Clause 5 - The offence
Domestic Violence, Crime and Victims Bill [Lords]
3:15 pm

Mr David Heath (Shadow Minister (Home Affairs), Home Affairs; Somerton and Frome, Liberal Democrat)

I beg to move amendment No. 37, in

clause 5, page 2, line 39, after 'dies', insert 'or is seriously harmed'.

Mr Joe Benton (Bootle, Labour)

With this it will be convenient to discuss the following amendments:No. 38, in

clause 5, page 3, line 5, after 'death', insert 'or serious harm'.

No. 39, in

clause 5, page 3, line 20, after 'death', insert 'or serious harm'.

No. 40, in

clause 5, page 3, line 30, after 'death', insert 'or serious harm'.

Mr David Heath (Shadow Minister (Home Affairs), Home Affairs; Somerton and Frome, Liberal Democrat)

We come to a critical part of the Bill that covers the creation of a new offence to deal with the mischief of where a child has died in the care and protection of more than one person and where it is clear that one of those people has committed a very serious offence—a murder, in the case of the death of a child—and yet it is impossible to determine which of them dealt the fatal blow. That lacuna in the law has been identified for a long time; it is well documented.

This group of amendments will not greatly surprise anybody, because it has been well advertised by the National Society for the Prevention of Cruelty to Children and other organisations. It proposes to revert to part of the formulation that was encompassed by the Law Commission in its report on this subject, which went beyond the position of death to that of serious harm.

I seek to do that because very often what has occurred is a series of events that may or may not cause the death of a child but that is extremely serious in itself. It is inconceivable that we should wish to ignore circumstances in which, for instance, a child has been so badly beaten that it has suffered serious brain damage. Sadly, that is not an uncommon event. Why should that not be encompassed by these proposals? I agree that that falls short of death and of the specific offence that the Government have included in this Bill, but it is as serious. There may be no difference in intent between a case where a person beats, shakes and almost fatally injures a child, and a case in which a child dies.

It is essential at least to consider this. I was given some reassurance by Baroness Scotland in another place. She responded in a reasoned tone to the same amendments tabled there by my noble Friends. She made it plain that the Government have seriously debated this matter over some time and that there was doubt as to whether the Law Commission proposals in their entirety should have been presented or whether the provision should cover death alone.

I have mentioned children throughout my comments, but this also applies to vulnerable adults, and one of the arguments that has been adduced against these proposals is that there should not be the same arrangements for children as for vulnerable adults. I do not accept that argument for a moment. The more cogent argument, which we may hear today, is that the new offence is a matter of concern for the human rights of the accused. That is a legitimate argument, which has to be weighed extremely carefully. I am given some reassurance by those in the other place who have considered the matter purely on the basis of the human rights implications, and have considered that the balance should come down in favour of the new offence. My noble Friend, Lord Lester of Herne Hill, is a very satisfactory guide on what is appropriate.

Mr Dominic Grieve (Shadow Attorney General, Home, Constitutional & Legal Affairs; Beaconsfield, Conservative)

I am mindful of the view in the other place about the new offence, although it is noteworthy that the other place was not in a position to consider new clause 18; I hesitate to raise that matter now, but it is relevant. In my view, and the hon. Gentleman may agree, new clause 18 impinges substantially on the question of rights and the propriety of the way in which a trial procedure takes place, and has a direct bearing on the amendment, which would extend the clause to include serious harm.

Mr David Heath (Shadow Minister (Home Affairs), Home Affairs; Somerton and Frome, Liberal Democrat)

I accept what the hon. Gentleman says, but we should have that argument at a different point in the proceedings.

At the moment, I am attempting to argue that, although I accept that the proposed new offence would have serious human rights implications, I do not believe that they would be different in the cases of murder and serious harm; exactly the same arguments would apply. Therefore, if the Committee and the House felt at the end of the day that it would be appropriate to have the offence in its present form, there would be no additional argument on human rights grounds as to why the offence should not include serious harm. The argument that to extend the range of offences is somehow to extend the potential for a restriction on human rights is wrong. It is an absolute: either the proposed procedure would disregard human rights or it would not.

The other argument is that ''serious harm'' is too vague a phrase, and too open to construction by the courts. I am not sure that I accept that argument, although I understand the point. I would have no great difficulty in accepting the Government's position if they said that they would home in on a more restrictive interpretation of ''serious harm''—grievous bodily harm is defined, I believe, in the Offences Against the Person Act 1861? Such a position would be perfectly arguable, but justice for the child or the vulnerable person requires that we identify ways of dealing with those who commit the offences but will not own up to them.

The Government lay great store on the idea that this will act as an incentive—the mere fact of the penalty will encourage one or other of the accused to come forward with evidence. That is a serious point, and I hope that the penalty will work in that way. If it does, it will work as effectively for cases of serious harm as for cases in which there is suspicion of murder, manslaughter or unlawful death.

There is a perfectly sound argument for accepting the evidence that the Law Commission so assiduously collected before making its proposals. It has argued its case very carefully, and as I have said, I was impressed by the quality of its argument. It has done a good job of assessing the rights and wrongs of the case.

I am not convinced by the Government's apparent view that one must test the offence in the most serious case—of course, murder is the most serious case—before being able to apply it in any other case. The distinction in the case of serious harm, or the unlawful killing of a child or vulnerable person, is one of extent, not intent.

I shall listen carefully to the Minister's reply. I understand that the Department's view is not closed and that it is open to discussion; indeed, discussions have been going on. Perhaps, therefore, he can explain the Government's position. Are any of the points that have been adduced still under consideration? Is it possible, even at this late stage, to extend the provisions and finish the job? If so, we can resolve an issue that the Law Commission went such a long way towards addressing in its very good report.

Ms Meg Munn (PPS (Rt Hon Margaret Hodge, Minister of State), Department for Education and Skills; Sheffield, Heeley, Labour/Co-operative)

I want to raise the issue of vulnerable adults and to hear the Minister's view about it. As I said this morning, I chair the all-party Voice group, which raises issues relating to learning disabled adults. I have had considerable discussions with Voice UK and Values into Action—another organisation that promotes the rights of learning disabled adults—and they both agree that it would be useful to have an offence covering serious harm. They welcome the offence in the Bill as a way of tackling domestic violence against vulnerable adults, which they believe has not been properly dealt with—perhaps for the same reasons why all domestic violence is under-reported. It is important for us to consider therefore whether it would be possible also to have an offence of serious harm.

I have had some correspondence with Richard Crompton, from the police. Although he has responded in a personal capacity, he has been involved with the Association of Chief Police Officers in considering issues relating to vulnerable adults in the context of this Bill and the Mental Incapacity Bill, which the House will consider later. His personal view, from his vantage point in the police service, is that it would be beneficial to have an offence covering the ill-treatment and neglect of vulnerable adults. He believes that that would help the police to know how to respond to specific situations, particularly those in which vulnerable adults have been cared for either by those with a statutory responsibility or in a family setting. He believes that it would be appropriate to consider the issue in the context of this Bill because it is not purely about those who lack capacity. I look forward to the Minister's comments.

Mr Dominic Grieve (Shadow Attorney General, Home, Constitutional & Legal Affairs; Beaconsfield, Conservative)

I listened with great care to the speech by the hon. Member for Somerton and Frome (Mr. Heath), and there is a logic to what he says. If we are criminalising causing death in cases where someone dies as a result of the offence in clause 5, why not extend the offence to include serious bodily harm? The point is often made at the Bar that murder is grievous bodily harm with a corpse. My difficulty with that view, and I do not have a settled view on the matter, is that we should also be mindful of the novel nature of the offence that we are creating under the clause. This may be an opportunity to touch briefly on it, although it will also impinge on the other amendments that we will consider.

The origin of the clause was the concern that had been expressed about the impossibility of securing a conviction in cases involving the apparent murder of a child in which it became abundantly clear that only one of two, or possibly three people—a restricted number—could have committed the offence. Whether or not they blamed each other, it was impossible to tell which of the two had done it. The public concern that individuals were getting off was the starting point of the legislation. That concern was absolutely warranted.

I do not criticise those who drafted the Bill, but it was not drafted to deal with a conviction in circumstances in which two people blame each other and it is impossible to tell which of them has

committed murder or grievous bodily harm. What the Bill has done is to create an offence of negligence, which is different in quality from manslaughter. Indeed, if one must try to find a sort of derivative, it belongs more to health and safety legislation than to anything else, because the nub of the offence is the failure

''to take such steps as he could reasonably have been expected to take to protect''

the victim from the known risk.

In a sense, we are taking an offence from health and safety law, creating an offence of negligence, and punishing the perpetrator with 14 years' imprisonment. One need only consider the draconian penalty that attaches to the offence to see that this is a novel area of criminalisation. I therefore understand the Government's reluctance to extend it to anything beyond the very worst case, which is a death, and their possible wish to wait and see how the offence works out in practice, including the way in which it is tried, the penalties that may be imposed on those convicted, and any challenges that may be made following the operation of this legislation.

As I told the hon. Member for Somerton and Frome earlier, I do not believe that his amendment can be considered in isolation. We should take care to consider the totality of the consequences of the clause. I do not seek to anticipate my own amendments, but we need to consider whom the offence bites and the extent to which the Government intend it to have an impact on other charges that may be brought against an individual, as is shown in new clause 18, before I can decide whether the amendment is right. I look forward to hearing the Minister's view about the extension. As I said at the outset, there is undoubted logic to what the hon. Gentleman says, but I am anxious because it appears that the offence could extend much further than the circumstances in which a person would have been charged with murder, but a conviction cannot be secured because one cannot say which of two people did it.

The offence could apply across a very wide spectrum of circumstances in which a person has a responsibility of care for a child. We need to be cautious, so I reserve my position and look forward the Minister's response to this very pertinent amendment.

