contained a recommendation that
the Law Commission be requested to do further work on matters such as the
definition of murder. The Commission recommended
retention of diminished responsibility as a partial defence as long as murder
carried the mandatory sentence of life imprisonment. They recommended against reform of the
defence until a more thorough study of the law had been completed.
The Commission went on to indicate principles which should
govern a defence of provocation but they stopped short of putting forward a
suggested definition of a reformed defence.
Law Com 304 was a much more detailed and extensive study
of the entire law of murder. A new
Homicide Act was recommended to replace the 1957 Act and the new Act would
provide clear and comprehensive definitions of the homicide offences and the
partial defences. The Commission’s
recommendations would amount to a major and comprehensive reform of the
law. There would be a three-tier
structure of general homicide: 1st degree murder; 2nd degree murder and
manslaughter. Diminished responsibility
and Provocation would have the effect, in the Law Commission scheme, of
reducing 1st degree murder to 2nd degree murder.
The Coroners and Justice Bill has not proceeded to implement
those recommendations and the government has adopted its own definitions of
these partial defences.
Definitions in the Bill
…
Diminished
Responsibility
The Bill would replace Homicide Act 1957 s.2 with a new
section 2 (Diminished Responsibility):-
A person (“D”) who kills or is a party to the killing of
another is not to be convicted of murder if D was suffering from an abnormality
of mental functioning which – (a) arose from a recognised medical condition, (b) substantially impaired D’s
ability to do one or more of the things mentioned in subsection (1A), and (c) provides
an explanation for D’s acts and omissions in doing or being a party to the
killing.
Section 1A would read:
Those things are – (a) to understand the nature of D’s
conduct; (b) to form a rational judgment; (c) to exercise self-control.
Section 1B - For the purposes of subsection (1)(c), an
abnormality of mental functioning provides an explanation for D’s conduct if it
causes, or is a significant contributory factor in causing, D to carry out that
conduct.”
Loss of Control – the Bill abolishes the common
law defence of provocation and enacts new law so that Homicide Act 1957 section
3 will cease to have effect. "Provocation" will be replaced by the new partial defence of "Loss of Control"
Where a person (“D”) kills or is a party to the killing of
another (“V”), D is not to be convicted of murder if – (a) D’s acts and
omissions in doing or being a party to the killing resulted from D’s loss of
self-control, (b) the loss of self-control had a qualifying trigger, and (c) a
person of D’s sex and age, with a normal degree of tolerance and self - restraint
and in the circumstances of D, might have reacted in the same or in a similar
way to D.
For the purposes of subsection (1)(a), it does not matter
whether or not the loss of control was sudden.
In subsection (1)(c) the reference to “the circumstances
of D” is a reference to all of D’s circumstances other than those whose only
relevance to D’s conduct is that they bear on D’s general capacity for
tolerance or self-restraint.
Subsection (1) does not apply if, in doing or being a
party to the killing, D acted in a considered desire for revenge.
On a charge of murder, if sufficient evidence is adduced
to raise an issue with respect to the defence under subsection (1), the jury
must assume that the defence is satisfied unless the prosecution proves beyond
reasonable doubt that it is not. Sufficient
evidence is adduced to raise an issue with respect to the defence if evidence
is adduced on which, in the opinion of the trial judge, a jury, properly
directed, could conclude that the defence might apply.
A person who, but for this section, would be liable to be
convicted of murder is liable instead to be convicted of manslaughter.
The fact that one party to a killing is by virtue of this
section not liable to be convicted of murder does not affect the question
whether the killing amounted to murder in the case of any other party to it.
The term “Qualifying Trigger” is
to be defined as –
● D’s loss of
self-control was attributable to D’s fear of serious violence from V against D
or another identified person
● D’s loss of
self-control was attributable to a thing or things done or said (or both) which
– (a) constituted circumstances of an extremely grave character, and (b) caused
D to have a justifiable sense of being seriously wronged.
● D’s loss of
self-control was attributable to a combination of those matters.
