[Mr. Roger Gale in the Chair]

The Committee deliberated in private.

On resuming—

Good afternoon, ladies and gentlemen. I remind the Committee and our witnesses, those immediately with us and those who are joining us later if they are already in the room, that we are bound by the internal knives agreed by the Committee on Tuesday afternoon. That means that the first session has to end at 1.40 pm, the second at 2.30 pm, the third at 3 pm and the fourth at 4 pm. I have no desire to interrupt Members, as I am afraid I had to on Tuesday afternoon, but if someone is speaking and the clock ticks past, I will have to stop them and move them on.

Without further ado, let us hear the first evidence from the Director of Public Prosecutions, Mr. Keir Starmer. Good afternoon and thank you for joining us. We are deeply grateful to you for coming.

Keir Starmer: It is a pleasure.

My hon. and learned Friend Mr. Garnier will ask about clauses 41 and 42. May I ask you some quick questions about clauses 49 to 52? Those clauses contain various definitions, such as “reasonably be assumed,” “impression conveyed” and “legitimate reason”. Do you think that such terms might be too subjective and might make it difficult to obtain prosecutions for the new offence? How will you interpret those terms in practice?

My second question is about the fear and concern that have been expressed by people in the arts world that there may be items of genuine historic interest that could be brought within the scope of the Bill. I do not think that anyone—certainly no one I have spoken to—has any truck with or time for the warped, depraved individuals who want to look at these things. However, if one looks back in history, some works of art are pretty pornographic. What is your estimate of the likely number of prosecutions annually for the offence of possession of a prohibited image of a child?

Keir Starmer: The interpretation would obviously be a matter for the courts. In so far as this is bringing pseudo-photographs and images into alignment, there have been no practical difficulties with these provisions. I do not anticipate that there will be. In so far as there are artistic considerations, they are obviously recognised. These provisions will inevitably fall within the framework of article 10 of the European convention on human rights and therefore, in so far as any interpretation is  needed to comply with article 10, that will be done by the courts in due course. That, I anticipate, will enable defences to be run that are consistent with article 10. May I come back to you on the question of the number of likely cases, as I am not in a position to give you an answer now?

That is very helpful.

Q243 Mr. Tim Boswell (Daventry) (Con): Briefly, I understand that under clause 49 there will be a requirement for consent by the relevant Director of Public Prosecutions. One would assume that if the image is a prohibited image of a child it should be a fairly open and shut matter of fact. Do you need the safeguard of the DPP and why? What is the thinking there?

Keir Starmer: That goes to the heart of the question of what the consent provisions are for generally. One purpose of the consent provisions is to enable the Crown Prosecution Service, through the DPP, to look at these provisions and to ensure that private prosecutions are not brought in inappropriate circumstances. So there is that additional safeguard.

Q 244

I want to go back to Mr. Bellingham’s question. You may need to cover this in supplement too. The UK has been particularly successful in taking down images of child abuse online, but that whole operation and the co-operation between industry and non-governmental organisations and the enforcement authorities has thrown up a lot of evidence and cases to be investigated—the actual abuse, as distinct from the images online. The likely number of prosecutions and the extent to which success is being achieved in both the investigation and the follow-up of those cases arising out of the identification of images where they are sourced within the UK are important issues. Could you clarify that for us, both in terms of what is happening at the present and the projections?

Keir Starmer: Yes, we will do whatever we can to assist on both those issues.

Q 245

May I ask you a detailed question in relation to clause 49(2)(c)? Does the word “disgusting” add anything useful to the Bill and does it make your life as the Director of Public Prosecutions easier?

Keir Starmer: It is a familiar formula. It certainly does not make life any more difficult. That is exactly the sort of law that would be subject to article 10 consideration.

Q 246

The last time you and I met on a formal occasion was when you were giving me a lecture on the European convention under the Judicial Studies Board, for which I was extremely grateful. I still am. What is the difference between “disgusting” and “grossly offensive” in this context, or

“otherwise of an obscene character”?

Keir Starmer: There is some case law to suggest that the two are slightly different. I accept that in practical reality there are unlikely to be many cases that are sufficiently disgusting but not grossly offensive, but I would not for that reason suggest that it was an unhelpful formulation.

Q 247

An issue that came up the other day when we were talking to the Internet Watch Foundation is how the use of the internet relates to possession. Clearly, if you are downloading images on to your computer, the computer retains a record of the image being in your possession. However, the equivalent of YouTube videos are actually streaming, so they are never on your computer. Is there a legal loophole that means that people would be able to watch those kinds of images without technically being in breach of the measures, when if they watched the same image in a format that involved downloading, they would be in breach?

Keir Starmer: Not that I am aware of. I do not think that that loophole is in this provision.

Q 248

But if someone is watching streaming images online, there would be no actual copy on their computer, so they would not technically be in possession.

Keir Starmer: It would be for the courts to interpret the meaning of possession. We would proceed on the basis that there should be no such loophole.

Q 249

On the question of the definition of “image,” I think that the various references to pseudo-photographs are reasonably clear, and capture the original intention that the Government laid down—to include cartoons or computer-generated imagery that are so lifelike as to look like photos of real children. However, the definition of image—

“a moving or still image...produced by any means”— seems extraordinarily broad to me. If I scrawl a pornographic image on a piece of paper, would it be covered by that definition?

Keir Starmer: I anticipate that it would be.

Is there anything to ensure that what is picked up was originally intended, or is the net so broad that a much larger group than was originally intended could be caught be the provisions?

Keir Starmer: In that regard, the safeguard is in clause 49(2) and the three conditions that have to be satisfied whatever the form of the image.

I am not quite satisfied with that answer, but it is not Mr. Starmer’s problem so much as the Minister’s. I will come back to the issue later.

Q 250

May I talk about encouraging or assisting suicide in the context of the internet? When we talked to the Internet Watch Foundation, its representatives said that they felt there would be a problem with many of the sites that are hosted outside the UK. I do not know whether you have ever seen the content of any such sites. Often, they are not only explicit in setting out the methods used, but explicit in almost hounding an individual to take their life. How difficult do you think it would be to prosecute when a site is hosted outside the UK?

Keir Starmer: The act must be within the jurisdiction, and it depends what the act of encouragement is. It is anticipated that such encouragement would be covered by the provision. Certainly, that is the basis on which we would approach the matter.

Do we have any further questions relating to images of child sex abuse? I just want to ensure that we have dealt with that.

Q 251

I want to refer you, Mr. Starmer, to clause 46, entitled, “Encouraging or assisting suicide (England and Wales)”. The language has been rewritten, according to the explanatory notes,

“with the aim of improving understanding of this area of the law”.

In your opinion, does it change the law in any way, or will the law be just the same with the new expressions? In other words, is there any likelihood of increasing prosecutions with the new wording?

Keir Starmer: We have approached this on the basis that the measure does not extend the existing law, and I am therefore not anticipating that there will be a greater number of prosecutions resulting from the rewording of the offence. That is how we are approaching it.

Are you happy with the rewording? Does it make life more or less difficult than the existing wording?

Keir Starmer: No, it certainly does not make life any more or less difficult than it currently is.

Q 252

I have one further question, about young people who write morbid poetry or song lyrics and might post them up on a social networking site. That would not be done with the intention of getting another young person to think morbidly—hence leading to suicide—but if it happened, could it perhaps be seen as encouraging another young person to take their own life?

Keir Starmer: The answer to that is in clause 46 (2)(b), which states that in those circumstances there would not be the necessary intent. Therefore, on the face of such an example, there would not be a prosecution.

Are there any further questions on assisted suicide?

Q 253

May I add something? Does the DPP have a policy, or anything to say, following Mrs. Moon’s question on whether these sites should stand, or if legislation should be brought in to take them down? It is the same question, posed in a slightly different way.

Keir Starmer: No fixed view, other than that in so far as offences may be committed under this provision, we would obviously consider prosecuting in those cases and would anticipate doing so.

Q 254

This follows up Ms Willott’s issue about watching videos. Videos have been posted, in relation to young people who have taken their lives, on YouTube. With regard to the text and conversations taking place underneath the videos, there have been definite conversations inducing someone to take their life. Words are said to the effect of, “Your brother was a waste of space, we were better off without him and we would be better off without you too”. Would that conversation be covered by this legislation, where someone was actively saying, “You should take your life because you are a waste of space”? Would that be seen as encouraging?

Keir Starmer: I imagine that it would be.

Are there any further questions on assisted suicide? I know Mr. Michael wants to ask about witness anonymity, but in his absence I am going to take live links next and come back to witness anonymity.

Q 255

Mr. Starmer, I hope you do not mind, but I used in aid your reported views about television cameras in courts on Tuesday, when I urged the Lord Chancellor to let them in. Coincidentally, I am asking you about a different kind of cameras in courts now with live links—clause 89. What would be the considerations if we removed the safeguard of the accused being able to decline appearing by live link for the practice of prosecutors in future?

Keir Starmer: The removal of the consent provision will make the use of live link much more effective. There are obvious concerns about the fairness of proceedings, but there are a number of safeguards in the provisions which are important in that respect. First, they do not apply to trials. Secondly, they do not affect the right to be represented by a solicitor. Thirdly, the court has to be satisfied as to the interests of justice. Finally, and overarchingly, there is always the safeguard that the scheme must comply with article 6 of the European convention, and be adjusted in any way that makes that necessary, on a case by case basis.

Q 256

Whose responsibility do you understand it would be under the Bill to determine whether it was in the interests of justice to proceed by live link? It is not very clear whether the defence are supposed to raise this or whether the prosecutor should consider it.

Keir Starmer: It is the court’s responsibility. It would fall on us as a prosecuting authority to consider that, but it would also fall on the defence to raise it. Ultimately, it is a matter for the court.

Q 257

You relied on article 6, but in its representation Liberty thought that several articles of the convention were potentially breached by that. It mentioned article 6, the right to a fair trial; article 5, the right to liberty; and article 3, which concerns degrading treatment. Are you satisfied that the provision in the Bill at the present time is compliant with the Human Rights Act 1998?

Keir Starmer: On the face of it, yes. As far as article 5 is concerned, if an individual is in custody they are within article 5—whether they are in a police station or in the courtroom, they would still be considered under article 5. I am not sure how the argument is put that article 3 is engaged by this process.

Are there any further questions on live links? We move on to witness anonymity.

Q 258

On the one hand, how do you ensure that witness anonymity orders do not become routine? On the other hand, how do you deal with the question of anonymity, not in the high-profile cases that seem to be the majority where witness anonymity orders are being used—protecting undercover officers and that sort of thing—but in the situation where severe intimidation and low-level nuisance activity, including activities against property, can cause real problems within a local community? Could you give us some idea of how you think that will work?

