moved Amendment No. 1:
Page 3, line 20, at end insert ", but in the interests of natural justice—
(a) the prosecution shall have provided particulars of grounds and circumstances in support of allegations that either alternative applies to enable D to know the substance of the case to answer at the trial charged with this unitary offence having regard to the disparity of criminal conduct under the first alternative on which D committed the act which occasioned death as compared with the diverse quality of criminal complicity under the second alternative on which such act was committed by another of which D ought to have been aware foreseen and prevented; and
(b) on conviction a verdict which identifies the relevant alternative shall be returned so that the basis of the conviction shall be known."
My Lords, in moving this amendment I thank my noble friend Lady Anelay of St Johns for her support. This amendment in no way slights the general intendment of Part 1 of the Bill. The object is to introduce safeguards which ensure the implementation of Clause 5 in accordance with the due and fair administration of justice. To this end, and in the interests of natural justice, it is proposed in this amendment to require, under paragraph (a), that the accused should know the case he has to meet at trial, while under paragraph (b), that he should know the basis on which he was convicted.
This is a qualification to Clause 5(3) which, when read in context with Clause 5(1)(d), affords three distinct bases on which conviction for the offence may ensue. Clause 5 makes this a unitary offence which may be committed only by a member of the household against another member of the household in one of three ways, referred to in Clause 5(3) as the first and second alternative, there being no obligation on the Crown to prove on which of the alternatives conviction is sought.
The three bases are as follows. On the first alternative, the accused—named "D" in this drafting—did the unlawful act which caused the death. On the two limbs of the second alternative, the first asserts that the unlawful act was done by another and that the accused was aware of the risk, could foresee the kind of act, and failed to the steps he could reasonably have been expected to take to prevent it. The second limb of the second alternative is that he ought to have been aware of the risk; that he ought to have foreseen the kind of act and failed to take steps to prevent it.
It is a fundamental requirement of natural justice that the accused is entitled to know the case he will have to meet at the trial, as opened to the jury, and to have an opportunity to repair his reputation and prepare a defence to that case. The other fundamental concept is that he is assuredly entitled to know on what basis he has been convicted. At all events, the trial judge—before summing up, at least—must know on which basis the Crown seeks conviction; and, indeed, for the purpose of sentencing, on what basis the verdict was given. There is a disparate gravity of offence between the three bases, and the maximum sentence is 14 years.
There is a further reason why one should know the basis on which the accused was convicted. This applies, in particular, to the second alternative. The failure to take the steps which a person could reasonably have been expected to take is common to both limbs of the second alternative and is an essential ingredient for conviction. One could well ask if the jury should consider whether the steps that were taken by the accused were steps that he would reasonably expect to take or be expected to have taken, or whether they should consider the "reasonable man", who is not a member of the household, who does not have the characteristics of the accused and who would be ignorant of the domestic circumstances. Is it the test that the reasonable man would have taken steps which the accused himself did not take and would not have taken?
If the first limb does not apply because the accused was not aware of the risk and did not foresee the act—and the jury are so satisfied—how can he be convicted on the second limb of having taken no steps to prevent something of which he was not aware and did not foresee? It is of interest—although it is, in a sense, water under the bridge now—that the Law Society Amendments Nos. 12 and 13, which were moved at Committee stage by my noble friend Lady Anelay of St Johns and which have not been retabled—sought to remove the second limb.
Is it not apparent that, on appeal against either conviction or against sentence—and there is ample scope for appeal on this direction on the second alternative—the Court of Appeal (Criminal Division) must know on which of the three bases the appellant was convicted? Inevitably in regard to this singular offence—"singular" in the sense that it may be committed only by a member of the household against another member of the household—on the second alternative, matters of construction arise as to whether the guilty mind is actual or the hypothetical concept of objectivity has to be established. The ultimate resolution of this may not be made by your Lordships or even by a court of first instance. Inevitably it will be afforded by the Appellate Committee of your Lordships' House. But to enable resolution at first instance and on appeal, the basis on which the conviction was made has to be known.
I hope that the amendment will commend itself. It in no way slights the general intendment of the Bill, which is acceptable to the party to which I adhere and, I gather, to all other parties. But, as a matter of justice, ought not the accused know what he has to meet and why he was convicted? Should he not have that knowledge—certainly on matters of construction on the second alternative—and the facility to appeal? I beg to move.
My Lords, I have attached my name to the amendment to signal my support for my noble friend in the way in which he has sought to take one stage further forward the debates we had at previous stages of the Bill on this issue. I join with him, in particular, in making it clear that we support the objective of Clause 5.
My Lords, I support the amendment. It is a perennial problem that the basis of a jury's verdict is not clear; the jury returns a verdict of guilty and the judge makes up his own mind, without any help from the jury, as to what has happened and sentences on his view. On many occasions these days, applications for a special verdict to be returned, so that the basis of the jury's verdict can be ascertained, are refused.
Let me give an illustration. I was involved in a drugs trial where the case against my client was that he was the "main man". After about an hour's retirement—and this was a case which had lasted for four months—the jury came back with the question, "Can we convict the defendant even though we do not think he is the main man?" It was a conspiracy case and the judge directed the jury, "Yes, you can". He was convicted. The judge in his sentencing said, "You are the main man" and gave him 25 years' imprisonment, which was significantly more than anyone else who had been convicted of that conspiracy. The judge had made up his own mind about the criminality of the particular defendant.
So in a case like this, where we are creating an offence which has two very clear bases—that the death was inflicted by one member of the family but the second member of the family is guilty because of a failure to prevent that death—it would be highly advisable that the judge should not be left to his own devices and that the jury should indicate, in one way or another, precisely the basis for their conclusion of guilty against a particular defendant.
It may be that I do not entirely go along with the wording of the noble Lord, Lord Campbell of Alloway, but I certainly go along with the spirit in which the amendment is brought forward. In an offence such as this, it is important that the jury, who have control of the case, should have the opportunity of expressing why they have come to the conclusion they have reached.
My Lords, I disagree with all three speakers. The noble Lord, Lord Campbell, suggested that there were three alternatives. Apart from the linguistic problem of that, there are not—there are only the two identified in the clause. However, my real objection is not to paragraph (a) in his amendment, but to paragraph (b). On paragraph (a), of course, it is highly desirable—so far as possible, I hope that this does occur—that the accused should know the factual basis of what is alleged against him. Perhaps I am not up to date, but I should have thought that that would be made clear by the prosecution as a matter of routine.