In determining whether a loss of self-control had a
qualifying trigger – (a) D’s fear of serious violence is to be disregarded to
the extent that it was caused by a thing which D incited to be done or said for
the purpose of providing an excuse to use violence; (b) a sense of being
seriously wronged by a thing done or said is not justified if D incited the
thing to be done or said for the purpose of providing an excuse to use
violence; (c) the fact that a thing done or said constituted sexual infidelity
is to be disregarded.
The definitions in the Bill arise from a consultation carried out
in 2008 by the Ministry of Justice. The
consultation was over the period July to October.
Comment
In 2004 the Law Commission, in a carefully considered
report, advocated a thorough overhaul of the law. It is regrettable that
the government has chosen to go for only piecemeal reform given the very strong
case for thorough reform of the law.
The Bill narrows the scope of diminished responsibility
since D will have to be suffering from a “recognised medical condition” which
resulted in “abnormality of mental functioning.” This is likely to lead to medical evidence
having even greater sway than it does at present. Also, “Developmental immaturity” is not
specifically allowed for in the Bill.
Probably
the most controversial aspect of the proposals is that relating to "Loss of Control" and possible sexual bias entering the law. Sexual infidelity is
specifically excluded as a reason which can be put forward for a
defendant's loss of self-control. Also, whereas previously the loss of
self-control in response to provocation had to be sudden and temporary it will
no longer matter whether or not the loss of control was sudden. This
clearly allows the “slow burn anger” cases to come within the scope of the new
defence. “Slow burn” cases are exemplified by the convictions of R v
Senior Law Lord, Lord Phillips of Worth Matravers has
criticised the "loss of control" aspect of the Bill – see the Times 7th
November 2008. The Daily Mail
14th January was also critical of the proposed reform.
Reform of the Law of Coroners: The Coroners and Justice Bill 2009:
11th and 12th February 2009 - further comment:
Scottish
Courts and Inquests - The coroners and justice bill currently going through
Dame
Janet Smith – “Shipman” - The judge who chaired the inquiry into the mass
murders committed by Dr Harold Shipman has cast doubt on whether reforms to
prevent another such scandal will work.
See The
Times 12th February 2009.
Prentice
claims that these measures will rarely be required. “It is envisaged that one
or two cases a year may be affected. Even the exceptional and difficult
circumstances in which Jean Charles de Menezes died would not have justified
holding part of the inquest in private. As Jack Straw, the Justice Secretary,
has said on numerous occasions, the de Menezes inquest served to demonstrate
the alternative measures that can, and will continue to be, used to ensure that
a full and open inquest can be held.”
Lord
David Pannick QC has entered the fray over the Coroners and Justice Bill – The
Times 29th January 2009.
Comment
about the Coroners and Justice Bill Second Reading in the House of Commons – 27th
January 2009.
Reform
of the Law of Coroners: The Coroners and Justice Bill 2009: Original Item
The Office of
Coroner is one of the oldest offices known to the law dating back to at
least 1194.[1] Much of the modern law relating to Coroners
is to be found in the Coroners
Act 1988[2]
but there is, in addition, a considerable body of case law. On 14th January 2009 the
government presented the Coroners
and Justice Bill to Parliament.[3] This is a far-reaching Bill which is
concerned with many topics apart from Coroners.[4] This article is aimed at highlighting the key
changes in the law which will arise from Part 1 of the Bill and which relate to
Coroners (“Coronial Law”). Part 1
comprises clauses 1 to 38 and Schedules 1 to 9 and, taken together, constitute
a major reform of the law. The Coroners
Act 1988 will be repealed in its entirety.
Certain aspects of the Bill are very controversial and, at this stage
(January 2009), it cannot be forecast just how these clauses will fare as they
pass through Parliament.
Overview of the Bill
A new structure for the Coroner
Service
There
will be a Chief Coroner and as many Deputy Chief Coroners for
The
Relevant Authority has to appoint a Senior Coroner though the Lord Chancellor
and the Lord Chief Justice have to consent to the appointment. Under a Senior Coroner, there may also be
Area Coroners and Assistant Coroners.
Any form
of Coroner may only serve to age 70 and their appointment is not to be regarded
as a “freehold” office. Further, only
lawyers will be eligible for appointment since an appointee has to “satisfy the
judicial-appointment condition on a 5 year basis.” The appointment and tenure of Senior
Coroners, Area Coroners and Assistant Coroners are dealt with by section 22 and
Schedule 3 of the Bill.
