Clause 5 - The offence
Domestic Violence, Crime and Victims Bill [Lords]
3:30 pm
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.