Mrs Marion Roe (Broxbourne, Conservative)

With this it will be convenient to discuss the following: Government new clause 18—Evidence and procedure: England and Wales.

Government new clause 19—Evidence and procedure: Northern Ireland.

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

New clause 18 makes provision for evidential and procedural changes in trials involving familial homicide in England and Wales. New clause 19 makes similar provision for Northern Ireland, and clause 6 does the same for courts martial. My comments will be about all three.

In the debate on clause 5, we explored at some length the loophole in current law whereby those who kill a child or vulnerable adult can escape justice. Such cases arise when a vulnerable person has been unlawfully killed and the killer or killers must belong to a small and closed group of people, all of whom are suspects and, often, the only witnesses. In the face of their determined silence, the prosecution may be unable to identify the actual killer. Many hon. Members share our concern that something must be done. I am sorry to say that some of us have constituents who have been directly affected by the apparent powerlessness of the legal system in such cases. Their grief at losing a loved one in the most horrendous circumstances is only made more terrible to bear by the anger and frustration that comes from knowing that the perpetrator has got away scot-free.

Let me again make it clear that we are not willing to accept the current situation. We are determined to

reform the law to ensure that a greater number of offenders are brought to justice in such sort of cases. The new offence in clause 5 is an important part of that reform, but it is not on its own the solution to the problem. The clauses before us are no less essential to ensuring the effectiveness of our scheme.

A key problem in pursuing murder and manslaughter convictions in cases of familial homicide is that the case can be withdrawn at half-time—after the prosecution has put its case—on the basis that there is no case to answer. That is because the prosecution, in cases in which there is more than one accused, may not have been able to produce enough evidence by that stage to show which of the accused actually caused the death, or whether it was a joint enterprise. The clauses are designed to overcome that obstacle and to allow more charges of murder or manslaughter safely to be left to the jury to decide. That is an important aim, because, as I said on Second Reading, a conviction for the new offence under clause 5 would not be a just outcome if it could be shown that a defendant was in fact guilty of murder or manslaughter.

As hon. Members know, the Law Commission has undertaken a great deal of helpful work on the issue. In its report ''Children: Their Non-Accidental Death or Serious Injury'', it recommended that it should be permissible for adverse inferences to be drawn, subject to certain safeguards, where the other evidence did not amount to a technical case to answer.

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

The hon. Gentleman will recall that the Law Commission proposals were based not only on that premise, but on a statutory duty that the defendant would be required to fulfil; if he did not fulfil it, the jury would be able to draw an inference. Why have the Government omitted that essential part of the proposals?

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

I am sure that we will discuss the differences, slight though they may be, between the Law Commission's recommendations and our proposals. The main reason for them is that the offences that the Law Commission proposed are different from the new offence that we are proposing in clause 5. Its proposals were for an offence of aggravated child cruelty and failure to protect. The Law Commission has undertaken a great deal of helpful work on the issue. We are seeking to reflect both principles in the clauses, although the circumstances in which our procedural measures are triggered differ slightly, as I have just mentioned. We have linked our procedural measures closely to the circumstances of our proposed new offence, and we believe that that produces a coherent and effective package of measures targeted specifically on cases of familial homicide.

On Second Reading, the hon. Member for Beaconsfield (Mr. Grieve) indicated that many concerns that were raised in the other place about the proposals' compatibility with human rights, and added his voice to those expressions of concern. We believe that the provisions are wholly compatible with the rights of defendants under article 6 of the European convention on human rights—the right to a fair trial. Crucially, the Joint Committee on Human

Rights gave the measures a clean bill of health: I refer hon. Members to the Joint Committee's fourth report of this Session, which sets out why it came to that conclusion.

Our proposals would take effect only in trials involving both a charge of murder or manslaughter and a charge of the new offence under clause 5. However, their operation would be subject to certain safeguards. The link with clause 5 is important in that context. The proposed procedural and evidential measures would come into play only when a case to answer in respect of the new offence under clause 5 is made out against the defendant in the standard way, and only when that same defendant may also have committed the murder or manslaughter.

