Creating a fairer Britain
1. The Equality and Human Rights Commission (EHRC) was established on 1 October 2007 and is working to eliminate discrimination and hatred of, prejudice and hostility against different groups, reduce inequality, protect human rights and to build good relations, ensuring that everyone has a fair chance to participate in society.
2. The Commission is a non-departmental public body (NDPB) established under the Equality Act 2006 and is accountable for its public funds, but independent of Government.
3. This briefing has been produced in the context of the Commission's statutory duties. In its work, the Commission takes account of the UK's obligations under international human rights standards.
4. The Commission welcomes the Bill and applaud its overarching objective to deliver a more effective, transparent and responsive justice and coroner service for victims, witnesses, bereaved families and the wider public.
5. However, the Commission has two main concerns with the Bill: Clauses 11 -12: Certified Inquests; and Clause 75: Witness Anonymity.
6. Clause 11 of the Bill gives the Secretary of State a power to certify an investigation where an inquest is to be held by a senior coroner with a jury if it involves a 'protected matter' that should not be made public to protect the interests of national security, the relationship between the UK and another country, or preventing or detecting crime, or in order to protect the safety of a witness or other person.
7. Clause 12 makes amendments to the Regulation of Investigatory Powers Act 2000 to allow disclosure of intercepted communication or other communication data to the senior coroner and counsel appointed to a certified inquest.
8. New Clauses 11 & 12 represents a significant shift in the government's position on certified inquests. The amendments to the Bill provides for greater judicial oversight over the system: the judge will now decide whether to dispense with the jury if satisfied that this is necessary. The judge can also decide to go ahead with the inquest with a jury but would have to ensure that protected matters are not disclosed.
9. The Commission welcomes the government's shift in position but still believes there is some way to go before it strikes the right balance between the government's public policy objective and the need to comply with human rights standards established under Article 2.
10. The Commission considers that the reasons for which an inquest can be certified are very wide. Clause 11(1)(c)(ii) stated aim is to protect the relationship between the UK and another country. The Commission considers that this reason could be limited to protecting the relationship between the UK and another country where issues of national security are involved. Similarly, Clause 11(1)(c)(iii) refers to preventing or detecting crime. The Commission considers this to be a weak test and could be strengthened by including a seriousness test.
11. The Commission intends to put forward more detailed amendments at Committee stage based on what we consider would meet human rights standards.
12. Clause 61 seeks to amend Part 3A of the Public Order Act 1986 to repeal section 29JA which is aimed at protecting discussion or criticism of sexual conduct etc.
13. The Commission welcomes clause 61 with caution, we discuss this in more detail below. The Commission considers that the offence is narrowly drawn and has in-built safeguards which will adequately protect criticism of sexual orientation without a further need for a free speech clause.
14. However, the Commission is concerned about the piecemeal manner in which incitement to hatred laws have developed and is likely to continue to develop. The removal of section 29JA of the Public Order Act will result in further inconsistencies between the provisions for incitement to hatred. This may be perceived as creating a hierarchy of rights, which the Commission considers should be avoided unless absolutely necessary. The Commission therefore considers a full review of all incitement hatred legislation is necessary to determine both their scope and effectiveness.
15. The Commission urges the Lords to call for a review of incitement to hatred legislation.
16. Part 3 Chapter 2 of the Coroners and Justice Bill revisits the issue of witness anonymity and replaces the provisions of the Criminal Evidence (Witness Anonymity) Act which was rushed through in July 2008 in response to the House of Lords judgment in R v Davis.
17. The Commission recognises the importance of protecting the rights of victims and witnesses in criminal proceedings and in this regard has intervened in a case before the House of Lords concerning the obligation on the police to protect the right to life where victims and witnesses are threatened.
18. The right of those being prosecuted to know about who is making the accusation is a fundamental one, is a key provision of the English constitution and one guaranteed by international human rights principles. However the Commission accepts that in very exceptional circumstances there may be a need for witnesses to be granted anonymity in criminal proceedings. The granting of a witness anonymity order, however, can never be at the cost of the guarantee of a right to a fair trial. Miscarriages of justice are not in the public interest.
19. The right to a fair trial is absolute and any changes in the procedures which protect that right must be carefully scrutinised and clearly justified to ensure that the right is not compromised.
20. Clause 75 outlines the conditions for making a witness anonymity order.
'a) in order to protect the safety of the witness or another person or to prevent serious damage to property, or
b) 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).'
21. The Commission welcomes condition B which requires that ‘having regard to all the circumstances, the effect of the proposed order would be consistent with the defendant receiving a fair trial.’
22. The Commission is concerned, however, that condition A, is overly broad given the impact that such an order may have on the rights of the defendant. Condition A requires that the proposed order is necessary -
23. The Commission believes that only a serious risk to the physical integrity of the witness or another person could justify such an order. The reference to damage to property should be removed from Clause 75(3)(a) and 75(6)(b).
24. The Commission understands that there may be occasions where real harm to the public interest could be done by revealing the identity of a witness thereby compromising the activities of law enforcement or the security services aimed at protecting the public, however there is a risk that such a broad provision could lead to witness anonymity orders being made as a matter of course. The European Court of Human Rights has recognised that there is an essential difference between ordinary witnesses and members of the police force of the State who usually have links with the prosecution and owe a general duty of obeisance to the State. Witness anonymity orders in such cases should only be made in truly exceptional circumstances. Clause 78 clarifies that the Bill does not affect the common law rules on withholding information on the grounds of public interest immunity. It is therefore questionable whether the additional condition of public interest in this context is necessary. If a condition covering this type of case is maintained, the Bill should specify that witness anonymity orders may only be made where there is a serious risk to public safety.
25. The importance of being able to cross-examine a witness as a key element of the right to a fair trial has been recently underlined by the European Court of Human Rights.