Coroners and Justice Bill

[Mr. Roger Gale in the Chair]

CJ01 Professor Jeremy Horder

CJ02 Information Commissioner

CJ03 Local Government Association

CJ04 Liberty

CJ05 Liberty (additional evidence)

CJ06 Law Society

CJ07 Coroners Society of England and Wales

The Committee deliberated in private.

On resuming—

Q 83

André Rebello: With regard to freehold coroners, clearly the title “freehold” will give added independence, make it clear that coroners are not employed and, I am sure, give the public more confidence with the coronial office. Local authorities perhaps have too much control of the budget they provide to coroners and things of that nature, which will affect the coronial service. Having the office as a freehold office—whatever that means—might give the public greater confidence.

It is right for coroners to be appointed by the local authority, or the local authority in conjunction with someone from the chief coroner’s office, or even—for the senior coroner—the Judicial Appointments Commission. Thereafter, it is very difficult for someone to be parachuted in to work with the senior coroner. They have to work as a team: when the senior coroner is not there, the assistant coroners must be available. In any event, area coroners would be full-time judicial office holders—very similar to the senior coroner.

Given that there are no national terms and conditions for coroners, the danger is that someone who happens to be on the books of the local authority legal department might be told, “You are the new assistant coroner, go along and help the coroner.” That would be outrageous. It is essential for the coroner to be involved in the appointment of assistant coroners.

I would be very uncomfortable about someone being appointed to work with me, to the standards that I set within my jurisdiction, if I had no control regarding whether that person had the specifications and particular abilities to carry out coronial office to the standards I want. We cannot have an assistant coroner coming in and working to different standards. It may be that the chief coroner sets the tone for the whole country, but I do not know whether that will happen overnight. I would definitely expect certain standards in my jurisdiction of Liverpool, and I would be very uncomfortable with any assistant coroner coming in. I would want to have some control.

Medically qualified coroners have provided an excellent service over the years, and many—if not all—are also legally qualified. The difficulty is that, as a lawyer, one is trained to have a sense of natural justice. A lawyer can always call a doctor to give technical evidence on medical matters. It is exactly the same as a High Court judge who does not have to be a doctor when dealing with a matter of medical negligence. The difficulty arises if someone is medically qualified but not au fait with natural justice. They cannot call someone to give evidence with regard to fairness and things of that nature while they are hearing a case.

It makes some sense to have only lawyers as coroners. Nevertheless, doctor coroners have provided an excellent service and fortunately, because of the transitional arrangements, all doctor coroners will be able to continue in office. We could have a provision whereby doctors took some kind of qualification or went on a course relating to judgecraft and things of that nature. In the future, doctors may well be capable of carrying out coronial office—that is a possibility. However, in the main, the society’s view is that it should probably be predominantly a lawyer post.

The society believes that the chief coroner should be a High Court judge, not a circuit judge. If a circuit judge is capable of carrying out that office, they should be promoted to High Court judge. It will require quite a  bit of clout to get things moving as chief coroner, and only a High Court judge will have that.

Regarding the deputy chief coroner, I am concerned about schedule 7 because most High Court judges—leaving aside those who are involved as designated care judges in the family division—come from an adversarial background. They are not au fait with an inquisitorial jurisdiction and would not necessarily have a feeling for the coronial process. Furthermore, it is outrageous in this day and age to have an apparent discrimination against senior coroners and a glass ceiling that means that they can never become more than a coroner. A tribunal chairman can eventually end up as Lord Chief Justice. Why should coroners stay as coroners for their whole career?

The chief coroner will have a responsibility to keep coroners informed about changes in law and things of that nature. Those are matters that the Coroners’ Society currently deals with. The chief coroner will also have a responsibility for the training and development of coroners, which the Coroners’ Society is also involved with. In fact, the Coroners’ Society delivers training to coroners. If the chief coroner is going to be responsible for that, senior coroners will still be involved in those things. We may need one deputy chief coroner responsible for training, one for keeping coroners up to date and so on.

If you look at clause 30, on appeals, the first six items are about whether there has been a post mortem, whether a determination is correct, whether evidence has not been heard that should have been heard and things of that nature. Any senior coroner of 10 years’ standing or more is capable of turning those round very quickly.

My concern is that the chief coroners office will be staffed by civil servants and that some of those appellate judicial functions will be delegated to non-lawyers working to a script and rejecting or allowing appeals based upon pro formas. Part-time assistant deputy chief coroners working to clear backlogs would be far better, would give the chief coroner the capacity to deal with lots of things in lots ways and would keep flexibility.

It does not seem right that a glass ceiling will imposed by legislation in 2009. This country does not approve of glass ceilings in any other area and coroners are quite distressed by it—not because it affects our career development, but because the service would be better if coronial experience were used to help and develop the service.

Helen Shaw: On the question of the deputy chief coroner, in a sense, we agree with the Coroners’ Society about the chief coroner being a High Court judge. We think that that is an important and welcome element of judicial oversight in the system. We understand that, if someone is to deputise for the chief coroner, they have to have the same standing, but we also understand that there is the possibility in the Bill of a number of deputy chief coroners. We are concerned about some of the very good work that is being done in the existing coroners system and the need for that to be fed into the new structure. We very much support any changes that could be made to allow existing coroners of, as André says, 10 years’ standing or more to apply for one of those posts.

Alison Cox: I would endorse that view very strongly.

Q 84

André Rebello: This is regarding how the chief coroner will influence local authorities to comply with, I think, clause 23—the duty on the local authority to provide the infrastructure, accommodation and staffing that the coroner needs to carry out coronial administrative and investigative duties. One difficulty is, of course, that power is devolved to local government and local governments have to set their budgets. As well as being responsible for the coronial system, they are also responsible for children’s services, services for the elderly and lots of other essential things. From the media, we know about the tragic cases of essential services falling short. One can see that local authorities have a difficult job.

I cannot see a chief coroner turning round to a local authorities and saying, “That coroner needs a court to hear this inquest and a room for the jury. The jury need separate toilet facilities. There are 12 properly interested persons and each has a solicitor or barrister who needs conference rooms, and the witnesses need privacy and bereavement rooms. You will have to provide those.” If the local authority turned round and said, “Sorry, we can’t afford it,” I do not see what the chief coroner could do. Presumably, the chief coroner could apply for judicial review. It would be very strange legislation that had built into it a safeguard giving the chief coroner the power to enforce a sanction by judicial review. One would have thought that if Parliament was considering that, it would put some sanctions in to allow the chief coroner to deal with the situation. I cannot think of any method whereby the chief coroner could control a local authority budget. It is an invidious position.

In my submission notes, I say that there is a danger of the chief coroner being made a scapegoat because we will not have a national service even with this Bill. We have a national tone to the service and national leadership, but we still have 110 or so separate legal jurisdictions serving their own local infrastructure. Of course, every coronial jurisdiction is different. Some have prisons, some have special hospitals and some have large teaching hospitals. The infrastructure and services required in each are different.

Professor Furness: From the perspective of the Royal College of Pathologists, may I pick up on a point that Mr. Rebello made? We are a little concerned that the Bill seems to put the emphasis for the office of the chief coroner on the resolution of disputes and appeals. That is clearly important, but our concern is the variation in practice in coroner’s courts around the country, which Mr. Rebello touched on. We hoped that the coroner’s office would bring a degree of harmonisation. We, too, are concerned that we cannot see the teeth or the drive in the Bill to produce that harmonisation.

Q 85

Professor Furness: That, too, varies. I would regard that as the local responsibility of the coroner, but it comes under the same point.

Q 86

André Rebello: No.

Q 87

André Rebello: I am not saying that doctors do not have a statutory role.

Q 88

André Rebello: Absolutely.

Q 89

André Rebello: My wife does. The big difficulty I see is that each coroner, even with the Bill, has to negotiate locally for terms and conditions. It surprises the Bar and the main judiciary that I have to work for 40 years to get my pension. The judiciary has a judicial pension after 20 years. It is not surprising that, apart from the more senior members of the judiciary, most judges retire in their early 60s. Most coroners have to keep going until they are 70 or nearly 80 because they cannot afford to retire. That is an historical issue.

When I left private practice in 1999 to become a full-time coroner, after having been a part-time coroner, my income halved. At that stage, I was buying into my partnership. The money I got from my partnership paid off my loans and I had no pension. I started from scratch. If I was a circuit judge or a High Court judge, after 20 years I would have a full judicial pension. I could retire and leave it to other people to get on with the work. As a coroner, I have to pay into the local government pension scheme for 40 years. It seems nonsensical that nothing in the Bill sets national standards for terms for coroners. Parliament has an opportunity to put things right and to set the right tone. That opportunity should be taken.