The first measure is seen when there is a clear set of circumstances calling for an explanation from the defendant. We think that his or her failure at trial to give any evidence in his or her defence, or his or her refusal to answer certain questions put to him or her should lead to the possibility of adverse inferences being drawn from that silence in wider circumstances than would currently be available. Secondly, we want to ensure that there is an opportunity for all the evidence in the case to be heard, so the clauses provide that in certain circumstances, the question whether the evidence against the defendant constitutes a case to answer should not be considered until all the evidence in the case has been heard. Both the drawing of adverse inferences from the defendant's silence and the postponement of the ''case to answer'' decision were recommended by the Law Commission in its report.

I move now to the provisions for courts martial. Clause 6 ensures that if a case involving an offence under clause 5 is tried by a court martial, the procedural and evidential provisions that I have described will apply. Courts martial have the power to try persons subject to service law for civilian offences. Persons subject to service law include service personnel at all times, their families when they accompany service personnel abroad, and civilians and their families who accompany or are employed by the armed forces abroad. We have a sizeable community of service and civilian families abroad, particularly in Germany and working in NATO headquarters around Europe.

If an instance of the offence under clause 5 occurs in a situation in which a court martial rather than a civilian court is to try the case, our procedural and evidential measures must also apply. Subsection (2) is required because, when civilian offences are tried by courts martial, the charges are laid under the sections listed in that subsection. Subsection (3) reflects the court martial procedures whereby any inference of guilt is drawn by the court, which is composed of a panel of military officers sitting with a judge advocate.

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

The Minister will recall that when we changed the law and updated it in relation to courts martial, differences between each of the three armed services remained. Will the procedure in respect of the new offence be the same for all three armed services in courts martial?

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

My understanding is that it will apply equally to all three, but I will have that checked. If my assurance is not right, I will correct it later in our deliberations.

We consider that the circumstances of the new offence under clause 5 are such that, where there is a case to answer in respect of that offence, the prosecution will have shown evidence that the defendant is connected with the offence in such a way that it is fair and proper for the procedures in the clauses to apply. By postponing the decision on whether there is a case to answer and enabling an inference to be drawn in circumstances in which that would not currently be possible, we consider that more of these cases will be able to safely be left to the jury. The new offence under clause 5 will help to pin responsibility for the unlawful death of a child or vulnerable adult in specific circumstances to the people or person who caused it. Only when that is coupled with the procedural measures in these provisions will we be able to ensure, as far as we possibly can, that full justice can be done.

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

I have listened with great care to the Minister has said, and I am mindful of the Law Commission proposals. I hope that he will forgive me if, notwithstanding the proposals and the rationale behind them, I take a little of the Committee's time to express my anxiety about the proposals in new clause 18—anxiety that is not merely theoretical or based on abstract legal principles, but rooted in practical reality.

As the Minister is aware, at present if a person is charged with an offence—other than certain minor categories of administrative offences in which the burden of proof is reversed—it is for the prosecution to establish its case. If at the end of presenting its case, the prosecution cannot show a prima facie case against a defendant, defence counsel will seek the court's ruling that there is no case to answer, because the evidence is insufficient for it to go to the jury, regardless of whether other evidence was adduced. It is a long-established principle in our law that in those circumstances defendants are entitled to the benefit of the prosecution's failure to establish a case: they do not have to answer that case in any way and they are entitled to be acquitted.

Clause 5, as we discussed on Tuesday, creates a new offence that is designed to get round—a aim to which I am wholly sympathetic—the long-standing problem of what to do when two defendants are charged with the murder of a child or a vulnerable adult but, although one can be certain that one of them did it, one cannot say for certain which of the two it was. The Government's solution is to create a fresh offence, which, as we discussed on Tuesday, is based on negligence and on the duty that the person in the household will owe to the child or vulnerable adult. I have no difficulty with that, as I explained to the Minister. It must follow that, because it is a negligence offence, the sorts of problems that are likely to arise, or have arisen in the past, in murder trials in which one cannot tell which of two people has committed the offence will be circumvented if the prosecution in presenting its case has established the basic

ingredients: that the child or vulnerable adult was a member of the same household and that there was frequent contact, so the defendant was a person who came into the relevant category; that at the time there was a significant risk of serious physical harm—presumably there will be other evidence that the child had suffered harm or that harm had been reported—and that the person either was likely to have caused the death, or failed the three tests in clause 5(1)(d)(i) to (iii). By doing thus, the prosecution will have made the case. If in those circumstances a defendant chose, after half-time—the case would certainly go beyond half-time if those ingredients had been established—not to go into the witness box to provide an explanation, or refused to answer questions, then, very properly, under our well established inference rules, it would be possible to draw adverse inferences from that. I expect that it is extremely likely that the defendant, or both defendants if there were two, would be convicted of the offence under clause 5 and so liable to 14 years' imprisonment.

