Coroners and Justice Bill

Public Bill Committee, 5 February 2009.

Frank Cook (Labour, Stockton North)

Good morning one and all, and welcome to the third evidence session of the Committee. I remind hon. Members and witnesses that the sitting must end at 10.25 at the latest. I hope that I do not have to interrupt hon. Members or witnesses in the middle of sentences, but I will do so if need be. I ask the witnesses to introduce themselves individually.

Frank Cook (Labour, Stockton North)

Many thanks. For the first question, I call Edward Garnier.

Edward Garnier (Conservative, Harborough)

Mr. Fassenfelt, from your position as an officer of the association but also as a sentencer in a court in Kent, do you share Mr. Thornhill’s concerns?

Edward Garnier (Conservative, Harborough)

Mr. Cavadino, I do not know whether this is relevant to your area of work and experience, but if you have something that might help us, I would be pleased to hear it.

Edward Garnier (Conservative, Harborough)

Do you understand that clause 109 is directed at the Executive, rather than at the sentencer?

Edward Garnier (Conservative, Harborough)

Are you therefore saying—I will come on to the other witnesses—that had resource assessments been in place over the past 10 years, we might have had fewer criminal justice Bills and we would not have had 3,500 new offences being created with many of those offences sending people to prison?

Edward Garnier (Conservative, Harborough)

Gillian Guy, do you have anything to help us on this?

Edward Garnier (Conservative, Harborough)

We know—the witnesses from the Prison Reform Trust might tell us more about this—that the prison population has risen by approximately 15,000 to 20,000 since this Government came into office. We also know—this is not a controversial point—that about a quarter of the prison population is accommodated in cells that are too small. That is to say that about 18,000 people are doubled up in single cells and that about 3,000 or 4,000 people are trebled up in double cells. Do you think that a resource assessment of the nature set out in clause 109 would help us to deal with prison overcrowding?

Edward Garnier (Conservative, Harborough)

Juliet Lyon and Professor Mike Hough, do you think that clause 109, which deals with the resource implications of the guidelines, confuses the purpose of the other clauses dealing with the guidelines to the courts? Are there not two separate functions: first, calculating the available resources, given the state of the economy and Government finances, and how they should be deployed within the criminal justice system and, secondly, what a court should do in any given case? Would it be easier and clearer if those two functions were expressly separated rather than dealt with entirely by the Sentencing Guidelines Council?

Edward Garnier (Conservative, Harborough)

Are you suggesting, therefore, that magistrates, sentencers and the Crown court should be informed of and required to take into account the resource implications following the assessments, or are you saying that that should be a matter for the Executive—the Government and the Ministry of Justice? Is it for them to learn the lessons of the assessment and to provide, or not to provide as their political policies may conclude, the answers to the questions posed by the assessment, and to leave the courts free, under statute and common law, to apply the relevant sentences?

Edward Garnier (Conservative, Harborough)

On Tuesday, Mr. Martin Narey—as you all know, he is the chief executive of Barnardo’s, but he previously worked for the Prison Service—said that just as we ration health provision, so we should ration criminal justice provision. In so far as I understood his argument, he appeared to think that there is no difference between the one public service and the other. Do you think, from the point of view of a magistrate or someone who has to look after and influence policy on prisoners and non-custodial defendants, that we can, by using these resource assessments, ration access to the criminal justice system?

Edward Garnier (Conservative, Harborough)

Could you just draw out the implications of your last sentence?

Edward Garnier (Conservative, Harborough)

Gillian Guy and Paul Cavadino, would you like to comment on my questions?

Edward Garnier (Conservative, Harborough)

Can I ask one of you from the Magistrates Association?

Alun Michael (Labour, Cardiff South and Penarth)

The sentencing council will be dominated by lawyers, and specifically by judges. Can I ask each of you, starting with Professor Hough, how we can ensure that its guidance is driven by consideration of what works and the objectives of cutting offending and reducing reoffending, not just by court-based experience tempered by resource issues, which is where this conversation has been since we started this morning?

Alun Michael (Labour, Cardiff South and Penarth)

There is no guarantee that they will be listened to, though.

Alun Michael (Labour, Cardiff South and Penarth)

I think that in evidence elsewhere, Gillian Guy has said that what victims want, other than for the clock to be turned back so that they did not become victims in the first place, is for it not to happen again. Should that not be a big focus for the sentencing council?