Where the noble Lord goes completely adrift in my estimation, however, is with paragraph (b). This is, as paragraph (a) says, a unitary offence. Furthermore, Clause 5 itself states that:
"The prosecution does not have to prove [which] alternative".
Having done that, the noble Lord expects the jury to unpick the evidence and fit it into one box or the other. That is completely contrary to the approach of the clause.
Finally, there is an argument, although not one put forward by the noble Lord, about reasonableness. It is an interesting legal argument, but it will not be resolved, and certainly not by his amendment. Whether it can be resolved by a different amendment is different matter. We would have to consider whether it was the man on the Clapham omnibus or the member of the household whose reasonableness had to be judged. Leaving that aside, I cannot see anything wrong with the historic function of the judge as the person who fixes the sentence rather than the jury. He has heard the whole case and he is in at least as good a position as the jury to know what is the seriousness of the case in the context of many other similar cases of which the jury will be wholly ignorant.
It is quite wrong that the jury should be expected to give a verdict that unscrambles the unitary offence. The prosecution do not themselves have to opt for one or the other—or both. Also, I add a criticism of paragraph (a) of the amendment, which seems to assume that there is a necessary disparity between the first alternative, which involves being directly concerned with the death of the vulnerable child or adult, and the idea that the second alternative is necessarily much less heinous. If it is straightforward wilful murder, then yes, but if it is manslaughter, the heinousness of the two offences may well come close to each other. Certainly, I would not wish to try to split one from the other.
My Lords, I respectfully agree with the noble and learned Lord, Lord Donaldson of Lymington. In doing so, however, I wish to tell the noble Lords, Lord Campbell and Lord Thomas of Gresford, that I understand the concerns that they have expressed. Both in Committee and at Report, we discussed at great length why the new Clause 5 offence had been crafted in this way. The mischief that we seek to address is the very situation when it is not known which of the participants committed the offence. We crafted this offence to right a wrong that has been incapable of being addressed for some time.
I respectfully adopt the analysis of the noble and learned Lord, Lord Donaldson. Although I empathise with the sentiments expressed by both the other noble Lords, I cannot agree with them. To insist that the basis of the conviction must be known would defeat one of the main purposes of the offence. It would render prosecution and conviction impossible and would not enable us to crack the "which of you did it?" cases—the very ones involving such closed groups that we are determined to crack. Indeed, we believe that we have a duty to the victim to close this gap as far as possible.
I am sure that I need not remind noble Lords that we began by trying to create a package of measures to help us deal with the very same "which of you did it?" problem. We are dealing with a small group of people who must have committed manslaughter or murder, but there is insufficient evidence to confirm which one committed the act that caused the death. Sadly, in many of these cases, a young child has died and the family choose, for their own reasons, to remain silent or blame each other. That is not acceptable.
We had a very long debate about this matter on Report. I remind your Lordships that all the arguments are set out very fully in cols. 1048 onwards of the Official Report for
My Lords, I thank all noble Lords who have spoken in this debate. So far as the Minister is concerned, this is not the first occasion on which it has been said that the clause was crafted—not drafted—so the amendment is not acceptable, as if the crafting involved the cutting of a fine jewel with minimal fault and was a sort of apogee of artistry. This Bill is not like that. We accept its general intent but the drafting—not the crafting—has already suffered a series of government and opposition amendments, including amendments to the Long Title.
This amendment is said to have been put forward on the Floor of the House as a wrecking amendment, but it is no such thing. It may render it a little more difficult to achieve what could well be an unjust objective. There is a presumption of innocence. Even the householders have a presumption of innocence. The Crown still has to prove its case even if it does not have to say which case it wants to prove. This is a totally one-off, novel situation.
In answer to the noble and learned Lord, Lord Donaldson of Lymington, I cannot remember winning any case in which I appeared before him. I always had to go to Lord Denning in the Court of Appeal, and lost on only one occasion. I understand his analysis, but I have never been very comfortable with it.
We remain friends of course, but we simply do not agree on legal analysis and never have done. So nothing which should emanate from the eminence of the Cross Benches on this occasion from the noble and learned Lord surprises me. However, when he stuck on the interpretation of the two alternatives, the noble and learned Lord totally missed the essential point of my argument, which was that there were three bases for conviction. That was seized on by the noble Lord, Lord Thomas of Gresford. I am grateful to him because I have not sought, and I never do, the support of anybody for this amendment. I am very heartened that he should have seen the fundamental problem for the judge, which has been totally ignored by the noble and learned Lord.
This is not a time for further argument; it is certainly no occasion for that. However, there is no assurance that the accused shall know the case he has to meet; there is no assurance that he shall know of what he is being convicted. In my book, that is contrary to the fundamental principles of natural justice and I wish to take the opinion of the House—win, lose or draw—because I believe that that is the right way to go about it.
My Lords, when at Report stage we debated subsection (3) of Clause 4 as it then was, and subsection (4) of Clause 5 as it now is, I moved an amendment that would have slightly improved the grammar of the eccentrically worded paragraph (b), to make it at least a little more comprehensible to those who will have to interpret it in the future. However, it became evident in the course of that debate that the confusing paragraph (b) is not necessary, and that therefore by far the better course would be to delete it all together.
In the course of the Report stage debate, the Minister confirmed my tentative interpretation of the Explanatory Notes; namely, that unless the under-16s are the parents of the child, those under 16 at the time of the offence will be totally, unconditionally exempt from prosecution whatever the circumstances. In other words, even if the under-16s are physically strong enough and mentally tough enough to intervene to try to stop the crime, they will be under no legal obligation to do so and accordingly could never be prosecuted.
I suppose that it could be argued that paragraph (b) provides some sort of philosophical justification for paragraph (a), but it is not normal to pad out Acts of Parliament with philosophical explanations; otherwise the statute book would be three times as bloated as it already is. Those sorts of explanations are the job of the Minister in charge of the Bill, assuming the Bill is a government one, at Second Reading and as and when necessary at subsequent stages of the Bill, together of course with the aid of the Explanatory Notes accompanying the Bill.
