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My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Baroness Scotland of Asthal.)
My Lords, in moving Amendment No. 10, with the leave of the House I shall speak also to the next group of amendments, which stand in my name—Amendments Nos. 11, 15 and 16. I had given advance notice of this intention to the Front Benches and to the Clerk of the House, and it may assist progress on the Bill today if I do so.
Clause 4 creates the new offence of causing or allowing the death of a child or vulnerable adult. Amendment No. 10 would redefine that offence as one of being responsible for the death of a child or vulnerable adult. We now reach one of the most innovative and controversial parts of the Bill, and I believe that it would be helpful if I summarised the general view of these Benches of the objective behind Clauses 4 and 5. I hope that that will save me repeating myself in our later debates today.
In Grand Committee, I made it clear at col. GC 329 of the Official Report of
As the Law Commission points out in paragraph 1.2 of its consultative report No. 279, Children: Their Non-Accidental Death or Serious Injury (Criminal Trials), even though one parent may not have struck the fatal blow or blows, he or she may be culpable through having participated actively in the killing or by failing to protect the child. In many cases of this type, it is difficult or, indeed, impossible to prove beyond reasonable doubt who did what, and therefore no one is convicted. Therefore, I agree that we need to take action, but I am not convinced that the Government have the solution right just yet. I believe that some amendments need to be achieved.
I considered very carefully the Government's responses in Grand Committee and I am grateful to the Minister for meeting me and others on
Amendment No. 10 tackles the basic issue of the nature of the offence created by Clause 4. I believe that the title given to it by the Government is ambiguous as it refers to:
"Causing or allowing the death of a child or vulnerable adult".
One has to consider the situation where a jury must decide whether a person is guilty of such an offence. The members of the jury will face a very difficult, if not impossible, situation at that stage. How can the prosecution ask a jury to find that the defendant caused or allowed an event to take place? The two are different in meaning and the degree of culpability is, prima facie, quite different in degree. The jury may be able to find that one of the two took place but may not be able to decide which one.
My amendment offers a solution. It makes the offence one of being responsible for the death of a child or a vulnerable adult. That, I think, removes the ambiguity. It makes it clear that this is not a composite offence but a single offence. I believe it assists the jury by giving them a more straightforward opportunity to assess culpability on the evidence. It still achieves the Government's overall objective of making it clear that someone is to blame and that that person should be convicted. For me, it also has the added advantage of ensuring that Clause 5 is then simply unnecessary.
I turn briefly to my other amendments. The objective of Amendments Nos. 11, 15 and 16 is to define more clearly the type of relationship that should lead to someone having a responsibility under Clause 4 to prevent the death of a child or vulnerable adult. Subsection (1) sets out the circumstances under which a person is guilty of an offence of allowing or causing the death of a child. It draws the net very widely and applies to all members of the household who had frequent contact with the victim. It makes the assumption that a person who has had frequent contact should then be responsible for the death.
Amendment No. 11 would redraw the definition of those who can be caught as a defendant by this provision. It states that the contact must be not only frequent but must also be "close personal" contact. My concern is as follows. Frequent contact can simply mean that a person visits the house on a regular basis but is not in a position to be aware that there is a problem in the condition of the child or vulnerable adult.
In Grand Committee, I explained that I was particularly concerned about the position in communities where the mode of dress would mean that the child's arms and legs would be covered and therefore it might be difficult, if not impossible, for someone to tell whether that person had been physically abused. In response, the Minister said at col. GC 347 of the Official Report that physical abuse was quite often manifest in emotional disturbance. She said that one may not see the marks on a child's body but one notices the behaviour of the child change. That can be true in some, but not in all, cases. Indeed, as the Minister recognised herself, it is not always the case. One should also take into account that in some cultural groups it would be expected that children would behave in a rather more controlled manner in front of adults than they would in others. It is the old Victorian maxim of "be seen and not heard", which still exists in some cases.
In redrafting my Committee stage amendments, I also took note of the point made by the noble Baroness, Lady Walmsley, at col. GC 345 that one must take care not to exclude from the net some people who are very often perpetrators of this kind of abuse. By that, she explained that she meant the boyfriends of the mother of the child. I agree with her entirely and I believe that my new amendment meets her point. It resolves the problem by removing references to those terms and referring instead to "close personal contact".
Amendment No. 16 follows the same line of thought as Amendment No. 11 and amends subsection (4) so that a person is to be regarded as a member of a household if he or she has had such close personal contact with the other persons resident in the household that it is reasonable to regard him or her as a member of that household. This tries to resolve the problem caused by the current drafting of subsection (4), which is very wide indeed. It states that someone is to be regarded as a member of a household,
"if he visits it so often and for such periods of time that it is reasonable to regard him as a member of it".
Of course, membership of the household makes a person possibly culpable of the death. In Grand Committee, I pointed out that that will cause problems in deciding how to define what is meant by "so often" and, in particular, how to define "such periods", as the clause is currently drafted.
Amendment No. 15 probes further the definition of the nature of the contact that brings a person into the danger zone and makes him a member of the household. The amendment would alter subsection (4) to state that a person would have to have visited the household,
"within three months of the notification of the death", so often and for such periods of time that it is reasonable to regard him as a member of the household.
Of course, I recognise that my amendment is defective, just as I allege that the Government's wording is defective. By stipulating a set time, I am simply inviting the Government to ask me why I have chosen a period of three months. It is simply a tool to probe how we may achieve better drafting.
My objective in these amendments is most definitely not to exclude from the new offence those who have a responsibility for the child or vulnerable adult in the usually accepted sense—that is, those who are in a position to know what is going on, who do know what is going on, and who should take action but do not. I beg to move.
My Lords, my name is to this amendment. I support Amendment No. 10 and should like to speak briefly to Amendments Nos. 11, 15 and 16. I apologise for being rather late on parade, but I did hear the substance of what was said.
The most important of these amendments is Amendment No. 10. When there are other offences referred to in the Bill, such as murder and manslaughter, one has to define the offence. Without pre-empting future discussion—we come to that later—that is my main reason for supporting Amendment No. 10.
I heard my noble friend's comments on the other amendments and wholly support the reasoning. When creating a new offence it is important to get the details of the definition correct and tight. The amendments achieve that object without in any way derogating from the purpose of the Bill.
My Lords, on these Benches we too are generally supportive of the amendment. It is vital that we get right the definition of people who may be guilty of committing the offences. I am grateful to the noble Baroness, Lady Anelay, for ensuring that the category of people to whom I referred during Grand Committee, the boyfriends, who are often the perpetrators, would be included if the amendments were passed.
I have one small question on the wording of Amendment No. 15. The way that it is worded suggests to me that "within three months" could mean three months before or after the death. It would be complete nonsense if that referred to a person visiting three months after the death as clearly that person would not have anything to do with the death. I wonder whether the words "prior to" might be more appropriate when perhaps this is voted on at some stage. Perhaps the noble Baroness, Lady Anelay, could explain.
My Lords, I rise to support Amendment No. 10. It is important to underline the fact that this is a single, indivisible offence. Much of the discussion in Grand Committee seemed in a rather novel way to regard it as two offences rolled into one; that a person could be guilty of the two offences and that a jury could be asked to say which. That was never intended—at least, I assume that it was not—and Amendment No. 10 makes clear that that was the case.
On the last point regarding the words "prior to", I am sure that it would not matter to insert those words. However, juries are not stupid; nor are judges. I think that most judges would point out that visiting the family for three months after the death was not exactly a good basis for responsibility.
My Lords, I entirely agree with the noble and learned Lord, Lord Donaldson. However, what is certainly intended and I thought had been achieved in Clause 4 was the creation of, as he put it, an indivisible offence; that is, an indivisible offence consisting of either causing the death or allowing the death of a child or vulnerable adult as a result of not taking adequate care and seeking to protect that child or vulnerable adult.
As regards the main point, I am glad that the noble Baroness, Lady Anelay, has brought together two sets of amendments for discussion. If she will forgive me, I shall refer also to her Amendments Nos. 12 and 13. I shall not discuss them at length; that would not be right. However, if we were to put together the amendments the noble Baroness discussed and Amendments Nos. 12 and 13 I would be concerned that we would be creating a larger number of difficulties for the success of the prosecution under this indivisible offence than would perhaps be desirable.
The noble Baroness very fairly described what Clause 4 seeks to achieve. The use of the word "responsible" is very helpful. Let us suppose that there is a man, a woman and a child; that it is the child that is killed and that both the man and the woman have a degree of responsibility. One does not know which one killed the child. That is the problem that Clause 4 seeks to address.
The noble Baroness seeks to add to the definition of who is a member of the household; to add not just "frequent contact" but also "a close personal contact" and to delete "ought to have been" in Clause 4(1)(d). I believe that the noble Baroness, Lady Anelay, wants to have cumulatively all those amendments. The purpose of the clause, as she put it, is not to let someone literally get away with murder or at any rate not to let them get away with being convicted of the offence of allowing the death of a child. I fear that by adding those various amendments and putting them all together cumulatively, the task of the prosecution will be made unduly difficult.
My Lords, I rise briefly to support my noble friend Lady Anelay in her Amendment No. 10. It seems to me that adding after "offence" the words,
"of being responsible for the death of a child or vulnerable adult" does not in any way alter the intention of the clause but clarifies it, as the noble and learned Lord, Lord Donaldson said.
If one were to read it at present, one would read the words
"A person . . . is guilty of an offence".
One would pause and ask, "What offence?" Answer: "The offence of being responsible for the death of a child or vulnerable adult". I should have thought from a drafting point of view and because it does not change the intention of the clause, that the amendment is sensible.
Like the noble Lord, Lord Borrie, I have reservations about Amendments Nos. 12 and 13. With great respect to my noble friend Lady Anelay, I believe they substantially affect the intention of the clause. It seems to me that by removing the words "ought to have been" or "ought to have foreseen" one is narrowing the area in which the clause will act. I for one should like to hear the Minister's response before deciding whether we are right to pursue the amendment at this stage or to give it further consideration before Third Reading.
My Lords, I am tempted to join in the debate, although I had not intended to do so. From a practical point of view it seems that if you state what the offence is at the beginning, it makes it very easy to draw up an indictment saying what the offence is: "Statement of offence: being responsible for the death of a child or vulnerable adult". Otherwise, it is necessary to construe the clause in a particular way. No doubt the editors of Archbold or someone would give a pro forma for it, but surely it is far better from a practical point of view to say what the offence is.
I disagree with the noble Lord, Lord Borrie, on the effect of Amendments Nos. 12 and 13. However, we shall come to that in due course and I shall express my reservations then.
My Lords, I am grateful to the noble Baroness and, indeed, the noble Lord, Lord Campbell of Alloway, for tabling the amendment. They are rightly trying to clarify in our debate what the new offence does. I welcome the opportunity to put that clearly on the record.
I shall deal with the amendments in sequence. First, in relation to Amendment No. 10, what the noble Baroness really says is that in Clause 4 "causing or allowing" is in some way ambiguous. That was echoed by the noble Lord, Lord Carlisle of Bucklow; the noble and learned Lord, Lord Donaldson, and, indeed, the noble Baroness, Lady Walmsley, supported by the noble Lord, Lord Thomas of Gresford. I have to say to the noble Baroness that I agree with my noble friend Lord Borrie regarding the cumulative effect of the amendment.
The noble Baroness suggests that the title of Clause 4 is ambiguous because the prosecution will need to prove whether the defendant caused or allowed the death. Subsection (2) makes it explicit that the prosecution does not have to prove which alternative in Clause 4(1) applies. It needs only to show that the defendant must either have caused the death himself or allowed it culpably to have happened. "Causing or allowing the death" is therefore an accurate description.
The offence makes clear who is responsible for the death of a child. Both a person who abuses or neglects a child and a person who fails to take reasonable steps to protect a child must bear some responsibility for the subsequent death. I am very grateful for the comments the noble Baroness made in her opening remarks. She affirmed that that would be her desire too. We are very clear about that. I think we all agree about it.