The idea
of an essentially national service under a Chief Coroner will be broadly
welcomed. However, the Bill has not
adopted the Shipman
Inquiry suggestion of having a Chief Judicial and a separate Chief Medical
Coroner.[6]
Will the
reformed service command public confidence?
The Shipman Inquiry Third Report stated that the Coroner Service “must
be and must be seen to be independent of Government and of all other sectional
interests.”[7] It has to be doubtful whether the level of
independence called for by the Shipman Inquiry will come about. There is extensive involvement of the Lord
Chancellor in the whole process and, since the Constitutional Reform Act 2005,
the Lord Chancellor’s role is not at all the same as the historic role.[8] Today, the other title held by the present
Lord Chancellor is Secretary of State for Justice. Under the Bill, the Lord Chancellor will be
involved in the appointment of Coroners and their removal; he is involved in
the formulation of Coroners Areas and, under Clause 32, is empowered to issue
“guidance” about the way in which the coroner system is expected to operate in
relation to what are to be known as “interested persons” a term which is
extensively defined in Clause 36.
“Interested persons” include stated relatives of the deceased person. There are further provisions which also give
rise to serious concern about the possible hand which government is enabled to
play in relation to inquests.
Deaths which a Coroner must
investigate
When a
Senior Coroner is made aware that the body of a deceased person is within the
Coroner’s Area he must as soon as practicable conduct an investigation in to
the person’s death if he has reason to believe that (a) the deceased died a
violent or unnatural death; (b) the cause of the death is unknown or (c) the
deceased died while in custody or otherwise in state detention. Item (c) arises from obligations placed upon
the State by Article 2 of the European Convention on Human Rights and
Fundamental Freedoms.
The Bill
contains provisions (Clauses 2 and 3) relating to Requests by one Coroner for
another coroner to conduct an investigation and for the Chief Coroner to direct
a particular Coroner to conduct an investigation.
Clause 4
deals with discontinuance of investigations where the cause of death is
revealed by a post-mortem examination. A
Senior Coroner must discontinue an investigation where the PM reveals the cause
of death and the coroner thinks that it is not necessary to continue the
investigation. However, this will not
apply if the Sevior Coroner has reason to suspect that the deceased died a
violent or unnatural death or died while in custody or otherwise in State
detention. If an investigation is
discontinued then there may not be an Inquest and no determination or finding
under clause 10(1) may
be made in respect of the death.
The
permissible purposes of a Coroner’s investigation are set out in clause 5 –
i.e. to ascertain (a) who the deceased was; (b) how, when and where the
deceased came by his or her death; (c) the particulars (if any) required by the
1953 Act to be registered concerning the death.
Where necessary, in order to avoid breach of rights under the European
Convention on Human Rights, the purpose in (b) includes the purpose of
ascertaining in what circumstances the deceased came by his or her death. It will not be permissible for either a
Coroner or a Coroner’s Jury to express any opinion on any other matters -
Clause 5(3). However, this is somewhat
qualified by Schedule 4 Clause 6 which enables a Senior Coroner to take certain
action with a view to prevention of further deaths.
Inquests
A Coroner
who conducts an investigation into a death must (as part of the investigation)
hold an inquest (except where the investigation has been discontinued).
Under
Clause 7 - Inquests will be without a jury except where the senior coroner has
reason to suspect:
(a) that the deceased died while in
custody or otherwise in state detention and that either (i) the death was a
violent or unnatural one or the cause of the death is inknown;
(b) that the death resulted from an
act or omission of a Police Officer, a member of a service Police Force whilst
in the purported execution of their duty;
(c) that the death was caused by a
notifiable accident, poisoning or disease.
Also, an
inquest into a death may be held with a jury if the senior coroner thinks that
there is sufficient reason for doing so.
Where
there is one, a jury may comprise 6, 7, 8 or 9 persons. There are provisions for majority verdicts. As is currently the law, neither a coroner
nor the jury may appear to determine any questions of criminal or civil
liability.