Alun Michael (Labour, Cardiff South and Penarth)

You referred to effectiveness being among other things, but should it not have primacy?

Alun Michael (Labour, Cardiff South and Penarth)

In that case, is not your suggestion of having one person who has some experience of rehabilitation remarkably modest?

Alun Michael (Labour, Cardiff South and Penarth)

Turning to the Magistrates Association, we are again talking about the majority of sentences handed out. Would not magistrates welcome an emphasis on effectiveness and, in effect, assistance in the judgments they make by enhancing their knowledge of the likely effectiveness of the sentences they pass, in the way that Mr. Thornhill has just described?

Jeremy Wright (Conservative, Rugby and Kenilworth)

May I first apologise to the witnesses for missing the beginning of the evidence session? I want to ask about special measures and suspect that the questions would be best directed to Gillian Guy.

Frank Cook (Labour, Stockton North)

Order. You bid to ask about sentencing.

Jeremy Wright (Conservative, Rugby and Kenilworth)

I bid for special measures.

Frank Cook (Labour, Stockton North)

In that case, I ask you to hold those questions and call George Howarth.

George Howarth (Labour, Knowsley North and Sefton East)

Mr. Thornhill, you made a fairly passionate plea for judicial independence and discretion, particularly with regard to magistrates being able to sentence as they see fit, and nobody demurs from that. You made it clear that you did not think considerations about the availability of custodial places should have any impact on the sentence. Can you give the Committee an absolute assurance that those sitting in the City of Liverpool magistrates court are not influenced when sentencing by the availability of prison places?

George Howarth (Labour, Knowsley North and Sefton East)

Bearing in mind that I probably know some of the people who sit on the bench in Liverpool, can you categorically state that the clerk of the court does not ring round before a session to find out about the availability of prison places and—on occasion—advise the sentencer that should a custodial sentence be given, no place will be available?

George Howarth (Labour, Knowsley North and Sefton East)

Given what you have already said, it would be entirely appropriate for you to answer that question.

George Howarth (Labour, Knowsley North and Sefton East)

I am asking a question.

Edward Garnier (Conservative, Harborough)

As a sentencer who sits in the Crown court, I can tell you that I have never heard of any judge passing a sentence because he has read in the newspapers, or been told in the dining room at lunch, that the prisons are full.

George Howarth (Labour, Knowsley North and Sefton East)

It is helpful, Mr. Cook, to have Mr. Garnier guide us in this way, but it is for me to ask the questions and for the witnesses to answer them.

George Howarth (Labour, Knowsley North and Sefton East)

I am talking about prison places.

George Howarth (Labour, Knowsley North and Sefton East)

Perhaps we should move on. At the moment, if the totality of sentences handed down by all the courts exceeds the number of prison places, the only safety valve in the system is early release—I think you referred to that earlier, Mr Thornhill. Is early release probably the least desirable way of dealing with an excess of sentences?

George Howarth (Labour, Knowsley North and Sefton East)

So you agree that early release is a very unsatisfactory way of dealing with this issue?

George Howarth (Labour, Knowsley North and Sefton East)

Thank you. Mr Cavadino, you were a member of the Gage working group, as was I. Do you see anything in clauses 107 to 109, or anywhere else in the Bill, that would require sentences to be passed based on an understanding of the current availability of prison places?

George Howarth (Labour, Knowsley North and Sefton East)

One of the arguments is that requiring the court to follow sentencing guidelines—particularly in determining tariffs, for example—would be an undue fetter on the discretion of sentencers. Do you think the phrase,

“unless...it would be contrary to the interests of justice to do so”,

is a weak test or a strong test?

George Howarth (Labour, Knowsley North and Sefton East)

I wonder whether the remaining three witnesses could comment on the suitability of that test for departure from the guidelines.

Jeremy Wright (Conservative, Rugby and Kenilworth)

Gillian Guy, can I ask you about special measures? If any other witnesses want to come in, please feel free, but I suspect this is more for you than for them. Clause 82, as you know, gives the absolute right for witnesses in specified offences involving guns and knives to have special measures when they give evidence, and, as we all understand, the purpose of special measures is to enable witnesses who are anxious or frightened, or otherwise concerned about giving evidence, the opportunity to do so with certain extra help.