Now, however, the Government are seeking to establish what I can only describe as a double whammy of procedure and evidence by linking the new offence to the continuation of a murder trial beyond half-time when there is no evidence that would take it beyond half-time in the hope that the defendants will be coerced—or feel under an obligation—to give evidence in the witness box because they face the double whammy. Although they might not wish to give evidence because they know that then they would be unlikely to be convicted of murder, but they might wish to give evidence because without it they are certain to be convicted of the negligence offence. That is the double whammy: if one does not go down one road, one renders oneself likely to suffer a worse outcome on the other. That is the Government's intention, and what their proposal is designed achieve.

We have to be realistic about how the outcome will emerge. Let me give an example, which may be helpful. A child is killed, and the two parents are in the dock. It is very likely that one or other committed the offence—the evidence is pretty clear. In interviews under caution, they have blamed each other, but that evidence can only be used against the person who gave it and not against the other person. The trial gets to half-time, and it is abundantly clear that there is no evidence in relation to the murder to take the trial beyond half-time. However, there is plenty of evidence to take it beyond half-time on the basis of the negligence offence under clause 5, which is why that offence has been created. The amendment would ensure that the trial for the murder could continue beyond half-time even though the prosecution had failed to establish its case. As a result, during the defence case, the two defendants will be obliged to go into the witness box and to give evidence against each other that could be—because all evidence is evidence—used by the prosecution to establish the offence against the one or the other.

By illustrating the matter in that way, I hope that I have highlighted the danger. At the end of the trial, the judge will face the fact that the prosecution has never

been able to get over the hurdle of establishing murder in adducing its own evidence, but both defendants would have been forced into the witness box and publicly blamed each other on oath for committing the offence. Both are almost certainly be guilty of the negligence offence, but the jury would be left with the happy task of disentangling which of the two defendants has been telling the truth about the other. That is a recipe for miscarriages of justice, because the only evidence at the end of the trial would be the two co-accused blaming each other. The judge would have to direct the jury about the dangers of the two people's respective evidence and say that it should be approached with caution, but that might well be evidence that a jury could properly consider at that stage. It will be very difficult for jurors who, although they might sometimes get it right, might equally through no fault of their own get it wrong because we have removed one of the basic rules protecting defendants by allowing the case to go beyond half-time on the murder charge when it should not have been allowed to do so.

I accept that this is a very difficult issue. I share the Minister's desire to see people who commit serious offences punished for them. However, we have to be realistic. I am trying to do that rather than quoting a theoretical principle of law that it is absolutely wrong that the moment of ''no case to answer'' should be moved to the end of the defence case. I am not arguing that, because I can see what is intended. However, in practice, the provision is going to cause considerable difficulties. I should be grateful if the Minister or another member of the Committee provided a critique of what I have said—I am open-minded. However, I am truly anxious that, far from producing the intended result, we will end up with lots of cases going to the Court of Appeal long after the event and the Court saying that the conviction is unsafe and unsatisfactory.

I would prefer to accept that in this type of case it will never be established—unless there is extraneous evidence—who did the murder and that we should have a substitute offence, which is what clause 5 is all about. However, if we do that, we do not need new clause 18, which twists the procedural rules to try to create the potential for a double result—that is to say that by using the mechanism of the new negligence offence it will be possible to secure the conviction on the murder offence that had previously been impossible to achieve. That troubles me.

What if the Home Office Minister had come before the Committee and said, ''Forget about the negligence offence. We are going to say that in murder trials in which one of two people might have committed the offence, we will remove the right to have a 'no case to answer' at half-time and move it to the end of the defence case''? If we look at the stark reality of the Government's proposals, we see that that is what we are doing. We could apply that rule of law throughout all criminal trials, but the Government have not suggested that that should happen. Therefore, I have anxieties about the theoretical erosion of a principle of law that has been well and long established in this country, but I am prepared to be persuaded in the

present case. Then, I want to be persuaded that the measure will actually work in practice. As I have explained, I have serious doubts about that.