Having said that, within the past three minutes, literally, I have received a letter from the Minister which seems to refute some of what I have to say. She argues that paragraph (b) is necessary, and no doubt she will come to that when she replies. She argues that despite the apparent wording of paragraph (a), there might be circumstances in which someone could be prosecuted once they are 16 for something that they did not do when they were not yet 16. That is not the way that I look at paragraph (a). However, I am not a lawyer and she is; she obviously has the upper hand here.
Anyhow, if the provision is indeed necessary to prevent an unjust prosecution then perhaps it had better stay in, although I should hope that the other place would tidy up the wording and the grammar to make it easier to understand and less confusing. However, if it is not necessary, it is surely in the public interest to remove anything that is redundant and possibly confusing. I beg to move.
My Lords, Clause 5, as I said at an earlier stage of the Bill, is unacceptably drafted. I do not like this method at all. I think that the way in which it is being used will cause confusion. Amendment No. 2 helps to simplify the drafting a little. I hope that the Government will regard it with sympathy.
My Lords, I am very sorry that the noble Lord, Lord Monson, has only just received my letter. I note from my copy that it was sent on
The noble Lord has taken a particular interest in the provisions of subsection (4), which is a welcome reflection of his concern to ensure that we do not include anything in the Bill that is unnecessary or misleading. However, as I have previously explained, I am absolutely convinced that Clause 5(4)(b) is necessary. Perhaps I may set out why I believe that that is so.
The measure is important because the process of taking "reasonable steps" is not usually a single event but a course of conduct that takes place over a period of time. Clause 5(4)(a) ensures that a person is not charged with the offence if they are under 16, whereas Clause 5(4)(b) is intended as a safeguard to ensure that, once they have turned 16, they are not held responsible for taking reasonable steps before they were 16.
We see a need to ensure the exclusion of any part of the course of conduct that may have taken place before the defendant's 16th birthday which leaves them in a position now, at age 16, of not having taken reasonable steps. It may be that, even without this clause, a court would not have convicted a person in this situation, but we need to be certain, which is why we have introduced this important safeguard. It was decided that one should have this responsibility at 16-plus, not 16-minus. This provision simply underscores that and puts it beyond doubt.
I hope that the noble Lord will recognise that this clause is not superfluous and that it provides an important and necessary protection within the offence for those who are perhaps under 16 when the course of conduct started, but over 16 by the time the event actually occurred. Those are the reasons. However, I understand why the clarification I have just given was perhaps necessary.
My Lords, I am grateful to the noble Lord, Lord Renton, for his qualified support and very grateful to the Minister. I do not think there is any fault on the part of her department. I was not in the House yesterday and her letter was hidden among a huge pile of mail that I received only 15 minutes ago. I have only just come across it in the course of going through that.
Of course the Minister knows better than I do the interpretation of Clause 4. I think it is very important to ensure that no unjust prosecution takes place. Therefore, if paragraph (b) is necessary, so be it. I should like to reiterate, though, that I hope the other place might be able to tidy up the wording. It still could be improved, as I think the noble Lord, Lord Renton, suggested. With that, I beg leave to withdraw the amendment.
My Lords, when a juryman takes an oath at the beginning of a trial he swears that he will faithfully try the defendant and return a true verdict according to the evidence. I emphasise two aspects of that: that he is to act in good faith; and that he is to act upon the evidence. It is the duty of the judge to determine, according to our procedures, whether there is sufficient evidence upon which a jury can safely return a verdict. The presumption of innocence means that the juryman will not agree to a verdict of guilty unless he is sure of guilt.
That has given rise to the problems, which have been addressed in Clause 5, where a death occurs within a household and it is impossible for a juryman to say beyond reasonable doubt, to be sure on the evidence, which of two or more parties killed the child or vulnerable adult. We have supported Clause 5 throughout the passage of the Bill although we have attempted to improve the wording, and succeeded to some extent. Even so, in Clause 5 there is a considerable difference between being the person whose act caused the victim's death and being the person who should have been aware of the circumstances in which the death occurred. Either of those two wide apart positions can result in a conviction under Clause 5.
The new offence follows the Law Commission's report. What the Law Commission did not do in its report was attempt to extend the principles behind this offence, dealing with a specific problem, to the law of murder or manslaughter. That is what Clause 6 refers to. Although Clause 6 is headed, Evidence and procedure: England and Wales, in effect it extends evidential provisions which are suitable for dealing with the new offence under Clause 5 to the position where a jury is considering not only the new offence but also on the indictment murder or manslaughter.
What is so objectionable is that Clause 6 creates a new way in which murder or manslaughter can be proved. Even if there is no case for him to answer in relation to murder or manslaughter, under Clause 6(2) a person may be convicted simply by remaining silent. That means that a juryman who conscientiously applies himself to his oath will convict a person of murder or manslaughter, not on the evidence because by the terms of the definition there is no case to answer—there is no evidence upon which a jury could safely convict of murder or manslaughter—but on a hunch, a guess. That is contrary to centuries of history of the English criminal law. For a juryman to be asked to guess between, shall we say, two people which one is guilty of murder or manslaughter simply because that person does not give evidence or has failed to reply to questions put to them by the police, and to convict a person in that way, is contrary to that juryman's oath.
I pointed out on Report that when we are dealing with a death in a household and the police are met with silence it is not the same as other cases where there is silence. Silence from a person who is being questioned by the police or facing a trial in a domestic situation may well not indicate guilt. It may indicate his love and affection towards the person he knows has committed the offence. It may emanate for all kinds of reasons which are peculiar to that household. It may emanate from the fact that he or she fears the person whom they know to have committed the offence. Love, fear, loyalty, family solidarity are all reasons from which it would be unsafe to draw the inference of a person's guilt where there is no other evidence, as Clause 6(2) states, upon which the juryman in carrying out the burden of his oath could properly come to the conclusion that that person is guilty.