Q 90

André Rebello: The Bill says that the local authority must do various things, but it does not set any standards. If the Bill referred to rules that were to be made later with regard to that type of accommodation—what needs to be provided—and if the chief coroner, when in post in shadow, could start a shopping list, if that was possible, saying that on such a date, when the law comes in, this is what we would expect every local authority to have and this is what the law expects them to provide, local authorities would have time to get ready.

Q 91

André Rebello: But I do not know what sanctions there are, because we are not having a national service. There is no point devolving power to local authorities and then telling them what to do with their money. That is the difficulty.

Q 92

André Rebello: They are. To be fair to officials in the coroners unit in the Ministry of Justice, when the situation becomes extreme officials intercede and on many occasions local authorities have provided what they refused to provide in the past.

Q 93

André Rebello: No, it is not official. Basically, coroners could embarrass their local authorities. You could summon the chief executive to give evidence and ensure that all the media were there. You can be very hard headed about it. That would be my style; most coroners are very nice and would not do it.

Alison Cox: To endorse what André says, I want to say that some of our bereaved families would be very happy to do that. If there was a failing of the service, they would be the ones to suffer. The coroners put the issue in place, but I do not want anyone to forget that the people at risk here, if the service is not improved, are the families. I tell you this—they would not hesitate to cause embarrassment, especially with a bit of encouragement from me.

Q 94

Helen Shaw: In answer to your question, no, there are no inquests that we know of that have not been able to reach a satisfactory conclusion. That is inquests that we know of, in terms of clause 11. There are a number of cases that have involved sensitive material and the  combination of existing provisions has been sufficient to deal with those inquests concluding properly. Can you remind me of your question about “real harm”?

Helen Shaw: No. We were thinking through our 20 years of working at inquests around a lot of contentious custody deaths and we could not think of any examples. We know that this clause has arisen because of two particular cases and there are very particular issues that need to be addressed. We think that the clause is much too widely drawn and we hope that we can speak to the Secretary of State for Justice and Lord Chancellor to find a more sensible solution. The clause is a hugely wide proposal, which we think is not necessary. We hope that we can find something that is much more precise, that deals with the matters that arose in those two particular cases and that will refer to issues under the Regulation of Investigatory Powers Act 2000.

Deborah Coles: Look at the inquest into the death of Jean Charles de Menezes—we will be supplying the Committee with a detailed briefing, including a case study, on that—which was a very high profile case involving many interested parties, a family who were desperate to find out the truth and a lot of public interest. That inquest managed to perform its vital function in terms of accountability and a jury narrative that identified any concerns.

There was evidence heard as part of that inquest that had to find alternative mechanisms other than being held in public—public interest immunity certificates and the like. If we look at that inquest as being an extremely good example of a high profile case where people might have suggested that there could be harm in terms of security and the issues in which it was engaged, it is an example of the coroners inquest system being able to deal with a case of such complexity.

Q 95

Helen Shaw: We have huge concerns because the proposal effectively excludes the family and their chosen legal representatives from the part of the inquest dealing with the sensitive material. We think that that means that the inquest would not comply with article 2 of the Human Rights Act 1998. On a more human level, the family would be excluded even if the material goes into exactly why somebody died. We think that is wrong in terms of an inquest process that they are caught up in through no choice of their own, but through which they obviously want to find out why their loved one died.

We feel that family involvement in those cases is not sufficient, and neither is the proposal that there be special counsel to the inquest. Special counsel to an inquest is, in a sense, a friend to the court. Their role is to assist the court. They do not have a role to take up  the interests of any particular person who is represented in that inquest. That is not a sufficient safeguard to ensure that the family’s legitimate interests are properly protected. We really hope that some different proposals will come forward and we are encouraged by the comments made by the Secretary of State for Justice—he also found this quite a difficult set of proposals and was minded to look at amendments. At the moment the Bill does not allow the family to have access to some of the most important information about how their loved one died.

Q 96

André Rebello: Absolutely. If I could explain: I am co-located with the registration service in Liverpool—I have a purpose built courtroom with a jury room off the courtroom. My personal office is about a third the size of this room. We have interview rooms for families, five interview rooms upstairs for advocates and two other ceremony rooms. We have lots of space for registrars to report deaths to me, we have a video presenter in court, all the equipment—loop systems—anything you want, we have got. My authority is brilliant.

Other coroners, if they hold a long inquest, will move from village hall to village hall. There is nowhere for anyone to go, they borrow magistrates courts—with families mixing with criminals in the court corridor. The inquest that has been mentioned was held at Kennington Oval, which is totally inappropriate for a coroner’s court. I am sure that within the court service there could have been a proper court for an inquest of such importance. The system is outrageous. In 2009 coroners should not be borrowing the same type of venue to hold a court that people would use for a silver wedding or 21st birthday party. It is just not on. Of course, the law is now there for local authorities to provide it. The difficulty is that such are the demands on local authorities that the budget is already accounted for. They are inspected in other areas and they have to deliver in other areas. There is not the spare money for them to develop a coroners system. This is all new money that needs to be found to build an infrastructure. We have also had the closing down of magistrates courts and the grouping together of magistrates benches, such that courts are no longer available because the land has been sold off. Yet we have magnificent places such as the civil justice centre in Manchester and a smaller centre in Liverpool. We have these across the country and many of them are grossly under-used. The difficulty with the current law is that coroners cannot hear a case outside their own jurisdiction. Hopefully, with this Bill coroners will be able to hear a case anywhere even if it means going across a couple of boundaries.

Deborah Coles: In terms of the number of inquests that we are involved with at the moment, one is taking place in a football ground and another in a room that is probably about a third of the size of this. There are four interested parties to that inquest and there is no private  waiting space for the family. We did some research where we talked to a lot of families who have been involved in inquests over the years and so many of them mentioned how difficult it was to attend an inquest, as you would imagine, but not have any kind of private waiting space before they were about to give evidence—nowhere to have a cup of tea, nowhere to meet with their lawyers. It is a real issue. We did welcome the fact that the boundary limits are going to be relaxed and maybe there can be better use. If we were talking about the ideal system, there would be purpose-built coroners’ courts that were able to engage with the bereaved in particular on a much more personal and humane basis.

Q 97

André Rebello: What you are describing is the coroners’ system in New Zealand and Victoria, Australia. This Bill is an awful long way from there. Like we exported cricket, we exported the colonial system with the empire. Everywhere else moved on but we have stayed back in 1887. Even under this Bill, coroners look at individual cases, an individual body. There is not the facility to hold more than one inquest into one case at a time. If you have a train crash—one incident that has caused many deaths—there will be different registrable particulars and a different cause of death with regard to each of the individuals. However, the means and circumstances in which those deaths occurred will be the same, so it would be a nonsense to hear that evidence several times. It is not really possible for a coroner to cluster together cases. The other thing is that individual families might not welcome it because each death is as special as any other. It does not matter if your child falls downstairs and dies or if your child dies in the street. It still hurts as much as anything can ever hurt. We are dealing with individuals here—individual people and families—and to cluster cases together is not right.

If there is a trend and if a few cases perhaps need an overview, it may be possible to have a public inquiry, or something of that nature looking at those circumstances together, but I am not sure that the coroner system, as mentioned in the Coroners and Justice Bill, will be able to achieve that. Perhaps the chief coroner might be able to pull together findings from a few cases and hold some kind of inquiry, but there is not the mechanism or facility for that to happen.

Deborah Coles: The coroner is right. The current system could not cope with that. But inquests are really interested in that kind of proposal. We certainly looked at this when there was a cluster of deaths in Styal women’s prison, where six deaths occurred in a period  of a year. We felt that rather than having a separate inquest into each of those deaths that would take place over a period of years, because of the delay in the system, an inquiry would have benefited everybody concerned.

I take on board the coroner’s point about each individual death being personal to that family. Of course, you should not lose sight of the fact that you would need an inquiry into the individual death. But where those deaths point to possible systemic failings and a pattern of concerns, certainly you could have a broader inquiry that would be meaningful for everybody concerned.

That leads me to an additional point on the purpose of the inquest system. The coroner mentioned the system in Australia and New Zealand. What we really like about that system is that its priority is death prevention—that is its key purpose—and learning lessons. All the families that we talked to said that, although nothing will bring their relative back, they take comfort in knowing that lessons are, perhaps, learned. We are disappointed that there are not effective mechanisms in the Bill to ensure that there is accountable learning, so that something is done with regard to the outcomes of inquests: the coroners’ rule 43 reports and important jury narrative verdicts. There is no proposal in the Bill to deal with the collation, monitoring and publication of those things. That is an important omission.

Q 98

André Rebello: At the moment, in my jurisdiction, we have co-operated with researchers looking back through inquest files for trends. They have looked at death by self-harm, which I have not been able to say is suicide, and they have come to different conclusions, for epidemiology purposes, to prevent harm.