The new offence is intended to extend responsibility for the welfare of the young and vulnerable to household members who have frequent contact with the victim. That reflects our belief that we all have a clear responsibility to take action if we are members of a household in which abuse and neglect takes place and if we have frequent contact with the person at risk from serious harm. If we are aware of a risk or in a position where we should be aware of a risk and we do nothing then we may indeed be held responsible for the harm which ensues. The offence should leave no one in any doubt about their responsibilities and that we intend to hold them to those responsibilities.
However, I am reluctant to agree to Amendment No. 10 in relation to Clause 4. I think that it is an unnecessary addition. It does not add anything to the offence, and it is always better to keep legislation as simple and as clear as possible. Most important are the circumstances in which the offence is committed.
I turn to the next two amendments standing in the name of the noble Baroness. Here again I fully appreciate the reason for these amendments and the desire to pin down the definition of household, but I do not think that they are necessary. They introduce some elements which are not integral to the definition such as personal contact with other household members. They introduce an extra element to prove that is not necessary to the offence. On this issue I echo the comments made by noble friend Lord Borrie.
I shall briefly go through the amendments in turn. Amendment No. 11 would add the need for "close personal contact" with the victim to our definition of the person who is eligible for the new offence. Some difficulty might be caused in deciding what we mean by "close personal contact". It is not the same as a caring role within the family. It is presumably intended to reflect the relationship the defendant had with the victim. But that is difficult to define, too.
The key issue here is the fact of the frequent contact with the victim and the knowledge that the victim is at risk. Such contact might come from being in the same room as the victim on frequent occasions and seeing his bruises, or actually witnessing the abuse. It does not seem necessary for the person, for example, actually to have talked to the victim or, in the case of a baby—and regrettably many of these cases involve babies—carried him, fed him or undertaken any form of care. That would place a limitation on the offence which we do not think would be right.
I understand the concerns which have been expressed that our offence goes too wide in some respects, and in particular in applying the offence to a member of the household who has frequent contact with the victim. One reason for including the term "frequent contact" was that we wanted to ensure that, for example, the mother's visiting boyfriend could not escape responsibility for the death of a child by saying that he had no responsibility for that child. I know all noble Lords who have spoken in the debate agree with that.
The scenario of the mother's new boyfriend is quite common. But we are clear that if the boyfriend is in a position to know the child is at risk, he has a responsibility to protect that child, just as much as other members of the household. If we are to include the words "close personal contact" we may be allowing that boyfriend to escape justice, because he may say his "close personal contact" is with the mother and not with the child. Even the lodger, who has no "close personal" contact with the victim, has a duty to protect that child from harm in certain circumstances if he is aware of the risk. And we have drafted the offence to reflect that. So, if one asks: "Am I my brother's keeper?" Our answer is that I am if I am in the same household.
Amendment No. 15 would require that the visitor who is to be regarded as part of the household should have visited it within three months of the death. It is indeed possible that someone who was once a frequent visitor ceases to be so, either because he has split up with the particular member of the family that he used to visit, or because he has moved away, or for other reasons. And it is right that depending on when he ceased visiting, he should not be covered. However, we do not think that we need a special safeguard for this purpose. The provision as drafted states that someone can be regarded as a member of the household,
"if he visits it so often and for such periods of time that it is reasonable to regard him as a member of it".
I understand why the noble Baroness put the period of three months in the amendment to generate discussion—and I do not seek to hold her to it—but I must say that cases will vary greatly. In thinking about the issue it popped into my mind what should we do about service families who are away for long periods and then return. They may be away for a period of three months, but they knew of the difficulty before they went. It did not abate in the three months when they were away, and the child is killed shortly after they come back. It is very difficult to be prescriptive because one size does not fit all. We have to look at the individual facts of the individual case and ask the questions that we set out in the Bill.
Amendment No. 16 would remove the words which would allow a visitor to be treated as a member of the household,
"if he visits it so often and for such periods of time that it is reasonable to regard him as a member of it".
Instead it substitutes a provision which would mean that a person could be regarded as a member of the household if he has,
"close personal contact with other persons resident in the household".
But that is confusing. It introduces a new—and in our view unnecessary—element to the offence. The important point is the contact with the victim, not the other household members, and the awareness of the risk. The relationship with or contact with other household members does not seem to be relevant. It could arguably draw in people who are, in common sense terms, not members of the household but who have contact with the household members outside the home environment, such as the mother's boyfriend who has his own flat and never comes into the family home. It might even draw in the nursery nurse who sees the child's bruises and has a close personal contact with the mother who brings the child to the nursery and picks the child up on a daily basis and perhaps becomes friendly with the nursery nurse in the process. I do not think we want to widen the scope of the offence in that somewhat open-ended way.
I can certainly assure noble Lords that while understanding entirely their anxiety to pinpoint each of these factors precisely we have fully taken them into account. We believe that the provision we have crafted is sufficiently flexible but, by the same token, sufficiently acute and specific to enable us to target those who should properly be held responsible for the death of a vulnerable person or a child in these circumstances.
My Lords, before the noble Baroness sits down, perhaps I may ask one question. Whether or not Amendment No. 10 is agreed, is not the accused entitled to know, either on the face of the indictment or in a request for particulars of the indictment, whether he is charged with having caused the offence or with having permitted or allowed it? Let us leave aside the semantics and consider the broad principle that the accused must know the substance of what he is charged with. Do not the Government and my noble friend accept that principle? If so, provided that that is adhered to, there would be no problem with this aspect.
My Lords, we say that he or she is entitled to know. We have drafted this clause sufficiently explicitly for those cases, because we have made it clear that the person concerned either caused the death himself or herself or allowed it culpably to happen. The very mischief that we must address is that in many cases the only people who will be able to say definitively which part of the clause they fall under are the individuals themselves. Therefore, in this offence we have set out the criteria that would have to be satisfied by the prosecution before they were entitled to ask a jury to find that the offence was proven. We think that, as currently expressed, it has sufficient particularity to do just that.
My Lords, before the noble Lord, Lord Campbell of Alloway, allows the Minister to sit down, perhaps I may seek a little help on Amendment No. 10. As I understand it, the noble Baroness is saying that, if as a lawyer you work your way through Clause 4, it becomes clear that this is a single offence with two alternative legs. I agree. But is she also saying that, where experienced practitioners such as the noble Lord, Lord Thomas of Gresford, say that it would be a real help to those drafting indictments and directing juries to have it all in one introductory sentence or even part of a sentence, you cannot move? If so, regretfully, I am reminded of something that I said during the debate yesterday: debates in a Committee of the whole House—we have not had a Committee stage in the ordinary sense—and on Report are a confrontational exercise, which they were never meant to be.
My Lords, I hope that in how I have handled the Bill I have sought to avoid confrontation. I believe that all noble Lords who have so far participated in the Bill have only one cause in mind; we are jointly and severally intent on ensuring that appropriate protection is given to vulnerable individuals, some of them children, who are being literally killed without any of us being able to bring those responsible to book. I understand absolutely that that is the sole intent of all those who have spoken so far in any of the debates on the Bill. If I may respectfully say so, that has been one of the joys of the Bill. In our different ways, we are trying to make the legislation as robust, clear and sound as possible. It is very much in that spirit that I welcome the amendments tabled by noble Lords opposite, and look forward to our debates.
My Lords, the noble Baroness is right to say that we are all working as one, but that on occasions we come from two different directions in trying to reach the same objective. That is precisely the basis of the debate on this group of amendments. I thank all noble Lords who have taken this matter a good deal further forward in this debate.
The noble Lord, Lord Borrie, wanted to look at the global nature of all my amendments. His concern—which would be justified, if what he said were so—was that the cumulative effect of my amendments would be so to constrict the operation of Clause 4 that those guilty in any normal, accepted sense of causing the death of a child or a vulnerable adult might go free, despite all our best efforts. I assure the noble Lord that that is the reason that I tabled my amendments in different groups. Perhaps I gave the noble Lord extra cause for concern by putting the first two groups together, in an attempt to save a little time on the Floor of the House. By separating my groups of amendments, I was trying to show that I do not want all the amendments on the face of the Bill. I agree with him that if each and every one of them were agreed, the Bill might still be defective. I am trying to search carefully for what might be a common agreed approach. Of the amendments in the groups today, some are essential and others need more than a little tweaking before they would be right. Others would overburden the Bill and make it too weak in its approach to people who cause or allow the death of a child or a vulnerable adult.
I am grateful to the noble Baroness for the care that she has taken in her response. I shall have to think carefully about her response to Amendment No. 10, about which I feel strongly. I listened carefully to the contributions of my noble friend Lord Campbell of Alloway, the noble and learned Lord, Lord Donaldson of Lymington, and the noble Lord, Lord Thomas of Gresford. In this issue there is the core of something important that we must consider further before Third Reading. We were not able to discuss the matter in Grand Committee, so in a sense we are coming fresh to this way of solving the issues.
I accept entirely that the approach of my other amendments to the definition of "household" has not been successful today. I must confess that I did not expect that they would be, as I recognise that it is extremely difficult to define "household" appropriately. I give notice that I shall need to return to the matter, particularly because I notice, for example, that the Children's Rights Alliance for England, in its briefing to noble Lords, has pointed out that it and other bodies such as the NSPCC think that the Government's definition of "household" in Clause 4 goes far too wide and far beyond what the organisations had originally envisaged would be the definition.
I shall ask the noble Baroness one question, to which I hope she may respond on another occasion. Interestingly, she raised the question of the position of service personnel, where somebody is posted overseas, serves there, and, after their return, there is a death. As I understand it, the Minister's argument is that such a person should be held culpable of that death, if he or she is a member of the household. Perhaps she could consider before Third Reading the position where the death of the child occurs while the service member is serving overseas. As I read the Bill, a service member, even when overseas, could be held as a member of the household and therefore liable for the death of a child. I need to reflect further on the matter and would be grateful if the noble Baroness could consider it before Third Reading. On that basis, I beg leave to withdraw the amendment.
My Lords, in moving Amendment No. 12, I shall speak also to Amendment No. 13. Both amendments are also supported by the noble Lord, Lord Thomas of Gresford.
The purpose of these amendments is to change the mental element of the offence in Clause 4 so that it is limited to what the defendant actually knew or suspected. The offence in Clause 4 is widely drawn, and while it must be so in order to reflect the offending behaviour, the Law Society has pointed out in its helpful briefing to noble Lords that the clause could be narrowed and still be effective. The Law Society points out that there could be some narrowing of those persons who might be caught by the offence. This amendment is one way of achieving that.
The basis of the offence that the Government provide is objective. It applies where the defendant ought to have known and foreseen a risk, rather than just where the defendant actually knew or suspected that something was going on. It is arguable that there should be a positive duty of care on all of us to protect the vulnerable in our society, but it could also be argued that using an objective test in this matter goes too far. To couple this objective test with a definition of household that would include persons who had no involvement or nexus with the child is, it is argued, unnecessarily wide. For example, in the circumstances of a child's death, a jury might consider that a person on the same premises ought to have been aware of family arguments—going back to the lodger argument in Grand Committee—and ought to have been aware of the risks that those arguments posed to the child. In practice, many persons do not make that connection, but it is those people who might be caught both by the wide definition of household and then by the objective limb of the mental element.
In Grand Committee and today, we have tried to give detailed consideration to the definitions of household and relationship. However, there is still a concern that the drafting of the Bill does not properly reflect current behaviour in relationships and that it will catch people who do not have a real connection with the child or the vulnerable adult. I beg to move.
My Lords, we support this amendment. The defendant may be guilty on two bases—as we have previously discussed—first, because he caused the death of the child or vulnerable adult, and secondly, because he was aware of the risk, or the act occurred in circumstances of a kind that he foresaw. Then the clause adds,
"or ought to have been, aware of the risk", and "ought to have foreseen". That introduces an objective element. He may not have been aware of the risk, and he may not have foreseen it, but he is still going to be convicted of an offence carrying 14 years' imprisonment.