Someone somewhere, possibly within the Home Office—I doubt whether it is a Minister—has thought to himself, "We have read the Law Commission's report. We have read that there is a particular way of proving the new offence. What a good idea to see whether we can catch people for murder or manslaughter anyway". We hear a lot these days about the fact that this House is challenging the Government: that this House is preventing the Government carrying out their programme. We hear that it is an insult to their integrity if we come to a different conclusion. The truth of the matter is that someone had a very bad idea. Someone who did not understand the processes of the criminal law in this country sought to extend these procedures, far beyond that which the Law Commission envisaged, to murder and manslaughter. It is unacceptable that there should be a different practice and procedure for proving the most serious criminal charge in the calendar in a particular circumstance where a household is involved as opposed to any other circumstance.
From Second Reading on, we have put all these objections to the Government and listened to their response. There was some response to the original proposal but not enough. The Government's supporters and their Back-Benchers may, out of loyalty to the party, follow them through the Lobby. But this is so contrary to the spirit and principles of the English criminal law that the provision must be thrown out today. I beg to move.
My Lords, as the only non-lawyer in the group who put their names to the amendment, I add my wholehearted support. The noble Lord has given such a forceful argument that there is nothing from the legal point of view that I could hope to add—even had I the ability.
I strongly support what the Government seek to do in redressing the mischief put forward because of the problems in the case of R v Lane and Lane. We have had full debates on the matter. I give my full support to Clause 5 as currently drafted after our recent Division today. I hope that another place may consider it again and seek to improve it in some measure. I realise how difficult it was for the Government to draft the clause in such a way as not only to be fair but also to catch those people whom we wish to see prosecuted. As my noble friends have pointed out in the past, if one is convicted of what we might now call a Clause 5 offence, one could face a maximum penalty of 14 years.
I believe that the response in Clause 5 is proportionate to the mischief—the evil—of those offences. However, Clauses 6 and 7 go beyond what can be acceptable in dealing with the offence that has occurred. We all want to see someone prosecuted who has either perpetrated the offence of causing the death of a child, or been involved in allowing the death of a child or vulnerable adult in circumstances where no one would excuse their behaviour. We want those people to be prosecuted and convicted, and certainly, where there is evidence so to do, that can happen under Clause 5. But I fully support the view put forward by the noble Lord, Lord Thomas of Gresford, that Clauses 6 and 7 risk overturning a vital principle of our justice system.
My Lords, as another non-lawyer, I take part again in the debate on this clause because I think that law is not ultimately for lawyers, any more than water is for water engineers or health is for doctors. Law is for people to enable justice—the proper attribution of responsibility for serious and harmful acts. Even when people love or fear, everyone has a role in that process.
It seems to me essential to have the procedural measures in Clause 6 as well as the new offence under Clause 5 for, without them, it would not be possible in the "Which of you did it?" cases to get the right conviction. Where a child or vulnerable adult has been murdered or killed by some other unlawful act, the only conviction that would be right is murder or manslaughter. The new offence in Clause 5 on its own would prevent those responsible for those deaths escaping all justice, but it and the sentence that goes with it do not fully reflect the serious nature of the crime that has been committed. There is almost nothing more serious than killing a child.
Where at least one of a closed group of suspects must be responsible we ought, I submit, to do everything that we can while remaining fair—which, again to a non-lawyer, the proposals are—to bring that person to justice. It seems to me that we would be failing in our duties as legislators if we did not.
My Lords, I support as strongly as possible every word that the noble Lord, Lord Thomas of Gresford, said on the issue. We have debated the clause at considerable length in Committee, on Report and now again at Third Reading. I have done my best to read and understand the arguments put forward by the Minister, but I cannot see her answer to the statement that the clause allows a person to be convicted of murder merely on his silence. In that way, it totally reverses the burden of proof in the case, and means that it is contrary to Article 6 of the European Convention on Human Rights.
The clause states in terms that if someone is charged with a Clause 5 offence he may also be charged with murder, and that if he is so charged inference can be made from his silence to answer,
"even if there would otherwise be no case for him to answer in relation to that offence".
The first strange anomaly is that if one charges a person with murder alone, the clause does not apply. Therefore, in the normal way, one could rise at the end of the prosecution case and say that the prosecution had failed to make its case in any way. The judge would direct the jury that there was not sufficient evidence on which it could convict. If, on the other hand, one adds to the charge of murder a charge under Clause 5, one cannot make that submission, because it is said that the jury can draw such inferences as it wishes from the silence of the accused, and can convict although there is no other evidence against him.
The clause also states that, if one wants to make a submission of no case to answer, one must wait until the end of the whole evidence, both for the prosecution and for the defence. At Report, I understood the Minister to be saying—it can be found at col. 1186 of Hansard for
If that is the argument, surely all one need do in the clause is delay the time at which the submission can be made to the end of the whole of the evidence, as the clause does. There is absolutely no need whatever for anything else. I think that the Minister's argument is that at that stage a judge would be unlikely to allow a case to go to a jury merely on inference from silence, as he would wish to see other evidence. She may be saying that, if other evidence occurs in part of the defence case and the time at which the submission can be made is delayed, the judge may decide that there is evidence on which a person can be convicted, but that is not what the clause says. The clause says that whenever the submission is made, the jury can convict on an inference purely from silence.
For the reasons advanced by the noble Lord, Lord Thomas, and the noble Baroness, Lady Anelay, that seems totally contrary to the legal traditions of this country. It is unnecessary in that, if what the Minister is asking us to accept is that the case may change, that can be met, if it is right to meet it, merely by delaying the time at which the submission is made, without the provision that a jury could convict,
"even if there would . . . be no case . . . to answer in relation to that offence".
My Lords, now I have to be rather more careful in what I say, in view of our past exchanges. Perhaps all that I can say is that I put my name to the amendment having fired the first warning shot over the bows of the clause in Grand Committee. I have since been described by the noble Lord, Lord McNally, who is not in his place, as a barnacled old legal man-of-war. I shall make steam for dry dock in a moment or two.
The defensive smokescreen was wholly penetrated in Grand Committee, as explained by the noble Lord, Lord Thomas of Gresford, whom I congratulate on his speech, and by my noble friend Lord Carlisle. When the amendment was tabled, the hope was always that the final engagement would be under the joint command of both parties in opposition, with perhaps some support from the Cross Benches and a little from the Labour Back Benches. Today the salvos of the joint command have crippled the clause. Yet another shot from this locker would be not only otiose, but extremely tiresome.