I do not know. All I know is that at the moment we have got to determine who died, when or where the person died and by what means, and, in some cases, in what circumstances the cause of death arose. We can hear evidence and decide the facts. If there has to be some bridging between trends in different types of cases, that is not in the Bill and not in the current law. This would be something new. Whether that would be beneficial or not, I do not know. I presume that the Office for National Statistics and the General Register Office pull together some of these things, otherwise we would not have any information for politicians to make decisions on. There must be something pulling it together somewhere.

The lessons that we have learned and the provisions that we have now in respect of rule 43 do not have any teeth. We can write letters raising issues and we can get a reply, but there are no teeth for situations where people do nothing—apart from public humiliation—if the incident recurs.

You are talking about something that is completely new, which is not in the current law and is not in the Bill. The chief coroner might be asked to appoint a deputy chief coroner to overview several inquests. That would be a new structure and it is not there at moment. I do not know whether it would be worthwhile because it is beyond what the coroner does now.

Q 99

Deborah Coles: No. The example I gave was death in prison. Obviously inquests into those cases have to be article 2 compliant, so there is the opportunity to look at the broader circumstances beyond just the means by which the person died. So that involves an examination of policies and procedures. For example, the deaths at Styal raised a lot of concerns about the treatment of vulnerable women who were drug dependent. The majority of those women took their own lives by hanging themselves. The means of the death were quite clear. We knew how they died. It was the broader circumstances that were of key concern. That involved a lot of issues and looking at potential system failings. Those article 2 cases look at broader issues than the means.

Q 100

André Rebello: Stefan Popper lived and worked in a different era. I suspect that what he did would have happened in nearly every jurisdiction at that time.

André Rebello: I am absolutely certain he was well intentioned. The other thing I would say is that my deputy acted for 96 families in the Hillsborough inquests. There were not batches of inquests. When the inquests were opened the coroner had to receive evidence of identification. You can do that in lots of different ways. You can give everyone an appointment and have one person at a time hearing evidence about who that person was, register all the particulars so that you can issue an interim death certificate and a certificate of  disposal for burial or cremation and then adjourn the case until the full evidence can be heard. Or you can deal with them in batches of eight at a time. When a coroner was dealing with cases, particularly in those days, people did not stop dying. Other people were dying at the normal rates.

On a Monday morning in Liverpool, 60 deaths can be reported to me from the weekend. I will have spoken to the police. I work 24/7. I work in the middle of the night and still work the next day. Even when I am on holiday I am working. When the coroner is faced with 96 or more deaths that occurred in one incident, the number of people who normally die in the weeks it takes to deal with those will remain the same. From a pragmatic point of view, I understand that a decision might have been made in order to continue giving a service to everyone else.

Today, that might be dealt with very differently, in the sense that coroners are enabled and encouraged, particularly by the Coroners’ Society, to appoint additional assistant deputy coroners. In those days, the advice from the Home Office’s coroners’ unit, the predecessor of the Ministry of Justice’s coroners’ unit, was that the deputy and assistant deputy coroners could only work if the coroner was not working. That was the advice given by the Government. Therefore, if Stefan Popper was in court and working as coroner, no deputy or assistant deputy coroner could deal with the other cases, and that is what caused those problems. Today, you would appoint additional assistant deputy coroners to deal with work while you give time to each family to deal with the opening of the inquest.

When looking at by what means and in what circumstances those deaths occurred, you cannot hear the evidence 96 times with 96 separate juries, because you will get 96 different versions of the means and circumstances. The witnesses will give evidence differently each time and the different juries will come to different conclusions, even if they have heard the same evidence. You have to hear the bulk of the evidence for all the deaths that occurred in one incident at once, but when you open the inquest, you can open it for each individual. Today the trend would be to open the inquest for each individual, but of course those were very different times and I am sure that today coroners have moved on an awful lot.

Q 101

André Rebello: Unsatisfactory, but it was the norm throughout the country.

Q 102

André Rebello: That is a new point that you did not raise before. Clearly, I cannot second-guess how a coroner would deal with that case because that coroner is of course independent and has judicial discretion. The safeguard—Deborah Coles mentioned this point—is to  ensure that families are enabled and represented. It might not be popular, but when I am holding an article 2 inquest, I find it very strange when the family might be unrepresented or represented on a legal aid certificate, to use the old language, and the barrister is on £500, and if the prison or health services are involved, they will be represented in the same case by top barristers on top pay, and the state will be paying for everyone.

If we need to level the playing field and ensure that the coroner gets the justice and balance right, we have to achieve a level playing field. Part of the coroner’s role is to ensure that there is a level playing field. I am probably far more proactive when people are unrepresented than when they are represented, in an attempt to level that field, but if we are to deal with that issue, legal aid should certainly be available for inquests. It is only in the individual cases when submissions can be made with regard to the scope of the inquiry that things you raise can be dealt with. I cannot go back in history and deal with something that has occurred.

Q 103

André Rebello: There was and still is a right of appeal with regard to a particular decision. I am not sure whether this is the right forum in which to deal with that appeal. We do not have all the facts and I cannot address the issues you are raising. I have no papers from the case before me. I understand where you are coming from. What you are saying is alien to my jurisdiction and to what I do. You are more than welcome to come along and sit in at any time you like.

Deborah Coles: On recognising the distress that inquests cause to such families, we were involved with many of the families and some of the academics involved in Hillsborough. What failed to happen there was proper family representation and an agreement on the scope of the inquest from the outset. That would have meant that it would not focus on aspects to do with the insensitive treatment of those families. In a sense, the bereaved were blamed for what happened. That is completely unacceptable.

Having said that, we have seen the same things happen in other cases. The system works best when families are represented and when there are pre-inquest reviews. Discussions about scope and what the inquest will look into are then agreed beforehand. That gives lawyers representing the families the opportunity to prepare them. Families recognise that there will be occasions when deeply sensitive, personal and distressing information needs to come out in public. The issue is about preparing the families for that. The relevance of that information and how it assists the process of finding out what happened must also come out publicly. Ideally, it will prevent such things happening in the future.

Q 104

Alison Cox: I will do that, but I do not think that the question is too big. To me, the aspiration of the Bill is fantastic. The revised draft has made a big difference. The whole thing is dependent on the issue of appeal. I am aware that the appeal process is to do with the coroner’s verdict. That is important to cardiac risk in the young and sudden cardiac death. However, point 54 suggests that there is a wider opportunity. It is a question of the quality of the coroner. André and I have had a short conversation about this. There is a legacy of coroners embedded in the system who struggle to keep up with the standards that we would expect in 2009.

The issue is how the appeal process can be facilitated for bereaved families for whom, following a sudden cardiac death, it will take two years to register that that person has died. I would like some kind of evaluation or registration form that they can fill in which will feed into the question of whether the coroner understood their situation, was empathetic and showed sensitivities in many ways, such as how the media were dealt with. There is enormous scope for coroners to be seen by the families either as legends or as doing less than they could and should have done. Whether you can use the appeals process to register whether an inquest has been dealt with in a way that bereaved families feel to be right is very important in overseeing the ambitions of the service.

Q 105

André Rebello: We could not do better than follow the Victorian Institute of Forensic Medicine’s “Fatal Facts” bulletin in which all the equivalent rule 43s are pulled together. I get a monthly communiqué from Victoria setting out all the trends that have occurred, how they have been responded to and things of that nature. That will cost money and will need people to work on it. Parliament has the opportunity to invest in the system.

Q 106

André Rebello: There could be a report that pulls together inquest findings, provided that there is a requirement for the inquisitions to be communicated not only to the registrar general through the Register Office, but to the chief coroner, so that someone in the chief coroner’s office can write a report about inquest trends.

Deborah Coles: The other strength of the Victoria system is that there is a national database of coroners’ inquest findings, so that if a coroner is conducting an inquest into a restraint-related death in custody, he or she could access the recommendations and reports that other coroners have made.

In response to the question about coroners, I think that the Bill should impose a duty on the coroner to make a report when there are issues of concern with regard to preventing other deaths. Moreover, we need sanctions against authorities that fail to respond to any report. There is not much point in coroners writing reports if they are not going to get proper responses. Likewise, we should like to see enshrined in the Bill some kind of mechanism for the monitoring and scrutiny of such reports, to ensure that action has been taken to address the issues that coroners have raised. As I said to Ms Moon, that is something that is sadly missing from the Bill and would go towards the death prevention that we were talking about earlier.

Q 107

André Rebello: There is not a national IT system. Many coroners still have manual databases. Many do not have a computer system, but most are going towards one. There is one main system that most coroners use. I am very enthusiastic about having a web-based database, for which we can have a national server, mirrored several times over, so that all coroners work to that and know, at the push of a button, exactly where death investigations and inquest hearings are up to at any moment in time. That will cost money. If that is provided, there is no reason why it is not possible to introduce as soon as the system comes in.