Certification by Secretary of State in interests of national security etc
Arguably
the most contentious aspect of the Bill is Clause 11. This will require considerable scrutiny by
Parliament.
Clause 11
would permit the Secretary of State to “certify an investigation” into a death
if of the opinion that (a) the investigation will concern or involve a matter
that should not be made public for certain reasons and that no other measures
would be adequate to prevent the matter being made public. Under Clause 34(4) “Coroners Rules” will make
provision requiring a person holding an inquest that has to be held without a
jury because of clause 11 to give a direction excluding persons, except those
of a prescribed description, from all or part of the inquest.
The
reasons referred to are set out in Clause 11(2) – in order to protect the interests
of (i) national security or (ii) the relationship between the U.K. and another
country or (iii) preventing or detecting of
crime, (iv) in order to protect the safety of a witness or other person
(v) otherwise in order to prevent real harm to the public interest.
Where an
investigation is so certified, the inquest is to be held by a judge without a
jury.
Such
“certified inquests” must be conducted by a Judge of the High Court[9]
who has to be nominated by the Lord Chief Justice. Such an appointed Judge will have the same
functions in relation to the body as the senior coroner and no senior coroner,
area coroner or assistant coroner has any functions in relation to the body or
the investigation.
If an
inquest had already started with a jury and the Secretary of State then
certifies the inquest, the jury has then to be discharged.
It is
without doubt that certain Coroner’s investigations have caused concern within
government about whether important material might get into the public domain
and result in damage to security etc.
The concerns appear to have arisen in connection with certain high
profile investigations or inquests involving military deaths or deaths
resulting from Police action – e.g. the Charles de Menezes Inquest.[10]
Needless
to say, it is the government’s desire to impose secrecy at inquests which is the
bone of contention. It is understandable
that certain matters relating to national security or to certain methods used
to prevent or detect crime cannot be simply made public. The safety of witnesses (or others) is also
important but in this regard there is surely a need to consider whether any
facilities available to protect witnesses in criminal cases could also made
available at inquests.[11] The expression “real harm to the public
interest” appears to be something of a catch-all phrase which could enable
Ministers to certify a considerable number of inquests particularly where
governmental policy or the conduct of agents of the State might be in issue.
The key
inspiration for this measure is the death of Matthew Hull in
Critics of the secret inquests believe that this is a stepping stone towards
making all inquests secret. A recent string of inquests into the deaths of
servicemen on combat operations has seen MoD handed a series of embarrassing
verdicts in which they were found to be responsible for supplying poor
equipment and training. Ministers are believed to be seeking a way to end the
bad publicity that the
In a
statement, the Bar Council had this to say[13]
– “The reintroduction of proposals to hold inquests relating to national
security without a jury have also been met with unease. The Bar Council warns
that whilst national security may require reporting restrictions in relation to
inquests, the Bill, as presently drafted, risks normalising measures that
should only be taken in the most extreme circumstances. Public bodies must be
held accountable for their actions and closed inquests hamper the ability of
coroners to do this. It is vital to ensure that the justifications of national
security and detriment to the public interest are only used to hold a closed
inquest where absolutely necessary. The principle of open justice must be
upheld; justice must be done and be seen to be done.”
Under
Clause 12 it is possible for a “certification” to be discontinued.
Intercept Evidence
Section
18 of the Regulation of Investigatory Powers Act 2000 (“RIPA”) will be amended
– see Clause 13. Essentially, section 17
of RIPA prevents the use of intercept evidence in legal proceedings. However, section 18 contains exceptions to
that. Under section 18(7) there can be
disclosure to High Court, Crown Court and Circuit Judges where the judge
considers that the exceptional circumstances of a case make disclosure essential
in the interests of justice. Disclosure
has to be to the judge alone. The effect
of Clause 13 is to enable disclosure to a High Court Judge who is conducting a
“certified” investigation. Disclosure
will also be possible to “counsel for the inquest.”
Suspension of Investigations
Clause 14
and Schedule 1 refer to this. Under
present law it is not uncommon for an inquest to be opened and then adjourned
pending, for example, the hearing of criminal proceedings. Clause 14 and Schedule 1 make very detailed
provisions relating to suspension and resumption of investigations. These provisions do not appear to be
particularly controversial.
