Commentary on Sections
Part 9 - General
Section 176: Orders, regulations and rules
788.This section makes provision in connection with the various powers under the Act to make orders, regulations and rules. The affirmative resolution procedure applies to statutory instruments made under the powers listed in subsection (5). The effect of subsection (4) is that all other powers are subject to the negative resolution procedure or, in the case of the power to make commencement orders, no procedure applies. Subsection (3) provides that any power under the Act to make orders, regulations or rules includes a power to make provision generally or only for specified purposes, cases, circumstances or areas and to make different provision for different purposes, cases, circumstances or areas. This subsection also enables orders and regulations to make incidental, supplementary, consequential, transitional, transitory or saving provisions.
Section 177 and Schedules 21 and 22: Consequential etc. amendments and transitional and saving provisions
789.This section enables the Secretary of State by order to make supplementary, incidental, consequential, transitory, transitional or saving provision for the purposes of the Act. It is a power to make consequential provisions for those purposes at any time, including amendments to primary and secondary legislation. The section also introduces Schedule 21 (minor and consequential amendments) and Schedule 22 (transitory, transitional and saving provisions).
Schedule 21: Minor and consequential amendments
Part 1 - Coroners
790.The 1953 Act is amended by paragraphs 6 to 21 of Schedule 21. Paragraphs 8(3)(e), (4) and (5) and 9(3)(c) and (d) and (4) change the time within which an informant is required to provide information for the registration of a death. Time begins to run from the date of confirmation by the medical examiner of the cause of death by virtue of section 18 of the Act or at the date of discontinuation of a coroner’s investigation under section 4 of the Act, rather than at the date of death. Paragraphs 8 and 9 also extend the categories of those who have a duty to give information for the registration of a death to include the partner of the deceased and the deceased’s personal representative. These terms are defined in the same way as in the list of interested persons given in section 47.
791.Paragraph 13 of Schedule 21 omits section 21 of the 1953 Act so that the Registrar General no longer needs to authorise the registration of a death where this is requested more than 12 months after the death. This provision is removed because all deaths will be reviewed either by a coroner or medical examiner under the provisions of Part 1 of the Act.
792.Paragraph 14 of Schedule 21 substitutes a new section 22 of the 1953 Act so as to remove the provisions for issuing medical certificates of cause of death. The provisions are replaced by powers in section 20 for the Secretary of State to make regulations for the certification of cause of death. Section 22 of the 1953 Act is also amended to require the registrar to record the cause of death where this is provided under regulations made under section 20. References to section 22 elsewhere in the 1953 Act are amended to refer to regulations under section 20.
793.Paragraph 18 of Schedule 21 amends section 29 of the 1953 Act so that an error of fact or substance in the cause of death recorded in an entry in a death register may not be corrected without the approval of the appropriate medical examiner or senior coroner where the recorded cause had been confirmed under section 20 or on discontinuance of an investigation under section 4 (following post-mortem).
794.Paragraph 19 inserts a section 33A into the 1953 Act, creating an entitlement to obtain (on payment of a fee) a short certificate of death. The inserted section is based on section 33 of the 1953 Act (short certificate of birth).
795.The majority of the remaining amendments relating to Part 1 pick up references to the term “inquest” in other legislation and replace these with references to “investigation” or pick up references to the 1988 Act and replace these with references to the provisions of the Act.
796.The 1996 Act is amended by paragraphs 37 to 42 of Schedule 21. Northern Ireland is subject to the 1996 Act and this will not change with the reforms; treasure and treasure trove cases will continue to be investigated by the local coroners in Northern Ireland. The amendments to the Treasure Act in relation to England and Wales are therefore disapplied for Northern Ireland (paragraphs 38, 39(5) and 41).
797.Under the amendment made by paragraph 40 the Secretary of State will be able to make an order, using the negative resolution procedure, which will designate specified officers to receive reports of treasure from finders, acquirers or any other person. The designated officer will then pass the information on to the Coroner for Treasure.
798.Paragraph 40 also amends the 1996 Act so as to increase the period for prosecuting a person for not reporting an item believed to be treasure by a finder to the Coroner for Treasure from six months to a maximum of three years. This period of prosecution will also apply to a breach of the duty to report on acquirers.
799.There is an amendment to the Human Tissue Act 2004 relating to coroners’ duties in respect of bodies prior to transplantation or other similar or related activities at paragraphs 47 to 50.
Part 2 – Murder and Suicide
800.Paragraph 52 of Schedule 21 amends Schedule 21 to the Criminal Justice Act 2003 (determination of minimum term in relation to mandatory life sentence) consequential upon abolishing the partial defence to murder of provocation and replacing it with a new partial defence set out in section 54 (partial defence to murder: loss of control.
Part 9 - Disqualification for Driving
801.Sections 34 and 35 of the Road Traffic Offenders Act 1988 provide that where an offender has more than one previous disqualification for a period of 56 days or more a higher minimum period of disqualification applies. Sections 34A to 34C of the Road Traffic Offenders Act 1988 provide for a reduction in the period of disqualification for offenders convicted of drink-driving offences who successfully complete an approved driver retraining course. Similarly, sections 34D to 34G and 41B of the Road Traffic Offenders Act 1988, when implemented, will provide for an offender convicted of a “relevant drink offence” to obtain a reduced period of disqualification for that offence by agreeing to participate, at his or her own expense, in an alcohol ignition interlock programme. Section 35 of the Road Traffic Offenders Act 1988 determines the minimum period of disqualification for a repeat offender. Section 37 of that Act deals with the effect of the disqualification in terms of when the licence is revoked and comes back into effect, including disregarding any period of suspension pending an appeal. Section 42 provides for an application to be made to the court for the removal of disqualification after a certain period has expired. Section 47 requires courts to send to the Secretary of State for endorsement licences of persons disqualified for 56 days or more.