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

I share the hon. Gentleman's anxiety. I indicated on Second Reading that I, too, am willing to be persuaded because I am keen to have a workable legal process that gives us an effective means of establishing the guilt of a person who has committed an awful crime. However, I worry because although the Minister has prayed in aid the work of the Law Commission and said how carefully it considered the matter before making proposals, the proposals of the Law Commission are not the proposals that the Government have put before us; they differ in substantial ways.

First, the Law Commission proposals on changes of procedure did not apply to murder and manslaughter; they applied to the new offence. That is a critical difference. Secondly, there is a matter of great importance that the Minister did not properly address in answering my intervention. The Law Commission proposed a new requirement on the defendant or, before charge, the prospective defendant to provide a sworn statement of the circumstances of the child's death that could be used in evidence. The failure to fulfil that requirement was to be a matter from which the jury could draw an appropriate inference. That, too, is critical to the operation of this part of the Bill.

Now, nobody will be required to provide information in advance. The prosecutor will mount the case against one or more accused and the judge will be able to rule that there is no case to answer at the halfway stage, but only on the ground that the person does not fall within the relevant categories of being within the household and having contact with the child or vulnerable person, and so on. The defence will then be asked to present a case and, if it chooses not to, the jury will be entitled to draw an adverse inference and the judge can determine whether there is a case to answer.

What is the difference between the two? If the prosecution has failed to make a case sufficient to result in a verdict of guilt in the most serious cases—guilt of murder or manslaughter—there is no case to answer; but two minutes later, after the defence counsel has stood up and said that there is no evidence that the defence wishes to present, the judge has to decide whether that in itself has made the difference between there being no case to answer and there being a case that can properly be put to the jury. I have my doubts about how that will work.

I would have been much happier had the change of procedure applied only to the new offence. It would have achieved the objectives set out by the Law Commission without putting us in a position of setting a potentially dangerous procedure for the criminal courts.

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

I agree with the hon. Gentleman, although the curiosity is that we do not really need the change of procedure for the new offence. It will be easy

to lay the foundations of the new offence sufficiently to get beyond half-time if one only has to establish the basic ingredients and the potential culpability of the people concerned.

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

The hon. Gentleman is right. That brings me to the second point, which is that I was much happier with the Law Commission's proposals, novel though they were. Some would argue that the statutory duty to provide a statement on the circumstances of the death was potentially a breach of human rights. I do not accept that. Obviously, there would be a risk of self-incrimination, but the requirement would have provided material from which a judge and jury could draw proper inferences in the course of a trial, and it would be connected entirely with cases under the new offence in which it was clear that, without further evidence, it would be impossible to get a satisfactory conviction on murder or manslaughter. My understanding was that the purpose of the proposals was to find a way to ensure that people did not walk free from the court because there was no possibility of securing a satisfactory conviction on murder or manslaughter. That is why we are introducing the new offences.

I am in a quandary, because I do not want to frustrate the Government's intention, which I clearly understand. I do not want to create circumstances in which people who should be convicted are not. Equally, however, I do not want to introduce a legal nonsense into legislation, and I fear that the measure is approaching a legal nonsense in the way in which it is framed. I ask Ministers to take seriously the points that have been raised, not only in this Committee, but in another place, where some very eminent commentators on the issue made plain their reservations about what was proposed. I believe that it is possible to reformulate the provision in a more satisfactory way and to introduce better safeguards against miscarriages of justice.

I do not intend to oppose the Government's proposal today. However, I intend to make clear my reservations in the hope that before the Bill's later stages in the Commons and, even more important, before it goes back to another place for further consideration, we will have something that satisfies those who are much better versed in the law than I am. Otherwise, challenges are inevitable.

Mr Hilton Dawson (Lancaster & Wyre, Labour)

I was going to make this short point in an intervention on the hon. Member for Beaconsfield. As one who is not versed in the law, I think that it is entirely appropriate to do everything that we can to increase the pressure on people who undoubtedly have information about the circumstances surrounding the death of a child, one or both of whom may well be the culprit—the person or persons who caused the death of that child.

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

I do not disagree with that, but we must be realistic about the risk of so skewing the system that it invites people to lie. If the outcome of skewing the system is that people give false information to the court, it will serve no useful purpose at all in terms of establishing the truth of what occurred.

Mr Hilton Dawson (Lancaster & Wyre, Labour)

I am grateful for the hon. Gentleman's intervention, but I would have thought that the purpose of the court is to examine forensically the information that is presented to it and, if false information is given, to expose that.