We have visited this area of objectivity in criminal law on a number of occasions. I recall well the Caldwell case. That was decided in the early 1980s, and it has taken something like 20 years for that decision to be reversed. There again, an objective test was introduced in the offence of arson and committing criminal damage, and it was all on the basis that the person ought to have foreseen a risk. The House of Lords Judicial Committee overruled that recently, and we are now back in the position where the subjective mens rea is an essential element of those crimes. Here too, it should be for a person who had actually foreseen something to be found to have the guilty mind that renders him liable to such severe punishment.
As a matter of principle, it is highly objectionable to punish someone for negligence in a criminal court—that is what it is. If we introduce an objective test, as this clause seeks to do, we are punishing someone for being negligent, sentencing them perhaps to a term of imprisonment of 14 years because they failed to do something or failed to foresee something that they ought to have foreseen. It is highly objectionable.
My Lords, I strongly support this pair of amendments. Like the noble Lord, Lord Thomas of Gresford, I think that it is wrong that individuals should be sent to prison for up to 14 years either because they lack common sense, which is something that you either have or do not have, or because he or she was insufficiently alert.
There are professions—for example, train driver, pilot or navigator of a ship or foreman on a building site—for which alertness is a prerequisite. In those cases, failure to remain alert, leading to the injury or death of a third party, can be properly prosecuted, but that cannot apply to the wider public in their own home. The subsection is too draconian.
My Lords, I support the amendment, not only for all the reasons given, in particular, by the noble Lord, Lord Thomas of Gresford, but because the concept has been brought straight from the civil law into the criminal law and made an ingredient of a criminal offence. It is an act of omission. Although it is an extraordinary situation and one must make some concessions, in order to protect the vulnerable adult or the child, one cannot go to the extent of maintaining the clause in its present form.
My Lords, Clause 4 is, as the Minister and the noble Baroness, Lady Anelay of St Johns, have agreed and stated, meant to deal with the mischief of a situation in which, inherently, somebody—the man or the woman—has caused the death of the child, but it is not known which. The noble Baroness, Lady Anelay of St Johns, who wants a clearer definition, as she put it, used the word "responsible". It must be generally agreed that the man and the woman, if they live in the same household et cetera, are joint carers, jointly responsible for the protection of the child. The child has been killed, but one does not know who has caused the death and who has simply failed in their responsibility to give adequate protection.
Presumably, if one gets rid of the words,
"or ought to have been", the prosecution must prove the mind of the individual man or woman. One does not know whether the man or woman killed the child, and one must get into the mind of that person and say that that person was responsible for the failure to protect the child.
The noble Baroness, Lady Anelay of St Johns, suggested that the way in which Clause 4 is worded might not reflect the degree to which one of the adults was in contact with the child. Why not? If the phrase is, as at present,
"D was, or ought to have been, aware of the risk"— the risk to the child of being killed—the words "ought to" surely embraces the degree to which that adult was in contact with the child and with the household. Was the contact occasional? Was it casual? Was it much more frequent and regular? "Ought to" will embrace all those, in relation to the particular "D"—the defendant—that we are talking about.
It worries me that the deletion of "ought to have been" and "ought to have foreseen", as proposed in the amendments, would result in a heavier burden of proof and might well damage the point of the remedy by which the clause intends to deal with the mischief.
My Lords, before the noble Lord sits down, perhaps he could help me. He said that "ought to have been" is appropriate. What is the source or nature of the duty which gives rise to the "ought"?
My Lords, it is not a question of being aware of the risk. The duty must give rise to the awareness of the risk. Merely being in the household is not of itself sufficient. There must be some other obligation on the person. I just wonder how the way in which it is defined gives rise to this particular duty.
My Lords, I am not the Minister and perhaps I cannot help further. My own view is that the issue depends on this, that or another member of the household. Households are obviously different. In Grand Committee, we discussed how very varied households are in the modern world. I think that the "ought to" very properly must reflect the particular household to which we are referring and the particular relationship between the adults and the child concerned.
My Lords, I did hope to support the Minister. I think that half of her problems here arise because she will not put "responsible" at the beginning of Clause 4. If she did, it would then fall into place. I should have thought that there was no transfer of civil law into criminal law if the relevant offence is being responsible for the death of a child against a background where the person concerned knew or ought to have known.
On a less theoretical basis, I strongly suspect that if "ought to have" is left out, there will be a large number of wide-eyed defendants saying, "Oh dear, oh dear. Of course I never foresaw this. It is all a great tragedy". Of course, they foresaw it. "Ought to have" sweeps that in. I cannot find any problem—.
My Lords, would the noble and learned Lord not agree that that is the sort of issue that juries try all the time? When a person says, "I did not know", the jury are there to decide whether he did know. That is really the basis of the element of mens rea in almost every criminal offence.
My Lords, I appreciate that. But I think that there are many conscientious juries who might be really bothered about the difference between their obviously knowing, their almost certainly knowing and, what is really the same thing, the fact that they ought to have known. To that extent, that is really an essential part of this.
The noble Lord, Lord Thomas, said that it is really monstrous that someone who has been negligent, even grossly negligent, should be sent to prison for 14 years. It certainly would be. But it is not the jury who decides the single offence of guilty or not guilty to responsibility; it is the judge who would be concerned with the culpability of it. In a case where it really was "ought to have" but maybe really did not, the sentence would reflect that.
My Lords, I come to this Bill as a virtual stranger who certainly has not had frequent let alone close personal contact with it. I am therefore very prepared to be told that what I am saying is even more rubbish than usual. I confess that I am very puzzled that these two amendments are treated as though they are a pair which ought to stand or fall together. I can see why grammatically that is the position, but logically, it does not seem to follow at all.
I see the very strong force of the argument in favour of Amendment No. 12. As the noble Lord, Lord Thomas of Gresford, said, it is wrong to convict someone when the jury does not say, "Oh, of course they knew. They may say they don't, but how on earth did they think that child had cigarette burns over it five times a week for the last month?" or whatever. I see great force in Amendment No. 12.
I confess that I do not see any logical force in Amendment No. 13. Clause 4(1)(d)(iii) refers to a defendant who knew that the child was at risk and failed to take any steps. It states that the person can also be guilty only if,
"the act occurred in circumstances", which they "ought to have foreseen".
Why should the person need to have foreseen those particular circumstances? A person may have a boyfriend who is violent to a child—burns him, hits him and so on. The boyfriend gets particularly cross with the child, throws the electric fire into the bath where the child is bathing, and the child is electrocuted. The person ought not to have foreseen those particular circumstances. But why on earth should he or she not be guilty anyhow?
My Lords, I thank all those who have participated because some of my work has been done for me. I thank the noble and learned Lord, Lord Donaldson, for explaining so cogently why "ought to have been" is necessary, albeit that I take his chastisement that my task would have been so much easier if I had just succumbed to the noble Baroness's lures in relation to her Amendment No. 10.
I was very interested to see this amendment. It is an issue that troubled us and we looked at it very carefully. I fully understand that there may be concerns that a person in a household was not aware of a risk. So why have we done it? I am also aware that the offence could therefore impose, as suggested by the noble Lord, Lord Thomas of Gresford, and outlined by the noble Baroness, Lady Anelay, an unfair burden on that household member. He or she may have been too young or naive to see the signs of risk; may have not been there at crucial times to see the signs; may be out at work for much of the time; or may have chosen not to see the signs.
We must be absolutely clear about the sort of circumstances with which we will usually be dealing in such circumstances. We none of us want to believe that our loved ones are capable, for example, of abusing a child. Still less do we want to persuade ourselves that a close and loved member of the household may pose a grave danger to that child.
We do not of course envisage that a member of the household who could not have reasonably foreseen the risk would be caught by this offence. For example, it may be that an elderly grandmother in the household was too confused to recognise and act on any sign of risk. But I do not think that such a case would fall within the offence. It would be difficult to argue that in her circumstances the confused grandmother could have foreseen the risk, much less ought to have done so.
The words "or ought to have foreseen" are very important to the operation of the offence, as was recognised by the noble and learned Lord, Lord Donaldson, and, in part, by the noble Viscount, Lord Bledisloe. Whether someone did indeed foresee a danger is very difficult to prove. But that they "ought to have foreseen" it, that they were in a position and had such information that a reasonable person would have foreseen the harm, that can be proved. To limit the offence to those who did not in fact foresee the harm, and can be proved to have foreseen the harm, would leave a very significant loophole. We also have to face the fact that many individuals in those circumstances say nothing at all.
We should remember too that we are talking about "a significant risk of serious physical harm". That is quite a high threshold. The signs of that risk would be very evident. In many cases, the risk of harm is all too evident from previous harm that a member of the household has inflicted on the child or on others. In some cases we know about, the child or vulnerable person has awful and very obvious signs of previous abuse, sometimes inflicted over a long period. I do not think that we are putting an unacceptable burden on the defendant to recognise that risk in these circumstances and to take whatever steps he could reasonably have been expected to take to protect the victim from the risk.
We have identified the mischief we are seeking to cure and we have identified the means that will be adopted. We feel that this is a proper and balanced response. Perhaps I may say to the noble and learned Lord, Lord Mackay of Clashfern—
My Lords, I shall give way as soon as I have finished my sentence.
This is obviously a question of nature and degree. One of the difficulties we face is that no two sets of circumstances will be precisely the same. The families with which we will often have to deal will be very different in nature, the households may be multi-faceted and contain large numbers, and they may have varying flows. That is why we have crafted the provision so that the individual circumstances of the case can be looked at when deciding whether any of these criteria have been satisfied. We think that this will enable us to make a clear distinction between those who have responsibility, who knew or ought reasonably to have known that there was something they could do to avoid the risk, and failed so to do.
My Lords, I am most grateful to the noble Baroness. I want to clarify a point. In explaining the phrase, "ought reasonably to have known", the noble Baroness cited the example of a grandmother who was confused. These circumstances do arise in families where one party has learning difficulties. Would they also be excused?
My Lords, I do not want to prescribe precisely what would happen in each case, but I must emphasise that it would be absolutely essential to look at the particular circumstances of the individual case and ask the questions that we have clearly set out in Clause 4 before being able to establish any individual culpability. The reason I cited the grandmother is that I felt that that was a clear example of where one could exclude such a person. Many other examples could be given.
My Lords, I am grateful to the noble Baroness for dealing with my question. I would like to be as certain as I can be that I have properly understood what she said. I think she said that the word "ought" means that there is a duty to be aware of the risk that arises from the previous experience of the person in question. They know what has happened in the past. Thus the nature of the history that the person charged is familiar with is of such a character as to give rise to a duty to infer that risk may recur.
My Lords, that is so. One of the things we looked at was the nature of the cases that, in the main, gave rise to these cases. The feature one saw time and again was that this was a known risk. The signs and indications were there which were either ignored or not acted upon. That is what gave rise to framing the offence in this way.
There are many who say that, by so doing, we do not go far enough because it does not deal with the spontaneous event. We think that it is fair to exclude those cases because the responsibility must rest on the knowledge of what has happened before so that it is reasonable to say that the person should have taken a step or steps to avoid the consequence that flowed from their omission.
My Lords, I am grateful to all noble Lords, in particular for the many other strands relating to Clause 4 that have been so helpfully brought out in this debate. I can give notice that I shall not need to move Amendment No. 19 later.
I am grateful to my noble friend Lord Campbell of Alloway and the noble Lord, Lord Monson, for pointing out that we now have something borrowed from civil law and put into criminal law. It is perhaps a feature of this Bill and is not something to which I shall object overall. It is a case of: if it happens then we need to be clear about exactly how and why it happens, so providing clarity for those prosecuting these matters and those who will be subject to prosecution.
The noble Viscount, Lord Bledisloe, asked why Amendments Nos. 12 and 13 are together and whether they stand or fall together. The answer is that this was a matter of grouping for convenience. I agree with the noble Viscount that they do not stand and fall together. One can argue that they could stand separately.
