Committee (4th Day)
Clause 32 : Appeals to the Chief Coroner
129: Clause 32, page 18, line 45, leave out “on a question of law”
Amendment 129 is a probing amendment. It has been tabled following queries raised by Inquest with the Ministry of Justice. As a general feeling, the new simplified appeals procedure is welcome. It affords an opportunity for bereaved people to raise concerns in a more informal manner than they were previously able to do. However, a concern arises from the way the Bill appears to be worded. The concern is that the only further appeal is to the Court of Appeal on a point of law. What exactly does that mean? Does it mean, as it would appear, that the possibility of any challenge by way of judicial review in respect of most, if not all, coronial decisions would no longer exist? Does it mean that where there has been a question of process no appeal would be applicable? Does it mean that if clinical information has not been provided to the inquiry no appeal could be undertaken?
Inquest queried the matter with the Ministry of Justice because it wanted to know whether it would still be an option judicially to review a coroner’s decision or whether someone would have to go directly to the Chief Coroner for that type of decision. Interestingly, it received two conflicting replies. One said that judicial review remains an option; the other said that it had to go to the Chief Coroner. I should be grateful if the Minister could clarify the position for the Committee. Will funding be available to families? Will judicial review remain an option and in what circumstances; and, if not, what will the process actually entail? I look forward to the Minister’s reply. I beg to move.
Amendment 129 is about appeals. Under the Bill’s new appeals system, an interested person appeals against a coroner’s decision, first, to the Chief Coroner. If dissatisfied with the Chief Coroner’s decision, they may then, under Clause 32(8), appeal, on a question of law only, to the Court of Appeal. In practice, this means that they can appeal to the Court of Appeal only if they think that the Chief Coroner has not applied the law correctly when considering the decision made by the senior coroner which is being appealed. The appellant cannot appeal to the Court of Appeal as to the merits of the decision made by the Chief Coroner. A procedure already exists for challenging a decision in these circumstances and that is to bring proceedings for judicial review.
The purpose of Amendment 129 is to enable interested persons to appeal to the Court of Appeal on the merits of the decision made by the Chief Coroner when he or she was determining an appeal against a senior coroner’s decision. This would be in addition to appealing the Chief Coroner’s decision on a question of law and may be prompted by a wish to give bereaved people a greater right of appeal.
The new system of appeals will radically change and simplify the procedure for bereaved people and other interested persons to appeal against many coroners’ decisions and ensure that any bereaved person who is dissatisfied with a coroner’s decision will receive a fair hearing from the Chief Coroner—who will be a circuit or High Court judge—or one of his deputies. At present, the decisions of coroners can be challenged only by way of judicial review and so the new appeal route is a great improvement on this. We do not believe that it is necessary to widen this even more so as to enable the Court of Appeal to review decisions made by the Chief Coroner unless a question of law is involved. To do so is likely to overburden the Court of Appeal with appeals from interested persons in relation to decisions which have already been reconsidered by the Chief Coroner and where, for the reason I have given above, the appeal stands little prospect of success. There is also the need for finality so that decisions are not being reviewed endlessly.
There is only one exception to this process: where, under Schedule 8 to the Bill, a coroner’s investigation is carried out by a High Court judge or retired Court of Appeal judge. If an interested person wishes to appeal their decision, the first appeal will be to the Court of Appeal, under Clause 32, because of the seniority of the judge who carried out the investigation. There may be some circumstances where an interested person has concerns about a coroner’s decision not listed in Clause 32. If this occurs, then, again, the remedy would be judicially to review the decision as at present although the new bespoke appeal system should mean that this rarely happens.
Judicial review has not in any way been ruled out. However, we would expect an interested party to appeal to the Chief Coroner before bringing proceedings. As to the possibility of legal aid support for judicial review, I have no reason to believe that it would be handled any differently from any other judicial review. If there is a difference, however, I will write to the noble Baroness. In view of this explanation, I hope that the noble Baroness will consider withdrawing her amendment.
I am grateful to the Minister for clarifying the procedure. Indeed, I found it difficult to follow the procedure during the description. I hope that in simplified guidance there may be an algorithm provided for the bereaved to take them through the different options available.
