Domestic Violence, Crime and Victims Bill [HL]
Lord Thomas of Gresford (Shadow Minister, Home Affairs; Liberal Democrat)
My Lords, when a juryman takes an oath at the beginning of a trial he swears that he will faithfully try the defendant and return a true verdict according to the evidence. I emphasise two aspects of that: that he is to act in good faith; and that he is to act upon the evidence. It is the duty of the judge to determine, according to our procedures, whether there is sufficient evidence upon which a jury can safely return a verdict. The presumption of innocence means that the juryman will not agree to a verdict of guilty unless he is sure of guilt.
That has given rise to the problems, which have been addressed in Clause 5, where a death occurs within a household and it is impossible for a juryman to say beyond reasonable doubt, to be sure on the evidence, which of two or more parties killed the child or vulnerable adult. We have supported Clause 5 throughout the passage of the Bill although we have attempted to improve the wording, and succeeded to some extent. Even so, in Clause 5 there is a considerable difference between being the person whose act caused the victim's death and being the person who should have been aware of the circumstances in which the death occurred. Either of those two wide apart positions can result in a conviction under Clause 5.
The new offence follows the Law Commission's report. What the Law Commission did not do in its report was attempt to extend the principles behind this offence, dealing with a specific problem, to the law of murder or manslaughter. That is what Clause 6 refers to. Although Clause 6 is headed, Evidence and procedure: England and Wales, in effect it extends evidential provisions which are suitable for dealing with the new offence under Clause 5 to the position where a jury is considering not only the new offence but also on the indictment murder or manslaughter.
What is so objectionable is that Clause 6 creates a new way in which murder or manslaughter can be proved. Even if there is no case for him to answer in relation to murder or manslaughter, under Clause 6(2) a person may be convicted simply by remaining silent. That means that a juryman who conscientiously applies himself to his oath will convict a person of murder or manslaughter, not on the evidence because by the terms of the definition there is no case to answer—there is no evidence upon which a jury could safely convict of murder or manslaughter—but on a hunch, a guess. That is contrary to centuries of history of the English criminal law. For a juryman to be asked to guess between, shall we say, two people which one is guilty of murder or manslaughter simply because that person does not give evidence or has failed to reply to questions put to them by the police, and to convict a person in that way, is contrary to that juryman's oath.
I pointed out on Report that when we are dealing with a death in a household and the police are met with silence it is not the same as other cases where there is silence. Silence from a person who is being questioned by the police or facing a trial in a domestic situation may well not indicate guilt. It may indicate his love and affection towards the person he knows has committed the offence. It may emanate for all kinds of reasons which are peculiar to that household. It may emanate from the fact that he or she fears the person whom they know to have committed the offence. Love, fear, loyalty, family solidarity are all reasons from which it would be unsafe to draw the inference of a person's guilt where there is no other evidence, as Clause 6(2) states, upon which the juryman in carrying out the burden of his oath could properly come to the conclusion that that person is guilty.
Someone somewhere, possibly within the Home Office—I doubt whether it is a Minister—has thought to himself, "We have read the Law Commission's report. We have read that there is a particular way of proving the new offence. What a good idea to see whether we can catch people for murder or manslaughter anyway". We hear a lot these days about the fact that this House is challenging the Government: that this House is preventing the Government carrying out their programme. We hear that it is an insult to their integrity if we come to a different conclusion. The truth of the matter is that someone had a very bad idea. Someone who did not understand the processes of the criminal law in this country sought to extend these procedures, far beyond that which the Law Commission envisaged, to murder and manslaughter. It is unacceptable that there should be a different practice and procedure for proving the most serious criminal charge in the calendar in a particular circumstance where a household is involved as opposed to any other circumstance.
From Second Reading on, we have put all these objections to the Government and listened to their response. There was some response to the original proposal but not enough. The Government's supporters and their Back-Benchers may, out of loyalty to the party, follow them through the Lobby. But this is so contrary to the spirit and principles of the English criminal law that the provision must be thrown out today. I beg to move.