I am tempted to say to the noble and learned Lord, Lord Donaldson, that once again he is right. If I could seduce the Minister with my arguments, not only would it solve a lot of my problems, but also those of the Government. However, obviously I have to put more careful arguments on the matter.
I am particularly grateful to the noble Baroness for the way in which she addressed the questions put by my noble and learned friend Lord Mackay of Clashfern. They go to the heart of the matter: from what event or experience arises this duty? I shall have to consider that carefully between now and Third Reading, but at this stage I beg leave to withdraw the amendment.
moved Amendment No. 14:
Page 2, line 43, at end insert—
"( ) For the purposes of subsection (1)(d)(ii), in determining the reasonableness of the steps which D could have been expected to take, the court shall have particular regard to the extent to which D has been subjected to domestic violence or is in fear of being subjected to domestic violence."
My Lords, Amendment No. 14 stands in my name and in those of my noble friend Lord Campbell of Alloway, and the noble Baroness, Lady Walmsley. I have brought this amendment back from Grand Committee to probe further the protection that the Government intend to provide in this part for those who have themselves suffered from domestic violence and who are members of a household where a child or vulnerable adult suffers a non-accidental death that results in a prosecution. The full debate is reported in Hansard of
The amendment would provide protection by ensuring that domestic violence is made an explicitly relevant factor in considering the reasonableness of the defendant's failure to act. My concern is that a victim of domestic violence is required under Clause 4 to take reasonable steps to prevent the death. Yet their ability to take what others might consider to be a rational decision and rational action against their partner or spouse could be severely limited by their own experience of or fear of violence against either themselves or against another person in the household, most commonly a fear that violence might be exerted against a child in the household.
There can be a real fear of this if you are the mother of a child who is suffering abuse at the hands of your partner. You fear that if you try to bring in social workers or the police early on, you may cause the behaviour to escalate into something even worse. Nobody would condone actions that allow a child or vulnerable adult to suffer any abuse whatever, but we should try to understand the pressure and stress under which those who suffer from domestic violence live from day to day.
I believe it is important that the protection and clarification afforded by this amendment should be on the face of the Bill. I beg to move.
My Lords, I support this amendment because the reasonableness of taking steps is the gateway to guilt. Although the court might well be said to take this into account in determining what is reasonable to enter the gateway, one cannot be certain. It is because of the essential importance of the drafting of subsection 1(d)(ii), leading to guilt, that I have put my name to this amendment. I do not think it would be right to assume that without this provision on the face of the Bill, it would be safe.
My Lords, I rise on behalf of these Benches to support the amendment.
Those who work in women's refuges know that many women who cannot protect themselves from domestic violence are certainly not in a position to protect either a child or a vulnerable adult. Many of the women—and it usually is women—who have been subjected to this sort of abuse have their total confidence destroyed; they are quivering wrecks. They lose confidence in their own judgment as to whether they are making the right decisions about themselves, their household or their children.
I can envisage a situation where a man with a very strong personality might be able to convince the mother that unreasonable chastisement of a child could be for the child's own good in order to teach the child how to behave. We know that that is not reasonable but, in circumstances where the mother has been so demoralised by violence from the same perpetrator, one can easily envisage a situation where she was simply not in a position to protect the child.
Without the amendment, the Bill as it stands does not recognise the very close connection between violence against the woman and the child in the same household. Research shows that in up to 70 per cent of cases the same perpetrator abuses both the mother and the child. In the vast majority—three-quarters—of cases where children are on the child protection register, there is domestic violence against the mother also present in the household. It is for these reasons that we support the inclusion in the Bill of the proposed new paragraph.
My Lords, I thank the noble Baronesses, Lady Anelay and Lady Walmsley, and the noble Lord for the way in which they have approached this issue. I say straightaway that I recognise the description given of the impact that domestic violence can have on women, who are effectively robbed of their sense of self and wellbeing. Although we discussed the matter at some length in Committee, the issue has caused a great deal of concern and it is right that we should return to it.
That concern has quite properly been vested in the difficulties suffered by people who are themselves vulnerable. The noble Baroness referred to domestic violence, but there are other situations which make people vulnerable so that they have less ability than others to be as robust as we would like in the burden that we are placing on them to act or face the possibility of prosecution.
The Bill is about domestic violence in all its aspects. The noble Baronesses, Lady Walmsley and Lady Anelay, are absolutely right that violence against a child may all too often mean there is violence or the threat of violence against the mother too. Anyone living in a violent household is likely to be frightened and dispirited and there will be cases where the defendant is vulnerable, because of violence or for other reasons, and there is very little they could do to protect themselves, let alone protect the victim. They might be the victims of domestic violence themselves, or the defendant might be young and uncertain, unfamiliar with the social services, frightened of the police, mistrustful of teachers or doctors or others in authority, and simply not know where to turn.
We knew that we had to take all this into account when formulating the offence. We had to make sure the offence would not place unjustifiable burdens on people. That is why the offence will only apply when a child or vulnerable person has been killed by someone in the household and the defendant was aware, or ought to have been aware, of the risk and failed to take reasonable steps—I emphasise reasonable steps—to protect the child or vulnerable person from the risk. It is the concept of reasonable steps that is at the very heart of the offence and which is crucial to ensure that it does not place an unacceptable burden on other vulnerable people in the household. I shall turn to this in more detail in a moment.
We hope that the offence, together with the procedural measures which accompany it, will help to solve the "which of you did it?" cases. But the new offence goes beyond that. We would not be justified in introducing an offence only for that purpose; it must be justified in its own right. The behaviour which it covers must be sufficiently reprehensible that we would regard it as criminal regardless of the other considerations we have outlined. The Law Commission was very clear on this and we agree with its reasoning.
The offence will change the way in which we view responsibility within a domestic setting and the way in which we deal with it in the criminal law. It makes it clear that it is not acceptable to be a member of a household in close contact with a vulnerable person, knowing that they are at significant risk, and do nothing. It is not an acceptable position for a parent—no matter how vulnerable or fearful they are for themselves—to do nothing for a child who is at risk. The offence of child cruelty or neglect is based partly on this principle: that to stand by and do nothing is not acceptable.
The new offence will make that position even clearer. It makes the responsibility bite on all members of the household who have frequent contact with the child or vulnerable adult and who are, or should be, aware of the risk to it of serious harm. We think that this is right morally and as a matter of law. It is right that people in this position should be liable to prosecution and, indeed, that prosecution should normally take place if the case is made out.
But, as I said earlier, the concept of reasonable steps is fundamental to the formulation of the offence. It is a crucial part of the way in which the offence works and it provides an important safeguard. In deciding whether there is sufficient evidence to prosecute, the Crown Prosecution Service will have to consider what the person did in the light of what they could reasonably, in the circumstances in which they found themselves, have been expected to do. If the Crown Prosecution Service believes that there is a realistic prospect of conviction, it will then be a matter for the jury to decide whether the prosecution has established beyond reasonable doubt that the defendant failed to take reasonable steps.
We talked in Committee about guidance to be issued by the CPS to prosecutors dealing with these cases. We shall return to this when we get to the later amendment about guidance tabled by the noble Baroness, Lady Anelay, and the noble Viscount, Lord Bridgeman. The question of what steps were reasonable for a victim of domestic violence is, of course, ultimately an issue for the jury, albeit that the prosecution will have to identify the steps that the defendant could have reasonably taken as part of the Crown case.
As in all cases, the Crown Prosecution Service will apply the two-step test for prosecution: that is, is there sufficient evidence to afford a realistic prospect of a conviction; and is a prosecution in the public interest. In a sense, the offence itself defines the public interest in creating a duty on members of a defined group to protect children and vulnerable adults. The public interest will normally lean strongly towards prosecution. It will be the exception rather than the rule if it is decided not to proceed with prosecution.
I sympathise with the concerns behind the amendment. However, we must be clear that protections and safeguards are in place for victims of domestic violence and others who are vulnerable. We believe that the new responsibility we are creating must be weighed in the balance.
We think, too, that we would be wrong in singling out victims of domestic violence in the way proposed by the amendment; others will be vulnerable. When you single out a particular group in this way you inevitably give the impression that other vulnerable groups are less important. Just as we are saying that the victim will be protected if they are vulnerable for whatever reason, so we must say that those who neglect a clear responsibility will be punished.
We believe that the way in which we have phrased the provision gives enough of a safety net to make sure that the sort of protection that we wish to see will be in place. However, that protection must be given first to the vulnerable child and/or the vulnerable adult who, because of their demise, will have no one else to speak for them.
My Lords, I am grateful to all noble Lords who have taken part in this brief debate; it was, of course, foreshadowed by a much lengthier one in Grand Committee. I appreciate what the noble Baroness, Lady Walmsley, said, and her understanding of the situation in which people may find themselves in an abusive household, which was echoed by the Minister. Again, we are speaking with one voice in recognising the appalling difficulties that can be the day-to-day, minute-by-minute experience of people in abusive households. That is why I brought forward the amendment.
I am grateful to my noble friend Lord Campbell of Alloway for his support. As he said, the whole point about the reasonableness of taking steps means that it provides the gateway to guilt. Because of that, I think it vital that we have on the face of the Bill the certainty that inexperience of domestic violence should be taken into account when one is considering how reasonable are the steps that have been taken. I came to that conclusion by listening to people from organisations such as Refuge, Women's Aid and the NSPCC. I listened to them both before Grand Committee, and subsequently, since when they have had the opportunity properly to consider the Minister's response. Therefore, I do not think she will be too surprised if I say that I do not want to use the amendment to prevent others arguing that they had a reason not to take or to take steps. But in a domestic violence Bill, I think there is a special case for saying there should be consideration of those who suffer from domestic violence. On that basis, I wish to test the opinion of the House.
My Lords, last Thursday afternoon, while discussing an amendment moved by the noble Lord, Lord Renton, we had a lively ding-dong about new modes of drafting, grammar, clarity and the correct use of the English language generally, involving the noble Lord, Lord Renton, the noble and learned Lord, Lord Mayhew, the Minister and others. I hope that this modest drafting amendment is less contentious. It is designed to make subsection (3) of Clause 4 more comprehensible to those who will eventually have to interpret it when it becomes law, whether they be professionals or lay persons.
Subsection (3)(a) stands alone. It is not dependent on subsection (3)(b). However, the reverse is most definitely not true. Subsection (3)(b) on its own is complete nonsense. It is wholly consequential on subsection (3)(a). At first glance, the reason for including subsection (3)(b) in the Bill at all, seems to be to allow for the prosecution of a 15 year-old who happens to be—as sometimes happens—six feet two inches tall and weighs 10 stone, and who was therefore deemed to have no excuse for not intervening when the person causing harm to the vulnerable adult or child is only five feet four inches tall, weighs seven stone and lacks a black belt in a martial art.
The Explanatory Notes categorically state that:
"Subsection (3) provides that only those who are 16 or over may be guilty of the offence, unless they are the mother or father of the victim. Members of the household under 16 will not"— and I stress the word "not"—
"have a duty of care or be expected to take steps to prevent a victim coming to harm".
If that is the case, and it seems pretty categoric, I can see no reason whatever for the existence of subsection (3) (b). It only sows confusion and muddies the waters.
There may be some arcane reason for the subsection of which I am unaware, but subsection (3) as a whole forms a single sentence and, if read as such, it will be seen how necessary the insertion of the word "and" is. Admittedly, even with the inclusion of "and", I do not think that the subsection will win any awards from the Plain English Campaign—except perhaps the wooden spoon—but it is probably too late at this stage to redraft the entire subsection. At least this amendment makes it more grammatically accurate and, above all, more comprehensible to those destined to study and refer to it in years to come. I beg to move.
My Lords, I should like to support the noble Lord's amendment. As the Minister will remember well, I was very worried about the drafting of Clause 4 with its endless references to "V" and "D". However, when I redrafted it leaving out those letters, I tried to keep it as close as I could to the original drafting. Therefore, I did not insert the word "and". However, the noble Lord is quite right to have suggested its inclusion, and I warmly support him.