However, it is useful to have the clarification. I fully appreciate that there has to be finality in any appeals process; one has to reach the end of the road at some time. With the caveat that I should like to read carefully what has been said, I beg leave to withdraw the amendment.
Amendment 129 withdrawn.
Clause 32 agreed.
Clause 33 : Investigation by Chief Coroner or by judge, former judge or former coroner
130: Clause 33, page 19, line 8, after first “or” insert “the Coroner for Treasure or”
Amendment 130 agreed.
Clause 33, as amended, agreed.
Amendment 131 not moved.
Schedule 8 : Investigation by Chief Coroner or by judge, former judge or former coroner
132: Schedule 8, page 134, line 31, at end insert—
“Investigation by Coroner for Treasure(1) The Chief Coroner may direct the Coroner for Treasure to conduct an investigation into a person’s death.
(2) Where a direction is given under this paragraph—
(a) the Coroner for Treasure must conduct the investigation;(b) the Coroner for Treasure has the same functions in relation to the body and the investigation as would be the case if he or she were a senior coroner in whose area the body was situated;(c) no senior coroner, area coroner or assistant coroner has any functions in relation to the body or the investigation.(3) Accordingly, a reference in a statutory provision (whenever made) to a senior coroner is to be read, where appropriate, as including the Coroner for Treasure exercising functions by virtue of this paragraph.”
Amendment 132 agreed.
Schedule 8, as amended, agreed.
Clause 34 agreed.
Clause 35 : Coroners regulations
Amendment 132A not moved.
Clause 35 agreed.
133: After Clause 35, insert the following new Clause—
(1) The Lord Chancellor may make regulations for regulating the practice and procedure at or in connection with investigations under this Part concerning objects that are or may be treasure or treasure trove (other than the practice and procedure at or in connection with inquests concerning such objects).
Regulations under this section are referred to in this Part as “Treasure regulations”.(2) Treasure regulations may be made only if—
(a) the Lord Chief Justice, or(b) a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005 (c. 4)) nominated for the purposes of this subsection by the Lord Chief Justice,agrees to the making of the regulations.(3) Treasure regulations may make—
(a) provision for the discharge of an investigation (including provision as to fresh investigations following discharge);(b) provision for or in connection with the suspension or resumption of investigations;(c) provision for the delegation by the Coroner for Treasure (or an Assistant Coroner for Treasure) of any of his or her functions;(d) provision allowing information to be disclosed or requiring information to be given;(e) provision giving to the Lord Chancellor or the Chief Coroner power to require information from the Coroner for Treasure;(f) provision requiring a summary of specified information given to the Chief Coroner by virtue of paragraph (e) to be included in reports under section 29;(g) provision of the kind mentioned in paragraph (h) or (i) of section 35(3).This subsection is not to be read as limiting the power in subsection (1).(4) Treasure regulations may apply any provisions of Coroners rules.
(5) Where Treasure regulations apply any provisions of Coroners rules, those provisions—
(a) may be applied to any extent;(b) may be applied with or without modifications;(c) may be applied as amended from time to time.”
Amendment 133 agreed.
Clause 36 : Coroners rules
134: Clause 36, page 20, line 45, after “32(1),” insert “(2A),”
Amendment 134 agreed.
134A: Clause 36, page 21, line 12, after second “to” insert—
“(i) interested persons, and(ii) ”
I would also like to speak to Amendments 136A and 137A. Amendment 134A is straightforward. It applies to page 21 of the Bill, at subsection (2). It would simply insert before “persons”, “interested persons”. This emanates from my interest in the Bill in trying to ensure that the families of military personnel who have lost their lives in the duty of the country are involved in the process. Whereas this will currently not be disclosed except to persons specified in the direction, I am seeking that the interested persons be named in the direction. Amendment 136A is linked with the provision in that, if accepted by the Minister, it defines what an interested person is. That is covered on page 22 under Clause 38(2)(a), which specifies clearly that an interested person is,
“a spouse, civil partner, partner, parent, child, brother, sister, grandparent, grandchild, child of a brother or sister, stepfather, stepmother, half-brother or half-sister”.
In other words, it is a whole range of family members who may be affected by the death of service personnel. That would put in the Bill clearly what an interested person is, so there would be no way that in the subsequent regulations any of that group of people could be excluded from being consulted and involved.