Is there any logic, in your view, to making a specific category of offences eligible for witnesses to have special measures, or is it more sensible simply to say, as we do now, that if the witness can demonstrate particular anxiety or concern, they should have the special measures, and if they cannot they should not?

Jeremy Wright (Conservative, Rugby and Kenilworth)

You know that one of the arguments made against special measures, in particular circumstances, is that they make the defendant look more guilty when a witness is given certain measures through which they can give evidence. To counter that argument, would it be better for all witnesses, particularly those under the age of 18, for example, to be entitled to special measures, as a matter of course, so that no jury could look at a particular witness and say, “The fact that that witness has special measures must mean that the defendant is a little more guilty”?

Madeleine Moon (Labour, Bridgend)

I have a particular question about the coroner’s duty to investigate, especially following a violent death or a death by suicide in prisons. On the issue of the prevention of further deaths, I am concerned that the current system does not necessarily investigate fully the background to the individual’s death and their history that perhaps led to that death. I am aware of psychological autopsy studies that have increased the background investigations into an individual’s personal history. They have produced tremendous evidence in relation to suicide in particular. What is your view on the best way to structure investigations to give us far greater information and evidence to help to prevent future deaths and which might even influence sentencing in relation to deaths in custody? Can you comment on that?

Madeleine Moon (Labour, Bridgend)

Do you think that it would be helpful if there were national guidelines to be followed in investigations so that consistent information came through, rather than leaving it to individual coroners to conduct their own form of investigation? Do we need to establish the nature of the issues to be investigated? Professor Hough, with your research experience, can you comment on that?

Frank Cook (Labour, Stockton North)

For practical purposes, I will move on to live links.

David Kidney (Labour, Stafford)

In a moment, I will ask the witnesses about the significance of removing the safeguard of requiring the consent of the accused before using live links. First, though, will John Thornhill and Gillian Guy say something about the present use of live links and the existing law? How does it work practically in magistrates courts, and are there any implications for the delivery of justice? Gillian, what is the experience of victims of crime with access to live links?

David Kidney (Labour, Stafford)

That is helpful to start with, but can I now go through the witnesses? Juliet Lyon, I do not think that the written response that you sent us covers that particular point. A lot of the links are from prison to court. Do you have concerns about changing the present system by removing the consent, and if so, can you suggest any safeguards in its place?

David Kidney (Labour, Stafford)

Others are expressing concerns about the potential for the abuse of prisoners. First, they would not be seen because they did not appear in court, and they could be subjected to subtle pressure to plead in a way that they might not plead in a courtroom. Do you share those concerns?

David Kidney (Labour, Stafford)

Gillian Guy, do you welcome the change and do you have any concerns about it?

Tim Boswell (Conservative, Daventry)

Briefly, Gillian Guy referred earlier to alleged inconsistencies in the use of the measures and had some concern about it. I am not familiar with them myself, but it would be useful if you, Gillian, and/or John Thornhill, could say whether the resources issue crops up again. Is there a need for greater consistency of practice, and is that constrained by resources in particular cases? Will the Bill help to address that?

Tim Boswell (Conservative, Daventry)

Perhaps before Mr. Thornhill responds, I could follow that comment by asking him to mention his experience of resources, and to say whether a bench that has a difficulty with the procedure is in a position to influence decisions on the allocation of resources to deal with it.

Tim Boswell (Conservative, Daventry)

That is very helpful. I would like to ask about your experience in cases of individual witnesses. Some comment has already been made about confusion—for example, on whether they know that they are going to appear. Is it your experience in court that, on the whole, magistrates address these matters in a way that makes things clear to people, and could we improve that practice if not by legislation?

Alun Michael (Labour, Cardiff South and Penarth)

My question is first to Victim Support, but I would be interested in the views of other members of the panel. It focuses on the commissioner for victims and witnesses. There has been encouragement from Government for the system generally to show greater respect to victims in two senses: first, in relation to the concern articulated by Victim Support that I mentioned earlier—that what has happened does not happen again—and secondly in relation to the experience in court of victims and witnesses. We have had the statutory code of practice for victims of crime. We have had things such as the prosecutors pledge, although from evidence given to the Justice Committee, I got the general impression that that does not seem to have any great salience. What will the victims commissioner add and how can we be sure that the commissioner will do what previous measures have been intended to do?