Q 108

Alison Cox: To reiterate, I should like to see some kind of evaluation for the bereaved. That would liberate every bereaved person. Perhaps we could have a tick box of four or five basic questions, which I could submit to Bridget, and, if you can be brave enough—and this is quite a big step—

Alison Cox: An “Any other comments” section would make a colossal difference. For example, a stamp addressed envelope would provide a straightforward opportunity to find out how the system was working for the bereaved. At the end of the day, that is what the service is for. An “Any other comments” section might be more complicated, but it would give the bereaved an opportunity to respond. It is up to them whether they take it up. There should not be a limitation. We cannot say that the response must come back in six weeks; we should allow two years, for example, or perhaps leave it open so that people can reply any time as long as they put the date on it. That would make an enormous difference to our bereaved families, and it is something that I would very much encourage them to use to vocalise their feelings.

As you mentioned, it is really important for people to come back and tell us whether the service has been good, and I know that our bereaved families would do that. It is very humbling to hear how much they praise a coroner who has given them the opportunity to be part of that whole service. It is also frightening to see how much of a service they accept from a coroner who is perhaps questionably hanging on to his place by his eyebrows.

Q 109

Helen Shaw: We welcome the charter for bereaved families. However, under this new system we are concerned about how families will be given access to the support and information that they need to get through an inquest. No national service provides support to bereaved families. Although our expertise is in deaths in custody, we provide an information pack for people going through any kind of inquest. It was downloaded 15,000 times from our website last year and we are a small charity. We hope that in the new system, some thought will be given to what support is needed by bereaved families, short of legal support. A lot of people just need to be given guidance and information about what is going to happen at a very distressing time in their lives. We hope that that does not get overlooked due to the more legal issues that arise.

Professor Furness: I was hoping to discuss the medical examiner section of the Bill. Is this an appropriate point to raise that?

Q 110

Professor Furness: We are very concerned about the way that this has been proposed. We strongly support the medical examiner system but it needs to bridge the health services and the coroner services. At the moment, we are not convinced that the balance is right. As described in the Bill, medical examiners are essentially to be appointed by primary care trusts and will be responsible to them. There is nothing on the face of the Bill about that linking into the coronial system.

I know that concerns have been expressed about the independence of medical examiners. I understand that, but we feel strongly that medical examiners must have strong links to the national health service in order to support clinical governance and ensure that they are linked in and can feed material back to the NHS. We are not disagreeing with that, but we had hoped for much better links to the coronial system. We know that it is proposed—although it is not in the Bill—to have a national medical adviser to the chief coroner. We hoped that that individual could play a role in harmonising the way in which medical examiners work, much as the chief coroner is asked to harmonise the way in which coroners work. As we understand it, that link has not been made.

We also hoped that the medical examiners would have a strong role in providing a first line of medical advice to coroners locally, and that the two would work together and provide a seamless system. Although that may be expressed as a wish, it does not appear to be set  out in any way. As far as I can see, coroners are not involved in the appointment or governance of medical examiners.

Another practical point is that medical examiners will be doctors and the General Medical Council will have to recertify their expertise. How is that going to be achieved? We hoped that that would all be done through the office of the national medical adviser to the chief coroner, but we do not see anything that reassures us that those links and connections will actually be made. Perhaps it does not need to be on the face of the Bill, but that leaves me a little worried. The medical adviser to the chief coroner will need powers to carry out the sort of roles that we hope he will perform. If he needs powers, perhaps that should be more explicit.

Q 111

Professor Furness: I have had discussions with members of staff in the Ministry of Justice, which, although informal, led me to believe that this connection was not planned in those regulations. If that position changes, I will be delighted. Perhaps it does not need to be in the Bill; my concern is that the links need to be there and functioning when the system is working.

Alison Cox: May I make one more point, to endorse what I said? To offer bereavement support is extremely expensive because it is very time-consuming, and I would hate the coroners to feel that they were going to have to offer extra services of that sort to the family. I did not mean that when I said that things could be improved in the coroner service. To further Helen’s point, the families could be referred to the appropriate support groups for that service.

Q 112

Professor Furness: I think that the development of the medical examiner system would do more to prevent or at least catch early the next Harold Shipman than all the work that the British Medical Association is doing on medical re-certification, and it would cost a lot less. I am strongly supportive of that, but I remain concerned that there is the potential for generating great variation across the country in how these people work, because of the lack of an overall management system, and I would like to see that resolved.

Q 113

Professor Furness: I see the relationship between the chief coroner and the coroners being paralleled by the relationship between the national medical adviser, the chief coroner and the medical examiners.

Q 114

Professor Furness: The location of medical examiners will need to be planned carefully to deliver a speedy service and not delay burials.

Q 115

Professor Furness: Yes indeed.

Q 116

Professor Furness: If I understand you correctly, in specific relation to the Shipman case, Harold Shipman was an intelligent doctor who was much liked by his colleagues. It was the statistics that should have caught him much earlier, because he was doing his own certifying.

Q 117

Professor Furness: Yes.

Q 118

Professor Furness: I have been involved with staff in the Department of Health and with the Academy of Medical Royal Colleges in drawing up proposals for training medical examiners and for the procedures that they will in general terms be expected to follow. We have anticipated that they should have complete access to the medical records and details of any prescribed drugs. In relation to access to details of other sorts of drugs, if you are referring to illicit drugs being involved in the cause of death, the medical examiner should surely refer such a case immediately to the coroner and not try to investigate it him or herself. Similarly, if a noxious substance may have contributed to someone’s death, the medical examiner should not be examining that case—it should be passed to the coroner, and I suspect Mr Rebello would agree with that.

André Rebello: This is a separate point but I would be grateful if the professor would comment. I heard of a case the other day where a family were disgruntled and dismayed. A relative had died, and after the medical practitioner had written the cause of death down on the death certificate, the family pushed for a post mortem. There was one, which revealed a different cause of death. However, the registrar could not change the original cause of death on the certificate; he could only add an annexe or an addendum. The family have told  me that that has caused great distress, because the post mortem revealed that he died of a particular cause. It just completely staggers them that the change cannot be made on the certificate. I would be grateful if the professor could comment. Is it something we should be looking at?

Professor Furness: My understanding is that the proposed reforms should resolve that sort of situation, in that the death certificate will initially be filled out by the certifying doctor, but will then be passed to the medical examiner for scrutiny. That scrutiny will involve discussion with the relatives, if appropriate, so that concerns could be raised at that point, before the certificate of the cause of death was finalised. In terms of gathering national statistics, there is already a route through which additional findings as to the cause of death can be fed appropriately into the statistics. However, I defer to your experience of what happened in terms of what was written on the piece of paper.

Of course, the other aspect is that if the relatives are concerned that the cause of death is inaccurate, that could well be a good reason for the medical examiner to refer the case to a coroner for appropriate investigation, depending on the discussion that happened at the time. I would hope that the medical examiner would be in a position to discuss, mediate or resolve problems and avoid the whole scenario that you have described, to the benefit of all concerned.

Q 119

Professor Furness: In future, the certificate would not be issued until the relatives have had the opportunity to discuss it with the medical examiner. One of the key questions the medical examiner will be expected to put to the relatives is whether anything on the proposed death certificate is a concern.

André Rebello: Coroners since 1887 have become inventive and imaginative, because we have had to make the law fit the era in which we work, and not Victorian times. If that scenario happened in Liverpool, given that I am co-located with the registration service, once a death has been registered, the registrar’s rules say that the registrar can only put a marginal note in if there is a correction. What I would do in those circumstances is hold an inquest after ordering the post mortem and before getting the result. I would then use the result to conclude the inquest, and a new death certificate would supersede the old one. That is possible now, and it would be even more possible with the Coroners and Justice Bill. Those sorts of practices will be one way to fix an error, if the registration system is not changed so that errors of that nature can be altered.

There is no point in giving a family an old death certificate with lines drawn through it and marginal notes around the outside. The family want “the” cause of death, not “any” cause of death. It is fixable now, certainly in my jurisdiction, because of the resources that Liverpool gives me, because I am co-located with the registration service, and because you can be imaginative by ordering the post mortem, not knowing the cause of death and opening an inquest. You then get the cause of death and conclude the inquest. It is a fiction, but it is a way of correcting the death certificate. That will be possible in the future.