My Lords, I thank the noble Lord for his amendment. The minutiae of drafting are always important and I agree that we need to get them right. I must confess that I have never been tempted by a career as a legislative draftsman, but, if I were, I should want the noble Lord by my side. I understand where his difficulty lies with this clause. Both subsections (a) and (b) are intended to apply when the defendant is not the mother or father of the victim. In other words, the offence will not apply to anyone under the age of 16 except the parents of the child. That reflects the special responsibility that parents have towards their children.
When the defendant's 16th birthday takes place part-way through a pattern of abuse, he will not be expected to have taken reasonable steps before attaining that age. Once he is 16, if there are reasonable steps for him to take on or after that date, he will be in the frame for the offence. The noble Lord's amendment is intended to confirm that. However, I respectfully tell him that it is unnecessary. Paragraphs (a) and (b) of subsection (3) both apply when the defendant is not the parent of the victim, but there is no necessary connection between the two propositions.
The next subsection—subsection (4)—is drafted in exactly the same way. This contrasts with subparagraphs (i), (ii) and (iii) of subsection (1)(d) in which an "and" is needed to show that each of those three conditions must be satisfied. It also contrasts with paragraphs (a) and (b) of subsection (5), when an "or" is needed to show that those paragraphs are alternatives. Therefore, I invite the noble Lord to withdraw his amendment. I hope that I have made it absolutely clear why the additional "and" is not necessary.
My Lords, I thank the Minister for her flattering words, but I do not think that subsection (4) (a) and (b) are comparable because they both stand on their own—one or the other could be eliminated and the subsection would still make sense. That could not be done, however, with subsection (3): paragraph (b) on its own would be total nonsense. Obviously, I will not divide the House on this matter, but the clause is pretty incomprehensible. The best thing would be to eliminate paragraph (b) altogether because it seems to be wholly superfluous. It does not make any difference at all. I cannot twist the arm of the Minister on this, but it would be splendid if she would have a look at this wording before the next stage. It would be an improvement if it were changed, not necessarily in the way I suggested with Amendment No. 14A, to make it easier to understand. I beg leave to withdraw the Amendment.
moved Amendment No. 17:
Page 3, line 21, at end insert—
"( ) No person who is a member of the household as provided by subsection (1)(a) and (b) and (4) above shall be interrogated by the police as to the circumstances in which an offence under this section may have been committed unless cautioned that if charged and tried for such offence an explanation may be required from such person as to the circumstances in which V died; and if so failure or refusal to answer any question as to such circumstances under interrogation shall constitute evidence on which an inference of guilt may be drawn either of having caused the death, or of having failed to have been aware of the risk of serious physical harm of which he ought to have been aware and to have for seen and that no reasonable steps were taken to avoid such risk, subject to such directions as may be given by the trial judge.
( ) No such inference may be drawn unless such caution has been recorded as and when given."
My Lords, Amendments Nos. 17 and 18 have been degrouped. Amendment No. 17 is on the form of caution used in a police interrogation of a member of the household who is liable to be charged with an offence under Clause 4, about the circumstances of a death. That offence can be committed only by a member of the household. The amendment has a very limited application and does not affect the form of caution for others interrogated about the circumstances of the death.
It is required because the extraordinary provisions of Clause 4(2) expose the householder, who exercises the right of silence, to the double jeopardy of an inference of guilt on either limb, without knowing on which limb he was convicted—unless the suggestion I made to the noble Baroness is dealt with at some time. At the moment, as I construe the Bill—but I may be wrong—the trial judge is inhibited from seeking a special direction from the jury about the basis on which the householder was convicted. He will never know what he was convicted of unless further steps are taken.
There is no distinction of gravity. On conviction, either limb carries the maximum sentence. As there is no means for the judge to know on which limb the householder was charged or convicted, he will have some difficulty in deciding how to sentence. If the householder did the act, there is the element of intention. If he did not do the act, we have already considered the element of omission. If he ought to have been aware of the risk of serious harm and took no reasonable steps to avoid it, there is, or may well be, an important distinction of gravity about the limb of the offence on which he was charged.
One must accept that we must have this, or some similar, extension of law in these exceptional circumstances, to break the wall of wilful silence of the household. I accept that. But some members of the household may well be wholly innocent, and they have the presumption of innocence. These exceptional circumstances create a situation where the procedures of the general application to the right to silence do not apply to a Clause 4 offence. This is apparent from a letter dated
I do not want to take time but I must draw your Lordships' attention to two extracts from the Home Secretary's letter, which is in an annex to a JCHR report. In relation to this matter, he says:
"For an adverse inference to be drawn, in relation to a charge of murder or manslaughter, under clause 5, the prosecution will have to establish that there is a 'case to answer' on a charge of the new offence of causing or allowing the death of a child or vulnerable adult (clause 4). To establish a 'case to answer' on the clause 4 offence, the prosecution must have evidence to show that the defendant was a member of the same household as, and in frequent contact with, the victim, and that either the defendant caused the death or he was aware of a significant risk of serious physical harm being caused to the victim and failed to take steps to protect the victim. We believe",— that is, the Minister—
"this situation calls so clearly for an explanation, that it is fair that adverse inferences may be drawn, where it is proper to do so, not only on the clause 4 offence where the case to answer has been established, but also on any accompanying charge of murder or manslaughter, where this may not yet be the case but where the existence of a case to answer on the clause 4 offence is itself a significant factor. I should make clear that an inference would only be proper, as is the case under the current law, where the only sensible explanation for the defendant's silence was that he had no explanation or none that would stand up to cross-examination".
Really, that is far from an accurate, sensible or, frankly, intelligible explanation. The letter continues:
"This means that the strict requirement of Cowan"— that is a case—
"which held that before drawing an adverse inference from silence at trial, the jury must find a case to answer on the prosecution evidence, does not apply in these circumstances. This is because we do not consider that in all circumstances, there need be a technical 'case to answer' for it to be fair to draw an adverse inference".
I do not know how a "technical case to answer" differs from a case to answer. I do not understand the reasoning in the letter. I do not accept it as an accurate explanation of the situation save as to this. First, it is totally clear that it is being maintained that an extraordinary situation is arising as regards an inference of guilt against the householder, which is different from that which arises as regards anyone else. In those circumstances, it is suggested, it is only fair that the householder should be put on express notice, as proposed by the amendment, of that extra risk in these extraordinary circumstances. I beg to move.
My Lords, I am grateful to my noble friend for bringing forward this amendment and—when he comes to it—the subsequent amendment, Amendment No. 18, which has been degrouped. I think that the amendment builds upon the debate we had in Grand Committee and takes us further forward in discussing the difficult relationship between Clauses 4 and 5. As he rightly says, we are going into new waters here. I am interested in the solution he tries to put forward, which is the need for a special caution. I am also grateful to him for raising the questions he did on the Fourth Report of the Joint Committee on Human Rights. I hope that the Minister will be able to take us further forward by addressing those questions.
My Lords, I have not seen the ministerial correspondence to which my noble friend referred, so it is rather difficult for me to comment on the drafting of his amendment. However, I think that he has pointed out circumstances in which offences may be committed, and which should be covered within the Bill. I hope that the Government will respect his attempt to cover those circumstances.
My Lords, I think that this amendment is most unfortunate, because it assumes that Clause 5 will be accepted by the House, and Clause 5 is a monstrosity. There is no justification for this amendment unless Clause 5 survives. The ordinary position is that if someone is being questioned under caution, they are told that if they do not answer the question an inference of guilt might be drawn. So it might. It would be an inference of guilt of an offence under Clause 4. I return to my original point. Clause 4 is a single responsibility offence. One cannot use Clause 4 to inquire whether the accused killed or did not do the things he ought to have done—there is no need to elaborate them again—in paragraph (d). It cannot be done.
It is Clause 5 that starts grafting on something that is contrary to every normal canon of law. There is justification for the amendment only if that clause sticks. I therefore respectfully suggest that the thing to do is not to press this amendment now. However, let us get rid of Clause 5. I hope that the noble Baroness, Lady Anelay, in summoning the troops for a much less important amendment, will not have exhausted her good will.
My Lords, there is a caution, if ever I heard one.
The noble Lord, Lord Campbell of Alloway, made it plain in Committee that he would bring back Amendment No. 17 at Report stage albeit with a revised form of wording. I thank him for that. The amendment would place a statutory obligation on the police to give a special caution to a suspect when investigating the new offence proposed in Clause 4. I am grateful to him for raising the issue again and allowing us to explore whether the amendment might be useful. However, I still do not think that we will be able to accept the amendment. We still do not think that it is needed.
I set out in detail in Committee my reasons for coming to that conclusion. That can be found at Hansard for
I hear what the noble and learned Lord, Lord Donaldson, says about Clause 5, which I think he described as "a monstrosity". I regret to tell him that, on this occasion, I cannot agree with him either in his description or the import of his comments. We think that Clause 5 is sound.
When we come to debate Clause 5—which we soon will when we debate Amendments Nos. 20 to 25—I anticipate that we will be dealing extensively with the Joint Committee on Human Rights and other matters. I wonder whether the noble Lord, Lord Campbell of Alloway, would find it convenient if I responded to some of the detail on those matters when we have reached that stage. I notice that he has degrouped Amendment No. 18. Perhaps that, too, could fall within the discussion that we will shortly have in that regard. I think that Amendment No. 18 would render ineffective the procedural measures we are proposing in Clause 5. As such, I will, unfortunately, not be able to accept that amendment either. However, I can see that it would be very beneficial for us to have what I anticipate will be an extensive debate on Clause 5.
My Lords, I am grateful to the noble Baroness and to the noble and learned Lord, Lord Donaldson. Of course, I expect that he appreciates that, in effect, this amendment survives in its present form only if Clause 5 survives. I agree with the noble and learned Lord. I thought that was apparent from all our discussions and everything else in Grand Committee. He could have taken it for granted that there would be a Division and the Question would be whether Clause 5 should stand part. Against that, this is inevitably a probing amendment and must be treated as such. I certainly propose to treat it as such. In those circumstances, I will deal with certain matters, at the invitation of the noble Baroness, Lady Scotland, in the debate on Amendment No. 18, when I have moved it. Meanwhile, I beg leave to withdraw the amendment.
moved Amendment No. 18:
Page 3, line 21, at end insert—
"( ) Trial of an offence under this section shall be conducted according to procedures of general application; such offence may not be tried on an indictment on which charges of murder or manslaughter are laid on which a submission of no case to answer may not be made before the close of all evidence at the trial."
My Lords, this amendment is again in essence a probing amendment. If Amendment No. 26—which seeks to leave out Clause 5—were accepted, Amendment No. 18, certainly in its present form—and much the same applies to Amendment No. 17—would not be retabled. Originally I was the sole name to Amendment No. 26. I am grateful to my noble friend Lady Anelay of St Johns who will open the discussion on that amendment, and to the noble and learned Lord, Lord Donaldson of Lymington, who put his name to it quite recently and who will support it.
As regards Amendment No. 18, subsection (2) of Clause 4 recognises that "D" may wear two hats and also provides that the Crown does not have to prove which applies for the purpose of conviction. I have already mentioned the following matter so I shall do no more than refer to it—that it must be made plain in some form or another what the accused is charged with. He is entitled to know the substance of the case that he has to meet. Supposing he were charged with an indictment that contained the wording set out in Amendment No. 10, he would be entitled to ask the particulars of the offence and whether he was being charged with doing the act or permitting the act to be done. As a matter of plain justice, in some way or another before he goes into court, he has to know exactly what he is charged with.
Before a person is convicted, the judge has to direct the jury that it must be satisfied beyond all reasonable doubt that the accused is guilty as charged. One cannot leave this matter in a state of limbo and say, "Oh, it is all a very extraordinary situation and we have to make this concession and that concession, or this or that alteration to procedure". Certain alterations may be made, but never the fundamental derogation from the right of an accused to know what he is being charged with and convicted of.