Alun Michael (Labour, Cardiff South and Penarth)

Are there any comments from other witnesses?

Alun Michael (Labour, Cardiff South and Penarth)

Is it as bad in Liverpool?

Alun Michael (Labour, Cardiff South and Penarth)

If something goes wrong, currently there are about 10 different organisations that have a piece of the criminal justice system, with 10 different ways of making a complaint or seeking to register a complaint. Is that adequate? Is that satisfactory?

Alun Michael (Labour, Cardiff South and Penarth)

Would that be a role for the commissioner for victims and witnesses?

Jennifer Willott (Liberal Democrat, Cardiff Central)

I want to ask, just expanding on that, about the role of witnesses, and the support for witnesses and victims, in the coroners’ system rather than magistrates courts and Crown courts. To declare an interest, I used to work for Victim Support before I got elected, and I know that in some parts of the country there is a witness service equivalent in coroners’ courts, but it is quite patchy. Victim Support has said that it would like that to go on much more broadly across the country. Is anything needed in the Bill to enable that to happen, or is it simply a matter of resources?

Jennifer Willott (Liberal Democrat, Cardiff Central)

And you would like to see that included in the charter specifically?

Jennifer Willott (Liberal Democrat, Cardiff Central)

That relates exactly to the question I was about to ask you, which concerns access to legal aid at inquests. You have just put forward one side of the argument, and we have already heard the other side, which is that if both sides are represented by lawyers it can turn into a quasi-trial so that the character of an inquest is changed and, rather than being inquisitorial, ends up being much more adversarial and more like that of a criminal court. What are the feelings of the other witnesses who have an interest in the provision of legal aid for families, particularly in cases where the other side is represented by lawyers? Would that counteract that imbalance and make it fairer or end up changing the character of an inquest?

Frank Cook (Labour, Stockton North)

For the final 14 minutes we can fix our gaze on witness anonymity.

Edward Garnier (Conservative, Harborough)

I wonder whether I might ask the magistrates what their experience is, either as individuals or an association, of the use of the emergency legislation we passed last summer to allow for witness anonymity in court; the other witnesses are welcome to comment on that.

Edward Garnier (Conservative, Harborough)

Gillian Guy, have you been involved in any cases in which victims have been involved with witness anonymity orders ?

Edward Garnier (Conservative, Harborough)

So you have no direct experience of how that is working. I will move on to bail. You will perhaps have seen clauses 97 and 98, which will amend the current bail law. It has been suggested that that will restrict the ability of courts in certain circumstances to give bail in murder cases, and if you look at the black letter text of the Bill you will see that there is no doubt that it will. Does that matter or concern you, and is it a good thing? What is your general view on that?

Edward Garnier (Conservative, Harborough)

Do any other witnesses have observations on clauses 97 and 98?

Edward Garnier (Conservative, Harborough)

I appreciate that the Bill deals with about 25 different subjects, but there are provisions in it to allow a magistrate decision to be made by one justice of the peace as opposed to a bench of two or three. Do you see that as a useful advance, either in bail cases—which it does not cover—or in other decisions that courts sometimes have to make? One observation made is that it is difficult to get a bench of magistrates together for quick decisions or lengthier cases. Do you see an argument for allowing magistrates to sit with fewer members on the bench?

Frank Cook (Labour, Stockton North)

If members of the Committee have no further questions for the witnesses, is there anything that the witnesses would like to offer or comment on?

Frank Cook (Labour, Stockton North)

That seems very apropos.

Edward Garnier (Conservative, Harborough)

Following that, I am hearing anecdotal evidence that in a number of quite serious cases involving rape and violent offences, the police are not progressing cases beyond a complaint, either because it requires too much effort to get additional evidence at the request of the Crown Prosecution Service or because they are not confident that the victim or some other relevant witness will appear in court, so they do not bother. Defence solicitors are telling me that their clients are getting off scot-free. Sometimes they get a caution, but often they are simply not proceeded against. Do you think that the council might also look at that?

George Howarth (Labour, Knowsley North and Sefton East)

What is the reason for that failure? Is it purely administrative, or is there some other reason?

Frank Cook (Labour, Stockton North)

Are there any further words of wisdom, in a John Humphrys one minute?