Deborah Coles: Can I just mention something that André touched on earlier, which is not in the Bill at all, namely the question of public funding for families to be represented at inquests, particularly in those cases involving public authorities or article 2 cases. I raise that because we welcome the fact that the Government have recognised the rights of bereaved people through this process and the importance of ensuring that families have access to information about how to negotiate the coroners’ inquest system. But there is nothing in the Bill about non-means-tested public funding for families, which is in stark contrast to the situation of Government-appointed lawyers, who represent the state at inquests all over the country and who are paid for out of public funds. You can have a situation such as André described where you have counsel representing the state interests, while the family are unrepresented and alone. Although there is exceptional public funding, it is extremely difficult for families to access. It is means-tested, which essentially means that anyone living in London who happens to own their own home does not qualify. That is something that causes untold distress. We have had families who have withdrawn from an inquest, which, after all, is what they have been given as their opportunity to find out what happened. But they have withdrawn from the process because it is so intrusive and bureaucratic. I urge the Committee to give that some attention, because we feel strongly that that would go towards making the inquest system a much better one for bereaved people.

André Rebello: I have three short points. The first is that I support Professor Furness with regard to medical examiners. I am sure that the statutory instruments, regulations and guidance will ensure that coroners are involved in medical examiner appointments, because, unless there is a close relationship, the new system will not work—certainly the Coroners Society will make sure that it works.

Secondly, I have concerns regarding matters to be ascertained at an inquest in clause 5, because the draftsman has taken the words of Lord Bingham in the Middleton case and enshrined them in clause 5(2). If the House of Lords or the European Court were to in future change what is necessary for convention rights to be recognised in the inquest process, this law will be out of date. It is far better to leave clause 5 as “how”, where how means in some inquests “by what means” and in other inquests “by what means and in what circumstances”, if article 2 of the European convention on human rights or other articles of the Human Rights Act 1998 are engaged, to enable the common law to develop that area of human rights legislation. The human rights legislation came in and by enshrining in what circumstances in this statute, if the House of Lords found that article 2 required something different, coroners would be stuck with the statute because of the primacy of Parliament.

The difficulty that I see is that there would then have to be a public inquiry in each and every case to deal with the procedural obligations on the states to comply with treaty obligations under human rights legislation. It would be far better to leave out clause 5(2), so that “how” means whatever the common law says it means for the time being. If we are now reforming the 1887 legislation, I am fairly sure that in 2051 the law will have developed somewhat, and I do not think it right to tie the hands of the European Court and the House of Lords with regard to developments.

At the moment, we have a two-tier system. It may well be that one of those is the right system for all, and it may well be that the law needs developing. We do not know what Europe will say. I am fairly sure that Coroners Bills are not like buses—there will not be another one along in a minute. I advise very strongly that clause 5(2) should be left out, because this Bill complies with convention rights—it says so at the front. Therefore, “how” means whatever it means for the time being.

The other point that I raise—it is very personal to my jurisdiction—is that of anonymity and investigation provisions, whereby justices of the peace can make a witness anonymity order. Rhys Jones was killed in my jurisdiction, and a person has been convicted of murder and is serving a life sentence. Had that person died in custody before trial and had people giving evidence against him had one of these orders made because they were members of a gang, where would I go to hear the full evidence when I had to hear an inquest as to the means and circumstances in which Rhys had died to give justice not only to the family, but to the whole community? This provision was spotted in the back of the Bill, and there has been no consultation with regard to it. Once a justice of the peace has made that order, the criminal process can stop for many reasons, including the accused dying or some other reason why the trial cannot go ahead. Currently, under section 16, the coroner would resume the inquest and the coroner’s jurisdiction would hear by what means and in what circumstances that cause of death has arisen.

Are coroners going to be designated as people involved in public administration, so as to be able to be given that information, if such an order has been made? At the moment, we can deal with public privilege immunity—section 11 deals with secret inquests. There is a sliding scale in that respect, and it is a judicial function to decide whether such matters are heard behind closed doors and whether some people are excluded or not excluded. In extreme cases, a full hit will be needed, but no one has yet been able to give me one example where that would apply.

Q 120

Isabella Sankey: We have grave concerns about the clauses 11 to 13 governing secret inquests. We regard these as breathtaking measures, which have been reintroduced after being deleted from the Counter-Terrorism Bill last year with very little consultation. Our view is that the grounds on which a certification can be made have been broadened, despite the cross-party opposition to the proposals when they were first brought in. Our concerns about these proposals are manifold.

The starting point is that we are talking about Executive control over whether juries can be convened at inquests. We do not see any cause for the Executive to be involved. We think that it would breach article 2, which requires investigations to be impartial, and it would also mean that the bereaved and the public were excluded, also breaching article 2. We do not see how the proposals could be compatible with it.

On safeguards, there is a provision for judicial review in the Bill, although, that was always possible under the previously drafted provisions. As the judicial review would be on whether something was in the public interest, we think that it would be extremely difficult to challenge the inquest in practice. We do not regard it as a safeguard at all.

Q 121

Isabella Sankey: We are saying that there are no circumstances in which an inquest in an article 2 scenario could be helped with a blanket prohibition on a jury. There are, of course, measures to exclude certain bits of information from the public, from families or from any individuals whom the coroner decides need to be excluded in the interests of justice We do not take issue with the use of the special measures available to coroners, but we do not see how any of the reasons put forward justify the blanket prohibition of a jury and the involvement of the Executive in deaths, which are likely to be extremely politically contentious.

Q 122

Isabella Sankey: Absolutely. In our view there is nothing really that should distinguish the operation of coroners’ courts from how juries operate in a criminal context, where, of course, public interest immunity certificates can be issued and there are special measures for witnesses. We have seen that operating in the coronial system for decades, and we do not see any arguments to justify any more exceptionality in that area.

Q 123

Isabella Sankey: In principle, we would not take issue with measures that already exist in the criminal justice system being introduced into the coronial system. We do  not see that there is a principled area to differentiate, as it were. With the measures that are already possible—excluding certain persons or pieces of information—we do not see why further measures are necessary in that context.

Q 124

Q 125

Isabella Sankey: The involvement of the Executive in the way that you describe would still be extremely problematic in terms of independence. In terms of public perception, as I said earlier, we are talking about inquests into what are often the most contentious of circumstances—where people have died at the hands of the state. Any involvement of the Executive in trying to keep the surrounding circumstances of those deaths secret would be hugely publicly contentious and would have enormous implications for public trust and public confidence.

Q 126

Isabella Sankey: In terms of what is currently available under public interest immunity certification—I think that really answers the point that you are making concerning  knowledge of matters which are a cause of enormous sensitivity when it comes to national security and so on. We do not see why there should be any difference between the arrangements that are currently in place in the criminal justice system, whereby the judiciary can hear ex parte applications from the prosecution as to why the existence of certain information cannot be revealed to the defence, let alone the subject matter of that information. I do not really see a problem with keeping certain information secret, and that can be accommodated within the system of jury inquests.

Q 127

Isabella Sankey: I think definitely the latter. It is completely illogical to argue that the state is entitled potentially to breach its article 2 obligations in order to fulfil its article 2 obligations because they have to continue with the inquest. That argument is tautological and does not really hold up. I would also argue that the state does not have the prerogative to stop judicial review proceedings, where PII certificates are issued. We are talking about exactly the same kind of scenario that you have in inquest proceedings, so I do not think that that distinction holds any water.

Q 128

Isabella Sankey: We always engage with the Government on anything that they are bringing forward, and we try as far as possible to offer alternatives and to get them to hear our suggestions.

Q 129

Isabella Sankey: I understand that, as with any Bill, there will be a chance for amendment and a chance to look again at some of the provisions introduced. We hope to engage further on it.

Q 130

Isabella Sankey: Yes, we have.

Q 131

Isabella Sankey: We should wait for the Bill scrutiny process.

Q 132

Isabella Sankey: We are hugely confident that there will be enough cross-party opposition to the proposals contained in clauses 11 to 13 that we will be able to negotiate with the Government on their proposals.

Q 133

Isabella Sankey: Absolutely. Often there are very high stakes in such proceedings. Our point is that safeguards are already in place to ensure that certain individuals are not identified and that various bits of information are kept from the jury or the public when such inquests are held. In fact, it was in the case of McCann and others v. United Kingdom that article 2 obligations in circumstances where somebody has died at the hands of the state were first developed by the European Court of Human Rights. In that case, an inquest had taken place and certain information about the security personnel involved in what was, ultimately, the killing of suspected IRA terrorists was kept from the jury. There were no problems in that case in respect of how the inquest had proceeded. Article 2 obligations were fulfilled, people’s identities were protected, and the balancing act was achieved under the current inquest system.

Q 134

Isabella Sankey: I do not see any problem with family involvement or the opportunity for families to make representations. In fact, although we object strongly to clauses 11 to 13, as I have outlined, we welcome the way in which the Bill recognises the involvement of the bereaved with the charter and so on.