My Lords, I am happy to say that, in relation to the amendment, I have rejoined the fold of the lawyers—I did so in earlier stages of the Bill. I am even happier to say, in the light of the remarks made by the noble Lord, Lord Campbell, although I am not sure that he is right, but if this is the first occasion upon which he and I have ever agreed, that makes it a particularly important occasion. It possibly means that we are both right—although I am not so sure about that.
However, I shall turn to the merits of the amendment. Ever since I was called to the Bar, and for many years before that, it was the way in which the burden was kept on the prosecution that it had to prove a case to answer; it had to produce enough evidence so that the jury could properly convict simply on the evidence, if they were convinced by it. It is for that reason that it has always been possible at the end of the prosecution case to say to the judge, "Well, there isn't enough evidence" and the jury could not convict at that stage. That is an essential safeguard and I believe that—although it may not be wholly covered by the wording—it is wholly covered by Article 6, paragraph 2 of the European Convention, which says:
"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law".
Of course, the let-out for the Minister would be to say, "We are altering the law". But, I do not believe that that was what was contemplated by the convention. So up to this moment, the clause would be contrary to law. A good deal of play was made earlier by the references that one sees in the clause to an ability to draw inferences, which is approved of and permitted by the Criminal Justice and Public Order Act of 1994. There is a new and sensible offence that addresses the real need of a "don't know" case, so that when the prosecution proves that the defendant or defendants failed to take such steps as were reasonably foreseeable in relation to the facts of the case, and that the act was caused by that failure, and that the accused ought to have foreseen the need for them, if the accused does not choose to say "Well, I did not foresee it and I could not have been expected to foresee it", or, "I did, in fact, try to take those actions but it did not work"—if the accused does none of those things, then of course there is a reasonable inference. It would not require the 1994 Act to produce that result. Any jury could then draw that inference.
However, we are now being asked, as noble Lords have described, to allow inferences to be drawn when, contrary to the system of justice as we have known it for a very long time, there is no evidence on which a jury could convict at the end of the prosecution case. It seems that this is trying, in an oblique way, to reverse the rule which gave rise to all the problems in the "don't know" cases, because it was in those cases that the counsel, on behalf of the accused, were standing up at the end of the prosecution case to say "There is no evidence as to which of these people committed the offence. You may well say that one or other must have done, but unless you can show who, you can't convict". No one has ever suggested that there is anything wrong with that. What they have said is that, "We cannot allow that situation to continue; we have to tackle it from a different angle". That is what Clause 5 does, and does very efficiently.
However, Clause 6—and Clause 7, in due course—is intended to reverse the problem, to get rid of the problem which existed, and which Clause 5 is meant to tackle; not by getting rid of the problem, but by riding around it in a perfectly straightforward way that is in accordance with all of the traditions of justice that have been known in this country for a very long time. Clause 6 is extraordinary. I think I can understand its genesis—someone thought that they were on to a good thing and could make the situation even better—but protests have been made on all sides of the House, not entirely from lawyers, although it is natural to hear more from lawyers as they have been brought up in that tradition of fairness, in accordance with the law. It is not an abstract concept, but has been honed by many years of experience. Faced with the protests, I am surprised that the Minister has resisted.
I shall make one more comment. In the course of the Bill, on many occasions there have been very well earned tributes paid to the noble Baroness for her expertise as a lawyer, her expertise in presenting cases and her willingness to enter into discussions with people. All of that is admirable, but the bottom line is the same line as has to be looked at in court. Counsel arrive in court and it is their job to make a case, even if they do not believe in it. I would never ask counsel in court whether he believed in his case and I do not ask the Minister whether she believes in her case here, but it would be a great mistake if it was admiration for the noble Baroness that led us to think that she was doing other than acting as an advocate in supporting the clause.
My Lords, with silver-tongued flattery the noble and learned Lord wished, perhaps, to distract me, but he must know from the past that that would be difficult, even with his lures.
I know that the noble Lord, Lord Campbell of Alloway, says that I have the full battalions ranged against me on this clause. May I remind him that it is a long-held British tradition that when right is on our side and the balance appears to be against us, we still persevere? I am afraid that I have to tell the House that I intend to persevere on this occasion, but to reassure noble Lords that I am in agreement with those who say, as has the noble Lord, Lord Thomas of Gresford, that the juryman's oath should not be suborned and I would like to reassure noble Lords that in this clause we are not thinking to suborn that oath; neither are we trying to convict, or cause to be convicted, people on evidence which is a hunch or a guess. Neither are we asking anyone to guess, nor are we seeking to suggest, that some improper construction should be put on silence, which may derive from love, fear, loyalty or family solidarity—as has been suggested.
I take full responsibility if I have not been sufficiently clear, both in Committee and at Report, but I had hoped that the way in which we believe this clause hangs together with Clause 5 had been understood. The noble Lord, Lord Carlisle of Bucklow, addressed the issue of the postponement, because that is, in effect, what this clause and Clause 7 seek to do—the postponement of an argument of "no case to answer" from the close of the prosecution case to the end of the evidence. That is what this clause does. However, in the light of the debate that we have had, it is only right that I should explain, perhaps a little more clearly this time, why the combination of the agreement of the noble and learned Lord, Lord Donaldson, and the noble Lord, Lord Campbell of Alloway, on this one occasion proves that, with regret, they are both wrong.
We need to remind ourselves of the way in which the Law Commission was very clear in the way in which it summed up the problem. Your Lordships will remember that, in the form of two questions, it said at Command No. 282:
"(1) Must it be the case that a fair legal system is helpless to convict a parent who has murdered his or her own infant child, where it is clear that one, or other, or both parents has killed, or is complicit in the killing of the child, merely by the device of each parent refusing to respond to questions about the child's death?
"(2) More particularly, must it be the case that recommendations for reforming the rules of procedure and evidence which seek effectively to resolve, or respond to, this conundrum are doomed to failure either because they will be ineffectual in that they do not address the problem of the silent defendant, or will inevitably and unduly impact on the fundamental requirement of a fair trial by bringing the consequences of such silence to bear upon the question of guilt?"
Those two questions were correctly framed.