Keir Starmer: To ensure that the orders do not become routine, there are a number of safeguards. An application is identified by the police and passed to the Crown Prosecution Service. We then consider that. That is done at a high level by the heads of our complex casework units or the specialist divisions in London—they are all senior lawyers and they have to personally sign off on that. The application then goes to the court, which applies the criteria and either allows the application or not, according to the legislation. In the cases so far, it appears that that works well and provides the necessary safeguards. We then have, as it were, an after-the-event safeguard, which is that we collate the figures monthly. They are all shown to me month-on-month so that we have a proper view of the working of the system.

Q 259

In some ways it is easy to see how those judgments are made when you are dealing with, for instance, undercover officers, but more difficult to see how the process operates when you are dealing with local levels of intimidation—which most MPs are used to dealing with through our casework experience, and which can be quite worrying.

Keir Starmer: Where that occurs it is identified by the police. They take a view on whether it qualifies or not. If it does not qualify, then these provisions obviously do not apply. If it does, then it goes through the process that I described.

Q 260

Are you satisfied that in the current process those move through that system adequately and that the proposals in the Bill will enhance the working of that system?

Keir Starmer: Yes, I am. It is working very well.

Q 261

May I ask about both witness anonymity and anonymity in investigations—which comes slightly before that in the Bill? In relation to anonymity in investigations, which starts at clause 59, do you understand the reasons for, and if you do understand, do you agree with, the Government’s decision to limit the qualifying offences to murder and manslaughter? Is there not an argument for extending that to offences of serious violence, such as section 18 of the Offences Against the Person Act 1861? We are dealing with gangs and trying to proceed more effectively against gang members. If we limit it to murder and manslaughter, surely we may miss out some of the nasty things that those gangs do.

Keir Starmer: Those are exceptional in their nature. I understand that the provisions have been drafted with a view to achieving a balance between what would be the usual procedures and the exceptional procedures. A line has been drawn in in clause 59(2). It is to achieve that balance and to ensure that it operates at least in those cases.

Q 262

Do you have any concerns about the age limits that have been imposed for these sorts of matters—I think it is 18 to 30?

Keir Starmer: It is 11 to 30.

Q 263

Forget the lower level; let us think about those above 30.

Keir Starmer: The intention is to deal with gangs that have certain characteristics. That is why the age limit is there. It means that we will have to consider carefully the evidence that we have before making applications on our own behalf or, where relevant, advising the police on such applications. Again, this is an attempt to balance what in some ways is quite an exceptional measure with other cases.

Q 264

Am I misleading myself? You and the Crown Prosecution Service are not an investigating authority within the terms of clause 60(2) on page 35. Presumably, it will be your representatives who make the application to the court. Is that right?

Keir Starmer: No. A number of bodies can make that application and we are one of them. Applications can be made separately by the police and probably will be at the pre-charge stage. We are more likely to make an application at the post-charge stage or in a case where we have been involved in the pre-charge investigation. I anticipate that many such applications will come through the police.

Q 265

Let me ask you about the anonymity of witnesses in clause 69 and following on page 40. As you will recall, Parliament introduced the emergency legislation at the end of last July when your predecessor was in post. To what extent has emergency legislation been used in the intervening period between now and then, and have you found it of practical use? Would you like to see any differences in the legislation that we passed then, compared with what is in the Bill?

Keir Starmer: I will try and give an indication. We have the full figures for the period of July to December 2007 and the position is as follows.

During that period, the police identified 137 cases for application. Within each case, there may be more than one witness. Therefore, within those 137 cases, 346 witnesses were referred to us. We considered those witnesses and made applications in 135 individual cases—that is 135 of 346, not 135 of 137. Of those 135, 129 applications were granted: 43 for civilians; 35 for undercover police; 49 for police test purchase officers; and two for other investigators.

Six were rejected and we have analysed those rejections. All the cases were rejected in the Crown court and all involved civilians. In the main, they involved the court’s opinion that what are now conditions B and C in clause 71 were not satisfied. The cases generally turned on questions that arose during the course of the proceedings, where a different light was put on the overall situation, and/or it was considered that the witness did not add sufficiently to the prosecution case to warrant the making of an order. None of the cases involved threats to property.

In that sense, it appears that the measure is working well. In the cases that we have considered, there is a high success rate when they are put before the court. We have analysed the refusals for any patterns or difficulties and there are none, apart from things that are thrown up on a case-by-case basis. The only difficulty has been dealt with by the amendment to condition C, which ensures that it reflects the public harm or public interest rather than the witness not being likely to give evidence. From analysing the cases month by month over the six months,  it appears that the system works well, that the safeguards are in place and that there is a good correlation between the applications we make and their success in court.

Q 266

Are the applications made predominantly in the magistrates court or the Crown court?

Keir Starmer: Predominantly in the Crown court. I will try to give you the figures. Of the 137 cases that have been passed to us for consideration, 133 were in the Crown court, three were in the magistrates court and one was in the youth court. That batch is still in the pipeline so I cannot give an overall figure. Not all of those applications will necessarily be made because we act as a filter, as do the courts. I hope that that information gives a sense of the proportions over the six months. The cases are predominantly in the Crown court and all the refusals have been from Crown court cases.

Q 267

Are the cases in the magistrates court in front of district judges?

Keir Starmer: I am not aware of the individual cases before the magistrates court because the 137 cases are all in the pipeline. Which of those cases have got to a magistrates court at the end of the process has not been analysed. I can certainly try to ascertain whether any of those have passed up to the court level yet and received a decision, and if so, what the composition of the bench was. I will try to make that available.

Q 268

I am not just trying to throw tedious questions at you. I am interested in how this is applied. We all agreed last summer that this is a required amendment to criminal law. The Bill requires the investigation element of the orders to go before a justice of the peace. From your experience of witness anonymity orders, which were mostly in front of the Crown court apart from three that were in front of magistrates, would it be more appropriate as a matter of practice for investigatory anonymity orders also to go in front of the Crown court?

Keir Starmer: The two are different and they apply at different stages. They are different in their nature and in their extent. Let me make it clear that three cases have not necessarily gone before the magistrates court yet. Three have been put up for consideration that would be in the magistrates court. It is difficult to say what the experience in the magistrates court is because we do not have that hard evidence. We might not consider those three cases to be suitable, in which case they would never be put up. It may be that they are and at that point we will have information on how the magistrates approach them. I am sorry that we do not have that evidence now.

The next question will be brief.

Q 269

I have a point of detail on clause 71(3), which outlines the first condition of which the court must be satisfied to make a witness anonymity order. Much of it is fairly clear. We understand what is meant by,

“in order to protect the safety of a witness”.

Paragraph (b) appears to relate to the activities of undercover officers of various sorts:

“in order to prevent real harm to the public interest (whether affecting the carrying on of any activities in the public interest or the safety of a person involved in carrying on such activities, or otherwise).”

I would be grateful for your help in understanding the meaning of “or otherwise”, which is less clear. What situations would your authority use “or otherwise” to cover in applying for a witness anonymity order?

Keir Starmer: I think that it would be sensible if I came back to you on that. The records we keep are quite detailed. Rather than attempt it sitting here I might be able to give some meaningful evidence about that, which I will attempt to do.

Thank you. The clock has beaten us. Mr. Starmer, we are very grateful. You have assisted the House and Committee to a considerable extent.

Could I have the next witnesses, please?

Good afternoon, lady and gentlemen. We welcome Mark Stobbs, director of legal policy at the Law Society; Linda Lee, deputy vice-president of the Law Society; and Peter Lodder, QC, chairman of the Criminal Bar Association.

Q 270

Thank you for coming. Could I ask you about the changes in the Bill affecting the law of homicide provocation? Starting with Mr. Lodder, are you satisfied that what we see in the Bill now adequately answers a real or perceived problem in relation to the law of provocation?

Peter Lodder: There is a number of problems in the area of provocation, not least the state of the law at the moment, under which provocation is a matter that has to be left to a jury—even if it has not been raised by any party in the course of the trial—if there is some basis for it. The basis on which it continues to be left to the jury can be, if one is completely open about this, somewhat flimsy. It is rather strange for juries dealing with murder cases to be told by a judge right at the end of a trial—the issue not having been raised at any stage beforehand—“By the way, you can consider the issue of provocation”, and then to hear him identify what it is that might support such a finding. To that extent, there is undoubtedly some change required. Whether it is the change as formulated in this Bill is another matter.

Although we are in broad agreement with what this Bill seeks to achieve under the heading of “loss of control”, we have a few reservations. We are not presently very happy with the title “loss of control”. I appreciate that this is an attempt to break away from the law as it has been but provocation seems to us a clear English word. The suggestion made by the Law Commission in its report was that the word “gross” be added before it so that the jury could understand the threshold for achieving it as a partial defence. We are supportive of that. We wonder a little whether “loss of control” conveys the right message. I appreciate that when one looks at the individual clauses there is some explanation of what is meant but, inevitably, because defences tend to have tags that everybody easily and conveniently refers to, it will be called the “loss of control defence”. In our view “loss of control” does not convey the same standing or high threshold as “gross provocation” would.

Apart from that general observation, we do have specific reservations about the sexual infidelity clause. We have set out in our briefing document—a copy of which I hope you have—two examples of situations where sexual infidelity as a root cause might give rise to provocation or loss of control, but in a factual matrix which is not dependent solely on sexual infidelity. We understand and we do not disagree with the Government’s desire to stop spouses thinking that they are justified in killing each other simply because they have strayed outside the marital vow of fidelity. However, we are concerned that the Government seek with this clause to discount it completely in every circumstance, so we have reservations about it.

Q 271

Before the others come in, do you also have a reservation about the proximity of the provoking event to the killing?

Peter Lodder: This is a difficult area. The word “sudden” will be removed by the Bill and, as I understand it, the Government are trying to deal with what are sometimes called the slow-burn cases, in which, for example, a wife is exposed to a continual pattern of abuse, be it violence or another type, and eventually loses control—to use the new phraseology. We have concerns about that, although we have sympathy with the Government’s objective and can see that there is a purpose in having a clause that deals with those scenarios.

Q 272

Do you see a problem in trying to marry—sorry, that is the wrong word to use—the ability to deal with slow-burn provocation or loss of control and clause 41(4), which outlaws a considered desire for revenge? It is on page 25:

“Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge.”

Are courts going to find it difficult to distinguish between a slow-burn but none the less “justified” loss of control and a considered desire for revenge? The two may sometimes merge.

Peter Lodder: They may, and that is where a jury comes in. Our understanding of how it is likely to be put in a court is that there will be an element of the straw that broke the camel’s back, so a trigger incident will eventually be the cause. If the factual background is that there has been a sustained period of abuse and then deliberate plotting and nothing happens, save that a week or so later there is an event that leads to the death of whichever spouse, the subsection may create that difficulty, yes.

Mark Stobbs: We broadly agree with everything that the Bar Council has said on that. We think that it is unfortunate that the Government have not implemented the full recommendations of the Law Commission, which provided, we thought, a very elegant way of avoiding the problems that a mandatory death sentence causes and that the existing—

Q 273

Do you mean mandatory life sentence?

Mark Stobbs: Yes, mandatory life sentence, I apologise.

Q 274

You are talking about murder one, murder two.