Mr Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe and Sale East, Labour)

As this is the first group of amendments on the clause, it is important to say at the outset that I welcome the broad cross-party consensus on the attempt to deal with circumstances that have proved difficult—those in which it is known that one or other person has committed the act leading to a death, but it has not been possible to identify which one. That issue has gripped politicians, lawyers and campaigners for years, and the clause is an attempt to redress the injustice. We shall debate various issues related to the clause, but I appreciate that there is broad welcome for it.

The amendments introduce for debate the question whether the offence should be extended to cover not only those events leading to death but those leading to serious harm. The question has been widely discussed in the other place and we have been given the thoughts

of the Law Commission as well as weighty evidence from organisations such as the NSPCC, which, in its report, ''Which of you did it?'' states:

''Each week three infants suffer serious injury or death when in the care of adults who should be protecting them.''

While I do not accept the amendments and will be asking the hon. Member for Somerton and Frome not to press them, I do not underestimate the need to increase and improve the protection that we offer to children, who should be looked after properly by those responsible for them. The statistic takes no account of the vulnerable adults that my hon. Friend the Member for Sheffield, Heeley (Ms Munn) referred to, and for whom she campaigned so vigorously as the chair of the all-party Voice group.

That group does great work in bringing the issues to the fore, but I ask my hon. Friend to accept that, at this stage at least—I am sure there will be other opportunities to debate the issue—there is not a direct read-across from children to vulnerable adults. There are differences and we need to tease them out.

There are four reasons for the Government's conclusion, after careful consideration of the matter, that the offence should cover events leading to death but not serious injury. The first is that there are other ways of capturing criminal behaviour of that kind. We have all experienced the frustration that arises when it is not possible to convict people despite its being known that the actions of one or more of them have contributed to a death. However, there are other forms of legal redress. When a child is hurt the offence of child neglect can be pursued. The offence of grievous bodily harm, which the hon. Member for Somerton and Frome referred to, is also available. It is not as if there is no redress.

Secondly, there are clear differences—specifically in relation to determining which one of the accused committed the offence—between a situation in which someone has died and one in which the victim survives. That is not least because the surviving victim may be able to give evidence in any prosecution case that is brought; clearly that is not possible where the victim is deceased.

Ms Meg Munn (PPS (Rt Hon Margaret Hodge, Minister of State), Department for Education and Skills; Sheffield, Heeley, Labour/Co-operative)

I apologise for interrupting my hon. Friend in mid-point. Does he agree that in cases involving small children and vulnerable adults who may have communication difficulties the ability to give evidence is a matter of concern? In their cases his argument does not hold sway, and that is why the organisations concerned suggest that we should consider the amendments.

Mr Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe and Sale East, Labour)

We are doing more, and need to do yet more, to ensure that vulnerable witnesses and very young children in court are helped in every way possible so that the experience is as palatable and productive as possible. I assure my hon. Friend that that will continue. I have explained two of my reasons for not wanting to accept the amendments, and will come to the others; none of them would be sufficient alone, but the four of them together give the argument the weight that has led us to our conclusion. However, I shall think carefully about my hon. Friend's point.

The third point concerns definition. The hon. Member for Somerton and Frome raised that himself. If it were the only issue that arose, we could perhaps debate it further to ascertain whether there was sufficient common ground between us, but as I have said, it is one of four. We would be faced with a debate about what injuries constitute serious harm. At present, a broken nose can be dealt with as grievous bodily harm, but would probably not be treated as serious harm. We would have to debate further, as we would be in the problem area that we talked about this morning—that when we define something, we automatically create a loophole. There are real difficulties with definition.

Fourthly, as the hon. Member for Beaconsfield (Mr. Grieve) said, the new offence is, in some respects, novel and carries a severe penalty. Confining the offence to cases in which someone has died fits with the special status of death in the law. It is that special status that helps to justify the new offence and some of the associated procedural measures, which we will discuss later.

The new offence bestows on household members who are aware of the risk a responsibility to take such steps as are reasonable and necessary to prevent someone from coming to harm. Again, related provisions will ensure that murder or manslaughter charges are not dismissed at the end of the prosecution case because it is not possible to be sure who committed the offence. Those novel changes are, to some extent, groundbreaking, and can be justified only where there has been a death.

There is also the issue of the penalty for this offence, which is a maximum of 14 years' imprisonment. That is a serious penalty, which we may need to revise if we were to extend the offence to include serious harm, but we want to keep that stiff and tough penalty for incidents in which someone's life has been lost.

Mr Geoffrey Clifton-Brown (Assistant Chief Whip, Whips; Cotswold, Conservative)

I am concerned about this offence, because I wonder whether the courts will convict under this measure using the very high ''beyond all reasonable doubt'' test, and whether they will impose penalties of the same length as would be applicable to murder. I also wonder whether prosecuting authorities will use this offence as a cop-out instead of prosecuting for murder and having to go through the more rigorous procedure of obtaining a murder conviction. I would hate to think that we were passing legislation that would have those consequences.

Mr Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe and Sale East, Labour)

Following the enactment of this legislation, guidance will be issued, not least regarding sentences. However, I want to reassure the hon. Gentleman that this is not an attempt to dodge the more rigorous and stiffer penalties involved with cases of murder. If we know who did, and if we know that it is murder and can prove it, we would much prefer to do that. The measure is intended to address the current situation in which we cannot get them for anything because we do not have the powers to do so.

Mr Dominic Grieve (Shadow Attorney General, Home, Constitutional & Legal Affairs; Beaconsfield, Conservative)

I appreciate that that is the Government's intention, but is it not correct that if a man in a household were to murder his child and commit suicide afterwards, leaving clear evidence that he was the perpetrator of the murder—for example, a suicide note and traces of his DNA—the mother could be prosecuted under the clause if she was in the household at that time?

Mr Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe and Sale East, Labour)

Two things arise from that. First, obviously a murder charge could not be brought if someone has taken their own life, but I repeat that it would always be our intention that the prosecution should go for a murder charge if that is possible. Secondly, the answer is yes. We are making it clear that people in a household have a duty to take reasonable steps to protect children and vulnerable adults in that household. I think that that is a welcome move, but it is one that we need to take carefully for the reasons that the hon. Member for Beaconsfield has mentioned, of which he will doubtless remind us later.

In conclusion, I appreciate hon. Members' concerns, and I do not question the motive of the hon. Member for Somerton and Frome in moving these amendments. If it were straightforward and could be justified, we would extend the offence to include serious harm, but we do not think that it can be justified in all circumstances, and it certainly is not straightforward.

Ms Vera Baird (Redcar, Labour)

My hon. Friend has made the nub of his case, but will the Government remain open-minded about extending the remit of this offence if it works well procedurally as it is currently drafted, and convictions are obtained?

Mr Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe and Sale East, Labour)

We should always review the effectiveness of legislation. If an offence works, that may encourage us to look further to see whether it could be applied in other situations. However, we cannot consider that now. We have to get to first base and begin prosecutions against the people who have committed such foul acts and, as the hon. Member for East Worthing and Shoreham (Tim Loughton) said on Second Reading, have literally got away with murder in so many cases in the past. Let us get that right, and we then will reflect on legislation and ascertain how else it might be applied. I am not in a position to make any long-term commitment today, and nor would I do so, as that would not be appropriate.

Death signals something that is of the greatest significance to any of us, and it is that that we wish to capture in clause 5. In that spirit, I ask the hon. Member for Somerton and Frome to withdraw the amendment.

Mr David Heath (Shadow Minister (Home Affairs), Home Affairs; Somerton and Frome, Liberal Democrat)

I am grateful to the Minister for the tone of his response, and for much of the content. I am still not entirely persuaded. He says that it is not a simple and straightforward matter, and everyone accepts that. It is a complex solution to a complex problem. That is why the Law Commission took such a long time and such a lot of evidence, and involved so many

people in its considerations on the appropriate way forward, and why it came out with its recommendations.

Some of the points put forward do not bear much scrutiny. First, the Minister talked about difficulties of definition. I addressed that in my opening remarks. I am perfectly content to hear the view expressed that serious harm is too nebulous a term, and I would be equally happy to have it defined as grievous bodily harm, as I suggested, under the Offences Against the Person Act 1861—I have managed to find the reference to the legislation, so I am happy to read it into the record. It is wrong to extrapolate from that and to say that courts are unable to identify what constitutes grievous bodily harm. They do so on a regular basis, and it is not a satisfactory argument to say that it is impossible to have a definition of what constitutes serious harm for such purposes.

The second issue was that of penalties. I understand that the penalty has been placed at a particular threshold to do two things: to ensure that the penalty for the offence is commensurate with the act that has been perpetrated, and to act as an incentive to ensure that people come forward with evidence if they have it rather than be charged with the alternative offence of murder. In the case of serious harm, I would be content if the Government were to say that 14 years is too much for that specific offence, but that they would have a lower tariff for such an offence. I understand the approach, but it is not a barrier to progress.

Thirdly, the idea that the amendment is not necessary because the victim is still alive and is therefore capable or more likely to be capable—surely more likely than a corpse—of identifying the perpetrator, was a weak point. That is true, but in such circumstances we do not need the offence that I propose. Where the victim can provide the evidence to enable somebody to be charged with a reasonable expectation of successful prosecution, we do not need the offence. We will need it when somebody is lying in a coma because they have been beaten around the head by one of two people, and nobody is going to be charged. That is the problem with not having such an offence. In such circumstances the victim cannot give the appropriate evidence and only two people know which of them did it—one of them did, but we do not know which one. Exactly the same thing applies in the case of death.

That leads to the fourth point. The Minister made much about death being a unique circumstance. Death is a unique circumstance in that someone has lost their life, and we should not lose sight of that. However, in terms of the intent of the perpetrator, death may be anything but unique. It may simply be a matter of extent or indeed chance whether a child either dies or is shaken to the point where they suffer brain damage, enter a vegetative state and become incapable of a meaningful life, owing to the offence committed. That may not be a great difference, but neither is the circumstance unique.