Frank Cook (Labour, Stockton North)

If you will forgive my impersonal comments, I would like to thank all six of you not only for your answers today, which have been illuminating, but for the words of wisdom that you have thrown in at the end. They are very helpful indeed, and very pertinent.

I am afraid that that brings us to the end of the time allotted for the Committee this morning. I remind right hon. and hon. Members that the Committee will meet again at 1 pm today.

Roger Gale (Conservative, North Thanet)

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.

Henry Bellingham (Conservative, North West Norfolk)

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?

Henry Bellingham (Conservative, North West Norfolk)

That is very helpful.

Alun Michael (Labour, Cardiff South and Penarth)

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?

Edward Garnier (Conservative, Harborough)

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?

Edward Garnier (Conservative, Harborough)

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”?

Jennifer Willott (Liberal Democrat, Cardiff Central)

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?

Jennifer Willott (Liberal Democrat, Cardiff Central)

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.

Jennifer Willott (Liberal Democrat, Cardiff Central)

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?

Jennifer Willott (Liberal Democrat, Cardiff Central)

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?

Jennifer Willott (Liberal Democrat, Cardiff Central)

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.

Madeleine Moon (Labour, Bridgend)

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?

Roger Gale (Conservative, North Thanet)

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

Brian Iddon (Labour, Bolton South East)

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?

Brian Iddon (Labour, Bolton South East)

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

Brian Iddon (Labour, Bolton South East)

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?

Roger Gale (Conservative, North Thanet)

Are there any further questions on assisted suicide?

Brian Iddon (Labour, Bolton South East)

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.

Madeleine Moon (Labour, Bridgend)

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?

Roger Gale (Conservative, North Thanet)

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.

David Kidney (Labour, Stafford)

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?

David Kidney (Labour, Stafford)

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.

David Kidney (Labour, Stafford)

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?

Roger Gale (Conservative, North Thanet)

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

Alun Michael (Labour, Cardiff South and Penarth)

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?

Alun Michael (Labour, Cardiff South and Penarth)

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.

Alun Michael (Labour, Cardiff South and Penarth)

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?

Edward Garnier (Conservative, Harborough)

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.

Edward Garnier (Conservative, Harborough)

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?

Edward Garnier (Conservative, Harborough)

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

Edward Garnier (Conservative, Harborough)

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?

Edward Garnier (Conservative, Harborough)

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?

Edward Garnier (Conservative, Harborough)

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

Edward Garnier (Conservative, Harborough)

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

Edward Garnier (Conservative, Harborough)

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?

Roger Gale (Conservative, North Thanet)

The next question will be brief.

Jeremy Wright (Conservative, Rugby and Kenilworth)

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?

Roger Gale (Conservative, North Thanet)

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?

Roger Gale (Conservative, North Thanet)

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.

Edward Garnier (Conservative, Harborough)

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?

Edward Garnier (Conservative, Harborough)

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

Edward Garnier (Conservative, Harborough)

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.

Edward Garnier (Conservative, Harborough)

Do you mean mandatory life sentence?

Edward Garnier (Conservative, Harborough)

You are talking about murder one, murder two.

Edward Garnier (Conservative, Harborough)

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.

Edward Garnier (Conservative, Harborough)

Sorry, 41 and 42.

Edward Garnier (Conservative, Harborough)

May I ask that those bits of paper be distributed?

Edward Garnier (Conservative, Harborough)

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.

Roger Gale (Conservative, North Thanet)

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.

Edward Garnier (Conservative, Harborough)

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

Roger Gale (Conservative, North Thanet)

Are there any more questions?

David Howarth (Liberal Democrat, Cambridge)

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?

David Howarth (Liberal Democrat, Cambridge)

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

David Howarth (Liberal Democrat, Cambridge)

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

David Howarth (Liberal Democrat, Cambridge)

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?

David Howarth (Liberal Democrat, Cambridge)

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?

David Howarth (Liberal Democrat, Cambridge)

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?

David Howarth (Liberal Democrat, Cambridge)

One often sees—

Roger Gale (Conservative, North Thanet)

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

David Howarth (Liberal Democrat, Cambridge)

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?

Tim Boswell (Conservative, Daventry)

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?

Tim Boswell (Conservative, Daventry)

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.