Post-mortem examinations
The
arrangements for ordering post-mortem examinations will be somewhat different
to those in section 19 and 20 of the 1988 Act.[15] Subsection (1) gives a senior coroner
power to ask a suitable practitioner to make a post-mortem examination of a
body if the senior coroner is either responsible for conducting an
investigation into the death or a post-mortem examination will enable the
senior coroner to decide if he or she has a duty under clause 1 to conduct an
investigation. This may be relevant where it is not clear whether a death
occurred as a result of a notifiable disease or whether a child was stillborn -
where, for example, a body is found and it is not clear whether it ever had
independent life. Where it is known or established that a child was stillborn,
the senior coroner will have no further responsibility to carry out an
investigation.
The term “post-mortem
examination” is not defined but it will include any examination made of the
deceased including non-invasive examinations, for example, using Magnetic
Resonance Imaging (MRI). The 1988 Act
makes a distinction between post-mortem and “special” examinations (the latter
are a more specific kind of post-mortem examination and would include
toxicology tests to establish whether, for example, alcohol or drugs were in
the bloodstream). The Bill removes this distinction, enabling the senior
coroner to detail the kind of examination he or she would like the practitioner
to make - for example, to ask for a particular examination of a tissue or organ
which seems most relevant to the cause of death if a full post-mortem is not
considered necessary.
Subsection (3) defines a suitable
practitioner as either a registered medical practitioner or where a particular
form of examination is required, such as an MRI Scan, a practitioner who the
Chief Coroner has designated is suitable to carry out such examinations. Subsection (4) ensures that any
medical practitioner about whom there are allegations in relation to the death
is not able to carry out the examination of the body, although such a person
may be represented at an examination. Subsection
(5) requires the person making the examination to report the result to the
senior coroner as soon as is practicable.
Clause 16 specifies the
arrangements for moving a body to a different location, for example to enable a
post-mortem examination to be carried out.
Under subsection (1) a senior coroner who is responsible for
conducting an investigation into the death or who needs to request a
post-mortem examination in order to decide if he or she has a duty under clause
1 to conduct an investigation may order that the body be moved to any suitable
place. This removes the restriction in
section 22(1) of the 1988 Act that a body can be moved only within a senior
coroner’s area or to an immediately adjoining area which has caused practical
difficulties in a major incident where there have been several deaths. This
power will also allow a senior coroner to make use of specialist equipment or
skills available in a different part of the country and may, on occasion, mean
that full post-mortems can be avoided.
The body can be moved to
a place which is outside the senior coroner’s area only with the consent of the
person providing that place (for example, a mortuary manager and the relevant
local authority). The issue of costs may be dealt with in regulations.
Notification by medical practitioner to senior coroner
Clause 17 enables
regulations to be made by the Lord Chancellor requiring a registered medical
practitioner to notify a senior coroner of deaths of which they become aware.
Regulations may set out the circumstances in which the medical practitioner
will have to make a referral. It seems
that such regulations can be made by Statutory Instrument using the so-called
“negative resolution procedure.”[16]
Clause 18 relates to the
appointment of, and functions to be carried out by, medical examiners. It also
enables regulations to be made by the Secretary of State for Health (in
relation to
Medical examiners must,
at the time of appointment, be fully registered, practising, medical
practitioners with at least 5 years experience.
Regulations made under subsection (4)(a) will specify terms of
appointment for medical examiners and allow for termination of their
appointment. Whilst medical examiners will, for the most part, confirm or
establish the cause of death for deaths that have occurred in the area served
by the PCT by whom they have been appointed, they may be asked to scrutinise
deaths in other areas.
Regulations made under subsection
(4)(b) will specify what payments may be made to medical examiners by way
of remuneration, expenses, fees, compensation for termination of appointment,
pensions, allowances or gratuities. Such payments would be in line with
arrangements applying in the specific area in respect of remuneration and those
applying nationally in respect of other payments.
Regulations made under subsection
(4)(c) will specify the training that medical examiners must have
successfully completed prior to their appointment and the training that they
need to undertake during the term of their appointment.