Mark Stobbs: Yes, and the defence of provocation arose in an attempt to avoid that in sympathetic cases. We think that the proposals probably help a bit, but we share the Bar Council’s view on the sexual infidelity terms, which seem far too broad and may cause substantial difficulties for juries and judges.

Q 275

Do you think, either as individual organisations or together, that it would be appropriate for you to present an amended scheme for clauses 46 and 47 that meets your concerns without destroying the Government’s purpose, which they are always keen to maintain.

Peter Lodder: Do you mean 46 and 47? The clauses about encouraging or assisting suicide.

Q 276

Sorry, 41 and 42.

Mark Stobbs: I am sure that he is very happy to do that.

Peter Lodder: I have not had the chance to discuss this, because, I confess, I did not have an opportunity beforehand. We have considered a possible alternative, however; indeed, I have brought along some photocopies of the document. If it might assist you, I am happy to distribute it and, for this purpose at least, to read it into the record. We consider that it might be appropriate to add,

“unless the fact that the thing done or said which constituted sexual infidelity is relevant to other things done or said (or both) which do not constitute sexual infidelity but which are put forward as qualifying under subsection (4) of this section.”

Its purpose is to cater for the situation in which there is a mixture of sexual infidelity and taunting, as in our two hypothetical examples.

Q 277

May I ask that those bits of paper be distributed?

Peter Lodder: It was prepared slightly on the hoof, but it will help to guide some thought on the issue.

Q 278

Yes, indeed. You are a criminal law practitioner, you know about this and you will have seen the practical consequences of badly drafted criminal justice legislation that has been passed into law. You will also appreciate that, at some stage, a judge will have to sum up to a jury and, although I may have political differences with the Government, we share the desire to ensure that, if we are to pass a criminal justice Bill every year, we make it as sensible as possible. So, any assistance that you could give on the drafting would be gratefully received.

Order. One moment. It is a trifle unorthodox, but I am prepared to allow the paper’s distribution if it is to the Committee’s advantage. I want to ensure, however, that every member of the Committee has a copy.

Thank you. Mr. Lodder has read it out, too, so it will appear in the report of the Committee’s evidence session.

Are there any more questions?

Q 279

I have been trying to get to the bottom of a statement in the Bill’s impact assessment. It says that the provisions on homicide will result in 100 to 200 more people being in prison. The Government have clarified that to mean that 10 to 20 people a year will be convicted of murder rather than of manslaughter, but we are trying to understand where the Bill provides for that.

I shall start with the sexual infidelity aspects of the Bill. How common is it these days for a simple sexual infidelity provocation—of the sort that Mr. Lodder described—to succeed? I notice that he was prosecuting in a case that is often cited, so perhaps he could start. Are these cases so common that they, themselves, would account for the 10 to 20 cases a year?

Peter Lodder: I am not aware of such a case involving purely and simply sexual infidelity.

Q 280

Often, I notice in the reports that diminished responsibility and provocation go together in such cases. Is that quite common?

Peter Lodder: There are some cases in which, frankly, you will run any defence you think you can possibly run, because there is a rather overwhelming case against you. But, if you are to run diminished responsibility, there has to be some medical basis; you cannot conjure it out of the air. So, if it is available to you and a real basis, of course it would be run as a defence. Provocation may run in tandem, but, as I have said, the difficulty with provocation is that the judge can raise it at the trial’s conclusion even though one of the parties has not raised it as an issue in the case.

Q 281

It appears to be the Bill’s major law-tightening reform. Would that, in itself, account for the 10 to 20 cases a year?

Peter Lodder: Not in my experience. In my opinion, where provocation is raised under the circumstances that I outlined at the beginning, and which we have just discussed again, it rarely causes any change in the jury’s view.

Q 282

Are there any other parts of the new defence of loss of control that might account for an increase in the number of convictions for murder?

Peter Lodder: I do not think so.

Q 283

Could it be in the diminished responsibility area then? Is there a distinct tightening in diminished responsibility that could account for an increase in convictions?

Peter Lodder: I ought to say that obviously you are asking me questions about somebody else’s analysis, and I cannot comment on how they arrived at that analysis. I can see how it is possible that the tightening up of the diminished responsibility rules might affect conviction rates, because the existing situation is less clear than it is under these clauses. So, possibly yes, that might tighten it up.

Q 284

May I give you an example that I raised on Second Reading, though perhaps without detailed analysis? Is it possible that the tightening of the diminished responsibility defence in clause 39 would  mean that more mercy killers were found guilty of murder rather than manslaughter, for example, because of the requirement for a recognised medical condition—the present law is much looser—or because of the tightening of the causation requirements? No strict causation requirement at the moment links the abnormality of mind to the fact of the offence. In the Bill we have much stricter causation-type requirements. What would be the position of a mercy killing case under those provisions?

Peter Lodder: I cannot see how, on proper analysis, a mercy killing could come within diminished responsibility. In the ordinary course of events, a mercy killing is a reasoned decision, based on wholly different criteria: the individual concerned is acting in pursuance of a request, or on their assessment of the quality of life of the person whom they have decided to kill, albeit mercifully. I do not quite see how they could then rely on diminished responsibility, but in any event I do not think that someone acting in those circumstances could be said, even under present law, to be acting under an abnormality of mind. One of the virtues of these clauses is that they move away from a phrase that has no medical basis; abnormality of mind is not a medical term. I am not sure that I can help you much further.

Q 285

One often sees—

Mr. Howarth, it is difficult to hear you; please try to address the microphone.

Q 286

Mercy killers are often found guilty of manslaughter rather than murder. One cannot see how provocation can presently apply, so if one cannot see how diminished responsibility would strictly apply, and it is difficult to see how a mercy killing could be involuntary manslaughter, what is going on there?

Peter Lodder: It is the inalienable right of a jury to make that decision, and that decision is not subject to any subsequent analysis.

Q 287

Witnesses will no doubt be relieved, or not, to know that I am a layperson and will therefore allow myself to be a little more flat-footed than some of these legally qualified commentators.

I wish to return to the question on provocation, that a defence should be that D has a justifiable sense of being seriously wronged. As constituency MPs, we all have many people coming to see us with a sense of being seriously wronged, even if those wrongs are not homicidal in intent. Can our witnesses explain what it would be to have a justifiable sense of being seriously wronged? Could that be defined for a jury, and could it be ensured that it was consistently interpreted across the various courts?

Peter Lodder: You are looking, are you not, at clause 42(4)(b). That is linked to paragraph (a), which specifies something that

“constituted circumstances of an extremely grave character”—

so I think that puts it into a pretty limited context in any event. In that limited context, paragraph (b) in addition specifies something that

“caused D to have a justifiable sense of being seriously wronged.”

If you go back up to clause 41(1)(c), the person against whom this assessment is made is

“a person of D’s sex and age, with a normal degree of tolerance and self-restraint”

and that person, in the circumstances of D,

“might have reacted in the same or in a similar way to D.”

It is not dramatically different from current law—it is expressed slightly differently—in its purpose.

Q 288

That is genuinely helpful to me, and I am grateful for your road map in interpreting this. Do I then interpret what you have just said as meaning that the justifiability or otherwise of this sense of being seriously wronged is not so much on the facts of what the wrong, or alleged wrong, was, but rather on the circumstances relevant to a person of the defendant’s sex and age with a normal degree of tolerance—in other words, it is rather more a subjective test in relation to the defendant than an objective test on the facts of what is or it not wrong, or an act of wronging them.

Peter Lodder: If you start with clause 42(4), the loss of self-control is

“attributable to a thing or things done or said...which—

(a) constituted circumstances of an extremely grave character”.

There is an objectivity to that test to begin with, which is a general objectivity. You then have to link it to (b) and follow the road map, as you have described it, back up to see what a person of the characteristics of the defendant might be expected to do under those circumstances. You are actually covering quite a wide terrain.

Q 289

So to use my formulation there is both an objective test about how grave this matter is and a subjective test that the person in that context might be expected to have a justifiable sense of wrong about what had happened. I notice that the other witnesses are nodding at that.

Peter Lodder: Yes.

Do you want to add anything, Mr. Stobbs?

Mark Stobbs: No, I agree with that entirely.

We appear to have dealt with provocation and assisted suicide. I know that Mr. Garnier wants to talk about sentencing. Are there any questions on special measures, witness anonymity, live links or bail?

Q 290

Mr. Lodder, am I right in thinking that the Bar Council does not have any particular objections to removing the safeguard of the consent of the accused to having live links from police stations and prisons?

Peter Lodder: It is not something that we have made a particular feature of. I think the Law Society has made observations about it and, indeed, although we did not put it in our note, I became aware of its concerns subsequent to our note. I think it right to say that in general terms we support what the Law Society has to say about this. We think—I put it very simply—that there is virtue in ensuring that a defendant sees those  who represent him as soon as possible. There are dangers, in the sense that if someone becomes disenchanted with the justice system, and does not have a chance to see his lawyer and gain the confidence that I am afraid does not exist with a remote link—it is a dehumanising process, certainly in that context—the savings that are otherwise sought generally in the justice system may not be achieved. But, beyond those general observations, I have nothing else to say at the moment.

Q 291

Thank you. Mr. Stobbs, do I understand that the Law Society’s position is to draw a distinction between live link appearances from prison and live link appearances from the police station?

Mark Stobbs: Yes, it is.

Q 292

So does that mean that you have no objections to removing the safeguard of consent for people who are in prison appearing by live link?

Mark Stobbs: Our understanding is that when you are in prison you have had access to legal advice; you have usually had some time to think about things and establish what your position is. The usual course is that the hearings that happen while you are in prison are of a relatively technical, case-management nature. They are not as serious as your first appearance in front of a court, when you have to decide on your plea, when there are issues of bail to be sorted out, and when it is extremely important that you have had proper access to legal advice, given the proximity to your arrest and arrival in the police station. It is not clear to us that that will be achieved under the scheme. We think that it should be delayed at least until the pilot is over so that we can assess that properly.

Q 293

I have not seen an example of the pilot, but would the duty solicitor not be shoulder to shoulder with the accused in the police station. Would not all the advice and discussion take place before the cameras are switched on?

Mark Stobbs: There are issues with the availability of the duty solicitor and with the defendant having access to the lawyer of their choice. We would like to see how this works in the pilot before consent is taken away.

Q 294

The court has to be satisfied that it is not against the interests of justice to carry on like this. Is it possible that the court would not ever proceed if the accused said, “I haven’t met my lawyer yet.”?

Mark Stobbs: I suspect that it is unlikely. There will be an issue about the amount of time that the defendant has in which to see their lawyer and for the lawyer to assess properly the defendant’s capacity to take decisions.

Linda Lee: As Mr. Lodder said, one of our concerns is the dehumanising effect that the measure could have. It is possible that the court will not be aware of the state of mind of the defendant by video link. Until we are certain about how that works out, we would be loath to withdraw consent.