Tim Boswell (Conservative, Daventry)

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.

Roger Gale (Conservative, North Thanet)

Do you want to add anything, Mr. Stobbs?

Roger Gale (Conservative, North Thanet)

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?

David Kidney (Labour, Stafford)

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?

David Kidney (Labour, Stafford)

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?

David Kidney (Labour, Stafford)

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?

David Kidney (Labour, Stafford)

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?

David Kidney (Labour, Stafford)

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.”?

Jeremy Wright (Conservative, Rugby and Kenilworth)

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?

Jeremy Wright (Conservative, Rugby and Kenilworth)

Mr. Lodder, can you think of any?

Jeremy Wright (Conservative, Rugby and Kenilworth)

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?

Jeremy Wright (Conservative, Rugby and Kenilworth)

Thank you. That is very helpful.

Roger Gale (Conservative, North Thanet)

Now we move to sentencing.

Edward Garnier (Conservative, Harborough)

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?

Edward Garnier (Conservative, Harborough)

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?

Edward Garnier (Conservative, Harborough)

That is the preferred outcome?

Edward Garnier (Conservative, Harborough)

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.”?

Edward Garnier (Conservative, Harborough)

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?

Tim Boswell (Conservative, Daventry)

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.

Tim Boswell (Conservative, Daventry)

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.

Edward Garnier (Conservative, Harborough)

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?

Maria Eagle (Labour, Liverpool, Garston)

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.

Maria Eagle (Labour, Liverpool, Garston)

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.

Jeremy Wright (Conservative, Rugby and Kenilworth)

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?

Jeremy Wright (Conservative, Rugby and Kenilworth)

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.

Edward Garnier (Conservative, Harborough)

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

Roger Gale (Conservative, North Thanet)

Order.

Edward Garnier (Conservative, Harborough)

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—

Edward Garnier (Conservative, Harborough)

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.

Roger Gale (Conservative, North Thanet)

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.

David Kidney (Labour, Stafford)

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?

David Kidney (Labour, Stafford)

In the last—

Roger Gale (Conservative, North Thanet)

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.

Roger Gale (Conservative, North Thanet)

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.

Brian Iddon (Labour, Bolton South East)

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

Roger Gale (Conservative, North Thanet)

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

David Howarth (Liberal Democrat, Cambridge)

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?

David Howarth (Liberal Democrat, Cambridge)

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.

David Howarth (Liberal Democrat, Cambridge)

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.

David Howarth (Liberal Democrat, Cambridge)

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.

David Howarth (Liberal Democrat, Cambridge)

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.

Edward Garnier (Conservative, Harborough)

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.

Edward Garnier (Conservative, Harborough)

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.

Jeremy Wright (Conservative, Rugby and Kenilworth)

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”?

Jeremy Wright (Conservative, Rugby and Kenilworth)

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.

Jeremy Wright (Conservative, Rugby and Kenilworth)

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.

Maria Eagle (Labour, Liverpool, Garston)

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?

Maria Eagle (Labour, Liverpool, Garston)

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?

Maria Eagle (Labour, Liverpool, Garston)

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?

Roger Gale (Conservative, North Thanet)

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.

Edward Garnier (Conservative, Harborough)

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.

Edward Garnier (Conservative, Harborough)

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

Roger Gale (Conservative, North Thanet)

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?

Roger Gale (Conservative, North Thanet)

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.

Roger Gale (Conservative, North Thanet)

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

Henry Bellingham (Conservative, North West Norfolk)

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?

Henry Bellingham (Conservative, North West Norfolk)

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?

Henry Bellingham (Conservative, North West Norfolk)

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?

Henry Bellingham (Conservative, North West Norfolk)

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?

Henry Bellingham (Conservative, North West Norfolk)

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

Tim Boswell (Conservative, Daventry)

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?

Tim Boswell (Conservative, Daventry)

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.

Tim Boswell (Conservative, Daventry)

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?

Ian Lucas (Labour, Wrexham)

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?

Ian Lucas (Labour, Wrexham)

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

Ian Lucas (Labour, Wrexham)

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

David Kidney (Labour, Stafford)

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?

David Kidney (Labour, Stafford)

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?

David Kidney (Labour, Stafford)

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?

David Kidney (Labour, Stafford)

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.

The rest of the debate is in Hansard.