Regulations made under subsection
(4)(d) will make provision about procedure to be followed by medical
examiners in carrying out their functions with a view to ensuring that they are
able to carry out independent
scrutiny of medical certificates of cause of death (MCCDs) and do so in
a way that is robust, proportionate, and consistent. The regulations may also
provide that, in order to help ensure their professional independence, medical
examiners will not be allowed to confirm or establish the cause of death of any
person to whom they are related or with whom they have had any fiduciary relationship[17];
and that they will not be allowed to scrutinise MCCDs prepared by any doctor
with whom they have a close working or professional relationship or with whom
they have an established fiduciary relationship.
Regulations made under subsection
(4)(e) may provide for the functions of the medical examiner to be extended
or changed to support future developments of the service.
Medical certificate
of cause of death
Clause 19 enables the
Secretary of State for Health to make regulations about the preparation, scrutiny
and confirmation of MCCDs and about the way the confirmed MCCD is notified and
given to a registrar or about how the death is referred to a senior coroner.
The clause also enables regulations to be made about the payment of a fee for
the service provided by a medical examiner.
The independent scrutiny
and confirmation of MCCDs is part of a wider process that starts with the
preparation of the certificate by a registered medical practitioner who
attended the deceased and ends with the certificate being returned to the
medical examiner after it has been used by the registrar to register the death.
The new unified process is intended to be simpler and more transparent than the
current process and requires specification of activities, responsibilities and alternative
scenarios that are more suited to regulations than to provisions on the face of
the Bill. Subsection (1) provides the power to make the necessary
regulations.
Explanatory notes
state that the new process has been designed with the active engagement of a
wide range of stakeholders and is illustrated in an overview booklet entitled “Improving
the process of death certification in
The changes being made in
the area of Death Certification are very extensive and implementation will
involve considerable amounts of subordinate legislation in the form of
Regulations.
Treasure Investigation
Clause 20 makes some
changes to the law relating to Coroner’s investigations into “treasure.” Whilst a Coroner is enabled to summon a jury
in such cases, this is likely to be extremely rare.
Inspection
Under Clause 29 it will
become the duty of inspectors of court administration appointed under the
Courts Act 2003 section 58 to inspect and report to the Lord Chancellor on the
operation of the coroner system.
However, such inspections will not be permitted to impinge on the
exercise of judicial functions.
Appeals
Under Clause 30
“Interested persons” will be enabled to appeal to the Chief Coroner about
certain decisions made by a Senior Coroner.
These include a decision as to whether there should be a jury at an
inquest. Further appeal on matters of
law would lie to the Court of Appeal.
Investigation by Chief Coroner or by judge at Chief
Coroner’s invitation
Clause 31 and Schedule 8 makes
provision for an investigation into a person’s death to be carried out by the
Chief Coroner or by a judge.
Guidance by the
Lord Chancellor
Clause 32 enables the
Lord Chancellor to issue guidance about how the coroner system is expected to
operate for interested persons. The first such guidance in relation to bereaved
people is a draft Charter for the
Bereaved[19],
published at the same time as the Bill.
Further non-statutory guidance may be introduced for other classes of
interested persons in the future. Subsection
(4) specifies that the Lord Chancellor must consult the Chief Coroner
before issuing, changing or withdrawing any such guidance.
Comments
The Bar Council[20] has voiced
concerns over proposal to reform the law of inquests. Whilst welcoming some of the reform they are
concerned about the narrow remit of a coroner’s investigation and would wish to
see this widened to include examination of the planning and organisation of
public bodies. The Bar Council’s unease about secret inquests has already been
referred to above. Where the state is
implicated in a death, it is incumbent on it to ensure that no impropriety has
taken place. The Bill however restricts the situations in which a jury must be
convened, particularly in relation to deaths in custody. Parliamentarians
should consider carefully whether these proposals are appropriate. In relation to this Amnesty[21]
has stated - “When someone has lost their
life at the hands of the state, it's essential - and required by international
law - that an independent and impartial inquiry finds out how and why it
happened. Coroners can already decide -
independently - to exclude the public from part of an inquest on grounds of
national security. Letting the government make this decision will lead to
accusations of cover-ups and could deny both the public and the victim's family
their right to know what happened.” This
appears to be a very valid criticism.