Q 295

May I ask something about special measures for witnesses and then something about special measures for a defendant? The Bill provides automatic eligibility for witnesses under 18 to have  special measures for particular gun or knife crimes. Do Mr. Lodder and Mr. Stobbs think that there is logic in a particular section of offences being treated in this way? It severs the link that exists between the need or wish of the witness to have special measures and the fact that without them the evidence would be of a lower quality. The measure says simply that if it is a particular category of offence, there will be automatic eligibility. We all understand the political reasons for singling out those offences. Are there legal reasons for doing it?

Peter Lodder: I will leave Mr. Stobbs to start.

Mark Stobbs: We are unaware of any legal reasons for the separation of gun crime. We think that it is a largely political point. We understand the imperative, but are not sure why a special case for one group of offences should be in the Bill.

Mr. Lodder, can you think of any?

Peter Lodder: No I cannot, having been given the opportunity.

Q 296

The other question I have is about clause 87 on the examination of the accused through an intermediary. We all understand how interpreters are used in criminal courts, but this is slightly different. The difference is in proposed new section 33BA(4), which sets out the function of an intermediary as to communicate

“to the accused, questions put to the accused, and ... to any person asking such questions, the answers given by the accused in reply to them”.

So far, so good. That is similar to an interpreter. It goes on to say

“and to explain such questions or answers so far as necessary to enable them to be understood by the accused or the person in question.”

Does that additional element cause any concern to any of you?

Peter Lodder: If you are drawing a parallel with interpreters, the interpreter’s oath is to

“interpret and true explanation make”.

This is a form of interpretation so in principle, that is not a problem. When a court is receiving evidence through an interpreter, it is always of the greatest importance for the tribunal to be vigilant to ensure that there is faithful interpretation of what is being said. There are often times when a witness gives a long answer and the interpreter comes out with a translation that seems remarkably shorter. That is often a trigger for a judge to remind the interpreter of the importance of the proceedings. There is also on occasions a tendency for a discourse to build up in the witness box. The advantage here with an intermediary is that it will not be quite so shrouded in mystery as it might be when there is a language which no one else in the court speaks. If you straitjacket an intermediary by requiring them not to give any explanation at all, you will diminish the advantage of the intermediary’s presence.

Mark Stobbs: The Law Society agrees with that entirely and supports this. We think that it is a useful way of improving defendants’ ability to participate in the proceedings properly.

Thank you. That is very helpful.

Now we move to sentencing.

Q 297

I am looking at clause 100 and the following clauses beginning on page 60, and particularly clause 107 and how that is to be construed with clause 109, “Resource implications of guidelines”. We have heard arguments on both sides of this dilemma. There are those who point to the fact that the Bill says:

“Every court—(a) must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case, and (b) must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function, unless the court is satisfied that it would be contrary to the interests of justice to do so.”

That does not sit very well, they say, with these resource assessments set out clause 109. The clear inference must be that these resource assessments are not being written in the air. They are being written in order to influence sentences. Do you as representatives of the Bar and of the Law Society have a view about the constitutional propriety or the practical good sense of these two clauses?

Peter Lodder: As to the constitutional propriety, obviously judges are there to follow and to act according to the law. If this is the law then a judge is obliged to follow it. But it creates a tension in the sense that, as a member of the judiciary, the judge is supposed to have some discretion to assess the sentence that would be imposed as against the circumstances of the offender and the circumstances more generally of the offence. We have indicated in our response our unease with the way in which there has been a reversal of the existing situation into the position in which a judge is directed to follow the guidelines. We feel, first, that this is an unnecessary change and, secondly, that is undesirable because it will create a form of straitjacket on judicial discretion which we do not think is a good thing.

Mark Stobbs: The Law Society would agree with that. We believe very strongly that judges should have full discretion.

Q 298

Do you think that it would be better perhaps, looking at clause 107, for us to invite the Government to say that every court must, in sentencing an offender, take account of as opposed to follow any sentencing guidelines?

Peter Lodder: That is the current situation. The current phraseology is “have regard to” the guidelines.

Q 299

That is the preferred outcome?

Peter Lodder: Yes. This is an age-old tension between what the judiciary do and what the Government think is appropriate. To that extent, it is a political decision. In my experience, and of course there will be examples to the contrary, most judges are careful to attend to the guidelines. Even in these clauses as currently drafted there is still the facility for judges not to follow the guidelines. The emphasis is much changed. If there is concern that there will be maverick decisions, strictly speaking there still can be, but the trouble is that the balance of decisions is shifted by this.

Q 300

Do you get any comfort from that sub-clause at the end, at the top of page 65,

“unless the court is satisfied that it would be contrary to the interests of justice to do so.”?

Peter Lodder: That is what I mean by the change in emphasis. It puts it on to the court to argue against authority and say why the court has taken the course that it has. It may in that sense mean that judges are less likely to exercise discretion based on the circumstances of the case.

Q 301

Am I right in thinking that at the moment judges and magistrates have to have regard to the sentencing guidelines and if they go outside them they have to explain?

Peter Lodder: In general, courts have to explain the reasoning behind their sentences and there are some statutory requirements when a particular option is taken—for example, why they have not imposed a custodial sentence or why they have taken a particular course with regard to a community penalty. The Judicial Studies Board already issues screeds which judges have to read out as they pass a sentence in a court, explaining why they have come to the decisions that they have. In general, an explanation is proffered in any event.

Q 302

Briefly, just so that I am clear in my own mind, you are saying that there is no withdrawal of the various considerations. All the balls that are already in the air continue to be, but they have a slightly different weight or consequences.

Peter Lodder: It has reversed the position. Instead of saying “having regard to” it is saying “must follow”. If you do not follow, explain why. That is the way it would be under this clause.

Q 303

Given that nothing is impossible—as you say, they are rebalanced—the only point in making such a change is to affect the operational situation and in effect to influence the sentences that judges give. Otherwise, there is no point in changing the law.

Peter Lodder: That is likely to be the effect.

Q 304

No doubt. Governments and bureaucracies of all sorts like to collect information in order to make public policy decisions about the health service, roads, defence and other forms of public spending. I assert that the criminal justice system is no different in that regard. Do you think that the resource implication assessments referred to in clause 109 ought expressly to be directed towards the Ministry of Justice and those who are designing the prison or community punishment estate rather than towards sentences? It has been put to us by those who disagree with me that these resource implication guidelines and resource assessments will have no fetter on judicial discretion—it is simply a way of collecting information so that we can design a criminal justice system based on available resources and deploy them in an intelligent way. My suspicion is that it will build into a form of insidious pressure on the judiciary to sentence in a particular way. Am I being unduly cynical, or do you think there is a practical purpose behind clause 109 that will be of value to the criminal justice system?

Peter Lodder: I confess that I have not heard an explanation of the reason behind clause 109 so I do not know. Reading it, it is capable of a sinister interpretation. Whether one makes that interpretation is up to the individual.

Q 305

Briefly, I wonder whether the witnesses accept that there is a public good, particularly in respect of public confidence in the system, in having guidelines that generally ensure some sort of consistency in sentencing in respect of particular crimes? That is why we have guidelines. Do the witnesses accept that that is the case? Otherwise, there would be no point in having guidelines at all.

Peter Lodder: There is undoubtedly value in having guidelines. Judges up and down the country are dealing with cases day by day, which may be generally similar, and if the effect of guidelines is that they achieve some degree of uniformity or consistency, that is a good thing. The difficulty with guidelines is that they cannot cater for every situation—if they tried to, they would become inflexible. The saving grace of a guideline is that it is available but you are not bound by it. You may draw upon it and follow it where it applies, but you have the facility to stand outside it when it does not apply.

Q 306

Given that the Government’s position is that it would be unacceptable for any legislative framework such as this to fetter the discretion of the individual judicial office holder doing justice in an individual case, do the witnesses accept that clause 107 (1) (b)—

“unless the court is satisfied that it would be contrary to the interests of justice to do so”— preserves that discretion? In fact, it may be in the interests of justice in any or every particular case for the judge or magistrate taking the decision, with the facts and the defendant in front of them, to make that decision. The framework, as set out in the Bill, does not prevent that.

Peter Lodder: The framework does not necessarily prevent them from doing it, but courts always act in the interests of justice—it is their reason for being. Currently, they are required to have regard to the guidelines in any event. My question rhetorically—I appreciate that I am not allowed to ask you questions here—is that these features are already in place and what you are proposing is not changing them, so what is the purpose behind it?

Q 307

On this point, because of the provision that we are discussing at the moment, I want to return to something that Mr. Lodder said earlier about the possibility for maverick decisions being retained. Currently, we know that judges have the opportunity to disregard the guidelines, if they so choose. The Bill will retain the opportunity for them to do so, but only if they can demonstrate that it is interests of justice. We know from clause 102(11)(d) that the sentencing council has to take into account

“the cost of different sentences” and, presumably, construct sentencing guidelines that have cost considerations, but the Minister has made clear to us on many occasions that the decision of an individual judge will not be subject to cost considerations. Are we setting up potential problems between those things? Is it possible that, on an increased number of occasions, the sentencing judge will invoke the provision that it is not in the interests of justice for him or her to follow the sentencing guidelines because, given that they include an element of cost, that judge does not think that they are relevant to a particular case?  

Peter Lodder: A judge would be very reluctant to do that. You sentence according to the relevant principles for the punishment or rehabilitation of the offender. If you sentence according to cost implications you come back into the realms of—I cannot remember, was it a year or so ago?—judges saying, “I’m not sending you to prison, because I have been told that they are full and our political masters say that I must not send any more people to prison.” It is wholly wrong, in our judgment, for any sentence to be passed on that basis. I can appreciate that the tension may exist.

Q 308

But my question was about the Bill becoming law and that tension increasing, because the sentencing council will have included cost considerations in its deliberations and drafting of the guidelines. Up to this point, that has not necessarily been the case.

Peter Lodder: I agree that it will be there. The difficulties for the individual judge will be that, first, while that factor may have influenced the sentencing council, it does not become part of the criteria for assessing a sentence for that particular offence. Secondly, a judge could not use it as a justifying factor in the interests of justice, at least in my judgment. I do not see how cost implications come into the interests of justice in the sentencing exercise.

Q 309

We are in danger of turning judges into administrators rather than leaving them as judges. We were given an example—[Interruption.]

Order.

In a previous sitting, another witness gave us the example of a magistrate who had the option of sentencing somebody to a community sentence that might cost £30,000, or a community sentence that might cost rather less—

Peter Lodder: Do you mean a prison sentence and a community sentence?

These are his figures; this is just an illustration. In that case, the magistrate would clearly be better advised to go for the cheaper option if it was as effective. I find this a difficult—[Interruption.] I am sorry the Minister is mumbling. She can ask a question in a moment. If it is not the Minister, it is somebody else.

Having to make an economic decision while deciding what is in the interests of justice is a difficult concept for an independent judge to have to come to terms with. It may be something that they will have to do, and it may be possible for them to do it, but I wonder whether it is desirable.