My next point, or the effect of it, is referred to in the amendment—that the Crown should have to elect whether to charge the accused with murder or with a lesser offence under Clause 4. You should not have both offences on the same indictment. The same consideration applies to a charge of manslaughter. If the accused is charged with murder, the jury may, of course, if properly directed, convict him of manslaughter. The effective election here would be between murder and the offence under Clause 4. If the Crown has any doubts about what to charge the accused with, or whether to charge him with murder, it should not charge him with murder. If there were such doubts, the charge under Clause 4 should be laid. That would have been the case in the old days certainly if there had been a Clause 4 offence then. Regarding the circumstances set out in the depositions, one will have to elect which offence to charge the accused with. That form of direction is still available to be given by trial judges today and is often dealt with on pre-trial hearings.
Those are the reasons that I give in support of the amendment. In those circumstances I wish merely to treat it, as I say, as a paving amendment pending resolution of Amendment No. 26. I beg to move.
My Lords, I very much appreciate the way in which the noble Lord expressed those comments. They very much form part of the whole debate that we shall have on Clause 5. I believe that I made clear in Committee why we believed strongly that Clause 5 was merited. Noble Lords will know that the assent of the Joint Committee on Human Rights in relation to these provisions seems to be supportive. I shall seek to address those issues when I reply to the main debate that we shall have in a very short time. I hope that the noble Lord will be content with that way of dealing with things.
My Lords, before I call Amendment No. 20, I should inform the House that if it is agreed to, I cannot call Amendments Nos. 22 and 23 on the ground of pre-emption.
My Lords, we come to the monstrous clause. I speak to Amendment No. 20. Grouped with it is government Amendment No. 21, which is an attempt to improve the wording of Clause 5. Amendments Nos. 22 to 25 in the name of the noble Baroness, Lady Anelay, are also an attempt to improve the wording of the clause as it stands. Amendment No. 26 seeks to leave out the whole of the clause. That amendment of the noble Baroness, Lady Anelay, is supported by the noble Lord, Lord Campbell of Alloway, the noble and learned Lord, Lord Donaldson of Lymington, and myself, and we have added our names to it.
We on these Benches support the need for a new offence as set out in Clause 4. There are very rare circumstances—but they do occur—where within a household it is impossible to say who has been responsible for the death of a child or another victim. In such circumstances where all parties in the household remain silent, it is very difficult to prove who is responsible for the death. Murder cases have therefore failed, so we support the need for an offence, as set out, of causing or allowing the death of a child or a vulnerable adult. However, we disagree with some of the wording and have tried to improve it. No doubt we shall return to that task.
Clause 5 is an entirely separate and different matter. The title—"Evidence and procedure"—is a misnomer, to start with. It does not deal with evidence and procedure specifically related to Clause 4—in other words, on how Clause 4 is to be proved and what procedures are to be adopted. Actually, it extends Clause 4 to murder and manslaughter. As I said in Committee, it seeks to create a new form of murder or manslaughter to be proved by different rules and under different procedures. I should like to develop my theme from Committee that, in Clause 5, the Government have simply extracted the solution that the Law Commission put forward in its draft Bill to deal with the problem of silence within the household. However, that was only for the scheme of that Bill and not in any wider context.
Adverse inferences of guilt may be drawn from silence in an ordinary case where the defendant has no answer to the prosecution's case that has been made against him—the noble Lord, Lord Campbell of Alloway, made the point a short time ago—or that will stand up to examination when he is interrogated by the police or cross-examined at trial. If he says nothing to the police or at trial, providing that a case is made against him it is possible for the jury to draw the inference that he cannot answer that case. It can then draw the further inference that, as he has not chosen to answer the case, he is guilty of the offence.
The problem that arises in the circumstances with which Clause 4 is concerned arises because there may be no case against a defendant at all. As I pointed out, it may be impossible to say whether one or the other of two partners in the household is guilty or responsible for the death of a child. In my experience and as a matter of common sense, silence can derive not simply from guilt, but from a sense of loyalty or love and affection between partners in the household. Alternately, it can arise from intimidation. We referred to all those matters earlier.
The Law Commission was concerned to work out a way in which silence could be used to establish guilt, even though there was no other case against an individual, so that it could be compatible with Article 6 of the European convention and the concepts of the fair trial. If noble Lords will forgive me, I think it helpful to go to the Law Commission's report to indicate how it drew narrowly the circumstances that, under its scheme, would give rise to a proper inference of guilt. At paragraph 5.52, it stated:
"If the defendant chooses not to give evidence, the questions are whether it could be fair for the jury to draw an adverse inference from his or her failure to do so and whether a jury could be relied upon to approach the matter fairly".
That second limb is important, because the death of a child is a highly emotive affair. One is constantly concerned to deal with the prejudice that simply arises from the photographs, the facts and the pathologist's report, which may apply to a baby or a small child.
The Law Commission went on:
"As to the fairness of permitting the jury to draw an inference, the hurdles which the prosecution must surmount before the scheme"— its scheme—
"applies are onerous. They must establish that a crime has been committed, that the defendant from whose silence at trial an adverse inference may be drawn is a person with responsibility for the child and that they can narrow the field of suspects to a known group of individuals. In many cases this will involve narrowing it down to one or both of two.
"We have noted above that the court will, no doubt, wish carefully to consider whether the evidence which narrows the field places the defendant so close to the offence that it is proper for an inference to be drawn and, if so, whether a jury could properly convict. We reject the contention that the court will permit this to occur almost routinely . . . We consider that a person who is close to the commission of the offence and is responsible for the child, could be expected to give an explanation for their involvement or non involvement such that its absence may constitute an 'eloquent silence' from which in the absence of any plausible innocent explanation an adverse inference could properly be drawn".
Whereas in the ordinary case guilt may be inferred because a person cannot answer the case on interrogation or at trial, in the circumstances of the offence that the Law Commission was concerned to develop the inference could be drawn in the absence of a plausible innocent explanation from a person who is close to the offence and responsible for the child. It is in those very narrow circumstances that the Law Commission put forward the proposal in its scheme.
Clause 5 seeks to extend a mechanism that was devised for a particular scheme, where persons were designated as responsible and were close to the offence, to ordinary murder and manslaughter charges. Clause 5 means that a person may be convicted of murder or manslaughter simply from his silence. There is no justification whatever for attempting to convict a person of murder or manslaughter by drawing inferences in one type of case that could not be drawn in all the other types of murder or manslaughter that arise in the courts.
Proposed new subsection (2) in government Amendment No. 21 states:
"Where . . . a court or jury is permitted, in relation to the section 4 offence, to draw such inferences as appear proper from the defendant's failure to give evidence or refusal to answer a question, the court or jury may also draw such inferences in determining whether he is guilty".
The inferences that may appear proper in relation to a Clause 4 offence are not necessarily proper inferences in relation to murder and manslaughter. They arise in a different way. As I said, they arise from the closeness of the offence and the responsibility of the individual.
We were all grateful to the noble Baroness when she explained that the use of "ought" in Clause 4, which we criticised, indicated that a person who had knowledge of the history of abuse that may have taken place was a person who ought to know the risk and ought to foresee the circumstances in which harm happened to the victim. That was a very important concession, and we will be considering it very carefully in relation to whether to pursue the criticisms that we made earlier. That type of inference may be acceptable within this very limited and specific type of offence. What is so objectionable about Clause 5 is not even that its terms confine a charge of murder or manslaughter to the particular offence or death, but that, in the wording of the Clause, all one has to do in a murder or manslaughter case is to add a section 4 offence and then convict a person simply as a result of his silence.
In Amendment No. 20 I have simply excluded subsection (1), but I am fully behind the noble Baroness, Lady Anelay, in her Amendment No. 26 to leave out the whole of that clause. We hope that the Government will consider the matter further. I beg to move.
My Lords, I rise to support the noble Lord, Lord Thomas of Gresford, in his Amendment No. 20, to which I have added my name. Grouped with it is my Amendment No. 23, which is intended to have the same effect—different drafting but the same result. Also in the group is my Amendment No. 25, to which I shall refer only briefly, because government Amendment No. 21 tries to resolve the mischief that I have raised with Amendment No. 25. So, I shall leave that issue to be covered by the Minister when she speaks to her Amendment No. 25.
I entirely agree with all of the arguments used by the noble Lord, Lord Thomas of Gresford, so noble Lords will be grateful that I shall not repeat them. One could either say that there is a need to tidy up the drafting of the clause or that the clause is beyond redemption. My amendments try to take both of those approaches, on the basis that I want to test how the clause might be improved so that it is acceptable, while saying that I have not yet been convinced by any arguments that the clause could be acceptable.
I note that the Minister and the Government have been in correspondence with the Joint Committee on Human Rights, for whose work I am grateful. They have addressed themselves specifically to the question of whether Clause 5 would give rise to incompatibility with Article 6 of the ECHR. They passed the clause—but they did so in intriguing circumstances. They acknowledged, in paragraph 2.12, that in jury trials,
"it will be impossible to be sure that a conviction is not based wholly or mainly on an inference of guilt drawn from a failure to give evidence, in breach of the right to a fair hearing under ECHR Article 6.1".
The committee then says, I am sure to the Government's relief, that there is protection enough in the trial judge not being able to invite a jury to draw an adverse inference unless there is a case to answer for the defendant on a charge of causing or allowing the death to occur.
My problem is that I then find myself wholly behind the arguments put by the noble Lord, Lord Thomas of Gresford, and say that that is no answer to the problem, the mischief, in Clause 5, because it would still do damage to those people who should not be charged under Clauses 4 or 5. So Clause 5 is unnecessary in trying properly to solve the evil of people escaping punishment for causing a death. There is a mischief in it that the House should not be tempted to accept, and we should be in a position to amend Clause 4 to provide a sufficient solution to the problem.
I am still in listening mode, because I do not wish to excise from the Bill any provision that might be necessary if there was no other course for solving the problem of the killing of children and vulnerable adults. But if the clause is broader and more improper than is acceptable, and if it could be applied more extensively in future, it would breach a principle to which so far we have held regarding inferences drawn from silence—and I would be very concerned. There is still time for the Government to give their arguments, but they have a steep mountain to climb.
My Lords, I rise only in the hope of trying to shorten the proceedings, because it is agreed by both sides that subsections (1) to (3) of Clause 5 should be left out. The only question that arises is whether Amendment No. 21, moved by noble Baroness, Lady Scotland, to replace subsections (1) to (3) is acceptable. My noble friend Lady Anelay and the noble Lord, Lord Thomas of Gresford, have already suggested some reasons why we should not accept all of the new subsections (1) to (3) moved by the Minister. I do not wish to take up further time, I simply point out that our task is quite simple.
My Lords, I assure my noble friend that I am always happy to try to shorten proceedings, but I ask, with regret, whether he agrees that the Government's amendment is not satisfactory—because at the end of their new subsection (2) there is still reference to an inference being drawn from silence, even when there would otherwise be no case for him to answer. I hope my noble friend will not think that I am trying to extend proceedings when he is trying so valiantly to shorten them. My initial reservations about the clause remain.
My Lords, I shall try to clear the undergrowth. I do not believe that it really matters whether the issue is contrary to ECHR. It is contrary to all the precedents of English criminal law. That is what matters, because it would be a great mistake if we were to turn the Human Rights Act upside down by saying that anything that is not prohibited by the convention is acceptable—it was never drafted from that point of view.
"Where by virtue of section 35(3) of the Criminal Justice and Public Order Act 1994 (c.33) a court or jury is permitted, in relation to the section 4 offence"— that is, the offence of responsibility—
"to draw such inferences as appear proper from the defendant's failure to give evidence or refusal to answer a question, the court or jury may also draw such inferences in determining whether he is guilty . . . of murder or manslaughter . . . or any other offence".