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

Let me start by saying that I do not for a minute underestimate the difficulty or complexity of the issue, and I do not think that any member of the Committee would do so.

I shall begin by responding to the hon. Member for Beaconsfield. For a case of murder or manslaughter to go to full-time, the new offence must also be running. It is possible at half-time for the defence to put it to the judge that there is no case to answer on the new offence. If the judge agrees, that will be the end of the matter. As my hon. Friend the Member for Lancaster and Wyre (Mr. Dawson) said, the purpose is to hold open the prospect of murder or manslaughter being proved, so that in the process of the trial as a whole, including the evidence given in the second part of the trial, the less guilty party will give evidence that indicates who did it. That is crucial to the operation of the new offence. As I said on Second Reading and earlier today, for the new offence to be proved when it was possible to prove who was guilty of murder or manslaughter would not be full justice.

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

That is the issue. I accept that we can think of theoretical models that prove that the Minister is right, but the truth is that cases will get to half-time in which the Crown has been unable to adduce the basic building blocks of a primary facie case for murder. The Minister intends the building block to be provided by the only other evidence that is likely to be adduced, which is the thoroughly tainted evidence of one or more witnesses—probably the accused or the two co-accused. That will raise very difficult issues for the judge directing the jury at the end of the trial. When linked to the fact that that will also be considered in the context of a negligence offence, for which the evidence will potentially be overwhelming against both accused, the situation will be extremely difficult for the judge to disentangle, let alone the jury.

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

I say again that the principles involved do not apply more widely. They apply specifically to cases involving the new offence, as I am sure the hon. Gentleman recognises. We seek real justice such that if there could be evidence regarding murder or manslaughter and there is the possibility of that charge being proved at some point during the trial, it is important to leave that possibility open throughout the whole trial.

Ms Vera Baird (Redcar, Labour)

I apologise for being late. There are times when the tube stops and one does not know why. I did not speak in the main debate as it would have been rude to interrupt.

The problem raised by the hon. Member for Beaconsfield is that of the case in which the stage has been reached where murder cannot be proved, yet the case carries on. A specific provision is needed in such cases; usually, the reason why murder cannot be proved is because one cannot say which of the

defendants did it. Hence the need to drive the case further and have the evidence in respect of both of them for the jury to evaluate. That, surely, is the point. Cases usually fail at half-time because one cannot say which one of them did it, not because there is not ample evidence that the child was killed by foul play.

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

My hon. and learned Friend is right; it may not have been possible to prove the case in the first half, but it might subsequently be possible to prove it from evidence adduced in the second half. It is precisely because we want to pursue justice through the whole of the trial in these very specific circumstances that we are proposing the procedural measures.

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

I understand what the Government intend to do, and what the hon. and learned Member for Redcar (Vera Baird) hopes will happen. My concern is, where no further evidence is adduced, whether the judge can come to any conclusion other than to dismiss the case on the grounds that there is no case to answer if the circumstances up to that point are that there is no case to answer. In other words, can silence be sufficient to establish guilt for murder or manslaughter on the part of either of the accused? I suspect that it cannot be, and we should therefore narrow the scope.

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

Silence on its own can never be enough to prove such a case.

Lady Lady Hermon (North Down, UUP)

It is delightful to serve under your chairmanship, Dame Marion.

Before the Minister moves on, I ask him to reflect on the time given last year to the Criminal Justice Act 2003, particularly the provisions about new and compelling evidence breaking the double jeopardy rule. Is the Minister now saying that cases involving the death of a young or vulnerable person would fall outside the provisions about new and compelling evidence?

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

I do not believe that they would, but I need to reflect further on the hon. Lady's point. I do not see that there is an inconsistency; all that we seek to do in specific circumstances is to hold open the possibility throughout the trial, in the second half as well as the first half, that there is a case to answer. We do not want that option to be closed at half-time when there may be evidence in the second half of the trial that can prove that somebody committed murder or manslaughter.