Amendment 137A is slightly different. It leaves out Clause 36(3)(a). After the Government’s decision to drop Clause 11, I was in some confusion as to whether the clause would remain in the Bill. My concern, if it remains in the Bill, is to seek to remove it from the Bill. The reason is that as it stands a coroner may rule and give a direction excluding specified persons from an inquest or part of an inquest if the coroner is of the opinion that the interests of national security so require. I am not against the best interests of national security. I am concerned that here we could have members of the family of the bereaved excluded from some parts of the coroner’s case. That situation will do nothing to assist the families. It implies that they should not have the full facts of how their loved ones lost their lives, which I do not think is the intention of the Bill.
If this paragraph were deleted, it would mean that in any circumstance the members of the family of the person who lost their life, as a member of military personnel, would be entitled to attend the coroner’s inquest, to have a reason given and to hear what is said rather than be excluded from possibly substantial parts of the hearing. If that were to happen, they would never have a full understanding of what happened when their husband or other member of their family lost their life in the service of their country and, one could also say, they would never arrive at closure. I hope that the Minister is able to accept the three amendments that I have put forward. I beg to move.
I support the observations of the noble Baroness, Lady Dean, particularly in relation to Amendment 137A. Amendment 137B in my name concerns Clause 36(3)(b), which would confer a power to make regulations allowing for a direction which would exclude specified persons from an inquest if the senior coroner were of the opinion that this would be likely to improve the quality of the evidence of a witness under the age of 18.
I have two concerns about Clause 36(3)(b). The first is the breadth of the power. It is not restricted by any requirement to ensure that these rules allow for such exclusion only where necessary because there is no other means of avoiding serious harm to the young person; nor is it restricted by any requirement to ensure that the rules must balance the interests of the young person giving evidence against the interests of another person in remaining present—for example, the interests of the person who may be said to have been responsible for the death in question. I ask the Minister why we need such a broad power when, so far as I know, no such power is found in criminal courts when young people give evidence, which they do regularly.
My second concern about Clause 36(3)(b) is that, on present drafting, it would allow for rules to authorise the senior coroner to exclude all members of the press. Even if there is a case for a rule-making power which allows the senior coroner to exclude individuals from an inquest, I do not accept that it is appropriate to exclude members of the press simply because the young witness might, understandably, find the experience of giving evidence less traumatic the fewer people there are present. Surely the presence of the press at an inquest helps to maintain high standards and avoid rumours and allegations of any cover-up. When members of the public are excluded from a hearing, it is surely all the more important that the press are allowed to remain present. That has long been the practice and the law in youth courts. The Minister will know that under the Youth Justice and Criminal Evidence Act 1999, when a child or young person gives evidence in criminal proceedings and their evidence is likely to be impeded by their fear or distress, and either the proceedings relate to a sexual offence or there is a fear of witness intimidation, the court has a power under Section 25 to make a direction excluding specified persons from the court. Section 25 adds that a representative of the press must be allowed to remain. Section 25 also helpfully provides that in such cases, the proceedings are still to be treated as having occurred in public for the purposes of libel law.
So if it is necessary to retain Clause 36(3)(b) in some form, can the Minister tell us why there is no protection similar to Section 25 of the Youth Justice and Criminal Evidence Act, including similar protections for press freedom, in the coroners’ context? These points that I have made about Clause 36(3)(b) are also relevant to the drafting of Clause 36(3)(a) and I ask the Minister to think again about these aspects of Clause 36.
I support both the amendment moved by the noble Baroness for the reasons she gave and the amendment moved by the noble Lord, Lord Pannick, for the reasons he gave. An explanation is seriously needed as to why existing Children Act legislation cannot be used as a model. I also have a problem with the closing words of Clause 36(3)(b) where it talks about the coroner being of the opinion that having the evidence given without the excluded persons being there,
“would be likely to improve the quality of the witness’s evidence”.
That seems almost to be asking for a mini-trial within an inquest. I do not know how else, on any fair basis, the coroner can possibly arrive at that opinion without allowing it to be tested by questions from interested parties.