That is why we need to consider the matter again. I was somewhat reassured by the Minister's response to the intervention from the hon. and learned Member

for Redcar. The Government might be prepared to revisit the matter in the light of experience. However, we are still closing one lacuna in the law but failing to address another that is almost of equal significance and danger.

Mr Geoffrey Clifton-Brown (Assistant Chief Whip, Whips; Cotswold, Conservative)

The hon. Gentleman makes a cogent case. Is he aware that the maximum sentence that the courts can impose for grievous bodily harm is life imprisonment? The courts take an extremely serious view of such offences. In the circumstances that the hon. Gentleman describes, where a blow to the head or a shaking might result in death of serious injury, the difference in offence is relatively small, particularly if the person was unconscious and it could not be proved who had committed it. The clause ought to apply in those circumstances. The hon. Gentleman makes a cogent case.

Mr David Heath (Shadow Minister (Home Affairs), Home Affairs; Somerton and Frome, Liberal Democrat)

That is my view. Notwithstanding all the difficulties in the court's interpretation and the details of statute, which I accept, something needs to be addressed that the Government are failing to address, albeit not through intent, because I accept that the problem is difficult. However, I hope that more, careful thought will be given to the issue. I perceive a danger, in that we are closing one loophole but leaving another one open. That loophole may have a profoundly unsatisfactory consequence. Somebody who, but for the grace of God, would have committed murder, might nevertheless be allowed to go free because there is not the mechanism to apply any of the other potential offences.

Mr Dominic Grieve (Shadow Attorney General, Home, Constitutional & Legal Affairs; Beaconsfield, Conservative)

I hope that the hon. Gentleman will excuse me for repeating what I said to the Minister, but the clause could be used not for that purpose at all. I do not say that that would be wrong, but the clause could be used when it is clear that the person being prosecuted had not committed the offence, but was nevertheless neglectful, in the terms of clause 5. I hope that the hon. Gentleman will forgive my emphasising the point to him, but that is something that we should bear in mind when considering the drafting on the offence in question and how far it should extend.

Mr David Heath (Shadow Minister (Home Affairs), Home Affairs; Somerton and Frome, Liberal Democrat)

I agree with the hon. Gentleman to the extent that he is right that there is potential for abuse of the legislation.

Mr Dominic Grieve (Shadow Attorney General, Home, Constitutional & Legal Affairs; Beaconsfield, Conservative)

That is straightforward.

Mr David Heath (Shadow Minister (Home Affairs), Home Affairs; Somerton and Frome, Liberal Democrat)

I accept that potential, given what the statute will say. We should be careful to avoid such outcomes in framing the legislation, if we can. However, I am not sure that I agree that, as a consequence, we must either not introduce an offence to deal with an acknowledged mischief or so limit the legislation as to fail to deal with another acknowledged mischief, which is almost identical, except for the consequence of the perpetrator's action.

Ms Vera Baird (Redcar, Labour)

I agree with much of what the hon. Gentleman said. I suppose that he can take a little bit of comfort from the existence of the child neglect

offence in the Children and Young Persons Acts, criminalising assault or neglect, for which people are often charged in exactly the circumstances that the new provision is intended to cover: cases where one cannot tell who has done the action in question, because both are prosecuted on an either/or basis. The maximum sentence for that is only seven years, so it does not really meet the gravity of the cases to which he referred, but at least it is there in the meantime.

Mr David Heath (Shadow Minister (Home Affairs), Home Affairs; Somerton and Frome, Liberal Democrat)

The hon. and learned Lady is of course right. That provision exists, but I think that we have the opportunity to do better and I would like us to do so if we can find a formulation that is satisfactory. If the Minister is not prepared to accept the proposal today—and I understand why he might not be—it is still a matter about which we must maintain a dialogue. I know that others, who are much more expert on the subject than I am, are still in dialogue with the Department about it. My only request is that that continues. My suspicion is that we are hitting one goal and missing another; that might be the appropriate metaphor of the moment. I am confident that we will need to return to the matter at a later stage. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Dominic Grieve (Shadow Attorney General, Home, Constitutional & Legal Affairs; Beaconsfield, Conservative)

I beg to move amendment No. 8, in

clause 5, page 2, line 41, leave out from 'V' to end of line 1 on page 3.

I tabled this as a probing amendment in an endeavour to keep legal rules simple and I should make that clear to the Minister. Subsection (1) provides that:

''A person (''D'') is guilty of an offence if—

(a) a child or vulnerable adult (''V'') dies as a result of the unlawful act of a person who—

(i) was a member of the same household as V, and

(ii) had frequent contact with him,

(b) D was such a person at the time of that act,''

It goes on to provide for what I call the negligence requirements in respect of the action.

Why does the Bill use the term

''had frequent contact with him''?

The Bill provides that the offence is committed by someone who is within the same household. Therefore, I would assume that the prosecution must establish that the person was living as a member of the household. Of course, such a person could be away from time to time, but they would still be within the same household. If one examines paragraph (d)(i), (ii) and (iii), the defendant, the person who has been negligent in respect of the actions of another person, must be aware of the risk that is mentioned in paragraph (c), which provides that:

''there was a significant risk of serious physical harm being caused to V by the unlawful act of such a person''

If that proof must be established by the prosecution, why does it matter whether or not the person concerned had frequent contact with the victim? I suspect that the reason for including the requirement for frequent contact was to ensure that the provisions apply to someone who is a regular member of that

household and not to impose a draconian penalty for negligence on someone in circumstances where the co-accused—the other person who may have done the offence—did not have ''frequent contact''. Why does the provision matter, given that there is to be the protection of having to show that the defendant ought to have been aware of the risk?

The amendment is a probing one. Given my usual stand of trying to protect the rights of those who are being accused from oppressive legislation, I might not normally have tabled it. However, it raises an interesting question about the necessity of paragraph (a)(ii). I would be interested to hear from the Minister why it was thought right to include that provision. One of the consequences could be to allow considerable scope for legal argument, where someone will say, ''Well, it's true that I ought to have been aware of the risk and that he was a member of the household, but as he did not have frequent contact with him, I should be acquitted.''

Mr Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe and Sale East, Labour)

The hon. Gentleman moved his probing amendment in his usual cogent way, and I will try to respond in kind.

The justification for our approach is straightforward. Frequent contact and proximity to a child or vulnerable adult in their own home carries with it a responsibility on the part of the members of that household to take such steps as are reasonable and necessary to prevent the child or vulnerable adult from coming to harm if they are aware of a risk to them. Whatever their relationship to the child or vulnerable adult, they should not simply ignore their needs and any ill-treatment or neglect. However, the amendment would remove the need for there to be frequent contact between the victim and the members of the household.

The measure that we are proposing is a big step. Extending it to any of those in the household who are not themselves carers is a huge step, and we think that it is a step too far for it to catch within its ambit those who do not have frequent contact with the victim. Let us take as an example a lodger or student who takes rooms in a house and fails to intervene if he perceives a risk to someone in that house. He might not take his meals with the other members of the household or share their leisure pursuits or much of their living space. It would be wrong to place that person in the same position as someone who has regular—perhaps even hourly—contact with the victim.

We are trying to ensure that we focus on those who are most likely to be aware of the risk of harm to the victim and who are in a position to ensure that steps are taken to protect the victim from harm. Only those with frequent contact with the victim are likely to be in a position to observe the ill-treatment or neglect and any other evidence of the threat to the victim and then to take the reasonable steps that are necessary.

I hope that I have successfully explained our thinking behind the need for there to be that frequent contact for this offence to occur.

Ms Sandra Gidley (Women and Older People, Non-Departmental & Cross-Departmental Responsibilities; Romsey, Liberal Democrat)

I am reminded of work that I have been doing with Action on Elder Abuse. Some of its research points up that the person who is the abuser is usually not the carer; the abuser is sometimes a member of the same household, but is frequently one stage removed from the caring process.

Another thought that came to mind is that it should be made clear that if anybody in any walk of life is aware that abuse may be being carried out, the onus is on that person not to keep quiet or to leave it to somebody else but to raise their doubts. As the clause is currently drafted, it gives a get-out so that people can say, ''Well, I wasn't really there enough to see that something was going on.'' Such people might be well placed to raise the alarm about abuse.

Mr Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe and Sale East, Labour)

The hon. Lady's intervention provides me with a good opportunity to say that although we focus in our discussions on fine points of law, we should always remind ourselves about moral responsibilities. In the situation that she outlines, we hope that people would act with a sense of moral responsibility about caring for people and that they would shout if they feel that things are not right and that people are not being properly looked after.

However, what we are trying to do in this clause is to set out a new offence, which deals with a very serious situation and carries a huge penalty. We need to do that with the greatest care. I am sure that hon. Members of all parties will approve of the care being taken. That is why we do not want to extend the offence too far in the way that we were invited to in the previous amendments by the hon. Member for Somerton and Frome. That is why in this discussion we are emphasising the need for frequent contact.

It is a new offence and carries a stiff penalty. We believe that frequent contact is an essential element.

Mr Geoffrey Clifton-Brown (Assistant Chief Whip, Whips; Cotswold, Conservative)

I should like to test the frequent contact a little further in this circumstance: as children grow older they often stay less frequently at home. What is the position of a child who has attained the age of 17 and is therefore potentially liable under the clause, is at home only infrequently but had been close to their siblings, one of whom might have been killed? Are they caught by this clause?

Mr Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe and Sale East, Labour)

The hon. Gentleman raises an interesting point. In the end, the court will have to decide whether the balance between the child's membership of the household and their proximity to the victim captures them within the offence. Clearly, the less someone is a member of the household the less they stand a chance of being caught within the offence. I speculate, but if someone was a member of the blood family but lived away and came home occasionally, one would not argue that they were a member of the household. They might be a member of the family, but they would not be a member of the household, so they would be less likely to be captured by the offence.