I should like to reassure the noble Baroness, Lady Anelay, that we do not believe that Clauses 6 and 7 go beyond that which is acceptable or risk our vital position on justice. We believe that it is absolutely incumbent on us to close the legal loophole that exists in these "Which of you did it?" cases. Where a child has been killed by a private individual, constituting a breach of his or her rights under Articles 2 and 3 of the European Convention on Human Rights, the Law Commission suggests that the Government have a duty to ensure that such deaths can be properly investigated and the perpetrators identified and punished appropriately.
That was echoed by the Joint Committee on Human Rights. We take seriously its view that the rights under Article 2 of the victim and his or her close relations may be violated if it is "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". I was interested that both on Report and at Third Reading none of those who spoke to these amendments dealt with the proper analysis of the provisions undertaken by the Joint Committee on Human Rights.
I accept that the new offence will provide for at least something to be done in future, whereas those who have caused these terrible deaths have until now been able to walk away scot-free. But we need to face the fact that a conviction only for the new offence is a second-best result. It does not provide for an effective means of securing a conviction that represents the gravamen of the crime that has been committed. The sentence that can be imposed for the new offence, severe though it is, is significantly lower than that which Parliament has decided should apply in cases of murder or could apply in cases of manslaughter. Someone who has committed murder or manslaughter should be convicted as such and should be made liable to face the penalties that go with it, provided that the process we adopt is fair.
In order to do that, we need the new offence but also the procedural measures that we are proposing. The new offence will ensure that a case will come before the courts and be put to the jury. However, without the procedural measures, which would allow evidence to emerge during the course of the trial, even if the evidence that would support a higher charge emerged and the jury was able to determine beyond any reasonable doubt who killed that child or vulnerable adult, the higher charge may no longer be available. As a matter of justice to the dead victim and to his or her family, we need to be able to try the suspected killer for murder or manslaughter and sentence him or her appropriately. If we do not have Clause 6, we shall not be able to do that and we shall be left with a lesser charge and a lesser sentence. The Government do not feel that that is acceptable or justifiable by any standards.
The rules and procedures of our courts exist to protect the innocent from wrongful conviction; and may that always be the case. However, they also exist to reveal the truth and to convict the guilty. At present, in the cases about which we are talking, the rules and procedures work wholly in favour of the defendants. But they are not defendants entirely without responsibility. None of them is an innocent bystander who simply became erroneously caught up in the police investigation. Those on trial on charges under the new offence that we are debating today are a closed group of suspects, all of whom, the prosecution will show, were in some way responsible for the child's or vulnerable adult's death, and at least one among their number must actually have caused that death.
We must not ride roughshod over our legal traditions in attempting to get at the truth and secure convictions. For all of us, that is unpalatable and something that we would not tolerate. However, the tradition of our common law prides itself on its flexibility in satisfying the requirements of justice.
In failing to provide an effective mechanism for bringing to justice those who have killed in these circumstances, our current law does a grave disservice to the victims and families in such cases—families such as that of John Anthony Smith, whose aunt graciously wrote to me this week with her support for what we are trying to do today. What happened in that family was truly terrible, and I want to pay tribute to the courage shown by Linda Terry in her campaign for justice in such cases. The experience of that family is by no means unique, and that is a great tragedy indeed. We are talking about people who are responsible for sometimes committing grave offences against children, often their own, or against other vulnerable members of the household. We find it totally unacceptable that, through the simple expedient of determinedly remaining silent, it should be possible to render the system powerless where, for obvious reasons, the victim is unavailable to give evidence, even when it is known that one or more of a very limited number of suspects must have committed the offence.
Our proposals do not offend the common law, and I reject the contention that they do. Furthermore, we believe that they are fully compatible with the right to a fair trial under Article 6 of the ECHR. In its 4th report this Session (House of Lords Paper 34), the Joint Committee on Human Rights has supported that view. Noble Lords have on many occasions praised the Joint Committee for its vigour, its attachment to fairness, its rigour in considering each and every clause fearlessly, and its ability to tell the Government exactly what it thinks about the provisions that we have tabled; and that Committee has given this proposal a clean bill of health.
My Lords, I declare an interest as a member of that committee. Its remit is to examine only whether a provision is contrary to the convention. We are not concerned whether it is contrary to the convention; we are concerned with whether it is contrary to our concept of criminal law. The two are totally different concepts, unless there is a collision and a conflict.
My Lords, I hope that I have made it clear that I am arguing strongly that it is not contrary to our common law or to the ECHR. That is an embodiment of the principles relating to fairness and probity and the standard which we have commonly used to test whether the procedures are fair. Fairness is very much part of this debate. Therefore, we say that our proposals do not offend the common law and neither do they offend against the ECHR.
In relation to the drawing of adverse influences, we are proposing only one—only one—significant change from the current regime under Section 35 of the Criminal Justice and Public Order Act 1994. That is, following the recommendation of the Law Commission, to remove what is called the "highly technical and artificial" approach in the Cowan judgment to the question of what is a situation which clearly calls for an explanation from the defendant. In these cases, under our scheme, it will not be necessary for the jury, before being able to draw an inference, to have first to find that the defendant could be found guilty on consideration of the evidence alone.
The Law Commission set out its reasons for coming to the conclusion that a technical approach to the principle which underlies Cowan is flawed. We debated the issue previously, but your Lordships will find it at paragraphs 6.90 to 6.95 of its report. We entirely agree with its arguments. After deep reflection—and we have given the matter deep reflection—I can assure noble Lords, in particular the noble Baroness, Lady Anelay of St Johns, that this is not a concerning breach of long-held principles in respect of inferences from silence. She was anxious about that matter in our previous debate. Furthermore, the clause is not broader or more improper than is acceptable.
I agree with my noble friend Lady Whitaker. These are cases which cry out for an appropriate response. It is simply not the case that a person may be convicted of murder or manslaughter solely on the basis of his or her silence. That simply is not correct and it is not our intention. The law as currently drafted in the Bill would not allow it. Under our scheme, a conviction that rested wholly or mainly on the basis of silence would be proscribed by virtue of Section 38(3) of the 1994 Act, in the same way as that section currently proscribes adverse inferences that may be drawn on that basis. This Bill does not change that position one jot.