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

I am grateful to the hon. Gentleman for taking so many interventions; that is what Committees are about. Is there not another danger? Being charged with murder is serious; it is a serious offence. Admittedly, the negligence offence is also very serious; it has a maximum sentence of 14 years' imprisonment, although the level of sentence will be determined by the degree of culpability identified in the defendants. If someone is charged with murder, and at half-time it is apparent to their counsel that there is no evidence and that a plea of ''no case to answer'' will be successful, it is unlikely that defendants will go into the witness box thereafter. A consequence will be they get off the murder charge; they may well be convicted on the negligence charge,

but the court will be none the wiser as to their relative culpability in respect of the negligence. I have some slight doubt about whether the interests of justice will be widely served by discouraging people from explaining their actions in the context of the negligence charge.

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

The cases may or may not be proved. The procedures we propose would hold open the possibility that they could be proved throughout the whole of the trial. That is all we seek to do. The judge has a crucial role to play at full-time because the jury will be left to consider the murder or manslaughter case only if the judge decides that it is safe for them to do so—in other words, if there is evidence on which the jury could decide beyond reasonable doubt that one or other defendant is guilty. The judge must believe that there is a case to answer before the jury can be asked to make that final decision. All kinds of safeguards are built into the process; it is not a reckless process, but has been carefully considered. We seek to allow for the possibility that, in the second half of the trial, evidence may come forward that could be sufficient to convict the more guilty party of murder or manslaughter. In the interests of justice, and in the interests of children and vulnerable adults, that seems a worthwhile aim, even if the issue is complex.

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

I sympathise with the aim, but it is matching the aim with the reality of what will happen during a court trial that undermines what the Government are trying to achieve.

If I were representing a client who was facing a murder charge, and at half-time there was no evidence on which that defendant could possibly be convicted, it is most improbable that they would go into the witness box to give evidence, unless they really wished to do so. In reality, they would be advised by their legal advisers on the consequences of giving evidence in the context of the murder charge, when the murder charge could not be carried against either of the two defendants. It is therefore unlikely that much evidence will be given in those trials as a result of shifting the moment when there is ''no case to answer'' from the end of the prosecution case to the end of the defence case.

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

The hon. Gentleman speculates about what might happen, and he is right to do so. When the Bill becomes an Act and we see it in operation, we will learn how it works in practice.

Ms Vera Baird (Redcar, Labour)

I hope that my hon. Friend does not feel that he is being used as a middleman. The hon. Member for Beaconsfield may be correct about what might happen, but the two parties will still have every interest in giving evidence on the clause 5 offence. The two elements cannot be split up, because they are in the same trial. I am not as concerned about the matter as the hon. Gentleman is. If the jury are not satisfied, they will not convict, and they will acquit with more confidence because of the existence of the clause 5 offence.

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

I am grateful to my hon. and learned Friend for her comments. I repeat that in order to

leave open the possibility that there is a case to answer on murder or manslaughter, there must be a case to answer in relation to the new offence. In other words, there must be the possibility of there being sufficient evidence that one or other or both defendants committed the act. If that case is there to answer in the second half of the trial, we must leave open the possibility of there being further evidence that pinpoints which of the two or more people involved in the case did the deed. That is what we seek to achieve through the procedural change.

The hon. Member for Somerton and Frome (Mr. Heath) commented on the Law Commission's proposals, saying that they would apply only to the new offence, but that is not quite accurate. Its proposals on adverse inferences and deferring cases to answer would apply to a wider range of offences against children. I can provide the hon. Gentleman with a list of those offences, if that would be helpful; the list is substantial, and I am sure that he would find it of interest.

The hon. Gentleman also commented on the statutory duty to provide a statement. I indicated that the reason why we were following a route slightly different from that recommended by the Law Commission was that we had chosen to introduce a different offence from the one that it had proposed. We did not believe that a statutory duty would be effective. It would be relevant only to children, parents and carers. It would not therefore be relevant to vulnerable adults, whom we want to protect by way of the new offence under clause 5, or to other members of the household with no caring role. We want something wider than the Law Commission proposed.

A duty to speak is difficult to reconcile with the right not to incriminate oneself. We have therefore built instead on the elements of the new offence. We believe that if those elements are established, the circumstances clearly call for an explanation. It is only in those circumstances that an inference can be drawn, if that is appropriate.

I hope that that is helpful. We have had an interesting discussion, with various interventions. I believe that the Committee is in agreement on the principle and the aim of the provision. Hon. Members of all parties have said so. There may be concerns about how it will work, but I do not believe that those are well founded.

Question put and agreed to.

Clause 6 ordered to stand part of the Bill.