That is speculation on my part. If, having thought about the matter further, I conclude that I was wrong, I shall write to the hon. Gentleman. Yesterday, I was speculating on my own family, where my older children come back from time to time, to what extent

the offence might capture them; but if they were not members of the household they would be less likely to be caught within it.

Mr Dominic Grieve (Shadow Attorney General, Home, Constitutional & Legal Affairs; Beaconsfield, Conservative)

I am grateful to the Minister for his response. He has persuaded me. I am going to quote back to him some of the things he said when we come to consider the next group of amendments in a completely opposite sense. I hope that he will then bear very much in mind what he had to say in respect of this amendment when I ask him about the next lot. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr David Heath (Shadow Minister (Home Affairs), Home Affairs; Somerton and Frome, Liberal Democrat)

I beg to move amendment No. 32, in

clause 5, page 3, line 6, after 'ought', insert 'reasonably'.

Mr Joe Benton (Bootle, Labour)

With this it will be convenient to discuss the following:

Amendment No. 33, in

clause 5, page 3, line 11, after 'ought', insert 'reasonably'.

Government amendment No. 56.

Amendment No. 24, in

clause 5, page 3, line 15, at end insert—

'(2A) A person who is a victim of domestic violence should not be regarded as having caused or allowed a child or vulnerable adult to be injured or killed (as the case may be) unless there is clear evidence that this person actively contributed to the injury or killing of a child or a vulnerable adult.'.

Amendment No. 22, in

clause 5, page 4, line 3, at end add—

'(9) For the purposes of this section, a person who is a victim of domestic violence should not be regarded as having caused or allowed a child or vulnerable adult to be injured or killed (as the case may be) unless there is clear evidence that this person actively contributed to the injury or killing of a child or a vulnerable adult.'.

Mr David Heath (Shadow Minister (Home Affairs), Home Affairs; Somerton and Frome, Liberal Democrat)

Under the amendment, subsection (1)(d) would read,

''(i) D was, or ought reasonably to have been, aware of the risk mentioned in paragraph (c)''.

That deals with an issue that was explored on Report in another place, where proposals originally from the Law Society sought to remove ''ought to have been'' altogether. It was considered by the Lords, and the proper point was made that to leave out the words ''ought to have been'' would enable a relatively simple defence to be promoted: that someone simply was not aware of what was going on in the household around them because they had chosen not to be aware; and it would be difficult to establish to the court's satisfaction that the person was aware, despite the fact that any reasonable person would have been.

I understand that argument. That is why I have not sought to press the amendment at this stage. However, the clause is widely drawn and might catch those who, owing to their abilities, proclivities, experience or circumstances, would not have been aware of what was likely to cause the risk of serious physical harm. One can imagine, for instance, that those with limited experience of such matters, might not have recognised that the behaviour of a person in the household was likely to have the consequence that it did. It is also possible to imagine those who might, for perfectly understandable reasons on their part, have

misinterpreted what was going on and could show to the court's satisfaction that they had done so, even though the court might hold that a person with reasonable faculties would have come to a different conclusion.

There are circumstances, crucial to this part of the Bill, in which people are so coerced or afraid because of the domestic violence that already pertains that they are not prepared to accept the consequences of the action of another person in the household, and there are those in which people have some disability or learning difficulty that precludes them from drawing a proper inference from the actions of others.

In all those circumstances, it is possible to say that people ought to have been aware of the risk. However, they were not, for the reasons that I have suggested. It would be of assistance to the courts in interpreting the clause to insert ''reasonably''. That would apply an additional test to the actions of the individual who was charged, and it would enable the courts to look into whether that person should have been aware of the risk—taking into account the context, the circumstances of that person and all his or her personal abilities. That was how, in her response to the amendments to leave out ''ought to have been'', Baroness Scotland suggested that the courts would interpret the statute. She, too, inserted ''reasonably''. I seek to follow the reasoning of the Minister but to ensure that the courts also have access to that reasoning, so that people are not wrongly accused in circumstances in which they really could not have come to the conclusion that the statute appears to be expecting them to come to.

Mr Hilton Dawson (Lancaster and Wyre, Labour)

Is the hon. Gentleman not skirting over the huge distinction between putting a concept of reasonableness in the Bill and accepting that a court will look at defences of reasonableness after the fact? In trying to be reasonable, is he not doing something dangerous, and giving people a higher principle to aim for than the fact that they should always look to protect children and vulnerable people?

Mr David Heath (Shadow Minister (Home Affairs), Home Affairs; Somerton and Frome, Liberal Democrat)

No, I do not accept that for a moment. We are told that the courts will interpret the provision as I have described in any case, but I am not convinced. Is the hon. Gentleman asking a court to consider an unreasonable circumstance in which someone is not able properly to appreciate the risk, and saying that such people should be liable for prosecution under this part of the Bill? I do not find that an acceptable element of a statute. Surely it could not be the case. He must be aware that many people are not able to take the view of a reasonable person—the mythical man on the Clapham omnibus—about what is happening around them. Is he really saying that such people should be in a position to intervene and should intervene, even though they will not have formulated the view that there is a risk? He is nodding.

Mr Hilton Dawson (Lancaster and Wyre, Labour)

I thought that I had made clear my view that there is a distinction between a defence that someone might wish to offer about their behaviour or lack of behaviour in particular circumstances, and

making something explicit in a Bill. Pursuing the latter course would surely create a dangerous situation in which we almost gave someone a get-out, even though we expect any adult, frankly, to rise above themselves to protect children. That seems to me to be the reasonable thing to do.

Mr David Heath (Shadow Minister (Home Affairs), Home Affairs; Somerton and Frome, Liberal Democrat)

We are talking not only about adults but about children in the context of the clause. We are not talking only about those who are of sound mind and have the mental capacity to draw proper inferences, who are covered by this area of the Bill, or about those who have the luxury of domestic circumstances in which they are free from fear and coercion. There is every expectation that the courts will deal fairly with people, and I do not believe it unreasonable to ask a court so to do.

Mr Hilton Dawson (Lancaster and Wyre, Labour)

I know individuals with learning disabilities who would act like lions to protect children who were being abused, and such individuals would feel patronised by the defence that the hon. Gentleman proposes.

Mr David Heath (Shadow Minister (Home Affairs), Home Affairs; Somerton and Frome, Liberal Democrat)

I know such individuals, too, but that is not to dispute the fact that others would not be in that position. [Interruption.] The hon. Gentleman says from a sedentary position that it is down to the individual—that is exactly the point. However, the way in which the clause is phrased does not give the courts that latitude. His suggestion that my proposal is profoundly dangerous does not hold water. The test of reasonableness pervades criminal justice and statute in this country. It is hard to accept for one moment that inserting a test of reasonableness would in any way undermine legislation, especially as my argument was adduced by a Minister in response to previous amendments to remove the words ''ought to have been''. I am simply quoting her words.

Mr Dominic Grieve (Shadow Attorney General, Home, Constitutional & Legal Affairs; Beaconsfield, Conservative)

Does the hon. Gentleman agree that the word ''reasonably'' may not be required? One might have, for instance, ''in all the circumstances''. The question is whether it is a subjective or objective test. Are the jurors to put themselves in the position of the person who had to make the judgment, or do they exercise their own independent view of the circumstances? That is the key.

Mr David Heath (Shadow Minister (Home Affairs), Home Affairs; Somerton and Frome, Liberal Democrat)

The hon. Gentleman is absolutely right. Those words would have been an alternative formulation. The proposal would simply allow the court to consider the specific circumstances of the person who is charged with the offence and whether it is reasonable for that person to have drawn the inference that it is assumed a reasonable man or woman would have drawn.

The proposition is not absurd. I am disappointed that the hon. Member for Lancaster and Wyre (Mr. Dawson) sees it in the terms that he expressed. I am trying to ensure that this law—a novel area of law with which we must be careful—does not act unfairly against those who are not in a position to draw the sort of inference that every member of the Committee and

99.9 per cent. of the pubic would draw. There may be that 0.1 per cent. of the public who are not in the position to draw that inference, and their circumstances should be taken into account by the court. That is sufficient to justify amendments Nos. 32 and 33.

When I respond to the debate, I will respond at greater length to Government amendment No. 56 after we have heard the Minister's reasons for wanting to strike out an eminently sensible precautionary approach from those in another place to deal with victims of domestic violence when they find themselves accused of the offence under discussion. It does not prevent the court from finding the person guilty of the offence; it simply suggests that the court shall have regard to that area, and that is self-evidently necessary. I would expect it from a court in any case, but it does no harm whatever to have it at the forefront of the judge and jury's consideration of the evidence. I am very disappointed that the Government feel the need to strike it out, and I will be even more disappointed if that finds favour with other members of the Committee whom I would expect to support its inclusion and who might argue for its inclusion were it not there already.

Mr Dominic Grieve (Shadow Attorney General, Home, Constitutional & Legal Affairs; Beaconsfield, Conservative)

I, too, shall wait with interest to hear what the Minister has to say. The point made by the hon. Member for Somerton and Frome has considerable force. I am left in a slight state of uncertainty as to what the present test is. The Minister may wish to clarify it, because—going slightly against the hon. Gentleman's argument—if the defendant was or ought to have been aware of the risk mentioned in paragraph (c), what latitude does that give to a jury to consider all circumstances? I may hear from the Minister that all circumstances including the age of the defendant may be taken into consideration. I expect that the jury will take it into consideration even if it is not expressly provided; however, the test is opaque.

If, for instance, the person concerned was blind, one might ask, ''Ought that person have been aware of the risk?'' In that instance, I assume that the test would not be objective in the sense of applying oneself to what the juror would consider the risk, as opposed to that person themselves. If that were not the case, a manifest and gross injustice might be committed. I have a feeling that that is not the intention, but it would be nice to have some clarification.