Under this clause, the principle that an inference may be drawn only where it is proper to do so remains intact. It also leaves intact that approach to what is proper which requires the evidence to be such that it calls for an explanation from the defendant. Although under our scheme the point in the trial at which the question of whether a case to answer exists or not is determined later than ordinarily is the case, it remains the case that, before an adverse inference from silence can be drawn, the evidence will still have to be such as to establish, first, that the victim was unlawfully killed; and, secondly, that the defendant is within the closed group of people, at least one of whom must have committed the offence.
In addition, there must also be established against the defendant a case to answer in respect of the new offence under Clause 5—that he or she caused the death or was in a position wherein he or she ought to have taken reasonable steps to protect the victim from the risk of the harm that ultimately caused it. These three things together constitute circumstances which, as the Law Commission has argued, it may, in appropriate cases, be proper to characterise, in a non-technical sense, as "calling for an explanation" or even as "establishing a case to answer".
But yet involvement in the new offence will on its own still not be sufficient to be found a conviction for murder or manslaughter. For a safe conviction on that charge, the court or jury must be convinced beyond reasonable doubt that the ingredients for the offence of murder or manslaughter are present and that they can be applied in respect of the defendant. For this to happen, either the jury must have heard some evidence—either from the prosecution or during the defence cases—that the defendant did commit, or may have committed, the act that caused the death, or they must be in a position in relation to all the evidence properly to conclude that the defendant is maintaining what the Law Commission called an "eloquent silence" and be able to draw such inferences from that as are proper.
If neither of these is the case, the judge would be duty bound not to put the charge of murder or manslaughter to the jury. Delaying the point at which the decision on a submission of no case to answer is determined allows the possibility that the trial itself will create the circumstances such that the case may be left to the jury to decide by allowing more evidence to emerge. We do not believe that that is improper.
My Lords, I am grateful to the noble Baroness for giving way. I intervene only as a member of the Joint Select Committee on Human Rights and not in any party sense. On behalf of the committee, I confirm that, as the Minister said, after questioning the Minister we unanimously concluded that this legislation would not conflict with articles of the convention. It is right that I should put that on the record.
My Lords, I am grateful. So, we believe that what we are doing is proportionate, fair and will not improperly lead to improper convictions and unjustly find those who are innocent guilty of this offence. It enables the judge and the jury to exercise their proper function and, as was said in opening by the noble Lord, Lord Thomas of Gresford, each juryman, and/or woman, will be able to discharge his duty of faithfully trying the defendant according to the evidence. Only if he is sure that one or other of the defendants is guilty of murder will he or she be so convicted. We believe that that is the right and proper position.
The spectre of a person being discharged at half time and there then being evidence that came from the defence identifying which of them was responsible for the killing, and then being impotent to find that person so by the jury and/or by the judge in sentencing, is not a conclusion with which anyone in this House would be happy. I therefore invite your Lordships, notwithstanding the strength of feeling, to consider the issue again and not to divide the House. If there is a Division on the matter, I regret to say that on this occasion I would anxiously urge everyone to go into the "Not Content" Lobby.
My Lords, as the noble and learned Lord, Lord Donaldson, warned us, there was admirable advocacy from the Minister in relation to her point of view. However, it cannot be justice for a person to be convicted of murder if there is no case to answer against that person simply because he or she is silent out of loyalty, love, intimidation, fear, family responsibility or any other emotion which may require his or her silence. That cannot be justice.
We agree that there has been a problem. We agree that the Government have properly addressed it in Clause 5 with the new offence. What we do not agree is that you can go beyond that and ask a jury to guess which of two or three people killed the child. When you boil it down, what the Minister said is that the only evidence that must be produced is that the child—if it was a child—was unlawfully killed and that the defendant comes within a closed group of the family. That is all. That is the case to answer.
Beyond that, it is guesswork. Although the noble Baroness says, "Well, the jury cannot convict unless it is sure", this is a highly emotive area. Those of us who have been involved in cases of this sort, as I have, where the question arises of which of two people—father or mother—killed the child, know that it cannot be left to a jury to decide, supposing that there are cut-throat defences between two defendants. The jury cannot be left to say, "Well, I like him, but I do not like her", or, "She is the sort of person who would do it, not him". It becomes guesswork by the very terms of the clause, even though there is no case to answer.
We cannot base justice—whether to the victim or to the family, as the noble Baroness said—on hunches or guesswork of that sort. The clause is entirely unacceptable, as is Clause 7, and I beg to test the opinion of the House.
moved Amendment No. 5:
After Clause 10, insert the following new clause—
"Common assault etc as alternative verdict
In section 6 of the Criminal Law Act 1967 (c. 58) (trial of offences), after subsection (3) (alternative verdicts on trial on indictment) insert—
"(3A) For the purposes of subsection (3) above an offence falls within the jurisdiction of the court of trial if it is an offence to which section 40 of the Criminal Justice Act 1988 applies (power to join in indictment count for common assault etc), even if a count charging the offence is not included in the indictment.
(3B) A person convicted of an offence by virtue of subsection (3A) may only be dealt with for it in a manner in which a magistrates' court could have dealt with him.""
My Lords, I hope that this amendment will find favour with your Lordships, notwithstanding the fact that its genesis comes from the Benches opposite.
The amendment goes slightly wider in relation to common assault than that which came before the House on the previous occasion. My noble and learned friend the Attorney-General indicated on Report that we were favourably disposed towards the amendment tabled by the noble Baroness, Lady Anelay, and we undertook to return to it at Third Reading.
Your Lordships will notice that our new clause is somewhat different from the amendment tabled in the name of the noble Baroness. The reason for this is that there is no reason in logic to distinguish between common assault and the other summary offences which, by virtue of Section 40 of the 1988 Act, are capable of being added to an indictment in the Crown Court.
We therefore concluded that the best solution would be a general provision that enables an alternative verdict to be returned under Section 6(3) of the Criminal Law Act 1967 in respect of all the summary offences listed in Section 40(3). This amendment requires a consequential amendment to the Long Title. On this occasion I believe that the noble Baroness will not object to any such amendment.
Whether there will be any practical value in the extension of Section 6(3) beyond common assault is not clear; there is a chance that cases might arise where it will be beneficial. But we are confident that this amendment will do what the amendment tabled by the noble Baroness, Lady Anelay, would have done for assault cases, which is its main purpose.
