Clause 6 - Evidence and procedure: courts-martial
Domestic Violence, Crime and Victims Bill [Lords]
9:10 am
Mr Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe and 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.