Last year this column had cause to comment several times on the bill that became the Coroners and Justice Act 2009 as it made its progress through Parliament. The Act received Royal Assent on 12 November 2009 after receiving, importantly in view of current events, cross-party support in both Houses of Parliament.

The creation of the post of Chief Coroner for England and Wales was at the heart of the Act. The role was designed to introduce national leadership of the coroner service, a crucial step in tackling unacceptable delays, inconsistent standards of service delivery and lack of accountability. The Act also contained measures to introduce a Medical Adviser to the Chief Coroner, deliver an improved service for bereaved people, including the introduction of a Charter for Bereaved People, and a system of appeals against coroners’ decisions. It also introduced national standards that coroners should meet, supported by training and guidance.

Then came the hammer blow. In a House of Commons Written Ministerial Statement on 14 October 2010, Justice Minister Jonathan Djanogly said: “However, after careful consideration, we have decided that in the current economic climate we cannot go ahead with plans to implement national leadership from a Chief Coroner, an appeals system, or a medical adviser. We have proposed that the abolition of the office of the Chief Coroner should be included in the Public Bodies Bill…and we are further considering the transfer of some of the Chief Coroner’s functions to suitable alternative bodies.” He went on to say: “We will continue to work collaboratively with coroners, local government and police authorities to deliver service improvements. We will also explore with voluntary sector organisations how we can work together better, so as to provide further support for people when they suffer a sudden or unexpected bereavement.” Peter Thornton QC, a Senior Circuit Judge at the Central Criminal Court, had been appointed to the post of Chief Coroner but had not yet taken up his duties. Now he won’t.

This announcement has provoked widespread dismay. The Royal British Legion had welcomed the original legislation, believing that the establishment of a Chief Coroner’s Office was critical to improving the working of the inquest system in relation to military inquests and provided necessary reforms to the inquest system, such as oversight and monitoring of investigations into Service deaths, compulsory training for coroners carrying out military inquests, and new rights of appeal for families. Reacting to the abolition, Chris Simpkins, Director General of the Legion, said: “We are concerned that the families of our fallen heroes will no longer have confidence that the circumstances of their loved ones’ deaths will be thoroughly investigated.” He added: “We believe this decision would be a deep betrayal of bereaved Service families.”

INQUEST, a charity which provides free legal advice to bereaved people, also condemned the announcement. Deborah Coles, Co-Director, said: “The dysfunctional and flawed inquest system is in need of complete reform. It is dishonest to suggest today’s proposals to tweak rules and regulations will deliver the fundamental change that is needed urgently.” She added: “Not only does this decision fail bereaved families but also society, which should have an inquest system fit for purpose in the 21st Century. The inquest is usually the only public forum in which contentious deaths such as accidents, deaths at work, deaths in custody or deaths of military personnel are subjected to public scrutiny. The current system is failing to perform its preventative function. Today’s announcement by the Coalition government will frustrate the opportunity to create a system which saves lives. This is a false economy if there ever was one.”

The Council of Circuit Judges (COCJ) is effectively the trade union representing the 652 Crown Court judges in England and Wales. The Council has become a body with a very public profile, responding to the many consultations put out by government. It accepts that judges should not make political statements, nor comment on individual cases, but can and do contribute to better understanding of how the law operates and should operate. So when the Council condemn government plans for new sentencing guidelines as “unnecessary, costly and unwelcome” and likely to lead to injustice it comes as a fresh blow to the controversial and embattled Coroners and Justice Bill which is now passing through Parliament.

Jack Straw’s catch-all bill has made these columns twice before (see “Civil Liberties” and “Partial defences to murder”). This point of attack is aimed at Chapter 1, clause 100 et seq, which, according to the COCJ, would mean that the discretion of the sentencing judge would be severely limited by “mandatory guidelines which the court must follow or apply in reaching the sentencing decision”. The Sentencing Guidelines Council and the Sentencing Advisory Panel are to be abolished, to be replaced by the Sentencing Council for England and Wales, a body of 14 appointed jointly by the Lord Chancellor and the Lord Chief Justice. This Council must prepare sentencing guidelines which every court must follow in sentencing an offender. The bill has passed through the Commons but has yet to go through the Lords.

In a hard hitting statement issued last week, the COCJ said that “We do not believe that the introduction of mandatory Guidelines will facilitate the just and proper sentencing of offenders. We consider that the imposition of mandatory Guidelines may result in injustice to both offenders and victims in individual cases”. The judges accuse the Government of departing from recommendations made by a working group set up under Lord Justice Gage in 2007 to consider a mandatory sentencing framework. Its report called the idea “unsuitable and unacceptable in England and Wales”. Jack Straw, the Justice Secretary, has sought to defuse the issue, insisting that he was not introducing mandatory sentencing guidelines. He said that he had moved a series of amendments to underpin judicial discretion. The bill was intended to ensure greater consistency in sentencing, which would be in the interests of justice and, primarily, of the public.

The COCJ is unimpressed “even taking account of the government amendments”. It concludes damningly “We do not consider these sentencing proposals to have any benefit. The proposals are not sought by the judiciary or any other criminal justice group”. The full text of the COCJ statement can be found at

http://www.judiciary.gov.uk/about_judiciary/governance_judiciary/cocj/statements.htm

A new law is proposed to prevent people accused of murder from using sexual jealousy, honour killing or revenge as partial defences. The Coroners and Justice Bill 2008-09, published last week, is a bill to amend the law relating to coroners and to certification and registration of deaths, to which proposals to amend the criminal law relating to murder have been attached.

The common law partial defence to murder of provocation, supplemented by section 2 of the Homicide Act 1957, provides that a defendant who would otherwise be guilty of murder will be guilty of manslaughter instead if he or she was provoked by things said or done (or both) to lose self-control. This is to be replaced by a partial defence to murder for circumstances where the killing resulted from a loss of self-control attributable to a ‘qualifying trigger’ in circumstances in which “a person of the defendant’s sex and age with an ordinary level of tolerance and self-restraint and in the circumstances of the defendant might have acted in the same or similar way to the defendant.” The ‘qualifying triggers’ for a loss of self-control can be where it was attributable to a fear of serious violence, to things done or said (“of an extremely grave character”) or to a combination of both. Under the existing common law the courts have held that the loss of self-control must be sudden, but the new partial defence makes clear this is no longer a requirement, although courts will take into account any delay between a relevant incident and the killing.

Specifically sexual infidelity on the part of the victim will not constitute grounds for reducing murder to manslaughter. Neither will so-called ‘honour killing’ on the basis of the victim’s behaviour. But the Government has stated that victims of domestic violence would be able to invoke this new partial defence where they could show they acted in fear of serious violence.

According to the ‘Guardian’ the Government faces opposition to the replacement of the current definition of the partial defence of diminished responsibility with one based on the concept of a “recognised medical condition”. It spells out the aspects of a defendant’s functioning which must be affected in order for the defence to succeed and sets out that the defendant’s abnormality of mental functioning should be at least a significant contributory factor in causing the defendant’s acts or omissions. It does not include ‘development immaturity’ as had been proposed in the consultation process that preceded this legislation.