Inquests
are supposed to be a judicial matter. It
seems particularly wrong that a government Minister can therefore have such
power over the inquest. Entrusting them
to High Court Judges will not necessarily assuage public concern about this
since there will almost always be an impression of unfairness. In cases where the government itself is an
interested party (e.g. deaths of military personnel; deaths in custody) it is
even questionable whether the proposals actually do meet European Convention
requirements and standards.
The Bill
does not rectify the inequality of the current funding situation. Public
funding is currently not available to bereaved families unless exceptional
circumstances exist. In contrast public bodies with an interest are often
represented at inquests by one or more legal teams, funded by the tax payer. The Bar Council has set up a working group to
examine the Coroners and Justice Bill and its possible implications. It will be
making representations to the Government and Parliament ahead of the second
reading of the Bill.
The charity Inquest[22]
expressed "serious concerns" about the secrecy proposal when it was
first put forward in 2008. They argue
that it could undermine public confidence in deaths involving state agents,
such as the shooting
of Jean Charles de Menezes, and "result in inquests into highly
contentious deaths in custody taking place without juries, in private, with
government-appointed coroners and counsel overseeing the evidence. This would exclude
bereaved families, their legal representatives and the public at large from
the investigation process."
The
Secretary to the Coroner’s Society[23]
welcomed the fact that the Bill preserves a local judicial service with
national leadership through the Chief Coroner.
Also welcomed is the right of appeal to the Chief Coroner which will, in
many cases, avoid the necessity to challenge Coroner’s decisions by way of
expensive judicial review. However, the
new appeal system must be efficient, affordable and expeditious. Whether this will prove to be the case is
perhaps doubtful though a lot will depend on the procedure adopted for such
appeals. The Society also supports the
policy that the Chief Coroner be of High Court status but state they are
disappointed that the Bill prevents any coroner from becoming a Deputy Chief
Coroner.
January 2009
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[2] See http://www.opsi.gov.uk/acts/acts1988/ukpga_19880013_en_1 for the Coroners Act as originally passed and http://www.statutelaw.gov.uk/legResults.aspx?LegType=All+Legislation&title=coroners+act&Year=1988&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&TYPE=QS&NavFrom=0&activeTextDocId=1345582&PageNumber=1&SortAlpha=0
[4] For example, reform of aspects of the law of murder, manslaughter and infanticide
[5] For the removal of Justice of the High Court see Supreme Court Act 1981 section 11(3) – the power to remove, which dates from the Act of Settlement 1701, has never been used.
[6] See, in particular, Shipman Report No. 3 – 2003 Cm
5854 - http://www.the-shipman-inquiry.org.uk/tr_page.asp?id=244
[7] Shipman Report No. 3 – at paragraph 19.22
[8] Historically, Lords Chancellor presided over the House of Lords; presided over the House of Lords Appellate Committee and also sat as a member of the Cabinet. An important aspect of the historic role related to protecting the independence of the judiciary from the executive.
[9] It appears
that Judges of the High Court have always been ex officio coroners though, in
recent years, their use in that role appears to have increased. Barclees Case (1658) 2 Sid 101 – Glyn CJ
stated “it seems that I can hold an inquest at any place in the kingdom for
every Chief Justice is coroner of all
[11] Protection of “vulnerable” witnesses in criminal cases is a large topic – see, for example, Keane “The Modern Law of Evidence” 7th Ed.Ch. 5 regarding so-called “special measures.” Also see Criminal Evidence (Witness Anonymity) Act 2008 - http://www.opsi.gov.uk/acts/acts2008/ukpga_20080015_en_1 - the Coroners and Justice Bill contains clauses aimed at making further alterations to the law.
[15] See http://www.opsi.gov.uk/acts/acts1988/ukpga_19880013_en_2#pb5-l1g19 for the 1988 Act as originally enacted
[16] The draft is laid before Parliament which may, within a certain time period, pass a resolution “negativing” the draft. If there is no such resolution then the regulations come into force.
[17] The most pertinent such relationship would appear to be doctor:patient.
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