It probably could draw an inference of manslaughter. One can think of plenty of circumstances in which one cannot pinpoint for certain—or with sufficient certainty—whether murder/manslaughter, or merely neglect or failure to protect, which is the second limb, is involved. That involves the offence of responsibility. The prosecution's evidence could well be such as to entitle the jury at that stage in the absence of any explanation to draw an inference of manslaughter. There would be much more difficulty in drawing an inference of murder. But manslaughter—gross negligence leading to the death—seems to be a perfectly intelligible proposition.
However, the amendment then goes on to provide:
"even if there would otherwise be no case for him to answer in relation to that offence".
If apart from this clause there would be no case to answer, what on earth are we playing at? It is a monstrous clause. At one stage I thought that the noble and learned Lord the Attorney-General had come in to tell the Minister that she could not go on with it, but my hopes were dashed by his disappearance.
My Lords, I apologise for not being able to be in Grand Committee. However, as the proposer of the original amendment with my noble friend Lady Gould, who I am happy to see in her place, I want to support Amendment No. 21, but not as a lawyer. We put forward the first cockshy amendment so that, as the noble Baroness, Lady Anelay, said, a child's killer should not escape justice. We were aware that this was innovative law, but we had the basis of the Law Commission proposals to give us confidence.
Reservations were rightly aired and the Government have met them. They have satisfied the Joint Committee on Human Rights that Clause 5 is not incompatible with the Human Rights Act or the European Convention on Human Rights. The noble Lord, Lord Campbell of Alloway, is a member of that Joint Committee.
I am relieved that the Government have put forward a provision which makes it possible to convict the killers of children. It puts right a long-lasting injustice against the most vulnerable members of our society. If we lose Clause 5, we have lost all that.
My Lords, we had a long debate on this matter in Grand Committee. I have done my best to read what was then said, in particular what the Minister said in reply. I realise the difficulty that exists. If one chooses to try murder, together with an offence under Clause 4, it is arguable that Clause 5 is inevitably required, as the Minister has argued.
However, as the noble and learned Lord, Lord Donaldson, said, Clause 5 is contrary to any other provision of that nature in the criminal law of this country. The real question is: are we not asking this Bill to do too much? We began with the agreed intention of evading the present situation in which a child can be killed and because it is impossible to say which of two people committed the offence both walk totally free of any offence.
Clause 4 tries to deal with that situation by saying that the child is dead and one of two people may either have caused the death or been responsible in the way set out there. It goes on to say that rather than both of them walking free at the halfway stage, and although the prosecution has been unable to prove which of them committed the murder, both are guilty—if there is evidence against both—in the death of that child.
If that is so—if Clause 4 is aiming to create a new offence—tried alone there becomes no need for Clause 5 and the normal rules of law, of submissions at the halfway stage and of inference drawn by silence can relate, provided that there is no attempt to join together the offence of Clause 4 with the offence of Clause 5.
I know that I am putting the case badly, but ultimately we must return to the basic issue of what we are trying to do. If we are trying to show that although we cannot prove which of the two people committed the murder, they should not both be able to walk completely free and the court should have power to convict them of the new offence of responsibility, with a maximum sentence of 14 years, that is one thing. But if we go further and say that although the prosecution cannot say which of the two committed the murder, it will ask the jury to say who did it, we will get into all the problems created by Clause 5 and the need to change the general law of this country in the way proposed.
I ask the Minister to consider whether we need Clause 5. Should we not accept that the purpose of the Bill is to create the new offence of responsibility for the death either because the person caused the act or for the other reasons set out in Clause 4? We should go no further and should not attempt to say that by means of changing the rules of procedure the prosecution is trying to get a verdict of murder when it is not in a position to say which of the two people committed the murder.
My Lords, I agree entirely with what the noble Lord, Lord Carlisle of Bucklow, has said, particularly in emphasising that the most important provision in this part of the Bill is Clause 4 and the way in which the indivisible offence—as the noble and learned Lord, Lord Donaldson, called it—is set out there. It has the possibilities and deterrent value that we discussed at length in Grand Committee and on Report.
However, the noble and learned Lord stopped short of one matter. Let us suppose that in the course of the case and in the course of any proper inferences that may be drawn from failure to answer questions, it appears that, and it is proper to put to the jury that, one of the adults concerned may be guilty of murder or manslaughter. Although guilt and a conviction under Clause 4 is a serious offence and a substantial maximum punishment is therefore attached to it, it is none the less not quite the same as a conviction for murder. I therefore felt that what the noble and learned Lord said was missing something; namely, that if someone is sufficiently culpable to be labelled a murderer, that possibility should in certain limited circumstances be available. That is what Clause 5 provides.
My Lords, a number of important questions have been posed and, clearly, they need to be answered. The noble Lord, Lord Carlisle, asked whether we need Clause 5 and will not Clause 4 suffice to cure the mischief which we have all identified and which we all agree needs to be cured. To the first part of his question, I have to give an unequivocal "yes", and I am afraid that I shall take some time in explaining the reason.
I accept that the noble Baroness, Lady Anelay, says that the provision presents an uphill struggle and that she wishes to hear fully the Government's argument for it. I hope that I may even be able to persuade the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Donaldson, that Clause 5 is not the monstrosity that they fear it to be.
My noble friends Lord Borrie and Lady Whitaker put their finger on the issue. We must all decide whether we consider it right and proper to allow people to get away with murder, because that is precisely what we are talking about. We are not talking in terms of a colloquial saying but in terms of fact. The truth is that, after proving the case to the halfway point—the prosecution on a Clause 4 offence—it is possible that each of the defendants will choose to give evidence at that stage. They may give evidence one against the other and, by their evidence, there may be clear information upon which the jury, properly directed, can rely in order to find either or both of them not simply responsible for the Clause 4 offence but responsible for, culpable in law and properly culpable of, murder. The question with which we must grapple is: are we content that they should avoid such a charge if such a charge is proper?
Before going into the detail, as I shall have to do in order to satisfy noble Lords, I also remind your Lordships that it would still be possible at the end of the hearing of the evidence for the judge, if he or she believed it to be right, to withdraw from the jury the options of the offence of murder or manslaughter if there were no evidence upon which the jury, properly directed, could safely rely in coming to a decision on guilt or innocence. We are not expunging that from the framework.
Therefore, the spectre that noble Lords must consider is: are they content with the scenario that I have described—that is, that of the parties going into the box and giving cogent evidence which demonstrates the guilt of one or either of them in relation to murder? Are they content that the only offence for which the parties will be held responsible will be that of Clause 4? Our answer is that that would not be just or proper and it is not what we set out on this journey to deliver.
I have listened with interest to the debate. Amendment No. 20 in the names of the noble Lords, Lord Thomas of Gresford and Lord McNally, and the noble Baroness, Lady Anelay of St Johns, would, with others that have been tabled, fundamentally dilute our proposals, and I have to tell your Lordships that I cannot accept them. Our scheme aims to stop those who kill children and vulnerable adults in a domestic setting from escaping justice as they are currently able to do. That is something upon which we all agree.
With leave, I shall speak also to my Amendment No. 21. This amendment meets some of the concerns which noble Lords raised and which, I expect, other amendments that have been tabled seek to address. Where my amendment achieves what I believe to be the same aim as another, I shall endeavour to draw noble Lords' attention to that fact. I also want to acknowledge the sense of discomfort echoed by both the noble and learned Lord, Lord Donaldson, and the noble Lord, Lord Thomas of Gresford, about changing a system to which we are accustomed. We are all more comfortable with things with which we are familiar.
I begin the detail of my response by explaining why I tabled this amendment, which is intended to replace subsections (1) to (3) of Clause 5 as they currently appear in the Bill. As I shall explain in more detail in due course, this amendment contains an important change, which I hope will meet some of the concerns expressed by noble Lords when we last met to debate these measures. We have taken this opportunity to clarify and simplify the drafting of the clause as a whole.
The new offence will help to ensure that more people who have caused or allowed the death of a child or vulnerable adult are brought to justice. But we also hope that it will help to solve the "which of you did it?" cases. We believe that that can be achieved only by the new offence under Clause 4 and the procedural measures included in Clause 5 working together.
Where charges on counts of murder or manslaughter properly reflect the culpability of the defendants in cases where a child or vulnerable adult has been unlawfully killed, we believe that we should aim to pursue them in order to ensure that justice is truly done. I sincerely believe that we cannot do so without the scheme that we are proposing.
We have linked our procedural measures closely to the circumstances of our proposed new offence. This, we believe, produces a coherent and effective package of measures targeted at the core cases of familial homicide. The aim is to allow more charges of murder or manslaughter to be safely left to the jury in these difficult cases. It is both desirable and necessary to pursue that aim
In its fourth report of this Session, the Joint Committee on Human Rights noted that a failure to take the steps necessary to identify those responsible for causing death might,
"violate the rights of the victim and his or her close relations", under Article 2 of the ECHR, which, as noble Lords will know, sets out the right not to be intentionally deprived of life,
"by making it systematically impossible to carry out an inquiry into the death which will establish the cause of death and allow the guilty party to be punished".
The noble Lord, Lord Thomas of Gresford, raised various points about the new procedures and the duty of the state to ensure that the child's death can be fully investigated under Articles 2 and 3 of the ECHR. In that context, it is important that we remember what the Law Commission argued. It stated that the fact that new rules of procedure have been proposed in order to remove a present obstacle for the proper conviction of the guilty must be a legitimate matter for the legislature to consider if the procedure adopted can result in a fair trial.
When we last met to debate these measures, some noble Lords expressed concern that we were making major changes to fundamental principles underpinning criminal trials. This evening, the noble and learned Lord, Lord Donaldson, said, "Well, it's all very well to satisfy the ECHR, but what about our common law? I am not going to besmirch that by simply satisfying other criteria". My answer to that is that we are not besmirching it but are asking for changes to do what the common law has always done. The common law has always sought to give justice to the people of this country, and that is a tradition of which we are all rightly and properly proud.
Change often prompts an outcry. In 1967, the late Lord Jenkins of Hillhead—then Home Secretary—put forward a proposal to allow majority jury verdicts. That was roundly condemned as an unacceptable incursion into civil liberties which would lead to gross injustice. There is no evidence that that has happened. A similar reaction greeted the proposal of another distinguished former Home Secretary, the noble Lord, Lord Hurd of Westwell, to put an end to the right of pre-emptory challenge to jurors. Again, the claim that that change would undermine the criminal justice system and result in a serious reduction in liberty has not, subsequently, proved true. I remember it well—it was almost said by the criminal Bar at that time that it would be the end of the world as we knew it, but not much has changed.
For the reasons I have set out, we are proposing significant changes to proceedings. We believe that these particular crimes demand it. But the fundamental principles of hearings being fair, defendants having a proper opportunity to have matters tried against them and being presumed innocent until proven guilty remain totally undisturbed.
In its fourth report of this Session the Joint Committee on Human Rights concluded that with regard to the right to a fair hearing and to being presumed innocent until proven guilty, Clause 5 is sufficiently limited to be unlikely to give rise to an incompatibility. Although I had every confidence that it would, nevertheless I confess to your Lordships that I was delighted that the Joint Committee endorsed our view, which is based on the conclusions reached by the Law Commission.
I turn to the detail of the amendment, including the important changes we have made, and illustrate how we intend the evidential and procedural measures included in Clause 5 to work. As my noble and learned friend Lord Goldsmith has returned to his place, I should assure the noble and learned Lord, Lord Donaldson, that he does so in support, not in censure.
Clause 5 contains, in short, two procedural measures. The first would enable the jury, in considering its verdict on a count of murder or manslaughter, to draw such inferences of guilt as appear proper from the failure of the defendant to give evidence or to answer any question without good cause, even if the prosecution has not led evidence which would suffice to found a conviction if no inference is drawn. This measure is limited by the requirement that for such an inference of guilt to be drawn in relation to the charge of murder or manslaughter, the provisions of Section 35 of the Criminal Justice and Public Order Act 1994 must permit such inferences to be drawn in respect of the Clause 4 offence.