The kind of judgments where confidentiality is at stake are often best left for judicial control. Judges can undertake a balancing exercise in the interests of justice and decide whether certain pieces of information about the identity of the person or the circumstances in which they died should be revealed and how much information should be given. Such matters should be assessed on a case-by-case basis and coroners should have discretion.

Q 135

Isabella Sankey: Yes, you have absolutely understood the position. Obviously the situation in which a jury is not able to have access to all the information is not a perfect scenario for an inquest to take place. The key to reflecting the lack of knowledge of the jury is in the verdict and the way in which it is phrased. That brings me on to some of our other concerns about the Bill, which include allowing for short verdicts to continue. In our experience, narrative verdicts—particularly in situations in which the state has been implicated or responsible for the death of a person—are a lot more satisfactory for the bereaved and really help with their sense not necessarily of closure but that justice has been done and that their hurt has been recognised. In the situation that you are talking about, a narrative verdict given by a jury could state that not all the information was put to them or that certain things were excluded. That could be an exercise that is negotiated between a coroner and a jury.

Q 136

Isabella Sankey: We disagree with the way in which you are trying to fix it. I do not have the details of the two cases that you are talking about to hand, but I imagine that they might potentially involve the use of intercept evidence, and that might be one of the reasons why they are being stalled. I understand that under clause 15 of the Bill, although the bar on intercept is being removed in the case of inquests, the general bar remains. The removal of that bar would do a lot to allow inquests containing sensitive information to go ahead. We would argue that public interest immunity certificates could enable that material not to be compromised. We fundamentally disagree that the Executive should be involved in certifying that juries should not sit on a particular inquest along the lines of a principled opposition to the responsibility of the state under article 2.  The Government are extremely hopeful in the explanatory notes. They say that they do not imagine the court will find a breach of article 2. I find it impossible to understand how article 2 would not be breached under the provisions that are included in the Bill.

Q 137

Isabella Sankey: Without knowing who you are talking about, it is difficult to say. Given the concerns that the Government have, it seems that the Government want to have some sort of control in vetoing juries. So, whether it is an application to a judge or not, we do not see how the removal of juries in article 2 cases could ever be compliant. I guess that the involvement of the Executive is one of two principal concerns, along with the public scrutiny that is also required under article 2. So, Executive involvement and the lack of any kind of public scrutiny in the process would be the two principal concerns.

Q 138

Isabella Sankey: We believe in—

Q 139

Isabella Sankey: We believe in the effectiveness of and the necessity for juries, and in due process safeguards existing in the criminal justice system and in the inquest system. That is our position.

Q 140

Isabella Sankey: Article 2 lays down several requirements, one of which is the independence of the investigation and another is public scrutiny and the involvement of the bereaved. I am sorry if I was not clear earlier, but in answer to your question I would say yes, indeed.

Q 141

Isabella Sankey:Yes, I think that independence would still be compromised in that scenario. Furthermore, the lack of public scrutiny and the lack of involvement by the family of the bereaved would mean that there was a double breach of article 2.

Q 142

Isabella Sankey: Article 2 demands the involvement of members of the public and the bereaved. I do not see how that requirement could really be incorporated in this instance without a jury.

Q 143

Isabella Sankey: Marginally more satisfactory.

Isabella Sankey: It would be a marginally more satisfactory amendment to a provision that is profoundly unsatisfactory.

Q 144

Anita Coles: We have extreme concerns about what is being proposed in the Bill.

Anita Coles: We are concerned about this broad information-sharing power. The way that it is drafted at the moment is that it enables any person to share any information, which not only includes personal data but other data such as company information, simply by ministerial order. Basically, we feel that that could override all the protections contained in the Data Protection Act. There is the ability for the order to modify any enactment, which basically means the ability to amend or appeal any Act of Parliament by ministerial order. We think that the use of secondary legislation in this way is problematic and that secondary legislation can enable the overriding of protections that are currently contained in the Data Protection Act, and potentially enable the overriding of the Human Rights Act.

We are concerned about the breadth of the order. Many aspects of people’s lives are included in personal data: medical information, DNA, genetic information, company records, personal confidential information. The order can override, remove or modify any prohibition or restriction on the sharing of information. Potentially, that could include confidential information, common law protections and professional privilege—there is no end to the possibilities. On the face of it, the way it is drafted, there are no restrictions in any way apart from that of securing a Government policy objective, which could be anything. It must be proportionate, but only proportionate to that objective, so there is not a proportionality argument generally. It must also strike a fair balance between the public interest and the interests of the persons affected, but that balances the greater good against the single individual. It is always hard to show that the single individual overrides the public interest, but there is the aggregate as to how many people are affected.

We are not opposed to data sharing because there are instances where it is enormously important, but the Data Protection Act seeks to ensure that there are safeguards surrounding this. The Human Rights Act is also important—article 8, the right to privacy. If you wish to be able to share information that you obtained for a different purpose you should, through an Act of Parliament, say exactly what your purpose is, because on the face of it we do not know. We do not know if it is a purpose that fits within the exceptions, in order to be compliant with article 8. If the Government want to share the information in this way, they should set it out in an Act of Parliament, explain fully and have a parliamentary debate as to why it is needed.

Q 145

Anita Coles: Yes. The whole purpose, I think, of this order is to override the principles in the Data Protection Act. One of the principles is that if data are obtained for a particular purpose, they should not be shared for other purposes. We think that a lot of the objectives could be met through consent, so if a person consents to information being shared in this manner, that is perfectly acceptable. If they do not consent, Parliament needs to explore fully the options of how it could be shared.

Q 146

Anita Coles: We do not see having secondary legislation amending primary legislation as a way of achieving the outcomes. We disagree with the recommendation in the first place, but we also think that this has not implemented fully what they recommended. They said that it was to be in exceptional circumstances, with more limits involved. We disagree that there should be a mechanism of having an order-making power to amend primary legislation. If there is an issue, put it in a Bill and Parliament can debate it.

Q 147

Anita Coles: We disagree with it in principle, in the sense that allowing secondary legislation to amend primary legislation in this way is very problematic. While, of course, anything can be made a bit better, we disagree in principle that it should be included in this Bill at all. There are no safeguards that I can see and the principle behind it is just wrong.

Q 148

Anita Coles: It is not improvable. It should not be included in the Bill. It should be removed. It breaches article 8 in the sense that the purposes are not set out in the Bill. We do not know what reasons will be used for sharing this information. They are not set out. As they are not set out, you cannot decide whether they fall within the exceptions under article 8. Until you know those purposes, you cannot say that something is compliant with the article.

Q 149

Anita Coles: The Government already know a lot of the areas where there is a problem. So if there is an identifiable problem, it should be set out in the Bill so that you can see what it is, agree and debate it and decide whether the power is necessary. The Government should come forward and say that these are the areas where they have an issue. If they come up with others later, they could introduce another Act to deal with that. The Data Protection Act already has a lot of exceptions built into it to deal with all different types of information. We do not see why this power is necessary. Acts are amended all the time to include information-sharing powers. We think that if this is necessary it should continue, and privacy impact statements should be included to see what the problems are. The issue is that the public are not on board with what the Government want to do, in the sense of sharing information for purposes for which they did not provide it. They do not necessarily trust the Government to hold their information. Allowing not just the Government but private companies or any person at all to share their information, with no real restrictions, is unnecessary and wrong in principle.

Isabella Sankey: As my colleague, Anita, has highlighted, if there are specific examples that the Government can identify where they believe information sharing is required, they should bring those out in the Bill, or another piece of legislation. They should include their purposes, the people who would be able to share the information and all the necessary detail, to see what the Government’s intentions are and whether they are proportionate.

Q 150

Anita Coles: The problem is that we do not know what these order-making powers will be used for. The Government say that they will have perfectly benign purposes. That may well be the case, but obviously if this becomes legislation it will be for any future Government to use as they will. We do not think that order-making powers should be given so broadly, just trusting that the Government will use them benignly. The national identity register will come into force soon with piles of information on people. That could be shared with companies. You could get sharing between private companies and between banks and credit card companies for TV licensing. People’s medical records could be shared for research purposes. The British Medical Association has expressed its concerns about the potential for private and confidential medical information being shared. You could go on and on as to what they could be used for.

Q 151

Anita Coles: Yes, there are protections in a lot of other legislation but there is the power here for an order to modify any enactment, which could mean that it could amend any other safeguards. There is already the potential for those safeguards not to apply. We also have problems, as we have seen, with the Government’s handling of sensitive information. We have seen losses, and the more the information is disseminated the more potential there is for it to go missing or for other problems to arise. We think that extending the measure even further, including extending it to potentially require private companies’ confidential commercial information to be distributed, is not necessarily helpful.

Q 152

Anita Coles: There is nothing to say that it could not. Nothing in the Bill states how the order is to be monitored. The Information Commissioner does not necessarily have any powers to monitor the carrying out of the order and how it is effected. The code of practice in clause 153 will not necessarily apply to the order because the order can modify anything, including the code of practice.