802.Paragraph 90 of Schedule 21 provides for an extension period generated by provisions inserted by Schedule 16 (that is, section 35A or 35B of the Road Traffic Offenders Act 1988, section 248D of the Criminal Procedure (Scotland) Act 1995, or section 147A of the Powers of Criminal Courts (Sentencing) Act 2000) to be disregarded in certain circumstances. These are as follows: when a court is determining whether an offender’s previous driving disqualifications included more than one previous disqualification for a period of 56 days or more, such as to attract a higher minimum period of disqualification; in calculating any appropriate reduction in the length of the disqualification; the minimum period of disqualification; the time before an application can be made for removal of a disqualification under the Road Traffic Offenders Act 1988; and determining whether the length of the ban is less, or more, than 56 days, as appropriate.
803.Paragraph 91 makes similar amendments to the Road Traffic Offenders (Northern Ireland) Order 1996 about disregarding an extension period arising because of Article 8A of the Criminal Justice (Northern Ireland) Order 1980, Article 40A of the Road Traffic Offenders (Northern Ireland) Order 1996 or Article 91A of the Criminal Justice (Northern Ireland) Order 2008.
804.Section 54 of the Crime (International Co-operation) Act 2003 gives effect to mutual recognition of disqualification for driving so that drivers normally resident in one member State of the European Union who are disqualified from driving in another member State will also be disqualified in their state of residence. Paragraph 93 of Schedule 21 inserts a new subsection, subsection (3A), into that section so that an extension period is disregarded for the purposes of the minimum period of disqualification which requires notification to a central authority.
Part 10 - Miscellaneous
805.Paragraph 94 of Schedule 21 amends section 160 of the 2000 Act. It substitutes subsection (2) of section 160 effectively repealing parts of it. But, where the Secretary of State makes an order under section 107(1)(e) specifying the types of accommodation that may be “youth detention accommodation”, this order will still be subject to the negative resolution procedure. This paragraph also substitutes subsection (5) of section 160 to provide that an order under section 107(1)(e) may make different provision for different cases or classes of case.
806.Paragraph 98 of Schedule 21 makes minor amendments to the Criminal Justice and Immigration Act 2008. Amongst other things, the amendments change the date that a youth rehabilitation order comes into effect to the day that it is made, unless the court specifies a later date.
Schedule 22: Transitory, transitional and saving provisions
807.Under paragraph 1 of Schedule 22, the Lord Chancellor must make an order so that all existing coroners’ districts will become coroner areas and will be known by the name by which the coroner’s district was previously known (but ending coroner area rather than coroner’s district). Paragraph 2 of Schedule 22 provides that the relevant authority for each new coroner area will be the authority which had been the relevant council for the coroner’s district from which it was derived.
808.Paragraph 3 provides that any person who was a coroner for a district immediately before the 1988 Act was repealed will be treated as having been appointed as a senior coroner under paragraph 1 of Schedule 3 for the corresponding coroner area. It also provides that any person who was a deputy coroner or assistant deputy coroner under the 1988 Act will be treated as having been appointed as an assistant coroner under paragraph 2(4) of Schedule 3 for the corresponding coroner area.
809.Paragraph 3 also enables a solely medically qualified coroner, or coroner over 70, who was appointed under the 1988 Act, to continue to be a coroner if for example their own jurisdiction merges with a neighbouring one following implementation of the Act. This provision will enable the small number of coroners, who are medically rather than legally qualified and/or over 70, and who will be treated as appointed on implementation of the Act, to become coroners/assistant coroners if their areas are altered by an order under Schedule 2.
810.Paragraphs 14 to 21 make detailed transitional provision in relation to investigation anonymity orders and witness anonymity orders. This is required, primarily, for two reasons. First, the replacement by the Armed Forces Act 2006 of earlier arrangements for service courts and, secondly, the replacement by Part 3, Chapter 2, of the original witness anonymity order provisions in the CEWAA. The transitional provisions deal, for example, with the situation where a witness anonymity order has been made under the CEWAA and which requires discharge or variation after the present Act comes into force. This includes orders made by old style service courts in cases where the new service courts under the Armed Forces Act 2006 will in future exercise jurisdiction.
811.Paragraph 46 provides a transitional provision in relation to the reference to District Judge (Magistrates’ Courts) in new paragraph 1(1A) of Schedule 9 to the 1998 Act, as inserted by paragraph 14(2) of Schedule 20 (new powers for the Information Commissioner to apply for a warrant for failure to comply with the requirements of an assessment notice). The effect of the transitional provision is that new paragraph 1(1A) is to be read as if the words “District Judge (Magistrates’ Courts)” were omitted until paragraph 8 of Schedule 4 to the Courts Act 2003 is commenced.
Section 178 and Schedule 23: Repeals
812.This section introduces Schedule 23. That Schedule repeals existing legislative provisions which have been replaced by provisions in the Act or otherwise are no longer required. In particular, it repeals the whole of the 1988 Act.
Section 180: Effect of amendments to provisions applied for the purposes of service law.
813.This section provides that where criminal justice provisions are applied for the purposes of service law, they are to apply as amended by this Act.
Section 181: Extent
814.This section sets out the extent of the provisions of the Act. Details are in paragraphs 53 to 58 above.
Section 182: Commencement
815.This section provides for commencement. Details are in paragraphs 816 to 819 below.