Ms Vera Baird (Redcar, Labour)

I, too, am concerned about that area, but I wondered whether the amendment might not make matters worse. My take on how the provisions will work is that the jury will have to consider whether D, who may have a learning disability, be suffering domestic violence or be blind, ought to have been aware of the risk, and I am worried that the amendment would narrow that person's position. If one does not include the word ''reasonably'', and D unreasonably but genuinely fails to be aware of the risk, they will be not guilty. I do not know whether the hon. Gentleman is following my argument; it is not straightforward.

4.30 pm

Mr David Heath (Shadow Minister (Home Affairs), Home Affairs; Somerton and Frome, Liberal Democrat)

I follow entirely what the hon. and learned Lady is saying. If she is right about the way in which the court might interpret the provisions, however, I fear that we shall leave open the defence that the Minister in another place suggested she wanted to close by rejecting the amendment to leave out the words ''ought to have been''.

Ms Vera Baird (Redcar, Labour)

I am grateful for that intervention, but I was really concerned with what the hon. Gentleman is trying to do. We urgently need clarity about how the clause will be applied. He may want to be absolutely sure that all individual characteristics are taken into account, but his amendment is the wrong way of going about it. If we include the test of reasonableness, someone who, perhaps because of his inadequacies or disabilities, honestly but unreasonably fails to be aware of the risk, could end up being guilty—that is the danger. If we include the word ''reasonably'', he will be guilty, even though he honestly failed to be aware of the risk and truly did not know what was going on.

Although the introduction of the word ''reasonably'' does not help, there is a need for clarity, and it is imperative that the Minister make it clear that the jury will have to decide whether D—that individual, with all his pros and cons—ought to have been aware of the risk. That is a very subjective test, and the jury will not be making a moral judgment that takes no account of that individual's weaknesses. We need to be clear about that.

We also need reassuring that account will be taken of all the circumstances, including the frequency of visits, how the person who was primarily responsible for the death behaved towards the victim, and so on. We need to be reassured that not only the individual but the whole set-up in which the events occurred will be considered.

Government amendment No. 56 would leave out subsection (2). Often, when a child has been killed, domestic violence is likely to have been present in the family. Indeed, that is highly likely, because domestic violence against a woman frequently occurs alongside domestic violence against a child. I can therefore see why there is a drive to ensure that we point to the likelihood of domestic violence and deal with it as a separate issue. I believe that the Government have reservations about doing so, however, because it is possible for someone to be kept silent or to be prevented from protecting a child by many other means than domestic violence. For example, one could blackmail or financially coerce somebody into not protecting a child, and that would not necessarily be domestic violence.

I am sure that I have heard the Government argue that making specific mention of domestic violence in the Bill would put the defendant in an inequitable position if they had, in fact, been coerced in other ways into not protecting someone, because they would not be given the specialness of protection that a clause in a Bill would give. Nevertheless, domestic violence is so likely to be present in such cases that it is important to include it in the Bill.

Mr Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe and Sale East, Labour)

Subsection (1)(d)(ii) states that a person will not be guilty of an offence unless he or she failed

''to take such steps as he could reasonably have been expected to take''

to protect the victim from the risk. That is integral to the offence. It was debated long and hard in the other place; we discussed it to an extent on Second Reading; and we are now engaged in debate on it in Committee. In all those discussions we are aware of the position of women who are the victims of domestic violence.

I regret that, as we all know, women are the victims in the vast majority of cases of domestic violence, although, as was pointed out on Second Reading, that is not always so. Sometimes a man is the victim. Such victims may be unable to do much to protect themselves, let alone others who may be at risk. The debate in the other place concluded with the insertion of a new subsection into the clause, which is now subsection (2).

I understand the reasoning behind the introduction of subsection (2) and the further amendments that we are now considering. I do not question the intentions of those here or in the other place who have advanced arguments in support of those changes. We all agree that victims of domestic violence need our help and protection. The Bill is all about that. What we are now discussing are risks that might undermine the intent and purpose of the clause altogether. That is why we feel unable to accept the amendments.

The practical effect of subsection (2), which Government amendment No. 56 removes, would be to undermine the reasonable steps test by implying a different test for the victims or potential victims of domestic violence. My hon. and learned Friend the Member for Redcar ran through some of the arguments on this. The subsection risks making the offence virtually unprosecutable in most classic ''Which of you did it?'' cases, because research suggests that there is a backdrop of domestic violence in many child cruelty cases.

Mr Dominic Grieve (Shadow Attorney General, Home, Constitutional & Legal Affairs; Beaconsfield, Conservative)

I simply cannot accept the argument that the subsection makes cases unprosecutable. All that it does is highlight one of the features that the judge will have to point out to the jury in summing up. The fact that domestic violence has occurred does not, under subsection (2), absolve the person concerned. It is simply a factor on which stress should be laid for the jury. I think that the Minister is going a little far in making the leap to say that the case would become unprosecutable.

Mr Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe and Sale East, Labour)

I think that I used the words ''virtually unprosecutable''. I believe, with my noble Friend Baroness Scotland, that the subsection would undermine the effectiveness of the offence.

Mr David Heath (Shadow Minister (Home Affairs), Home Affairs; Somerton and Frome, Liberal Democrat)

With great respect, that is not what Baroness Scotland argued. She said that the subsection was unnecessary because the court would already take the matter into account, and it involved the disbenefit of singling out for consideration a particular group. At no point did she suggest that it would affect the ability

of the prosecuting authorities to take action. Her main argument was that it was otiose and unhelpful in its direction.

Mr Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe and Sale East, Labour)

I shall come to those arguments in a moment. I just want to preface my remarks by saying that the correlation between the relevant type of case and the incidence of domestic violence could mean that the subsection would undermine the implementation of the new offence. There are other arguments, which Baroness Scotland made in the other place.

One of those arguments has also been made here: that the subsection also unfairly singles out defendants who are vulnerable because of domestic violence from among other vulnerable defendants. If particular regard is to be paid to those at risk from domestic violence, what regard should be paid to those who are very young, disabled, or frightened for some other reason? It seems unfair to single out one group of vulnerable people over and above others.

As my hon. and learned Friend the Member for Redcar pointed out on Second Reading, there are other ways of putting pressure on someone to stay quiet, to join in or to deny to the police that either party committed an offence. What about the pressures that could be brought to bear, for example, by withholding money? It is best that we leave it to the court to look at all the factors in the case and determine what pressures were exerted on those involved and not to single out certain circumstances as being more deserving of consideration than others.

No member of the Committee underestimates the difficulties that victims of domestic violence may face, a point made forcefully throughout our debates here and in the other place. Victims of such violence can often be afraid; they can be isolated and demoralised by their situation. We have always recognised that. That is why the reasonable steps provision forms such an important part of the offence.

In deciding what steps were reasonable in any individual case, the courts will take into account all the circumstances. That might include domestic violence or the defendant's youth, or any other factor that might make a person vulnerable or reduce the reasonable steps that they might have been expected to take.

I do not question the intention of the hon. Member for Somerton and Frome in tabling the amendments. There was an interesting exchange, which got quite lively at one point, about what ''reasonably'' might mean. We certainly do not want to suggest that there could be an objective test of reasonableness. We want a test that relates to the circumstances of the individual, which are then taken into account in assessing the steps that he could reasonably have taken.

Horrific as being a victim of domestic violence is, that does not absolve anyone from the responsibility to protect a child or vulnerable person who is at risk and depending on others for help. That might sound counter-intuitive and rather harsh and uncomfortable, but if we failed to do justice to the defendant and the

vulnerable person whose life has been lost, that would be even more uncomfortable. The hon. Gentleman's amendments say that victims of domestic violence are absolved from their responsibility to protect others, even their own child who is at risk of serious harm. Difficult as the argument is, that is unacceptable.

We must be sure that victims of domestic violence know where to go for help. The extra protection provided by the Bill should help to reassure them that they can feel confident in taking the steps that they need to take and will have our support.

The offence simply asks that members of the household do what they can be reasonably expected to do, and what is reasonable will reflect their own circumstances, including whether they have been victims of domestic violence. However, subsection (2) and the amendments might be interpreted to mean that members of the household can do less or nothing in some circumstances, which is not acceptable. Victims of violence need support, which we are intent on giving them, but they must speak out, and we and the courts will listen when they do.

I hope that the Committee will recognise that the reasonable steps test already affords victims of domestic violence and other vulnerable defendants the necessary protection within the offence. The amendments would distort that balance and leave the offence unfair and unworkable. In that spirit I invite the Committee to agree to the Government amendment removing subsection (2) and to reject the Opposition amendments.

Mr David Heath (Shadow Minister (Home Affairs), Home Affairs; Somerton and Frome, Liberal Democrat)

I am a little disappointed by what the Minister has said. On the one hand, he places enormous stress on the test of reasonableness in the Bill. That is at the second stage of consideration—whether person D has taken reasonable steps—and he is absolutely right. That focuses on the steps that the individual could reasonably have undertaken, given his circumstances. However, that does not undermine my argument that there is a preliminary test: should they reasonably have known that there were any steps that they had to take in the first place? That judgment is also predicated on the individual circumstances of a defendant.

I listened carefully, as I always do, to the point made by the hon. and learned Member for Redcar, and I think that I understand it. However, I have persuaded myself that it is proper for the test of reasonableness to be applied by a court at the stage that I am suggesting, and that it does not extend a defence too widely, or restrict the circumstances in which a court could find that it was unreasonable for a person not to have known what was going on.

It is difficult to understand why the Government are completely confident that the test of reasonableness is the right objective test that has to be applied at one stage, but not at the preliminary stage on which the whole case rests. I still think that the court should be aware of the individual cases in both circumstances. Juries cannot just export from their own experiences what somebody should have known about the likely

consequences of someone else's actions. I am not persuaded, but I am not going to make further progress in this discussion.