I hesitate to speak on this group of amendments, but I feel that I have to. I support the amendments in the name of the noble Baroness, Lady Dean of Thornton-le-Fylde. Indeed, the requirement to specify who the interested persons are relates to an amendment which I will be moving later, and her points are well made. I have a concern, though, about removing the ability of a coroner to exclude certain persons when a child is giving evidence. I say this based on our experience in south Wales, where children in a small community have been intimidated and frightened of speaking out.
I understand the points made by the noble Lord, Lord Pannick, in relation to the press but wonder whether there need to be reporting restrictions so that if members of the press had to breach them, they would know that they were doing so but for good reason, which would afford some protection to the child. I would certainly welcome the assurance he mentioned about libel law being protected whether the hearing was in public or not.
I also ask the Minister whether, if we completely adopted the UN Convention on the Rights of the Child and were a full signatory to it, that might solve the problem in protecting children when they are giving evidence in what is often a desperately stressful situation because it often relates to the death of their own sibling. That is why I have a concern with simply deleting Clause 36(3)(b).
The rule-making power contained in Clause 36(2)(e) is intended to deal with a specific concern that has been brought to our attention by representatives of UK Special Forces personnel and their families, including bereaved family members of UK Special Forces personnel who have died on active service. This power will enable rules to be made allowing a coroner to give a direction that the names or other details will not be disclosed as part of the investigation or inquest, except to people specified in his or her direction.
The intention is to make rules enabling the names of UK Special Forces personnel who have died to be withheld. This will allow them and their families to retain their anonymity and it repays the duty of confidentiality imposed on UK Special Forces personnel during their period of service. This measure has been introduced as a result of approaches from representatives of UK Special Forces personnel and their families, including bereaved family members. This power might also be used to enable a name to be withheld in circumstances when a bereaved family or a witness’s safety would be jeopardised if their identity were made public.
I understand that taken together, Amendments 134A and 136A would mean that a coroner could disclose the deceased’s name not only to persons specified in the direction but to a bereaved family. I believe that that is unnecessary as the bereaved family would know the identity of the deceased member of the UK Special Forces. In other cases, it may not be appropriate for the bereaved family to know the identity of a person subject to a coroner’s direction, for example, if the person was a witness who was in fear of their own or their family’s safety. If it was appropriate for the bereaved family to know the identity of such a witness, the coroner could specify them as persons to whom the identity should be disclosed.
Amendment 137A would remove Clause 36(3)(a), which largely replicates the existing provisions in rule 17 of the coroners rules. It enables a coroner to hold all or part of an inquest in camera if the coroner is of the opinion that it is necessary to do so in the interests of national security. That may be necessary, for example, for an inquest that needs to cover sensitive military operations. I understand that there may be some concerns that in cases where the deceased person is a member of the Armed Forces, this could lead to members of the deceased person’s family and their personal representatives being excluded from attending part of the inquest. It is a concern that I fully understand, but I know that on those rare occasions when the provision has been used by coroners in respect of military operations, most families understand why they have been excluded. I believe that this is another area where the Chief Coroner may consider issuing guidance to coroners. Such guidance could outline in what circumstances the coroner may consider whether to hold part of an inquest in camera in the interests of national security.
When it is necessary to exclude bereaved family members and their personal representatives, as well as the wider public, guidance might also deal with the need to explain the reasons for the decision. Again, I hope that that will put the mind of the noble Baroness at rest that the power in Clause 36(3)(a) will be used proportionately.
The amendment tabled by the noble Lord, Lord Pannick, would prevent the coroner excluding specific people from an inquest where a young person was giving evidence and the coroner believed that the exclusion would improve the quality of the evidence. I accept, of course, that in most circumstances an inquest should be open to the public, but I can envisage situations when a young person might be traumatised by having to give evidence publicly at an inquest. This measure is about ensuring both the quality of evidence and protecting vulnerable young witnesses.
It is intended that rules will be made under Clause 36(3)(b) requiring the senior coroner who is considering whether to issue such a direction to consider the views expressed by the witness, a parent of the witness and all the circumstances of the case. Provision will also be made in the rules made under the clause, so that a direction under this provision may not exclude the jury, if there is one, an interested person or a representative of an interested person.
