Buried in the Coroners and Justice Bill, about to be rammed through Parliament, are a variety of potentially disastrous changes to the law
This government has an overstocked wardrobe mentality about legislation: everything is in the wardrobe, open the door and it all falls out at once and in no particular order. The Coroners and Justice Bill is no exception. It is a hotch potch of measures, some of which should have received serious discussion and consultation with the public before being rammed through Parliament. While public attention focuses on the provisions for prosecuting those who “encourage” or assist suicide, other potentially serious changes are sneakily introduced.
For example, buried in the Bill is the provision for government agencies to share the personal details of individual citizens with “designated” third parties, with no parliamentary control over how this power is to be used. Victims fleeing domestic violence, young persons trying to escape from being forced into marriage and witnesses to criminal offences who wish to be able to disappear after giving evidence will no longer feel safe. It needs only one corrupt person with access to a database for someone’s address to be discovered. The government should not be legislating on the basis that all can be trusted in the best of all possible worlds. Dominic Grieve, the Shadow Justice Secretary, has said there should be stand-alone legislation for this one, but it is not a matter which is likely to be well understood by the public.
Another potentially disastrous change is the establishment of a Sentencing Council. The Sentencing Guidelines Council, set up at no doubt considerable expense after the Criminal Justice Act 2003, is to be abolished, as is the Sentencing Advisory Board, which concentrates on Court of Appeal decisions. Centuries of common law is to be jettisoned. Now sentences for criminal cases are to be fixed with ever increasing rigidity as the Council dictates what factors can be deemed aggravating or mitigating for judges and magistrates dealing with criminal sentences. The Council, a group of people to be chosen by the Lord Chancellor, is to set guidelines for every criminal offence, giving a range of sentencing. There is to be consultation about the Guidelines with the Lord Chancellor and anyone he nominates, but significantly not with Parliament or any parliamentary committee. Any court must take the Guidelines into account and any deviation will be closely monitored. A District Judge who wishes to be promoted to the Crown Court may well feel too scared to do what is right in an individual case. Crown Court judges anxious to be promoted to the Court of Appeal are going to think carefully before stepping outside the parameters of what is in a guideline, even where it is obvious that an individual case calls for an individual approach.
The government will undoubtedly get away with this destruction of our common law network of Court of Appeal and House of Lords precedents. Few people care about what happens to criminals. But the public will eventually realize that the Council must take into account questions of cost and that therefore if prisons are overcrowded more offenders must escape custody.
Also in the Bill are the proposed changes to the law on Murder. Provocation, a concept which everyone understood, is abolished as a partial defence which reduced Murder to Manslaughter. Instead we are to have “loss of self-control” which will require a “qualifying trigger”. Sexual infidelity cannot count as a factor: juries are no longer to be trusted but will be told what they can and cannot take into account. The man who comes home and finds his wife in bed with his best friend is supposed to react with saintly forbearance. (Lest anyone think that I am suggesting that such a person should be absolved of any blame, I should point out that provocation reduces Murder, with its fixed life sentence, to Manslaughter and is not a complete defence.)
There are, to be fair, some sensible provisions tucked away in this Bill. I have long thought that a disqualification from driving should start from the date a person is released from a prison sentence, or that convictions from other jurisdictions, properly evidenced by court documents, should be capable of being used in our courts. But this Bill is typical of the government’s enthusiasm for constant change. When you find a section that amends a section of another Act which is not even yet in force, it is time to go home.
Thanks to the internet we can all now read government Bills, and perhaps the days of burying obscure and damaging legislation are over.