In terms of the specific provision for victims of domestic violence, nothing in subsection (2) reduces the obligation on someone who is the victim of domestic violence to take appropriate, reasonable action in defence of a vulnerable child or an adult. Nothing in that subsection restricts the ability of a court to take into account the circumstances of other groups who are not victims of domestic violence in terms of the steps that they may reasonably have taken to prevent a death. Subsection (2) sends a clear signal to the court that, as we have already heard from the hon. and learned Member for Redcar and other Committee members, circumstances are often linked where there is domestic violence in a family or household and it is likely that a child and one of the parents may be the victims. It is proper for a court to take that into account and I do not think that the Minister disputes that. We should make that explicit, so that courts are in no doubt that they should be taking this factor into account, among many others, when deciding on the reasonableness, or otherwise, of the actions that a person has taken in defence of the eventual victim.

I am prepared to withdraw my amendment, but I am determined that we discuss the matter further. If the Minister is intent on moving amendment No. 56 to delete subsection (2), it will be necessary for some of us to express our views about it and say that he is misdirecting himself in this instance and it is wrong for the Government to undo what has been sensibly done by another place. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 56, in

clause 5, page 3, line 12, leave out subsection (2).—[Paul Goggins.]

Question put, That the amendment be made:—

The Committee divided: Ayes 8, Noes 6.

Mr Dominic Grieve (Shadow Attorney General, Home, Constitutional & Legal Affairs; Beaconsfield, Conservative)

I beg to move amendment No. 69, in

clause 5, page 3, line 18, leave out

'If D was not' and insert 'Irrespective of whether or not D was'.

Mr Joe Benton (Bootle, Labour)

With this it will be convenient to discuss the following amendments: No. 5, in

clause 5, page 3, line 20, leave out '16' and insert '18'.

No. 6, in

clause 5, page 3, line 20, leave out '16' and insert '14'.

No. 9, in

clause 5, page 3, line 32, leave out from 'offence' to the end of line 36.

No. 70, in

clause 5, page 3, line 34, leave out 'ten' and insert 'thirteen'.

No. 71, in

schedule 7, page 38, line 3, at end insert—

'In section 50 of the Children and Young Persons Act 1933 (Age of criminal responsibility) as amended by the Children and Young Persons Act 1963 for the word ''ten'' substitute ''thirteen''.'.

Mr Dominic Grieve (Shadow Attorney General, Home, Constitutional & Legal Affairs; Beaconsfield, Conservative)

This is another part of the clause that causes me concern. I said at the outset that the clause attempts to do two things. On the one hand, it tries to address that particular mischief of circumstance where one of two people murdered a child but it is impossible to tell which one. As the Minister acknowledged, it could also have a wider impact in circumstances where it is possible to tell who committed the murder but we still wish to criminalise the other, because it creates an offence of negligence against those involved in the care of the child where another member of the household has killed them.

I was struck by subsection (4), because it makes a distinction between those who are the mother or father of the victim and those who are not. In the case of those who are not the mother or the father, but who are members of the household and who were either directly responsible for the death or ought to have been aware of the risk and failed to take the steps that

''could reasonably have been expected''—

and if

''the act occurred in circumstances of the kind that''

they

''foresaw or ought to have foreseen''—

there is a lower age limit of 16. If the person is the mother or father, there is no lower age limit whatever.

I find it difficult to imagine the justification for that distinction. Indeed, one thing that troubles me is that we are creating an offence of negligence that may criminalise some very young children indeed. It may be a regrettable fact but there are mothers who have given birth at the age of 12 or 13. There are, we now know, boys who are fathers at that age. I think that we must be careful.

I repeat that the offence does not mean that the offender probably murdered, but is going to ''get away with it''. It is an offence of negligence. I cannot think of an offence of negligence—especially negligence in failing to discharge a duty of care rather than of omitting acts towards the victim—couched in that way. I cannot, for obvious reasons, imagine a prosecution under the Health and Safety at Work, etc. Act 1974 brought against a 13-year-old or a 12-year-old. In the same way, I find it difficult to imagine how, in reality, a 13-year-old, a 14-year-old or a 15-year-old is going to fulfil the criteria in paragraph (d)(i) to (iii) of subsection (1). I accept that the Minister may argue that if they do not fulfil those criteria, a prosecution will not be brought or will fail. However, we must be reasonable and put some outer limits on the way in

which the law operates. This group of amendments gives us the opportunity to consider what those outer limits should be.

Amendment No. 69 would get rids of the distinction between the mother or father and the carer. I would be interested to hear the Minister's justification for the maintenance of that distinction.

Ms Vera Baird (Redcar, Labour)

I can see a distinction between a member of the household who is under 16 who is not the parent and who is likely to be preoccupied with their own juvenile activities and schooling, and so ought not to have a duty of care, and somebody of the same age who is the parent of the child and so must have a duty of care.

Mr Dominic Grieve (Shadow Attorney General, Home, Constitutional & Legal Affairs; Beaconsfield, Conservative)

We hope that the natural instincts that parents have for their children will give them an extra duty of care. However, as the hon. and learned Lady knows, the reality in dysfunctional households is that there will be extremely young parents below the age of consent for sexual relations who have brought babies into the world and there will be a wider household that is responsible for care. There are many inadequacies involved, and I find that the distinction starts to get fairly fuzzy.

If I am working in any direction, it is of not removing the reference to the age of 16—the age of consent—and lumping everybody together, but putting a sensible bottom age limit on the offence. We should not prosecute children just because they happen to be parents. The interesting question is: what should the limit be? I assume that a household will contain adults. I seem to recollect—the Minister will correct me if I am wrong—that to leave a child in the care of another child under the age of 14 is already prohibited. Or at least, I recollect that it is generally held that people should not have babysitters under that age. I cannot remember exactly, or quote chapter and verse. I see heads shaking, but that age impinges on my consciousness. The Minister might like to go away and check it. Perhaps it is a guideline. Somebody may scribble a note to him and correct me. What is the age? Can we take that as a starting point?

The duty on the adults in the household may be other than that on the children. I simply put that point forward for discussion. However, I find it odd that, for carer defendants who are suspected of intimate involvement in an offence and are charged with negligence, there is a bottom age of 16, but defendants who happen to be the mother or father can be charged at any age above the age of criminal responsibility, which is now extremely low. The Committee must take that matter into account. I cannot get away from the view that the distinction is largely artificial.

Some very odd anomalies spring to mind. Some of the amendments relate to subsection (6), which states:

''For the purposes of this section an ''unlawful'' act is one that—

(a) constitutes an offence, or

(b) would constitute an offence but for being the act of—

(i) a person under the age of ten''.

Sitting suspended for a Division in the House.

On resuming—

Mr Dominic Grieve (Shadow Attorney General, Home, Constitutional & Legal Affairs; Beaconsfield, Conservative)

Before the Division, I was about to highlight what I perceive to be potential anomalies in how the legislation might bite. Let me provide an example—it may be far-fetched, but far-fetched examples are sometimes useful when considering the scope of legislation. Let us suppose that a 14-year-old mother lives with her parents and siblings in a dysfunctional household that has a record of violence. Let us suppose also that some of the children have behavioural difficulties, particularly her eight-year-old sibling, who has a propensity for violent behaviour and is a danger to her baby, who is a few months old. If the sibling were to kill the baby—which is very likely in those circumstances—the baby's mother would be guilty of a criminal offence under the clause.

That may be an extreme example, and the Minister may tell me that I am wrong, but I do not think that I have misread the way in which the clause works: that must be the impact of subsections (6)(a) and (b), although it seems a little far-fetched. I realise that there will always be extreme cases and a need to rely on the discretion of the prosecuting authority, but it is nevertheless incumbent on Parliament to try to draw reasonable boundaries. We have not yet succeeded in doing that; the age at which the negligence offence kicks in is too low, particularly in the case of a mother or father, and we should consider whether 16 is the right age generally. I do not see any grounds for making a distinction between offences.

I am also troubled by subsection (6) and the issue of who might cause the injuries. Subsection (6) provides that there can still be an offence of negligence when the likely perpetrator is a child under the age of 10 or someone who is insane. That seems to be an extraordinary state of affairs, although I can understand the reasoning behind that exception. This Committee, and Parliament, must be careful about how those boundaries are drawn. I look forward to the Minister's response with interest.

Mr Hilton Dawson (Lancaster and Wyre, Labour)

I tabled amendments Nos. 70 and 71, and I support amendment No. 5.

I agree that there are some problems with the way in which the clause affects children, who may be criminalised or come within the remit of the criminal process as a result. I join the hon. Member for Beaconsfield in expressing concern about whether the concept of parental responsibility is strong enough to carry the age distinction of which he spoke. The Government are trying to make it carry between those children who could be prosecuted under this clause, and those who could not. It is a difficult issue. That line of reasoning must be balanced against that expressed by my hon. and learned Friend the Member for Redcar: there is a distinction between children who are parents and their siblings who are not. It may be extremely important to recognise that distinction.

Various ages of criminal responsibility are cited in the clause and the amendments, reflecting our inadequate law on criminal responsibility. Amendment No. 5 suggests that responsibility for the offence should be confined to adults—those aged over 18. That is an important principle, which I believe could be applied across the criminal justice system. It is a fundamentalist principle, perhaps, but it recognises that children are children are children—people under the age of 18 are children.

Amendment No. 70 aims to raise the age of criminal responsibility for those committing unlawful acts under the clause from 10 to 13.

Mr David Heath (Shadow Minister (Home Affairs), Home Affairs; Somerton and Frome, Liberal Democrat)

I have interrupted the hon. Gentleman fairly early in his explanation of what he hopes to achieve by the amendment, because it does not seem to me that it does anything like what he is suggesting that it will do. The clause simply recognises the position of the law and identifies those offences that are unlawful acts for the purposes of the subsection (1). The amendment does not do anything to change the age of criminal responsibility.