Peter Lodder: I think that I have answered that already. In my judgment, when courts impose a sentence, they must do so according to what fits the crime. I would have thought that the public at large would not be happy about a tribunal making a decision based not only on what is appropriate for that crime and offender, but on what can be afforded by the institution that will provide either the community sentence or the accommodation for somebody who is in custody.

I find it slightly surprising that it is necessary for me to remind the Committee that the object of the exercise is to ask questions of the witnesses, not to argue with each other. That comes next week. We have a few minutes left. It is not the prime purpose of this line of questioning, but Mr. Kidney would like to ask a couple of questions about the coroner’s court.

Q 310

In the briefing from the Bar Council for the Second Reading debate, there were a couple of salutary warnings about the new powers for coroners. One of those powers is to make somebody give a written statement, and the other is the power to walk into someone’s home or office and seize evidence. The warning was that that might become inadmissible in a subsequent criminal trial. Is that a real danger that could harm future criminal trials if we do not do something about it in the Bill?

Peter Lodder: The short answer is yes. This is something that we have been drawn further on by the Ministry of Justice, supplementary to our written briefing. The understanding is that there might well be a difficulty here, and I do not want to foreshadow what Ministers may say in due course. In simple terms, there is a right against self-incrimination. The difficulty is that that might be compromised by the requirements of statements not taken under the proper protections afforded by the Police and Criminal Evidence Act 1984. The material might be gathered by a coroner and give rise, quite properly, to a prosecution. The danger is that the material on which the prosecution would be founded might have been obtained contrary to the normal protections that would be available in an ordinary criminal investigation. As someone on the Ministry of Justice team detected at an earlier occasion when we explained this issue, that is inconsistent with another part of the Bill. It is a danger. We have invited people from the Ministry of Justice to look at it, and I will leave it to them to say whether or not they found our observations helpful.

In the last—

Order. I am going to draw this to a close. If our witnesses wish to add anything further to this line of questioning, the Committee will be pleased to hear from you in writing. Mr. Stobbs, Miss Lee and Mr. Lodder, I thank you very much for coming to join us this afternoon.

Sandra McNeill, Harriet Wistrich, welcome. Thank you very much for taking the trouble to come and give evidence to us this afternoon. I call Dr. Brian Iddon.

Sorry, I did not think that I was taking part in this.

You indicated that you wanted to start it. All right, I call David Howarth.

Q 311

There are three points in your paper which I want to take up: one that I agree with, one that I disagree with, and one on which I should like some more information. Let me start with the first  point. Would you outline your worries about retaining the notion of loss of control in the defence that is going to replace provocation?

Harriet Wistrich: My understanding of the concern, and why we largely support the general direction of the Bill, is that we want to move away from affording a defence to somebody who reacts in a temper—in a hot-blooded rage—in response to discovering that, for example, his wife has been unfaithful. A temper response is a bit like a loss of control; that is what it is. And we are not convinced that the Bill moves the new defence away from that notion so long as the legislation retains it—particularly in a title. Furthermore, based on the perspective of our work with many women who have been subject to cumulative provocation, such as long-term abuse, I cited four appeal cases of women who had been convicted of murder, in which the Court of Appeal said, “We don’t see evidence of a loss of control.”

Part of the difficulty is that, when somebody is in a state of paralysed fear and they take action, it is sometimes not possible for a judge or a jury to see it as their being out of control. Such people may move slowly; the response is not like lashing out with a fist. So, sometimes they are denied the provocation defence, because, if provocation is to be left to a jury, one has to have evidence not only of provocation but of a loss of self-control. In some cases, the defence has not been available, and that is my concern with retaining loss of control. I am not convinced of the need for it, and the Law Commission, in its recommendations, did not see the need for it, so long as you have two safeguards, which are in the Bill already. The first is that the action cannot be taken out of revenge, and I am trying to remember the other one. I know, however, that two provisions have been designed to exclude somebody who is in a gang and retaliates, for example, in a revenge attack. We do not want any such defence to be available.

Q 312

May I turn to the point with which I do not agree at all? In your frequently asked questions, you ask whether the defence will allow honour killings. You say that honour killings are the paradigm of revenge killings, and you just referred to the no-revenge provision, but I do not see honour killings necessarily as revenge. They are a violation of an honour code, and it is that that matters, rather than revenge against an individual.

Sandra McNeill: I do not agree at all. I think that honour killings under their common definition as something done by families from minority ethnic communities, are very much the same as honour killings by men who think that they have lost control of their wives. So, loss of control of property, whether it is your daughter or your wife, is the key thing. For example, if you have forced the woman to marry a man she does not want to marry and she has left him, is living with another man, living her own life and not doing what the family wanted her to do, that killing is taking revenge because she has gone out of your control. Part of the reason why we think we need to retain exclusion of infidelity in the Bill, is that keeping the clause on revenge and excluding infidelity will cover honour killings; together those two things will prevent the defence being run.

Q 313

I have difficulty with that sense of the word revenge. Revenge for me is vendetta: if you kill someone in my family, I will kill someone in yours.  What you are talking about is not revenge but simply anger—being furious at someone because they have violated some norm that you find very important. I cannot see how that is revenge.

Harriet Wistrich: The other point on honour killing, and this relates to a question that I may have been discussing with other witnesses, is about what a justifiable sense of being wronged is. Perhaps this is part of the problem with the wording of the law. Is it ever justifiable to kill somebody who dishonours your family by going off with somebody from another religion, or for whatever reason? I guess that there would have to be fairly clear guidelines on what was justifiable, but I would hope that honour killings were never considered a justifiable reaction to being wronged. They may be more normal in certain cultures than others, but this Bill is quite normative; it is about what we accept as right and wrong and what we think are acceptable ways of behaving in a modern society. Whereas 50 years ago, or 300 years ago, the appropriate response to somebody being unfaithful might have been to kill them, it is very helpful that the Bill says that it will never be justified to kill somebody because they are unfaithful to you—that that is not acceptable.

Q 314

But is not the problem that that clause goes in because of the problem with the word justifiable in the first place, which still allows honour killings possibly to get through? Justifiable to whom? To the defendant? The defendant obviously thinks that it is justifiable; otherwise, they would not give the reason they do for the killing. So it comes down to being justifiable objectively in the mind of the jury. It seems that this point will get to the jury, and that it will then possibly get through the jury.

Sandra McNeill: If hon. Members want to make absolutely sure that honour killings are excluded, add a clause to the clause that excludes infidelity, and exclude honour killings as well. We would be very happy with that.

I am glad that you think that. Turning to the infidelity point for a second—I know that other Members want to ask about this—how often do pure infidelity provocation defences work these days? We know that they worked in the past, but time has moved on. Lord Phillips said famously that infidelity was a good excuse. That is no longer the case; sentences have got longer. Often when these defences are run, they are run in conjunction with other defences. You cite the Dalton case in paragraph 17 of your paper. Do you have a transcript of the judgment or the instruction to the jury in that case? There were two entirely different accounts of it in the media. One said that there was provocation by reason of infidelity and the other said that it was involuntary manslaughter and that the specific intent for murder was not established. I shall be grateful if you will write to the Committee with further information on that case.

Q 315

The exchange between you and Mr. David Howarth about honour killing has intrigued me. Do you agree that whatever the merits or demerits of clause 42(6)(c) in relation to sexual infidelity, it has nothing whatever to do with honour killings? Do you also agree that someone charged with an honour killing will not be protected from a finding of guilt of murder, assuming that the evidence is there, under these clauses?

Although the test in clause 42(4)(b) is subjective, it must be assessed objectively. It is therefore unlikely that any jury will think that people who kill women for marrying someone they disapprove of

“have a justifiable sense of being seriously wronged.”

In addition, in clause 41(1)(c)

“a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D” surely would not have reacted in the same or any similar way to D if we are talking about rational juries. In our society, we do not permit the killing of people because they have married someone we do not approve of. That may be approved of in other jurisdictions, but under English law honour killing will not be protected or turned into manslaughter even with the provisions in clauses 41 and 42.

Sandra McNeill: I would like to cite the case of Tasleem Begum in Bradford. Her killer was her arranged husband’s brother and also her cousin. She had left the arranged marriage and had not brought her husband over from Pakistan. She had started an affair with another man and was living independently. Her husband’s brother ran over her repeatedly in a car in public. Ultimately, his defence was that by starting the affair with the other man she had offended his code of honour and that it was an honour killing. The case never went before a jury because the judge and the prosecution accepted his account. He got five years for provocation. There was an outcry, although the imams of Bradford said that it was legal under sharia law. I would have hoped that the outcry surrounding that case meant that it would never happen again, but it has.

That is interesting, but I do not know how helpful it is because we do not know the reasons that the judge accepted from the prosecution for withdrawing the case from the jury, if that is what happened. Perhaps I should leave it there because we could enter into a rather infertile argument.

Q 316

I invite you to look at clause 42(4)(a), which is linked to paragraph (b) that has been referred to. I do not want to go back over what is justifiable and to whom. Do you believe that any properly directed jury would come to the conclusion that a woman marrying the wrong person or engaging in an affair with someone that the family disapproves of constitutes

“circumstances of an extremely grave character”?

Sandra McNeill: I would not presume to know what a jury would do. In my experience, juries can do anything.

Q 317

My point is that unless the jury were to come to that conclusion, it would not matter whether the defendant thought that their actions were justifiable or not.

Harriet Wistrich: I think that is right. It will take a lot of twisting and persuading to convince a jury of 12 people that marrying the wrong person constitutes

“circumstances of an extremely grave character”.

Q 318

Perhaps we do not need to be as worried as we seem to be about the possibility of honour killings being allowed through by this clause.

Harriet Wistrich: I do not think that they will. It would be very hard to get a classic honour killing through this clause. Perhaps there would be nothing wrong, as we have an exclusion on infidelity, in adding an exclusion on honour killing, given the concerns about those terrible crimes, which still go on.

Q 319

Given your experience over the years in dealing with murders that have resulted from fear-based reactions—often gender specific, as it happens, in respect of your own work—do you believe that the change being proposed in the Bill to introduce fear of serious violence as an element that can give rise to protection from this partial defence is helpful?

Harriet Wistrich: I think it is extremely helpful. It is very important because in a number of cases involving women that I have worked with—I do not think that such cases necessarily exclusively involve women because there are men who have been systematic victims of abuse, but mostly we work with women—where it has almost been self defence, the women have acted after being threatened with violence. I have cited in the paper two cases —Joanne Cole and Kirsty Scamp—which I think are perfect illustrations of why it would be an important advance to introduce fear of serious violence. These defendants are often stuck in a very difficult place. They say that they feared for their life, that they were being attacked at the time, and that they want to run self-defence.