The second measure would postpone determination of a submission of no case to answer until after all the evidence on behalf of the prosecution and all the defendants has been given. I emphasise that the opportunity to make such a submission is postponed, not expunged.
Our proposed new subsection (1) will make it explicitly clear that the procedural measures included in the clause apply to the trial of a defendant on a count of murder or manslaughter only when the defendant himself or herself is also charged in the same proceedings with the new offence. The amendment narrows slightly the range of individuals that are caught by the scheme as currently drafted. We are talking about only those people who are in the closed household who really should give an explanation for what happened.
Where a defendant remains silent in circumstances that clearly call for an explanation from him or her, we believe that the jury should be able to draw an adverse inference from the defendant's silence where it is proper to do so. I emphasise the words "proper to do so". That is why we have linked the drawing of an adverse inference on the charge of murder or manslaughter to the circumstances of the new offence.
For the inference provision in Clause 5 to apply, the prosecution must already have established that there is a case to answer on the Clause 4 offence; that is to say, the prosecution will have adduced evidence that a crime has been committed and that the death of the child or vulnerable person was not accidental and that the death was caused by a member of the victim's household who had frequent contact with the victim.
The noble Lord says, "or by the defendant". The prosecution will also have produced evidence showing that the defendant was such a member of the household and evidence to show that the defendant either caused the death of the victim or was aware of a serious risk to the victim and had failed to take reasonable steps to prevent the death. We believe that that situation so clearly calls for an explanation that it is fair to draw an adverse inference on both the new offence and an accompanying charge of murder or manslaughter if the defendant fails, without good cause, to provide any explanation.
Because we believe that subsection (1) makes the position explicitly clear, we do not think that Amendment No. 22 tabled in the name of the noble Baroness, Lady Anelay of St Johns, would add anything to it. I can assure the noble Baroness that the Bill already provides for what she seeks through that amendment.
We have also decided that the postponement of the decision on a submission of no case to answer should also be linked to the circumstances of the new Clause 4 offence being made out, not just in relation to any of the defendants in the proceedings (as was our position previously) but in relation to the defendant himself or herself. That will mean that those who are charged only with murder or manslaughter and against whom the prosecution cannot establish a case to answer in its own time will be acquitted at that stage. So, where someone cannot come within Clause 4, is not part of the same household, and cannot therefore be caught by the new responsibility to give an explanation, that person will not be in a position where one could postpone "no case to answer". In effect, they would be allowed to leave the proceedings even if subsequently on giving evidence on Clause 4 matters further or other evidence indicated that they may have a level of culpability.
We have listened very carefully to the concerns raised on that point by the noble and learned Lord, Lord Donaldson, and, indeed, by the noble Lord, Lord Thomas of Gresford. We wrestled with whether or not this should be changed and have come to the conclusion that it should. This would achieve what we believe is being sought in another way by Amendment No. 25 tabled by the noble Baroness, Lady Anelay, the noble Viscount, Lord Bridgeman, and the noble Lord, Lord Campbell of Alloway.
The detail of the procedural measures is set out in Amendment No. 21 in a revised form in subsections (2) to (3A). However, I can assure noble Lords that the changes come with very clear and effective safeguards to ensure that hearings remain fair. Where counts of both murder or manslaughter and counts under Clause 4 appear on the indictment together, subsection (3) prevents the charge of murder or manslaughter proceeding to trial where the charge under Clause 4 has been dismissed. That is necessary because in our scheme, to tackle the problem of "Which of you did it?", the case against the accused on the charge of murder is founded upon there being evidence of a Clause 4 offence calling for an explanation. Similarly, at half-time—
My Lords, I thank the noble Baroness for giving way. She has twice said that if the prosecution makes good the various criteria in Clause 4, it calls for an explanation. Surely, that is not right. If you do not give an explanation you may well be found guilty of responsibility, but it certainly does not call for an explanation in that sense. That is the difference between that and what the Law Commission had in mind.
My Lords, with respect, I do not agree with the noble and learned Lord and have tried to make clear why that is. We have some very powerful circumstances. We have a situation where there is a dead child; evidence that that was an unlawful killing; there is evidence that the child died as a result of something done by someone in the household in which that child lived, and further, evidence that each of the defendants were members of that household. I respectfully suggest that that calls for an explanation.
My Lords, in fact the ingredient of the offence under Clause 4, which every one agrees should be part of the Bill, is the responsibility or the child's death either by causing the murder or on the terms set out. What the Minister is really saying is that, while we can prove that, if the person is charged only with murder he goes completely free although he would have been responsible for an offence under Clause 4. Is she not attempting to use Clause 4 merely as a second charge to a charge of murder—which she accepts she cannot prove, because if it was brought on its own the person would be acquitted—so as to get from the jury a verdict of murder which the prosecution does not have the evidence to prove?
My Lords, what we are saying is that the prosecution prove a Clause 4 offence which calls for an explanation. At that stage, in order for the defendants to differentiate between their participation, if any, it may well be that they will choose to give evidence at that point, and further and other evidence will be led or may be led. Until the close of the defence case it will be impossible to make an assessment of whether there is sufficient safe and satisfactory evidence on the charge of murder or manslaughter to leave that issue to the jury. At the end of the case for the defence it may be that it would be absolutely proper at that stage for an application to be made of no case to answer in relation to the murder or manslaughter because counsel would argue that no further evidence had been led and that the inference sought to be drawn was insufficient on its own to justify the murder or manslaughter.
At that stage it would be for the judge to determine whether the inference for all those reasons—with all the safeguards I have already outlined in some detail—could be properly left to the jury. If he does consider that it is proper to leave the matter to the jury the jury would then be entitled to make a determination.
I am saying that similarly at half-time proposed new subsection (3A) in Clause 5 would make the trial judge duty bound to direct the jury to acquit the defendants of murder or manslaughter, should he decide that in relation to the Clause 4 offence there was no case to answer and direct an acquittal on that charge. Proposed new subsection (2) allows inferences from silence to be drawn in circumstances which, hitherto, have not been possible. However, Section 38(3) of the Criminal Justice and Public Order Act 1994 will still apply in these cases. That means that if there is any possibility that an adverse inference may form the sole basis for a conviction of the defendant, the judge could not safely leave the charge of murder to the jury.
Under our scheme the prosecution would have had to establish a case to answer in relation to the charge of causing or allowing the death of the child contrary to Clause 4 before the inference from silence could be used to help to establish a case to answer in respect of the charge of murder. As the Joint Committee on Human Rights states in its report, and we agree:
"In this important respect, there is a protection against conviction of murder or manslaughter wholly or mainly on the basis of an inference from silence . . . the trial judge will not be able to invite a jury to draw an adverse inference unless there is a case for the defendant to answer on a charge of causing or allowing the death to occur, and that is a suspicious circumstance which, taken together with the other safeguards attaching to inferences from silence, should be sufficient, in our view, to rein in any tendency a jury may have to draw an inappropriate inference from silence in relation to the charge of murder or manslaughter".
We unreservedly agree.
Proposed new subsection (2) also extends the provision to draw adverse inferences to cover those occasions where the jury decides upon an alternative verdict to murder. This brings the provision to draw an inference by virtue of this clause into line with the provisions on inferences under Section 35 of the Criminal Justice and Public Order Act 1994.
Without the measure included in Clause 5, cases will fall at half-time and the killer of vulnerable people will escape. We believe that that would not be true justice. I would therefore ask noble Lords not to press their amendments and to support our Amendment No. 21.
Perhaps I may take up a point made by the noble Baroness, Lady Whitaker. She said that she supports a measure that will make it easier to convict a child killer. I am paraphrasing, but she used words to that effect. Certainly this measure will make it easier to convict a defendant. But is that defendant a child killer? That is the whole issue.
The prosecution under these provisions has no case against the defendant. The jury cannot convict on the evidence but only on the silence of the defendant. It is easier to convict the defendant—that is the whole point of our objection—but it does not mean that the defendant is the person, the one of two or three members of the household, who is charged with an offence under Clause 4.
I entirely accept what the noble Lord, Lord Carlisle of Bucklow, said about this Clause 5. It is doing too much. There is a problem to be resolved. Clause 4 does it—perhaps not ideally in the way that it is phrased—in dealing with the situation that arises.
The noble Lord, Lord Borrie, was supportive of everything said by the noble Lord, Lord Carlisle, but he posed the situation where a cut-throat defence occurs towards the end of a case. It emerges in the cut-throat defence that one party blames the other. He is informed by his counsel, "If you are silent the jury may draw an adverse inference". What is more likely than that to induce one party to blame another? The jury believes one as opposed to the other party, or the other party remains silent. Why should a murder conviction not follow?
That is an argument for my Amendment No. 20, which would leave out subsection (1) of Clause 5. It is an argument to maintain the position set out by the noble Baroness, Lady Scotland, in proposed new subsection (3A) in Amendment No. 21; that is, leaving the question whether there is a case to answer to the end of all the evidence. If during the defence case, induced by all sorts of pressures put upon him, one defendant starts blaming the other, then of course there is a case to answer.
That position, which I can understand, is not addressed at all by proposed new subsection (2) of Amendment No. 21. It is not concerned with where a cut-throat defence arises and where one defendant blames another defendant. Proposed new subsection (2)—that to which we have objected and have objected from the very beginning—deals with convictions based on silence, not on cut-throat defences.
There would be a case for a person to answer if one defendant gave evidence against another defendant. Therefore, proposed new subsection (2) has nothing to do with the situation postulated by the noble Lord, Lord Borrie, and adopted or perhaps expanded upon by the Minister in her later reply. Subsection (2), under which a person can be convicted of murder and manslaughter even when there is no case against him or her, simply because he or she does not give evidence, is objectionable at common law, as the noble and learned Lord, Lord Donaldson, said, and under the convention. Nothing that the Minister has said in her reply or in her redrafting of the clause deals with that fundamental point.
My Lords, I do not want to stop the noble Lord in his flow, but I think that he says that proposed subsection (2) refers only to silence. I invite his attention to the third and fourth lines, which state that a court or jury is permitted,
"to draw such inferences as appear proper from the defendant's failure to give evidence or refusal to answer a question".
My Lords, the defendant may give evidence; he may then choose not to answer certain questions when giving evidence, and one would be entitled to draw an inference from his refusal to answer those questions.
My Lords, it still amounts to convicting him because he has failed to answer the question; he has remained silent in response to a question that has been put to him in the course of the trial. That is the basic, fundamental point. If there is no case to answer on murder or manslaughter under subsection (2), the defendant may be convicted because of his silence. That is fundamentally opposed to principle; nothing that the Minister has said can alter that.
I do not propose to press Amendment No. 20 at this stage. I hope that we will have further discussion. The noble Baroness can be assured that we accept Clause 4, but Clause 5 goes too far. For the moment, I beg leave to withdraw the amendment.
moved Amendment No. 21:
Page 3, line 35, leave out subsections (1) to (3) and insert—
"(1) Subsections (2) to (3A) apply where a person ("the defendant") is charged in the same proceedings with an offence of murder or manslaughter and with an offence under section 4 in respect of the same death ("the section 4 offence").
(2) Where by virtue of section 35(3) of the Criminal Justice and Public Order Act 1994 (c. 33) a court or jury is permitted, in relation to the section 4 offence, to draw such inferences as appear proper from the defendant's failure to give evidence or refusal to answer a question, the court or jury may also draw such inferences in determining whether he is guilty—
(a) of murder or manslaughter, or
(b) of any other offence of which he could lawfully be convicted on the charge of murder or manslaughter, even if there would otherwise be no case for him to answer in relation to that offence.
(3A) At the defendant's trial the question whether there is a case for the defendant to answer on the charge of murder or manslaughter is not to be considered before the close of all the evidence (or, if at some earlier time he ceases to be charged with the section 4 offence, before that earlier time)."
On Question, amendment agreed to.
[Amendments Nos. 22 to 26 not moved.]
My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion I suggest that the Report stage begin again not before 8.34 p.m.