Mr Hilton Dawson (Lancaster and Wyre, Labour)

If the hon. Gentleman will give me a break, I will carry on with what I was saying. If he looks at amendment No. 71, which seeks to amend the Children and Young Persons Act 1933, itself amended by the Children and Young Persons Act 1963, by raising the age of criminal responsibility to 13, I hope that he will see what I am trying to do. I am prepared to be taken to task by those who say that this is an inadequate way to argue my position, but it is a strongly supported position, as I shall explain. I was aided enormously by the learned Clerk to this Committee, who went out of his way to assist me in making the points that I was trying to make in the amendments.

Mr Dominic Grieve (Shadow Attorney General, Home, Constitutional & Legal Affairs; Beaconsfield, Conservative)

I understand what the hon. Gentleman is trying to do, but I do not think that the amendments succeed in doing it. The mischief or otherwise of subsection (6)(b)(i), as I tried to explain, is that it provides that even if a five-year-old child had killed another child in the household, somebody might still be criminally responsible under the offence in subsection (5), notwithstanding the fact that it had been clearly established that the killer was a five-year-old child. The amendments that the hon. Gentleman has tabled would raise the age to 13, but would not alter the age of criminal responsibility under the Children and Young Persons Act. The point is that the age of criminal responsibility is neither here nor there for the offence of negligence by another person who should have been looking after the interests of the victim.

Mr Hilton Dawson (Lancaster and Wyre, Labour)

I am grateful for that guidance. I hope that, when my hon. Friend the Minister hears the power and force of this principled argument, he will agree to take the proposal away and table suitable amendments that would achieve the end that we are, I hope, united in aiming for.

We have heard a lot about how well amendments to the Bill have been supported by various organisations. My amendment is supported by no less a body than the UN committee on the rights of the child, which in 2002 urged the Government to raise the minimum age of criminal responsibility. There is good reason for the Government to do that: approximately 2,500 children are currently in custody in our country. Since 1997, there have been around 26 suicides of children in custody. Of course, those children committed criminal offences, no doubt since the age of 10, but they were uniformly needy, abused, neglected and extremely unhappy. They plainly needed care, support and attention, which they did not receive. This scandalous situation, which is a dreadful blot on the life of this country, must be a huge concern to every member of the Committee and every Member of this House. I hope that every Member of Parliament wants to begin to address this issue.

There is undoubtedly huge concern about the offending behaviour of children, and I do not seek to mitigate that very serious concern. The Government are responding to that in a serious and coherent way, but only up to a point. They are also responding seriously and coherently to child deaths in custody. There is no doubt about the compassion shown by the Minister or the Home Secretary, or about the steps that they have taken to address the monumentally serious issues affecting the Prison Service. However, we need a more fundamental approach. We need to consider restricting access to custody for children, as well as restricting the offending behaviour and criminal careers of young people. We can do that by raising the age of criminal responsibility and by keeping young people out of the prison system and the criminal justice system as far as we possibly can.

My proposal is not radical. Indeed, it is less radical than the legislation enacted by a previous, excellent and reforming Labour Government under an enlightened Home Secretary. Under the Children and Young Persons Act 1969, the age of criminal responsibility was raised to 14. Regrettably, however, that part of the Act was never implemented. I propose today that the age of criminal responsibility should be raised to the age of 13, which is in line with the Government's provision under the Sexual Offences Act 2003. The Government have made very clear statements that children under the age of 13 cannot consent to sexual intercourse or any other sexual activity. That is a fundamental issue of child protection. Raising the age of criminal responsibility is similarly fundamental.

I am not suggesting that we should underestimate the seriousness of children's offending behaviour; rather, there are more effective ways of dealing with it than through the criminal justice system. Nor do I want to inhibit an effective response to that behaviour. My proposal aims to ensure that we work effectively with children and their families to address and amend such behaviour and to stop them being drawn in to a criminal justice system that can in effect make them criminals and part of that system for life.

The Children Act 1989 provides us with the means to deal with children in welfare proceedings through child-centred proceedings and in effective ways. That may well result in the removal of children from their homes and their placement in secure accommodation for the protection of the public, but it would not put them into custody and would ensure that they were dealt with in child-centred systems.

Mr Geoffrey Clifton-Brown (Assistant Chief Whip, Whips; Cotswold, Conservative)

Although the hon. Gentleman's sentiments may be wholly laudable, surely raising the criminal responsibility for children is way outside the scope of the Bill? We are dealing with a very narrow clause and the age of a certain restriction for offences of negligence under the Bill. His comments are way out of that scope.

Mr Hilton Dawson (Lancaster and Wyre, Labour)

I simply do not agree. This is not only the domestic violence Bill, but the crime and victims Bill. There are no greater victims of the criminal justice system than young people who have committed suicide in prison. I am trying to stretch the point, of course, but that is a valid thing for a Member of Parliament to do. I cannot believe that anyone would doubt the seriousness of the issue that I am bringing to the Committee's attention.

Whatever we decide today, the Government will have to face the issue in the short term. A Government who are committed to the concept that every child matters and to transforming the prospects of children in our society will need to face it. A Government who are setting up the office of a children's commissioner must be aware that the matter will be one of the commissioner's top three priorities on assuming office. Before long, we will see a rise in the age of criminal responsibility. I would like to see it go beyond 13, but it certainly has to go a long way beyond 10. That would be to the benefit of all children affected by the Bill and all children generally.

Mr David Heath (Shadow Minister (Home Affairs), Home Affairs; Somerton and Frome, Liberal Democrat)

This is an interesting set of amendments. I have sympathy with the point made by the hon. Member for Beaconsfield about amendment No. 69. Notwithstanding the intervention from the hon. and learned Member for Redcar, parents who are under 16 may have different responsibilities from the run-of-the-mill under-16-year-old, but, nevertheless, they are still children. The fact that they have parented a child does not mean that they necessarily think or behave as an adult does, or do any of the things that one would expect of a person who is older and perhaps has a better developed sense of responsibility—although that does not apply to all older people. It is not entirely appropriate to expect a wholly different response to a given set of circumstances simply because that young person is the father or mother of a child in the case. One would hope that that would be so, but one could not expect it to be so in legal terms.

I accept the argument that we should not expect a level of behaviour from children that is beyond reasonable expectation. That goes back to our argument about what is reasonable and what can

reasonably be expected. Children are in a different category. The fact that they happen to be the parents of the child in question does not alter the mental capacity of the young person. Therefore I see some merit in amendment No. 69.

Amendments Nos. 5 and 6 are obviously probing amendments because they tend in opposite directions, which usually suggests an intention to discover what the Minister thinks. However, were I to be given the choice, I think that I should set the age exactly where the Government have done.

I was upbraided royally by the hon. Member for Lancaster and Wyre in debate on a previous group of amendments for daring to suggest that someone who was mentally or physically incapacitated and could not reasonably be expected to know that harm was being caused might be treated differently by a court; I was told that that would undermine the whole point of the clause. I am therefore surprised to learn that he thinks perfectly sensible and reasonable 17-year-olds should be exempted from the effects of the clause.

I cannot reconcile those two views. It is difficult, having experienced the degree of passion that was directed at what I thought was a perfectly sensible suggestion, to find it argued with equal passion that a 17-year-old should have no responsibility at all for preventing the death of a child in a household of which they are a member. What the hon. Gentleman said previously is correct: every single person—and I include 17-year-olds—should have regard to the care of vulnerable children in their sphere of influence, and should take whatever steps are appropriate for their protection.

Mr Hilton Dawson (Lancaster and Wyre, Labour)

I do not want to extend the point and take up more of the Committee's time, but I hope that the hon. Gentleman would accept that in trying to keep children from criminal responsibility I did not intend that the average 17-year-old should have no personal responsibility for dealing with such matters. I simply think that children should be treated differently from adults.

Mr David Heath (Shadow Minister (Home Affairs), Home Affairs; Somerton and Frome, Liberal Democrat)

I think that people who are incapable of coming to a reasonable view about the harm that might be done to a victim should be treated differently, too. We shall now have to accept that we agree; or perhaps we do not. It does not really matter.

The hon. Gentleman put forward, in speaking to amendments No. 70 and 71, a perfectly proper argument for a change in the age of criminal responsibility. However, I cannot for the life of me see what that has to do with the Bill. I had hoped that he wanted to amend clause 5(6). It is now transparently obvious that that is not his intention. He is simply using that as an entry point for making a speech about something that we have debated at length in proceedings on other Bills.

A great deal of time was spent in considering the age of criminal responsibility in deliberations on the Criminal Justice Act 2003. I do not disagree with the premise that the age of criminal responsibility in this country is wrong, but I do not believe that the hon. Gentleman is using the right vehicle to extend the

argument. In particular, I do not believe that amendment No. 70 serves any useful purpose in the context of the Bill.

As the hon. Member for Beaconsfield said, all that the subsection does is define an unlawful act for which a person of the relevant age can be held criminally responsible if they have failed to take reasonable steps to prevent it. Changing the age from 10 to 13 in the definition of an unlawful act makes no difference to the consequence for a person charged under the proposed new offence.

I suspect that the Minister will reject all the amendments and continue from exactly the present position. I think that there are some arguments for doing that. It will be interesting to hear them.

Mr Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe and Sale East, Labour)

On that optimistic note, I welcome the fact that the amendments are before the Committee. They give us the opportunity to have a sensible discussion about the age at which the offence should begin, and to look at what increased responsibilities there might be for parents—even parents aged under 16.

The offence begins at the age of 16, and we believe that that is correct for the same reason that the Law Commission gave, which is that current child cruelty legislation begins to hold a person responsible for a child in their care once they are 16. There is considerable value in making sure that there is consistency with the Children and Young Persons Act 1933. The NSPCC, which contributed much to the Law Commission's thinking in this area, also agreed that 16 is the right threshold.

Carers' legislation also allows a person to be the carer of a vulnerable adult at the age of 16. It would not be compatible with that to raise the threshold for the new offence to 18. We appreciate that our offence goes wider than carers and covers all household members aged 16 or over, but it is justified and reasonable to expect those who have reached the age of 16 to take some responsibility when a child or a vulnerable adult in the household that they belong to is at significant risk of serious harm. After all, that is the age at which people can leave school, marry, and do many other things. I must stress that the steps people are expected to take will only be those that are reasonable for them.