In the case of Kirsty Scamp—a 19-year-old who was recently convicted of murder—the prosecution said that they would accept a plea of manslaughter on the basis that she acted in excessive self-defence. She said no, it was self-defence. When the defendant goes for complete acquittal for murder, juries are not keen to return self-defence unless they are absolutely convinced that that was the case. Often where there is an inequality—where one person is physically a lot weaker, for example—the person may have used a weapon when they were not being threatened with a weapon. There is an issue of disproportionality. They may have waited a moment; they may not have struck in the course of the exact struggle. There may be reasons why self-defence is not met. They then fall in the hole between acquittal and a life sentence because they do not necessarily fit provocation or diminished, which are the only other options.

I think that fear of serious violence would be precisely where a jury is just not sure that it was pure self-defence, but concedes that the person was terrified and might have overreacted. There are often cases in which somebody has historically been a victim of abuse—they may have developed post-traumatic stress disorder or similar traumatic symptoms, for example. Their startle response to a particular act may be slightly exaggerated. Something may happen that triggers a bigger response than perhaps a person who had not been through that experience would have. If they have so many experiences of being beaten up in a particular way and then something happens that is the last thing that triggers their response—it may be an over-response; it may be what we call excessive self-defence—and yet the response does not fit the provocation, as we have it now, those women are convicted of murder. That seems to me, and certainly our campaign, to be a miscarriage of justice for somebody who has responded in that way. So yes, we are very much in support of the measure.

Q 320

You have made clear your views on the exclusion in the Bill of the use of sexual infidelity in respect of this defence. One of the other suggestions is that the phrase “gross provocation” ought to be used to highlight the very high level of the remaining loss of self-control. I will come on to one further question about that in a moment. What would your view be on the use of a phrase such as “gross provocation” in the law, instead of the replacements we have here?

Harriet Wistrich: It is a qualifying word—I do not know whether it helps very much because what is provocation and what makes it gross? It is not very precise, which is part of the problem. From our concerns about the provocation defence being used, let us forget infidelity—the other kind of classic cases where we have seen what we would regard as injustices could be, for example, where somebody has said they were nagged. Is it gross provocation where the judge says, “This woman would have tried the patience of a saint”? Is that a justification to kill? Whether you use “gross provocation” or the wording here, it is to try and exclude the sort of cases which are not justifications for killing.

Q 321

I have one further question. You have expressed concern this afternoon, and in your written evidence, about any retention of the “loss of self-control” element. I wonder if I might put a scenario to you which is not a real case, just to see what your reaction might be. It is a reason why “loss of self-control” ought still to be there in some form.

Somebody whose family has been murdered in a genocide is walking in the street and—such things have happened—comes across one of the perpetrators of that massacre. They remonstrate with them, are taunted or laughed at, and then lose their self-control in a classic sudden way. They kill that person. Would you have sympathy—no, not sympathy—but would you see the point of the retention of loss of self-control as a concept, on the grounds that the circumstances would have pushed this person beyond any reasonable level of restraint that most of us might expect people to exercise in a civilised society?

Harriet Wistrich: It is not precisely this experience which we work with. The point—in so far as it is analogous with cases that we have worked around—is what is the kind of underlying history that affects the psychology of the person who kills? If you have lost your family in a genocide you may have a deep, traumatised psychological make-up. It may all be there under the surface, but it is a bit difficult to extrapolate—

Sandra McNeill: That is not her area of expertise. If possible within the time, I would welcome the opportunity to quickly address the suggestion by the previous row of witnesses, that sexual infidelity, with something else like “taunting” should be allowed. May I address you briefly on that?

Let me ask the members of the Committee if there is any burning question that they have not asked. I hope to give you exactly that opportunity in a moment.

Q 322

It seems to me from Ms Wistrich’s last answer, that your general complaint is that you wish the Government had complied with the Law Commission and gone down the murder one and murder two route.

Harriet Wistrich: No.

Obviously I have misunderstood you. We will not pursue that.

Harriet Wistrich: No, we do not go with those recommendations. We have not addressed that.

Given the shortage of time and the fact that you want to say something else, if there is any further thought that you want to add, feel free to submit a note to the Committee. We shall be delighted to receive it. Sandra McNeill; you wish to say something?

Sandra McNeill: Yes. Mostly, when men allege infidelity, they say, “And she taunted me.” There was the case of Ward, who alleged, “She said the baby wasn’t mine. I lost it and strangled her.” He was not put on trial. He got three years for manslaughter. When he got out he murdered his next girlfriend, Valerie Middleton, and again alleged taunting, saying, “She told me she had another lover who was better in bed than me.” And I sat in the gallery and in the canteen with friends and family who said to me, “No way would she have taunted him. She was terrified of him.”

I would also like to cite the case of Cooper, 2002, who strangled his wife and told the police, “She taunted me. She had another lover who was better in bed than me.” What Cooper forgot was that there was a voice-activated recorder in the room—a tape recorder—which recorded him abusing her for 24 minutes while she begged for her life and swore she loved him and was true to him, and then he said, “You are the weakest link. Goodbye,” and strangled her. That made all the tabloid headlines.

Unfortunately, not all murders are recorded on tape recorders. So as for saying that it is okay to allow the defence of sexual infidelity as long as he adds, “and she taunted me”—no. That is just including sexual infidelity, and you have seen our reasons for wanting to exclude it. As we say, we do not live in the 16th century. There are countries where people are executed for adultery; remember the fury over the documentary “Death of a Princess”? What if we allow men to execute their wives simply for leaving them for another man? There is another example: it is not just infidelity but, “She left me for another man”. That is another allegation, as in Hume’s case. Again there was not a jury; it was just accepted by judge and prosecution.

If we allow those men to execute their wives and do not convict them of murder we have in fact got the death sentence for adultery in this country, and in the 21st century we should not have.

Thank you very much indeed. Thank you for coming. The Committee as always is indebted to you. It has been good to have you here. If you do have any further thoughts, please place them in writing. Ms McNeill, if in the light of your last comments you wish to relate them to clauses in the Bill, I am sure that the Committee would be pleased to hear from you in writing.

Sandra McNeill: Thank you for inviting us.

Mr. Richard Thomas, Information Commissioner, and Mr. David Smith, deputy Information Commissioner; good afternoon, welcome and thank you for joining us.

Q 323

Thank you for coming. I want to ask a series of questions—perhaps five in total—the first of which is fairly general. Certainly, on this side of the Committee, anyway, we are concerned about the Government’s general record on the handling, transportation and storage of data, which we think is pretty poor. There is a real fear that the powers of the state are increasing without the necessary safeguards being put in place. Certainly in this context, clause 152 is very far-reaching.

First of all, the Serious Crime Act 2007 provided for data sharing between public and private bodies to defeat serious crime. Do you not think that in many ways this went far enough in terms of data sharing? Do you share my concern that the EU data protection directive could be breached by this clause? The directive makes it clear that the data subject has unambiguously to give his or her consent. It is possible that this clause is incompatible with the UK’s obligations under EU law. Looking at those points, would you give some general comment?

Richard Thomas: I start by clarifying my position. I am the Information Commissioner responsible for enforcement of data protection legislation. I was also asked to carry out the data-sharing review with Sir Mark Walport of the Wellcome Trust, which I did in a semi-personal capacity. Some but not all of the provisions of part 8 of the Bill reflect our recommendations, and I spent seven or eight months on that review, alongside my official responsibilities.

In the course of that review, we received a mass of evidence. We started in November 2007 and produced our report in July 2008. We received a mass of written evidence and held a large number of consultation meetings—hearings of one sort or another. I hope that it is not arrogant to say that the broad analysis that we brought forward has been widely accepted. You cannot say that data sharing is good or bad. There can be wholly inappropriate data sharing. There can be sharing that should be but is not taking place. We advocated what I call a public interest approach. Where sharing is beneficial, provided certain safeguards are in place, it should be permitted. Where it is not appropriate, it should not be allowed.

We set out an analysis of the circumstances in which there should or should not be sharing and how sharing should take place. We set out three broad headings under which sharing might be appropriate: for law enforcement; for the improvement of services, particularly public services; and for research and statistical purposes. In our report we examine those situations in detail. The final chapter of our report brought forward a series of recommendations. A word I particularly want to emphasise to the Committee is in paragraph 8.1, the first paragraph of that final chapter. This is a “package” of recommendations. Sir Mark Walport and I saw this very much as a package—on the one hand, to improve the arrangements for beneficial data sharing where that is appropriate, and on the other, to be balanced by a series of safeguards and protections, not least, stronger powers for my office. I would like to address that in more detail during the course of the afternoon. I stand down in June of this year but my successor will, I hope, benefit from stronger powers because we have been handicapped throughout the life of the Information Commissioner’s Office—formerly the Data Protection Commissioner’s Office—by having very weak powers.

Life has changed dramatically. There has been a fundamental shift in the past few years in awareness of the risks of data-handling. Where there is poor data-handling, there are considerable risks for individuals and society at large, and your question hinted at an awareness of that. There is also a much wider set of public concerns about data protection, borne out by our own surveys. Our most recent survey indicates that the general public now rank the handling of personal information alongside concerns about the prevention of crime, expressing stronger concern about it, for example, than about the health service or the environment.

We welcome the fact that part 8 of this Bill provides an opportunity for improving data protection law and, to a certain extent, there is a cross-party interest in doing that. I also recognise that at the moment, I and my office can give only a heavily qualified welcome to part 8. We think that there are beneficial aspects to it. We have provided the Committee with a written memorandum setting out our position. But we fear that the data-sharing powers are somewhat wider and less safeguarded than was proposed in the Thomas-Walport report and that the powers available to my office are substantially weaker. We would like to see what eventually emerges by the time of Royal Assent more closely mirroring what we spent seven months researching and putting forward.

On your specific question about compatibility with the European directive, that sets the framework for data protection law in this country. The Data Protection Act 1998 transposes that directive. Whatever goes through in part 8 of the Bill will remain subject both to the European directive and to that Act. One of the changes that we would like to see is that if the data-sharing order remains, it should be spelled out in the Bill that any arrangement that has come forward as a result of a data-sharing order should explicitly remain subject to the data protection legislation. That is undoubtedly the case, but it is not spelt out in the Bill.

Q 324

You mentioned the 1998 Act. Incidentally I am grateful for the briefing that you sent to the Committee. I certainly feel that the part of the Bill that gives more powers to your office makes a lot of sense. The 1998 Act contains various exemptions that are specifically intended to ensure that data protection does not prevent the use or sharing of personal information, where a failure to do so would prejudice the purposes of law enforcement. Public bodies have or should have the knowledge and confidence to rely on the exemptions to the Act, when it is necessary to do so. In that context, do we not have sufficient legislation in place already, without bringing in far-reaching, sweeping extra powers for data-sharing? Public authorities can share data already. There was a quantum leap forward with the Serious Crime Act 2007. Does it make sense and is there a real demand to go further still?

Richard Thomas: I failed to address your specific point about consent. Yes, one of the grounds for data processing is consent, but there are other grounds which are permitted by the European directive. In paragraph 5.7 of our report, we explain some of the limitations, particularly in the law enforcement area but also in areas like taxation and child protection, where you cannot rely on consent alone. Sometimes it is wholly inappropriate to rely on consent and that is understood by both the directive and the 1998 Act.