Q 153

Anita Coles: Yes. I think that you have put it well, in that to start with we are very concerned about data loss, the security of people’s private information and the erosions of privacy over the past couple of years. Liberty has been concerned about the national identity register and ID cards ever since they were proposed. We think that they alter the relationship between the individual and the state. There is now the presumption that we have to share all our information rather than being able to keep something private unless it is required. Everything has to be shared. The limits are expanding and there are problems with how they have expanded over the past decade or so. So this is just part of that process and we are seriously concerned about it.

Q 154

Anita Coles: It is very worrying that secondary legislation can amend primary legislation. The point is that Parliament is meant to be involved in making legislation and that any amendments to it should go through a proper parliamentary procedure where it is properly debated. The use of Henry VIII clauses where primary legislation can be amended through secondary legislation is extremely concerning. There has been far too much of it in the last few years. Parliament itself should be concerned about that.

Order-making powers are used by the Executive, whereas legislation should be made by Parliament. Obviously such measures are subject to the affirmative procedure, but that means that Parliament cannot amend the proposed orders. Parliament may agree with 90 per cent. of what is in the order and not the other 10 per cent., but it has no way of amending it. Parliament may then consider on the basis of a very short debate that it is better just to pass the order so that certain laudable objects go through rather than oppose it so that the matter that it is concerned about does not. We think that Parliament should have the ability to decide what legislation should be amended.

Q 155

Anita Coles: The problem with having legislation that would enable such broad-ranging powers is that you will never know what it will be used for in the future. If it is passed, the Bill will be on the statute book for who knows how long. You will never know what powers will be used until the orders are made, at which point Parliament does not have an amendment process or a full debate on the issues involved. Even if you saw some draft orders now, it would not be sufficient because we do not know what orders might come up in 10 years.

Q 156

Isabella Sankey: We have found, as an organisation that does a lot of work on privacy and rights in this area, that the public are becoming more and more concerned about the way in which their information is held by Government, who has access to it, and the security of it.

Q 157

Isabella Sankey: Absolutely. The example you gave is in an area in which information can be passed without consent. There is no question that in certain circumstances, for the prevention and detection of crime, information can be shared. We see that between different policing bodies all the time.

Q 158

Isabella Sankey: Well, there is a principle that information needs to be shared only where it is necessary and proportionate. In that sense, the principle is absolute.

Q 159

Isabella Sankey: Of course, privacy is qualified, as are most of the rights in the Human Rights Act. That does not mean that an order-making power that asks you to rely on the Government striking that balance themselves in any given situation without the scrutiny  of Parliament will be okay. The proportionality as to when and how information can be shared is something that must be scrutinised by Parliament.

Q 160

Isabella Sankey: Liberty would never say that privacy is an absolute principle. We said that the public are concerned about their privacy, which is entirely different from saying that privacy is absolute.

Q 161

Martin Narey: That is not a subject about which I am able to advise the Committee. I understood that I was here to speak about the sentencing council provisions. I am afraid that I know very little about that subject—I did not expect to be asked about it.

Barbara Esam: I am afraid that I am in the same position. This is my first day back from holiday and I expected to be asked about young witness issues. There are other people within the NSPCC who are briefed on that, but I am not one of them. I apologise for that. I can certainly get a written response from the NSPCC.

Barbara Esam: I understand that there is generally considered to be a process whereby paedophiles escalate their activities. There is therefore a concern about that type of material, even where there is no victim. It would be more appropriate for me to ask another member of the NSPCC who has been dealing with that issue directly, as I have not been.

Q 162

Peter Robbins: The Protection of Children Act 1999 includes the making of an image as an offence, and generally speaking the law prosecutes people in such cases with the offence of making indecent images of children, but that does not apply in this case because the Government obviously intend to make possession an offence. That mirrors the recent legislation relating to extreme pornography, as the Government were faced with the fact that there are many thousands of websites of that type outside the UK—we very rarely find any of those sites hosted in the UK.

The Government decided that there needs to be a strategy for dealing with the possession of those images. That cannot be handled with a global partnership approach for taking down and removing those images, because in many countries hosting extreme pornography and computer-generated images is not a crime. We do not have a partnership with other countries that would allow us to do something about it, unlike the indecent images, which we can do something about. That is why there is a distinction between the offence of possession, which the Government propose in the Bill, and the offence of making an indecent image, which is what applies in a real trial.

Q 163

Peter Robbins: That becomes a legal argument about what is tantamount to a possession offence on a computer device. If you keep something you have downloaded, it becomes a possession offence and you can be prosecuted for it. If you are accidentally exposed to it and then delete it, that is fair enough and no one would expect you to be prosecuted. However, if you regularly download such material and continue to delete it, your computer history will show that and you will be prosecuted. Constructive possession on a device can be proved by forensic analysis.

Q 164

Barbara Esam: The NSPCC shares that concern. We think that families have a right to privacy in such situations. We would like the family at least to be asked what their position is on it and to be given an opportunity to make representations to ensure that their details are kept private.

Martin Narey: I am afraid that, once again, I do not know enough about the issue to comment on it. It is not an issue on which we are lobbying. Indeed, we are not lobbying on the Bill at all.

Q 165

Peter Robbins: I have not studied the provisions in the Bill that relate to suicide, because I listen to other organisations, such as Papyrus and the Samaritans, which have done a considerable amount of work in that area. I take an interest in the work that they do, but it is not part of our remit, which is to deal with child sexual abuse content and obscene content. Suicide websites, however, do come across our radar, as indeed do many other topics that relate to illegality in connection with anorexia, bulimia and other things. We have tried to keep a focus around illegality. We do not deal with inappropriate content as such—our remit is the illegal.

In terms of suicide websites, if there are such things—I have not looked into that detail to be able to sit here and say that they would fail the test—but speaking as a representative of a notice and take-down organisation, we are not sure that there are any of those websites in the UK. If there were, they would be something that internet service providers would actually take a view on and remove anyway. If they are abroad, and I am told there may be some, then it would be important to have a partnership with a body we could refer things on to. We cannot issue notices to take down content in other countries’ jurisdictions.

It would be important, as it is with indecent images of children, that we have hotlines in other countries which would mirror our legislation and our activities, so we could have that content tackled, either by police investigation or notice and take-down to the internet service provider or the service provider. The issue of suicide websites and the question whether the law is correct or needs to be clarified are important, but I would say there are difficulties in terms of how you deal with it outside the UK.

Q 166

[Interruption.] I am sure that the Minister can cross-examine once I have finished asking these questions.

There does not seem to be much discretion left there, but the position becomes in my view, more worrying when one adds clause 107 to clause 109, which deals with “Resource implications of guidelines”. We are told that the council has to publish draft guidelines under the earlier clauses. As well as issuing other documents, the council must publish a resource assessment in respect of the guidelines, which will deal with

“the demand for prison places, the resources required for probation provision, and the resources required for the provision of youth justice services.”

Presumably, those resource implications and assessments are to be published for a purpose, namely to influence the sentencer. Do you think that this is a proper way to construct a sentencing regime, or are you concerned about what impact the Bill, as drafted, will have in relation to the sentencing council?

Martin Narey: My understanding of the Bill and certainly, the intention of the working party that made the recommendations to the sentencing council, of which Mr. Howarth and I were both members, was very clear. Discretion should be retained and judges, in the interest of justice, should be able to depart from a guideline for particular reasons. However, it was considered and agreed by the working party that the guidelines should have rather more force than the current guidelines for the sentencing guidelines council. The provision of discretion was central to the working party’s conclusions.

On the second point, about resource implications, while I very much welcome the conclusions of the working party, when I was a civil servant and advising various Home Secretaries, my advice was, and the agreements made with the previous Lord Chief Justice were, that we should go further to restrain the use of custody. That was not necessarily to drive the prison population down, but to put the Prison Service in a position in which it could reasonably plan for the decent care and perhaps even rehabilitation of those in its care. Personally, I regret that the new council will not have to take account of the penal and probation resources at any one time.

Q 167

Martin Narey: The answer is that I think that it goes some way towards what I would have preferred the working party to recommend. I know your view on prisons, and I know that you consider rehabilitation to be important. In my view, the reality is that many people whom we send to prison go for such short periods that any form of rehabilitation is impossible. There are others we send to prison who, if we were using the place more coherently, would stay rather longer to ensure that we had effected rehabilitation or at least a reduction in dangerousness. I had hoped that the council might have gone further and taken greater hold of those whom we send to prison, as opposed to those whom we put on community sentences.