In addition, provision will be made so that any direction providing for a representative of the press to be excluded from an inquest must be expressed so as not to apply to one named person who is a representative of the press who has been nominated for the purpose by one or more news gathering or reporting organisations. Accordingly, the reports of the proceedings will be able to be published in the usual way, and interested parties will not be excluded. Provision is made in criminal legislation enabling the court to exclude persons from a hearing in which a person under 18 is giving evidence. We will write to the noble Lord to let him know the relevant legislation and how it fits.
Our intentions coincide with the spirit of the remarks made by my noble friend Lady Dean. I request that she withdraws her amendment. If on reflecting upon my words she is not satisfied, I would be happy to meet her to go through how the various parts of the Bill will fit together. If the noble Lord, Lord Pannick, is unconvinced by my answers, I would also be happy to meet him.
The Minister is absolutely right. Our intentions appear to be the same: to protect the families and ensure they have the access that they are entitled to. I do not challenge the Government’s good intentions in putting this provision in Clause 36. I heard the Minister and I thank him for the suggestion that we meet, because the wording as it stands does not meet the points that I have tried to make. I look forward to meeting him. In the mean time, with the leave of the House, I withdraw my amendment.
Amendment 134A withdrawn.
Amendments 135 and 136
135: Clause 36, page 21, line 13, leave out from “delegation” to first “of” in line 14 and insert “by—
(i) a senior coroner, area coroner or assistant coroner, or(ii) the Coroner for Treasure (or an Assistant Coroner for Treasure),”
136: Clause 36, page 21, line 19, leave out “a senior coroner” and insert “the Coroner for Treasure”
Amendments 135 and 136 agreed.
Amendment 136A not moved.
137: Clause 36, page 21, line 24, at end insert “or the Coroner for Treasure”
Amendment 137 agreed.
Amendments 137A and 137B not moved.
Amendments 138 to 140
138: Clause 36, page 21, line 35, leave out subsection (4)
139: Clause 36, page 21, line 38, leave out “to (4)” and insert “and (3)”
140: Clause 36, page 21, line 40, at end insert—
“( ) any provisions of Treasure regulations;”
Amendments 138 to 140 agreed.
Clause 36, as amended, agreed.
Clause 37 agreed.
Clause 38 : “Interested person”
Amendment 140A not moved.
141: Clause 38, page 22, line 40, leave out paragraph (l)
Amendment 141 agreed.
142: Clause 38, page 23, line 4, at end insert—
“( ) In circumstances where an interested person willing to represent the interests of the deceased does not exist, a coroner may recognise as an interested person an organisation or person who would be otherwise recognised as an interested party for the purposes of judicial review proceedings.”
This is also a probing amendment. As I understand it, the clause expands slightly the list of interested persons as laid out in Rule 22 of the Coroners Rules 1984 and empowers the coroner to determine that any other person is an interested person.
There have been a significant number of contentious deaths in detention where the deceased had no family, or no interested family, and as such their interests were underrepresented at the inquest. The experience in these cases is that there is a danger of the inquest becoming a mere rubber-stamping of the official version of events. In the absence of legal representation on behalf of the family, it is unusual for a coroner to ask the kind of searching questions that arise when there is representation. It is felt that some custodial deaths and other controversial deaths have not been as well scrutinised as they should have been because the family did not have the information or resources to be legally represented. When the deceased has no family interested in participating in an inquest it is tantamount to the deceased having no family at all. I would therefore appreciate the Minister’s clarification of the clause.
I commend the noble Baroness, Lady Finlay of Llandaff, for pressing this issue. It is not just a question of deaths in detention in prisons; there are also many circumstances where people are detained under mental health legislation. These people are often without family, or their family has let them be and wants nothing to do with them. They are precisely the kind of people who get in trouble with medication properly prescribed, or with drugs, alcohol or other things, and their management is a significant problem. One might find with people of this kind—and there is a substantial number of them—that the official version, as the noble Baroness has described it, is simply biased. It should be possible for the coroner to recognise other interested persons. So this is simply an opportunity for the Minister to say on record that when coroners are giving consideration to these matters, they should be prepared to consider including appropriate bodies—non-governmental organisations, charities and others—which have an interest in people who are otherwise neglected.