On your wider point about whether there are sufficient powers already, one of the reasons why Sir Mark Walport and I put forward those proposals is that we feel very strongly that we need greater scrutiny and less confusion when it comes to data sharing. We came across a really quite unsatisfactory state of affairs, where almost every single witness brought to us the evidence that there is what we called a fog of confusion about what can and cannot be shared. We talked about a culture of risk aversion, a culture of uncertainty and people not knowing where they stand.

One reason why there could be greater scrutiny with the data-sharing order is that so often when a Department wants or needs to share information for a particular purpose, it brings forward a very precise sectoral provision, which is often tucked away at the back of a Bill. One example would be schedule 30 to the School Standards and Framework Act 1998, which created the national pupil database. That amended previous legislation, and it got no parliamentary debate whatsoever.

There have been many examples where specific provisions have been brought forward because there is insufficient power or there are legal difficulties. Those are not debated sufficiently in Parliament. Another example would be the Learning and Skills Act 2000. You could argue that when the national DNA database went through, it was not sufficiently scrutinised by Parliament. These sorts of things are often added at quite a late stage in the Bill. They are not picked up and are not debated in Parliament.

So we brought forward this far more transparent process with a number of safeguards. First, there is a requirement for public consultation on the specific proposal. Secondly, there is a requirement for a privacy impact assessment. The Committee may know about how those have been used widely in other countries. Over the past two or three years, we have been pushing for them to be used to evaluate the risk associated with any data sharing. Thirdly, there is a requirement for the Information Commissioner’s office to give an opinion on the acceptability of a data-sharing measure.

Fourthly, there is an affirmative resolution procedure so that Parliament has an opportunity to examine it rather than just nodding it through by way of negative resolution, which would be completely unacceptable, or it being tucked away in a Bill and not scrutinised. I accept that a measure put forward by affirmative resolution cannot easily be amended, but it would create greater awareness. If done properly, that measure could end up with greater scrutiny and less confusion. I have some reservations over the wording of part 8 and that must be improved. If that is done, the measure will be in the public interest.

Q 325

In October 2006, you sent a position paper to the Home Office in reference to the Serious Crime Act 2007. Are your views the same on the impact of information sharing on private individuals? On page 4, you stated:

“It is important to keep any information sharing initiative under periodic review, to assess its impact on personal privacy and to determine how successful the sharing has been in terms of protecting the public purse, apprehending offenders and so forth. A successful information-sharing initiative could still be unacceptable on data protection grounds, for example because it causes widespread and unwarranted detriment to individuals.”

Do you still stand by the general thrust of those remarks? Does this part of the Bill contain the necessary safeguards?

Richard Thomas: I stand by the general sentiment of that. You have the advantage of a better recall of that measure than me. As I recall, in the passage of the 2007 Act there were many discussions about a data-sharing provision for the purposes of serious crime detection. A package of measures was put forward that met the concerns that I expressed in that memorandum and elsewhere. That is an example of a case being put forward for information sharing for law enforcement purposes. I do not think that there was any serious dissent saying that it was unacceptable.

It remains necessary that in every case no more information is shared than is needed for the particular purpose. There must be safeguards over how data are shared and constant vigilance is needed to ensure that the rules of the game are followed, as that note stated. That is one reason why I attach so much importance to my office having the powers of inspection and scrutiny that are necessary to ensure that the arrangements are working.

Another example of data sharing being acceptable with certain safeguards is when the Metropolitan police wanted access to the Transport for London congestion cameras to prevent acts of terrorism or to find out what had happened after acts of terrorism. With the Home Office, the Metropolitan police and Transport for London, my office was involved in putting together a protocol that confined the sharing to precisely defined circumstances. That data sharing can be used only in cases of suspected or actual terrorism—not even in cases of serious crime—and there must be a proper audit trail of what is going on. There is a consensual or contractual inspection power for my office to find out what has happened in any particular situation.

One needs to be careful with data sharing. I am the first to advocate that. Some of the safeguards in the Bill are necessary, but some do not go far enough.

Q 326

How can we keep the measure under periodic review? We might be passing vital legislation. You mentioned in the past that it is important to keep it under periodic review. How can we do that?

Richard Thomas: Primarily by my office having the power to inspect without consent. For more than 20 years, my office has not had the power to carry out any inspection without the consent of the organisation concerned. In the six and a half years that I have been commissioner, I have strenuously argued that that is not acceptable. One would not expect a food inspector to have to get the restaurant’s consent before carrying out an inspection. The Bill moves towards giving us stronger powers, and I regard clause 151 on the assessment notice procedure as very welcome so far as it goes, but I am very concerned indeed that it extends only to Government Departments. Our report made it very clear that that sort of power is required right across the private and voluntary sectors for all data controllers.

It is unacceptable that the assessment notice currently has no associated sanction. If an organisation says, “No, we are not going to follow the requirements of your assessment notice, Mr. Commissioner”, there is no sanction. I very strongly urge this Committee to put that right—please.

I have additional questions on clauses 154 and 155, but other colleagues may want to come in on clause 152.

Q 327

I thank my hon. Friend for letting me in, because I have to leave shortly. I shall raise three quick points. The first is about what I understand is called field protection. Information may pass from one Government Department to another or elsewhere. I have heard criticism in the past that you are either in or out of that process, and that the whole file is sent. The more common practice in data security in the private sector is to release the amount of information that is relevant to the particular inquiry. Should we turn our attention to that?

Richard Thomas: Yes, I think that you are raising a very important point and I entirely agree. Data minimisation is a fundamental principle of data protection—no more, for no longer than is needed for a particular purpose. With the broad machinery of a privacy impact assessment, people can ensure that nothing excessive is happening, so each action can be justified, by ensuring that no more data than are needed are used or shared, and there are safeguards about security and the end use. That is a more transparent way of ensuring that we are not giving a blank cheque to those who are otherwise engaged in data sharing.

I think that the commissioner’s opinion will be important, because I do not think that it is simply a formality. The commissioner can insist on a privacy impact assessment under the code of practice to see the justification for a particular measure. If they still think that it goes too far and is either wholly unacceptable or does not have sufficient safeguards or conditions, the commissioner can say so. We have a robust and responsible approach and I believe that I, and my successors, would say if a particular measure went too far in the report to Parliament. Frankly, it would be a brave Department that came forward and said, “We insist on this particular data-sharing measure, even though the commissioner has said that it is unacceptable and does not meet data protection requirements.”

Q 328

Thank you for that firm statement. Following on from that thought is the question of what you might call “data gouging”, in which data are passed for a perfectly defensible purpose and then employed for other purposes or used more widely. I notice that you refer to that danger in your memorandum. Can we stop or restrict that more than we appear to be able to with the provisions in the Bill? For example, once the data have leapt the wall, it is difficult to prevent the whole lot being used for other purposes, whatever undertakings were given at the time.

Richard Thomas: I understand the point. That is one reason why Mark Walport and I called for precisely defined circumstances in our recommendations. We also said that the process would not be suitable for any large-scale data-sharing initiative that constitutes a significant change to public policy—for example, identity cards and the DNA database. There needs to be absolute stringency and control, and limitations on any data-sharing order brought forward to meet the sort of concerns that you have expressed.

I would like to turn to a specific concern, which echoes part of Mr. Bellingham’s question. We are unhappy with the definition of sharing in proposed new section 50A to the Data Protection Act 1998. Proposed new section 50A(3)(a) is fine; that is about data sharing from one organisation to another. However, we have strong reservations about paragraph (b), which reads,

“consults or uses the information for a purpose other than the purpose for which the information was obtained.”

That is not data sharing as Mark Walport and I understood it. We were concerned with sharing from one organisation to another, but that raises a completely different set of issues where a single organisation, having collected and gathered information for one purpose, wishes to use it for another purpose. That goes to the heart of some of the principles of data protection. Use limitation is the shorthand for that part of data protection, and we have anxieties about the drafting of that provision. It may be more than just a drafting point, because whereas proposed new section 50A(3)(a) deals with genuine sharing, proposed new paragraph (b) is concerned with a different situation altogether.

Q 329

In the public sector, there are at least in principle—albeit they may not work well in practice—a series of safeguards over and above those available through your office. For example, there is the Official Secrets Act and in certain cases, such as cases involving the Taxes Act, it is a criminal offence to disclose people’s Revenue files.

In a different context, I expressed some concern about this extension—where you use contractors who may be located outwith the jurisdiction, for example. That same point is also of concern in relation to data that are shared with private sector organisations. How do we get an equality of responsibility with that sort of situation?

Richard Thomas: In our report, we looked at the picture at large, and we explicitly said that it no longer makes sense to draw sharp dividing lines between the public, private and voluntary sectors. We have the use of private sector contractors, the involvement of the private sector in traditional public functions and the use of the voluntary sector to carry out public functions—I had a meeting with the Minister last week, and we discussed the example of a children’s charity carrying out child protection work for a local authority. It is right to have a global approach. We cannot draw those sorts of distinctions between the different sectors any more. That is one fundamental reason why we think that the powers available to the commissioner’s office need to extend to all data controllers. It does not make sense to limit the assessment notice only to Government Departments or other public authorities designated by the Secretary of State, as clause 152 is currently does. It needs to apply to all data controllers from the outset, to put right something that has been wrong for more than 20 years.

Q 330

Mr. Thomas, earlier you gave the example of the Transport for London protocol relating to the sharing of images from congestion charging. I am interested in what process was used to activate that. Was it a legislative process?

Richard Thomas: Yes it was. There is a section of the Data Protection Act—I forget which number; perhaps David will remind me—which allows the commissioner to agree that for law enforcement purposes, a particular arrangement can be made along those lines. That is a good example. Nobody would ever justify use of the congestion cameras for anything other than congestion charging or for very serious matters. Mark Walport and I said that it would be manifestly unreasonable if a wife  trying to check up on her husband running off with another woman could somehow have access to the congestion charge cameras. That would be wholly unacceptable. A proportionate response is required in all these situations.

Q 331

Just to be clear, there was no parliamentary scrutiny involved in that process?

Richard Thomas: No, and I think that was a defect. It would clearly be far better if that sort of arrangement could come before Parliament as part of a democratic process. Parliament would then say, “Yes, that is okay,” or “No, that is not okay.” That is a better way forward than having some of this done behind closed doors.

Q 332

Do you have any concerns that the affirmative resolution process is secondary legislation, which will effectively amend primary legislation?

Richard Thomas: We understood when we put this forward that it would be very controversial, and I think that it is for the Government to defend the precise nature of what is being introduced. But we also documented the unsatisfactory current state of affairs. Lawyers are expressing doubt; there is a lot of confusion; and a specific gateway has been included at the back of a Bill, which just adds to the general field of confusion. We have said a lot about more and more layers being put on top of the basic legal framework. That just creates greater and greater confusion, and there is no scrutiny whatsoever. So, although I understand that anything that even looks like a Henry VIII clause will be very controversial—it is for you to decide whether this is the right way forward—on balance we thought that that was a better way forward and a better way of getting more scrutiny, more safeguards and ultimately more certainty into a very confused area. But, all my support for that is qualified by the reservations that I am expressing.