Q 168

Martin Narey: I am sure that ex-colleagues in the Ministry of Justice will study the resource assessments carefully. Rather than the courts or the sentencing council simply telling the Government what resources are needed—although they may still do it in future years—I would prefer that in any one period they try to manage within the current constraints of prison and probation places. Why we ration almost every other public service, primarily health, but we have no rationing of penal or probation resources has always puzzled me. The result is that prisons are considerably less effective than they might otherwise be.

Q 169

Martin Narey: I understand your concern, but I am confident, from the tone of the report and everything that the chair of the committee said that there is an absolute determination in every individual case to ensure that the judge or magistrate is able to take the decision and give the sentence that they feel is appropriate.

A greater danger is that, if sentencing guidelines do not have to pay any attention to the resources that the Government of the day decide to dedicate to prisons or probation, there could be a significant dislocation.

Q 170

Martin Narey: I do not know whether it would be a matter of providing more resources. I realise that this is politically difficult, but I think that there is a good case for putting a limit on the amount that we spend on prisons particularly, but also on probation. I am genuinely staggered at that example. In my 23 years working with offenders, I do not think that I have ever come across a situation in which the court has given a more severe sentence because of capacity problems. Many cases have gone the other way.

I remind the Committee that, until 1982, a child of 17 or under could not be sent to a detention centre unless there was a place. The clerk of the court phoned a detention centre every day to ask whether there was a place. If there was not, the court did something else. The world did not come to an end. We just accepted that we should have a limit on the number of children in custody. I would be delighted if we returned to that principle.

Q 171

Martin Narey: The answer is that you must flex resources. That is not for me any more; three or four years ago it would have been. The head of the National Offender Management Service or the Justice Secretary need to ensure that resources are redistributed, so that there are extra facilities in the community sector. It is nonsense to send anybody to prison who the court determines is suitable for a community penalty.

Q 172

Martin Narey: I agree.

Q 173

Martin Narey: Accepting that you should always allow significant discretion for individual cases, I agree with that, too.

Q 174

Martin Narey: Certainly, the working party saw it as such. The working party was clear that there should be no restraint on an individual judge or bench of magistrates in an individual case.

Q 175

Martin Narey: Yes.

Q 176

Martin Narey: The data are imperfect and I welcome the commitment to improve the quality of data gathering, but I think that we have sufficient data to make a reasonable fist of judging what will be the outcome of certain sentencing guidelines. When I was a member not of the working party, but of the original Sentencing Guidelines Council—I am sorry, but technically, because I was a civil servant, I was an observer on that council—with the help of statisticians from the Home Office, it was able to adjust sentencing guidelines to try to ensure that their consequences would be neutral in terms of prison places. It might not always have got that right, but I think that it got it reasonably correct, and it is better, in my view, that it does that, rather than producing guidelines that bear no relevance to the resources that the Government of the day are able to dedicate to prison places, for example.

Q 177

Martin Narey: I agree with every word of that, Mr. Howarth. Moreover, it also means that prisons cannot achieve what they can. I spent seven years leading the prison and probation services and failed, on any significant level, to make them genuinely rehabilitative. I believe to this day that prisons could be decent, caring, compassionate and rehabilitative institutions, but the pressures of numbers invariably mean that they are failing institutions.

Q 178

Martin Narey: I do not agree with that, Mr. Garnier. I do not understand why, in a world where we expect consultant physicians to operate within the investment available to run the health service and to make decisions based on clinical need where we have waiting lists, there is no rationing whatsoever in the realms of prison and anyone sent to prison today must be absorbed, no matter what the consequences for the effective running of those institutions. I think that it is for the Government to determine the resources that they will dedicate to any public service. In this case, while having the freedom to say that those resources are inadequate, it is for judges at any particular time to match sentencing to those resources. I realise that that is an unpopular view, but I believe that we would have a much more effective criminal justice system if we had that in place.

Q 179

Martin Narey: The guidelines would give the judge or magistrate some direction about what appeared to be the proper sentence in a particular case. They would adjust it, depending on the circumstances, and the working party carefully avoided recommending any rigid sentencing grade. I do not shy away from the fact, however, that the judge should be influenced by what the Sentencing Guidelines Council considers appropriate in a particular case, and I think that, to some extent, there is a chance of depoliticising sentencing. For example, last year in England, we sent into custody 820 children aged 12, 13 and 14. It would have been illegal to send 760 of them into custody in 1995, so why we feel it necessary to do that now is beyond me. A good sentencing guideline would make it plain that the sentencing to custody of children as young as that should be wholly exceptional.

Q 180

Barbara Esam: I would like to mention a couple of matters regarding vulnerable and intimidated young witnesses. I was pleased to see the provisions on young witnesses. A review of child evidence was announced back in December 2004, following the launch of the NSPCC report, “In their own words: the experiences of 50 young witnesses in criminal proceedings”, which involved speaking directly to young witnesses. Out of the review, several recommendations were made, and these provisions were among them. A consultation paper was issued in June 2007, called “Improving the criminal trial process for young witnesses”, which came out of the 2004 steering group. The results of, and responses to, the consultation paper have yet to be published, however, and I do not understand why, given that it has been such a long time since the response period closed. That is one point.

My second point relates to a disappointment about one recommendation that was made by the steering committee, by the Pigot report back in 1989 and by the “Speaking up for Justice” report, which the then Home Office prepared. The recommendation was to introduce a provision that would allow young witnesses to give their cross-examination by visual recording, away from the court setting, and it has been around since 1989, following the recommendations of Judge Pigot. The Bill was an opportunity at least to pilot the provision, but I recognise that it is not a straightforward or easy piece of legislation. In fact, it is already in legislation, but section 28 of the Youth Justice and Criminal Evidence Act 1999 has never been implemented, and we are disappointed.

Having spoken to a number of young witnesses for the report that was published in 2004 and for a report that is about to be published—we interviewed nearly 200 witnesses across the country—we feel that such legislation would be a very positive step for them. I am disappointed that there is not an opportunity to pilot it as a possibility.

Peter Robbins: In terms of the possession offences, the IWF does not have a role in relation to suspects or potential offenders who may be in possession of such images. That is a law enforcement responsibility. However, the definitions are important to us, if there were any websites hosted in the UK that depict non-photographic images. We urge the Committee to ensure that the law is very clear on that subject. The clearer it is, the easier it is for everybody who has to work with it.

The number of websites that are hosted abroad of a cartoon fantasy in computer generated imagery-style is significant. Therefore, the number of people who can download such images is significant as well. Cartoons and fantasy stuff are the sorts of images that children can access rather easily. Again, there is an implication for the criminalisation of young people. Should they be  looking at cartoons, they could find themselves in areas in which there are particularly graphic and sadistic cartoon images.

Q 181

Peter Robbins: I understand that the desire of Government, in this instance in particular, is to catch content at the upper end of sadistic levels. There are examples of images that we have seen—the Committee is welcome to see them as well—where it is not clear whether or not they would fail the current test, because they show people in preparation for sex with a child depicted in a CGI image. The way in which it is described in the legislation is about sexual intercourse. There are acts preparing for and afterwards. There is a grey area in the middle involving the types of images that we can show the Committee, where you can see the difficulties in making a judgment, if such images were hosted in the UK.

Q 182

Martin Narey: My understanding, which is limited on this, is that effectiveness is to be taken into account, but it is acknowledged that the potential for rehabilitation is not the only purpose of sentencing. Punishment and deterrence are also important, and the court will always take them into account.

My understanding is that once the requirements of punishment and deterrence are met, effectiveness will have some significance. I believe that the effect of that—the way that that could work—might be a guideline that considers effectiveness. There is not much difference between, say, an eight-year sentence and a six-year sentence. Given that very short custodial sentences are almost always a waste of time and resources, a community  sentence would be better. However, I accept entirely that there will always be some individuals who are sent to prison with short sentences, because the court primarily wants to deal with the need for punishment and deterrence.

Q 183

Martin Narey: I am not a sentencer, but I think that that is how sentences are approached right now. The court has to look first at the need for punishment and deterrence, and what is appropriate for the crime based on the damage caused to the victim and so on. Only then can it look at effectiveness. In my view, that still leaves a considerable amount of scope for prison sentences in particular that might allow prisons to be used rather more constructively and thereby make a much bigger impact on crime.

Q 184

Martin Narey: There might be an easy solution. When the original Sentencing Guidelines Council was created, there was a great deal of sensitivity about my joining it, because I was a civil servant and a non-judicial member. The previous Lord Justice got around that very easily by inviting me and occasionally others to be full members of the council, but, technically, as observers. I hope that on this occasion somebody who is able to give serious advice on the effectiveness of alternative sentences will be able to take part; otherwise, I fear that we will get into a situation where sometimes the potential impact of very short sentences, for example, may be overestimated.

Ordered, That further consideration be now adjourned.—(Ian Lucas.)

Adjourned till Thursday 5