I support this amendment because the points which my noble friend and the noble Lord, Lord Alderdice, have just raised need to be answered by the Government. I think that all of us have met with situations where people have died without loved ones and with no one else to represent them. One thinks of the parallel of the amicus curiae who can intervene and represent people in court when someone, for instance, is in a persistent vegetative state or when their long-term care is being considered. I signed this amendment because I had read recently in the newspaper of a case where someone had been found dead in their council flat. They had been left there for literally weeks on end undiscovered and had no relatives or friends. That seems precisely the kind of case that the coroner ought to be probing to discover where the culpability lay for the neglect of someone who was literally allowed to die unbefriended and uncared for.
Many of us in the Chamber represented constituencies when we were in another place and, sadly, one did occasionally find that there are people living in a state of almost toxic loneliness. I think that it will be the great curse of the 21st century. It is estimated that some 1 million elderly people do not see a friend, neighbour or relative during the course of an average week. I think that this is an issue that we will have to contend with in the future. It would be good if the national coroner had the right to admit an organisation, such as Help the Aged, or an interest group that has been campaigning in some respect about some of these questions, in order to appear on behalf of the person whose case is being considered.
We have heard from the noble Baroness, Lady Finlay, that her Amendment 142 relates to Clause 38 and who may be considered an interested person in relation to a coroner’s investigation. The amendment would add to the list of interested persons those organisations and persons who in the absence of any other interested persons, such as family members, would be recognised as having an interest in a case. We heard from her and from other noble Lords about cases that trouble them in this field.
Our view is that it is not necessary to set out additional classes of person who might be interested for the purposes of a coroner’s investigation, because we have included in Clause 38(2)(n) a discretion for the coroner to be able to designate a person as interested if they have sufficient interest in the matter. It is possible that a coroner may exercise his or her discretion in cases where, for whatever reason, there is no other friend or family member of the person who has died who has an interest in the investigation.
The coroner will of course consider each case on its merits. If the coroner decides that the person or organisation does not have sufficient interest to be designated under Clause 38(2)(n), it will be open to the person or organisation to appeal the decision to the Chief Coroner. I venture to say that that is an important consideration in dealing with this amendment. It should ensure that only those persons with a proper interest in a coroner’s investigation are so designated, with the appeal rights that flow from that. That is all I intend to say on this matter. I hope that it gives the noble Baroness some comfort.
I am most grateful to the Minister. I am particularly grateful to him for clarifying on the record that this will be a person or organisation, and that they will be able to appeal to the Chief Coroner if they are not happy with a decision. It is completely understandable that there must be discretion in who is named—otherwise you could have a vexatious coroners’ court tour by a group that just wanted to agitate rather than being bona fide people interested and concerned about the circumstances of a death. Accepting the Minister’s assurance, I beg leave to withdraw the amendment.
Amendment 142 withdrawn.
Amendments 143 and 144
143: Clause 38, page 23, line 20, leave out “section 21” and insert “Chapter (Investigations concerning treasure)”
144: Clause 38, page 23, line 31, leave out “senior coroner” and insert “Coroner for Treasure”
Amendments 143 and 144 agreed.
Clause 38, as amended, agreed.
Clause 39 : Interpretation: general
Amendments 145 and 146
145: Clause 39, page 23, line 44, at end insert—
““Assistant Coroner for Treasure” means an assistant coroner, designated under paragraph 7 of Schedule (Coroner for Treasure and Assistant Coroners for Treasure), acting in the capacity of Assistant Coroner for Treasure;”
146: Clause 39, page 24, line 9, at end insert—
““the Coroner for Treasure” means a person appointed under paragraph 1 of Schedule (Coroner for Treasure and Assistant Coroners for Treasure);”
Amendments 145 and 146 agreed.
Amendments 146A to 146C not moved.
147: Clause 39, page 25, line 16, at end insert—
““Treasure regulations” means regulations under section (Treasure regulations);”
Amendment 147 agreed.
Clause 39, as amended, agreed.
Clause 40 : Amendments to the Coroners Act (Northern Ireland) 1959
148: Clause 40, page 25, line 40, leave out “and in section 11”
Amendment 148 agreed.
Clause 40, as amended, agreed.
Schedule 9 : Amendments to the Coroners Act (Northern Ireland) 1959
149: Schedule 9, page 138, line 19, leave out paragraphs 3 to 5
Amendment 149 agreed.
Schedule 9, as amended, agreed.
Clause 41 agreed.