Q 333

Mr. Thomas, it is evident that discussion is ongoing between you and the Ministry of Justice about why you feel that the Bill is inadequate on safeguards. May I push you, on behalf of us all, on that? Do you envisage that the Bill should set out the kinds of themes that you gave us—law enforcement, public services improvement and research—and no others, or do you envisage a set of examples of what is not acceptable, or indeed a mixture of the two?

Richard Thomas: Mark and I are not draftsmen; we put forward broad themes. I was a little surprised when I saw mention in the Bill of securing a relevant policy objective. We are very clear that there need to be rationales under those three broad headings—law enforcement and public protection, improving public services and research and statistical analysis. I have not come here this afternoon with specific drafting ideas. Perhaps one could work around that, or around some sort of public interest justification, but a rationale based purely on securing a governmental policy objective seems too wide.

Q 334

We have received an angry representation from the BMA, saying that it would be totally unacceptable, under any circumstances, for people’s personal health details, on their sexually transmitted infections or whatever, to be handed over by the NHS  to some other organisation. Should no-go areas—what should definitely not be acceptable—be specified in the Bill?

Richard Thomas: I cannot think of absolute no-go areas. I have not seen the BMA paper, but to say that under no circumstances should information be shared seems a little extreme. Sometimes information needs to be shared for research and statistical purposes. There is a lot in our report about the need to ensure patient anonymity, but sometimes you need to study what happened to patient A in year one, and then go back to the same patient in years five and 10. You do not need to know who the patient is, but you need to know that it is the same patient. So, I do not think that you can say no sharing under any circumstances, but the BMA is absolutely right to say that you need much stronger safeguards for sensitive data, such as health data. I do not quarrel with that. I just say that you cannot be black and white.

David Smith: The area of health information is very difficult, and we are often challenged on it. The simple approach, which has a lot to justify it, is that our health information is entirely private. We give that data to our doctor, and they must not be shared more widely. There is a strong public policy argument in that. If people think that their information will be made widely available, they will stop going to the doctor and to hospital, and public health will suffer. However, we already have provisions whereby doctors share information when there are things such as notifiable diseases, because the interest in protecting public health is wider than the confidentiality of the individual.

It is never simple. I hesitate to go into the area of sexually transmitted diseases in detail, because that is so sensitive, but the idea that never under any circumstances should information about a sexually transmitted disease be shared is perhaps wrong. But the grounds would have to be extremely strong. Any sharing would have to be extremely limited and the justification in public interest terms would have to be high. As the commissioner said, perhaps the real test here is not whether this supports a policy initiative but whether, weighing up the pros and cons, it is in the public interest.

I wonder whether it might help if I gave an example. This one goes back a little way but shows at the other end of the spectrum what can be prevented by the restrictions on information sharing. Older members of the Committee may remember the European Union’s butter mountain. There was a proposal to distribute that butter mountain free to old age pensioners. The people who were capable of doing the distribution were in the local authorities. But they do not have any information on who are the pensioners in their area. That was held by the Department of Social Security, but it had no power under the legislative provisions that it operated under to share information on pensioners with local authorities, so that they could distribute the butter mountain. That was a real problem. There are ways around some of these things. The DSS could have written to individuals and told them to go along to their local authority with proof of their age to collect their butter. These things are not impossible, but it was a real hurdle. The legal restrictions were clearly operating against the public interest and against people getting free butter.

Q 335

Thank you for that. Can I go back to another point? You mentioned anonymised information which might be more acceptable to be released. In fairness to the BMA, it is keen on releasing information for research but such information is properly anonymised. Would there be sufficient safeguards in the system that is proposed in the Bill, however it gets amended and with the impact assessment, your report to Parliament and so on, for anonymised sharing of information to be more acceptable than sharing people’s personal details?

Richard Thomas: I have always been an optimist in these matters. When you have statutory requirements to go through certain procedures, it puts pressure on those concerned to demonstrate that they are meeting those requirements. As well as being an optimist I am also a very strong advocate of transparency, which is often the best regulator of all. So if we have an open process so that we can scrutinise each scheme as it comes forward, that will serve the public interest better than a rather bland blanket approval included in sectoral statute, which then opens the door for anything to happen with virtually no check or balance at a subsequent stage.

I hope that I am not sticking my neck out. In five years’ time, I may be proved wrong on this. Having sat through seven months of evidence on this and the sorts of examples that David mentions, and many others besides, I think we need some sort of fast-track provision in precisely defined circumstances to allow beneficial sharing. It is as much in the public interest to allow beneficial sharing as it is to stop undesirable sharing. You cannot generalise and say, “All sharing bad, all non-sharing good.” You have to look at each situation on its own merits and then make sure that it is properly constrained.

Q 336

In your report with Sir Mark Walport you recommended a fast track for secondary legislation to repeal the bits of primary legislation that get in the way. I heard you tell Mr. Lucas that that is for the Ministers to defend now. You would expect there to be limits to that power, would you not? You would not think that the statutory instrument would remove the bits of the Data Protection Act or the Human Rights Act that got in the way.

Richard Thomas: That was certainly not in our contemplation. We are clear, and we said somewhere in the report, that any data-sharing arrangement would remain subject to human rights legislation and to the full data protection legislation. It did not cross our mind that this would be used to amend the Data Protection Act.

We are crystal clear that the Act as whole, not least because of European requirements, would still apply to a data-sharing arrangement. As to whether that needs to be spelled out, I can see some advantage in making it absolutely explicit that any data-sharing order should remain subject to the Data Protection Act. In clause 152, there is already proposed new section 50A(7), which says:

“Nothing in this section (or any information-sharing order) is to be taken to prejudice any power or duty to share information which exists apart from this section.”

So, it is safeguarding previous data-sharing powers. That could easily be complemented by an extra subsection spelling it out clearly that the full application of the data protection requirements remains.

Q 337

Going on from the point just raised by Mr. Kidney—an issue I also wanted to raise—about the impact on the Data Protection Act, given that the only Act that is free from potential interference by these orders is the Human Rights Act 1998, do you feel that there is an argument to have in the Bill a longer list of legislation that could not be amended by secondary legislation?

Richard Thomas: Putting my lawyer’s hat on, I think it would be difficult to start putting a list together of Acts that could not be amended because you would start dividing the statute book into first-class and second-class statutes. I have not given serious thought to the suggestion you are raising. Inasmuch as Parliament cannot bind its successors, this would look back at Acts and say that that one cannot be touched but that one could be.

Part of the rationale for this approach is that situations will arise that we cannot currently contemplate. As new schemes come forward, technology changes, the shape of public services changes—that is when you need to overcome some of the obstacles and hurdles for beneficial data sharing. By definition, you cannot here and now anticipate what all those are going to be.

By the same token, it is difficult to say that there are no Acts whatever that should not be amendable by this process. As I said to Mr. Kidney, I can see advantage in spelling out explicitly that data protection and, if need be, the human rights legislation do remain applicable. I think we saw it as so self-evident that it never crossed our minds that it would not be the case.

Q 338

It is a fundamental principle to change, to introduce the concept that secondary legislation can amend primary legislation.

Richard Thomas: There are plenty of examples in the better-regulation area. I know it has been controversial, but it is not without precedent. There have been a number of quite recent precedents. It is unusual and we recognised that it would be controversial.

Q 339

If this were on the statute book, you could use that process to amend this legislation so that all the safeguards in place to do with codes of practice could then be amended by secondary legislation. Even the safeguards built into this would then not necessarily stand.

Richard Thomas: It may be that the provision that talks of modifying any enactment—proposed new section 50B(1)(h)—needs to be limited in some way because, again, what we had in mind were statutes with insufficient clarity, where the power is not granted in the terms now needed.

I would not rule out covering an explicit prohibition on sharing, but I think it would be extremely unlikely that this measure would be appropriate. For example, in the Taxes and Management Act 1970 there is an explicit prohibition—I think somebody mentioned it—on HMRC sharing tax information. I would completely oppose any attempt to change that. HMRC would not want that change. We need to keep many of these fundamental prohibitions in place. If it is thought that the ability to modify any enactment is too wide, I would have no difficulty in narrowing it down by clarifying the types of situation in which it was appropriate to modify an  enactment. When we put forward the broad approach, we were looking at the micro-stumbling blocks in legislation rather than at major provisions.

Q 340

It was raised earlier that some data are held back because they are very sensitive, such as health records. Given that this is pretty much a blanket measure, which allows any person access to any information that is held about anybody, and that no restrictions are built into it, do you think that there is potential to put data into tiers with some areas requiring more hurdles to be jumped than others?

It should be easy to overcome the hurdles for some data sharing because it would not be seen as hugely controversial. An example would be sharing information about who is over 65 so that they could access free butter. The example that the Secretary of State for Justice has used is that you do not want to have to tell the council tax office and the electoral register when you move house. Sharing other information is significantly more complex and without a huge amount of public consultation it could cause a lot of upset. Do you think that there is the potential to have a series of different tiers depending on the sensitivity of the data and who it will be shared with, with different methods for obtaining each one?

Richard Thomas: There is already a distinction in European and UK law between what might be called ordinary personal data and sensitive personal data. Sensitive data include health information and information about criminal activities, trade union membership and so on. My hesitation is that data protection law is already complicated. That complexity is a major problem in itself. Adding further layers of complexity would run against the spirit of what we were trying to do, which was to introduce greater simplicity.

Your general points are valid. I do not favour more tiers or different tiers, but I expect the privacy impact assessment to flush out any data of particular sensitivity. I have no doubt that the Information Commissioner’s office will look closely at personal data of particular sensitivity.

Q 341

I would like to link that to the issue of policy objectives. You have already talked about proposed new section 50A(4)(a) on sharing information to achieve a relevant policy objective. The procedures laid down for the role of the Information Commissioner’s office state that you can comment only on whether the data sharing is proportionate to the policy objective and on the balance between the public interest and the interests of those affected. The Bill does not seem to give you the ability to take account of the right to privacy, public interest or the best interests of the people involved. You will deal with the proportionate nature of how the sharing achieves the policy objective rather than with the policy objective itself. Do you feel that that is appropriate or will it cramp what you are able to report on to the Department?

Richard Thomas: This may be another example of the drafting not mirroring our report closely enough. We said that the opinion from the commissioner should state the compatibility of the proposed sharing arrangement with data protection requirements. That is a wide approach to all aspects of data protection requirements, which  would include reference to the right to privacy, the use limitation and all the other aspects that we are familiar with. The wording of the Bill is not exactly the same. Perhaps the parliamentary draftsman took a slightly different approach.

I am not sure that an awful lot turns on this because I have no doubt that in practice, in giving his opinion, the commissioner will examine all aspects of the proposed data-sharing arrangement. It is our job to look at schemes all the time and to say whether they are compatible with data protection. In reality, these matters will be commented on.