Only those aged 16 or over may be guilty of the offence, unless they are the mother or father of the victim. A child under the age of 16 will not be considered to have a duty to prevent their parents from harming a sibling or other member of the household. We think that that is a reasonable and necessary safeguard. To lower the age of responsibility to 14 years for all members of the household would be a step too far; 14-year olds in this position will have limited opportunity and autonomy to take reasonable steps to seek protection.

Amendment No. 69 takes us to a group of people and a range of situations that are small in number, but the principle involved is very important. It would remove the protection of the new offence from children

whose parents are under 16, but we think that such parents should take reasonable steps to protect their child.

To refer to an interesting exchange during the debate, I agree with my hon. and learned Friend the Member for Redcar that there is a distinction between under-16s who are not parents and under-16s who are parents. It is right that a greater duty of care and responsibility towards a child should fall to the parents, whatever age they happen to be. Society recognises that.

Mr Dominic Grieve (Shadow Attorney General, Home, Constitutional & Legal Affairs; Beaconsfield, Conservative)

It seems that the Minister's argument is internally contradictory. I think that he is right that 16 should be the start of the age of criminal responsibility under clause 5; that is approximately appropriate. He said that a child under 16 would be unable to protect a sibling from its parent's activity. Why should a 14-year-old mother with a three-month-old baby who is living in a household in which whoever was the father is probably not present be in any better position to protect her child against, for instance, the activities of her stepfather? There is a lack of logic, and that worries me. I do not see the distinction between the child who happens to be the parent and the child who happens to be the carer.

Mr Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe and Sale East, Labour)

We are dealing with difficult scenarios, but the simple fact is that the relationship is different; the responsibilities of a brother or sister of somebody are different from those of the parent. Whether or not they are under or over 16, the fact that they are a parent carries some additional responsibility.

We return, as we have a number of times, to the point that the offence only requires people to do what is reasonable in the circumstances. The hon. Member for Beaconsfield gave what he described as an extreme example and the hon. Member for Somerton and Frome built on it. All that will be expected will be what is reasonable in the circumstances.

The age and maturity of the defendant will be among the factors taken into account by the court when it decides what steps it might have been reasonable for him or her to take to protect the victim from harm. Obviously, if the age of the parent is 14, that will be considered. However, we do not take away from people the responsibilities of a parent.

Mr Dominic Grieve (Shadow Attorney General, Home, Constitutional & Legal Affairs; Beaconsfield, Conservative)

It is not a question of taking away responsibility. One hopes that a 13-year old who is the father or mother of a child will have some responsibility towards it. One hopes that a 15-year-old who is the sibling of another child will take some responsibility for it too. It is common for siblings to care for others in an extended family unit. However, having responsibility and being criminally liable under clause 5 are not the same thing. What is the justification for the distinction in criminalisation in clause 5? If the Minister is right to say that a 14-year-old parent has a responsibility that should be visited with criminal sanction if it is not properly exercised, what about the 14-year-old sibling who allows the

stepfather, whom they know to be predatory and violent, to kill their sister or brother? I do not see the logic, and I do not think that it is right.

Mr Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe and Sale East, Labour)

I am listening carefully to the hon. Gentleman's argument. The point is that being a parent carries responsibilities. Whatever the age of the parent, those responsibilities cannot be removed. In the context of this offence, of course consideration will be given to the maturity, age and circumstances of the individual. However, we cannot wipe out parental responsibility because somebody happens to be under the age of 16. The more I argue the point, and the more deeply I think about it, the more I am convinced that I am right, even though the hon. Gentleman clearly does not agree. We shall return to the matter in due course. On this, as on other things, I shall reflect and read carefully the report of our exchanges.

Mr Hilton Dawson (Lancaster and Wyre, Labour)

I am trying to think of another context in which parental responsibility, that crucial concept, implies a criminal responsibility, and I cannot. The hon. Member for Beaconsfield is on to a serious point. Of course, there is a civil responsibility, but does it necessarily mean that children who are parents should be criminalised?

Mr Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe and Sale East, Labour)

My hon. Friend might have been wide of the mark on some of the points that he made earlier—I shall come to those shortly—but he is not wide of the mark in raising that issue and joining it with other points that have been made. I undertake to think a little more about it. I stand by my comment that everybody who is a parent has responsibilities, but my hon. Friend has asked how that should be applied to criminal matters. Rather than say something speculative, I shall reflect on it and will find another opportunity to outline my thinking.

Amendment No. 9 would remove an important element of the offence. I am glad that we have had the chance to debate it. We would not want the presence in a household of one person who lacked criminal responsibility to mean that the other members of that household could not be prosecuted. If the victim died as a result of the action of a person lacking criminal responsibility—somebody aged eight, for example—that would not absolve the person who was aware of the risk and did not take reasonable steps to prevent the harm. If the amendment were accepted, other members of the household would escape prosecution, even though they might be culpable.

Whether my hon. Friend the Member for Lancaster and Wyre is wide of the mark or stretching a point, he never misses an opportunity to raise the issues set out in his amendments. We invariably end up disagreeing, although—I hope—in an amicable spirit. He asked us to consider whether the age of criminal responsibility should be set at 10 or at 13. He always proposes that it be set at 13. As he knows, there is considerable evidence that children start offending much younger even than 10. I quote to him last year's youth lifestyle survey, in which one in eight offenders said that they started their criminal behaviour at the age of seven or

younger. Offending behaviour often accelerates between the ages of 11 and 13. In our judgment, most young people of that age are mature enough to know the difference between right and wrong.

It is also crucial to set the age of criminal responsibility at 10 because it means that we can intervene at an earlier stage than would otherwise be the case. My hon. Friend was generous enough to note how effectively the Government are intervening on youth justice. We are keen to divert young children away from the formal criminal justice process. We have developed a system of reprimands and final warnings that does precisely that. The youth offending teams at local level now work closely and collaboratively with us to make sure that our interventions with young offenders are effective.

So, we try to divert young children from the courts and from the criminal justice system and, of course, we try to divert them from crime. That is not an argument for setting the age of criminal responsibility at anything other than 10. In the usual friendly spirit, I ask my hon. Friend not to press his amendments and to ask other hon. Members to do likewise.

Mr Dominic Grieve (Shadow Attorney General, Home, Constitutional & Legal Affairs; Beaconsfield, Conservative)

This has been a fascinating debate. The Minister has satisfied me on a number of points. I think that 16 makes sense as a normal start age. I still raise the question, and I would be interested in a reply if the Minister can find it—

Mr Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe and Sale East, Labour)

We have consulted a little and will need to consult more on that question. I will write to the hon. Gentleman and to other hon. Members.

Mr Dominic Grieve (Shadow Attorney General, Home, Constitutional & Legal Affairs; Beaconsfield, Conservative)

In case that appears cryptic in the Official Report, let me say that we are discussing the age at which it is permissible to leave a child to look after other children. I thought that that age was 14. If I am wrong about that, it will be interesting. If that age is 14, it is rather different from the age that we will impose here, which is 16.

Mr Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe and Sale East, Labour)

We now have the additional help of my right hon. and learned Friend the Solicitor-General, who gives an authoritative view on the matter. As we have consulted, some slightly different views have been expressed. She is, I am sure, right, but we want to check.

Mr Dominic Grieve (Shadow Attorney General, Home, Constitutional & Legal Affairs; Beaconsfield, Conservative)

I am reassured that the Solicitor-General takes the same view as I did without any reliance on authority. Perhaps the Minister should think about the implications that flow from that. We will have the bizarre situation of a rule that a 14 or 15-year-old may be left in charge of children and, one would assume, have a degree of responsibility, yet they have not reached the age of criminal responsibility under clause 5(4). That may an anomaly that we can live with, but, if it is correct, it is an interesting curiosity. I think that the Solicitor-General is right, because it was also my recollection that the relevant age is 14.

I return to the question about the mother or father having a different age of responsibility. Indeed, the age of responsibility is, in that case, undefined. I appreciate

the Minister's point that one would expect the mother or father of a child to take a particular care for them irrespective of their age, but I think that we must be realistic about what goes on in households where there are very young parents. I find it a slightly artificial distinction. We must bear in mind the facts. We are not talking about a 14-year-old murdering their child. If there were evidence of that, the 14-year-old would be prosecuted for murder. We are talking about Parliament creating a specific offence that relies on negligence as its foundation, although it is, admittedly, intended to get round certain problems with convicting people. I find that distinction unrealistic, particularly given that we may be talking about the ability of a 14-year-old to take effective steps when someone else in the household may be causing harm to their child. I hope that the Minister will go away and consider the issue.

The final point on which we touched was that a person could commit an offence even if they were under the age of 10 or entitled to rely on the defence of insanity. I appreciate the Minister's position, which is probably correct, but we must be realistic—certainly in the case of a defence of insanity. There are psychotic adults living in many households, and I have several in my constituency. They often receive pretty paltry care from the national health service and regularly go in

and out of hospital. Such people are potentially a threat to members of their families. I realise that defences are available under subsection (1)(d), but the Committee should bear in mind the possible consequences of saying that other members of the household could be criminalised for the acts of someone who is insane. I suspect that that we shall end up with some prosecutions and some interesting defences, and I hope that the Act will work.

As I said to the Minister at the outset, the clause was originally intended to meet a very precise set of facts. It is fascinating, although perhaps inevitable, that we have ended up with a negligence offence of potentially very wide import. Indeed, I wonder whether that was the original intention in drafting the legislation, which is much wider than I would have expected. I can see, however, that an inexorable logic may have lead to the offence being drafted in its present form. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5, as amended, ordered to stand part of the Bill.

Further consideration adjourned.—[Mr. Heppell.]

Adjourned accordingly at two minutes to Six o'clock till Thursday 24 June at ten minutes past Nine o'clock.