The amendment to Schedule 7 limits the power of the Crown Court in dealing with one of these summary offences where an alternative verdict has been returned, in the same way as it is limited where the offence has been added as a count in the indictment. I beg to move.
My Lords, the old saying about not looking a gift horse in the mouth comes immediately to mind. I am enormously grateful to the Minister for putting forward this new clause which has within it the kernel of the offer that I made to the Government on previous occasions.
I would like to put on record one or two reasons why I am puzzled about the government amendment, although I have no intention of opposing it in any way. I brought forward my amendment in the first instance on the basis of some remarks that were passed in the course of the Court of Appeal case by Lord Justice Rose. I would not wish him—or others in the Court of Appeal—to think that I had misunderstood what he was proposing as a solution to an existing problem.
My amendment was an attempt to provide for the position where the jury are not sure that the offence charged on the indictment has been proved, but are sure that an alternative offence, which is expressly or impliedly included in the unproved allegation, has been proved. At the moment on a charge of ABH, the jury cannot convict of common assault as an alternative, unless there is a specific count on the indictment. I am grateful that the Government have accepted that this should be remedied.
The Government want to extend my original amendment. The Minister said that there is no reason in logic to differentiate between that and the other offences which are the subject of this clause. The new offences to be added in are those of assaulting a prison custody officer, assaulting a secure training centre custody officer, taking and driving away, driving while disqualified and low-value criminal damage under £5,000.
All of these offences were made summary by the Criminal Justice Act 1988. Notwithstanding that, Section 40 enabled them to be added as a specific count on an indictment if they were factually linked with an indictable offence which was charged on the indictment. On conviction the penalty can be one available only on summary conviction. The section was intended to avoid the need for a separate trial in the magistrates' courts after a Crown Court trial of the indicted charge.
It will be apparent that some of the offences listed in Section 40 are unlikely to be alternative to an indictable offence charged on an indictment. That is what puzzles me. In those circumstances they would not be expressly or impliedly included in the unproved allegation. In order for there to be a conviction, such offences would have to be included in a specific count.
As an ex-magistrate, the obvious example to me is the charge of driving while disqualified; it does not seem to be an alternative to any other offence. I find a difficulty in the fact that the "blue pencil test" cannot be applied. I explained that term in detail in Grand Committee on
To return to the text of the Government's amendment, it is surely unnecessary to make separate provision for taking and driving away and low-value criminal damage. TDA can be an alternative only to theft of a motor vehicle or aggravated vehicle taking. Under Section 12(4) of the Theft Act 1968, TDA is an alternative to theft. The penalty is that available on summary conviction.
I could speak further on the other offences of criminal damage, but I think I have made my point. I do not object to the Government's clause. I am a little puzzled because the new offences added do not appear to follow the blue pencil test criteria. It seems that the Government have complicated matters; I hope that is not the case. I hope that no mischief has been created because I know that neither of us has that intent in mind. Otherwise I am glad to see this gift horse canter on to the statute book.
My Lords, I assure the noble Baroness that we looked at the matter very carefully and, for a number of technical reasons, we thought that it made sense. I have certainly listened to the noble Baroness's comments. I know that numbers are fairly light on all our Benches. I assure the noble Baroness that it was done in what was felt to be the most appropriate and convenient way, in a tidy and proper manner. I shall write to her with the detail so that other noble Lords do not have to go to sleep while I explain how it works.
moved Amendment No. 6:
Page 7, line 10, at end insert—
"( ) After subsection (6) of that section insert—
"(7) A court dealing with a person for an offence under this section may vary or discharge the order in question by a further order.""
My Lords, these amendments respond to an amendment also tabled by the noble Baroness, Lady Anelay, the noble Viscount, Lord Bridgeman, and the noble Lord, Lord Campbell of Alloway, on Report on
Amendment No. 6 would amend Section 5 of the Protection from Harassment Act 1997 to achieve essentially the same result as intended by the amendment tabled on Report but with slightly different wording to fit with the structure of the 1997 Act. It would allow a court, when dealing with a person for the offence of breach of a restraining order, to vary or discharge the order in question by making a further order. The amendment will help to ensure that a restraining order continues to reflect the risk of harassment by the defendant towards the victim and will allow the court to change or to end the original restraining order as necessary. We hope that it will also help victims of harassment when a restraining order has been breached, in that it will reduce the need for them to apply to the court that made the original order for the order to be varied or for further protection—that is the current position under the Protection from Harassment Act 1997.
moved Amendments Nos. 8 and 9:
Page 7, line 42, at end insert—
"( ) After paragraph (6) of that Article insert—
"(7) A court dealing with a person for an offence under this Article may vary or discharge the order in question by a further order."" Page 8, line 10, leave out "(6)" and insert "(7)"
On Question, amendments agreed to.
Clause 13 [Application by prosecution for certain counts to be tried without a jury]:
moved Amendment No. 10:
Page 9, line 11, after "person" insert—
"( ) evidence in respect of each count is admissible at the trial of the sample count,"
My Lords, Clause 13 introduces an entirely new concept to criminal law procedure: counts can be tried without a jury although they are those that can be tried on indictment only. The circumstance in which that can be done is when the judge determines that a particular group of counts are samples of other counts. The judge must be satisfied of three conditions: first, that a trial by jury involving all the counts would be impracticable; secondly, that each count or group of counts to be tried is a sample of counts; and, thirdly, that it is in the interests of justice.
The Government could have left it at that but they decided to define the sample count in subsection (9) of Clause 13. My purpose is simply to clarify that it is indeed a sample count by the way in which we normally recognise a count to be a sample; that evidence in respect of each count is admissible at the trial of the second count.
When I raised the matter in Grand Committee the Minister was inclined to say yes but did not go that far. I do not know why I could not persuade her to say yes. On Report, the matter was dealt with more sternly by the noble and learned Lord the Attorney-General, who said that it would not be helpful to use the concept of admissibility as a condition for sample counts to be tried without a jury. The reason, he said, was that the judge would have to make a pre-assessment, in relation to the counts and the subsidiary counts, that that condition would be met. I do not seek to make it a condition; I have already referred to the three conditions. I seek to assist the Government in defining with clarity a sample count. As I have said, we have always understood it to be a count on which the evidence is admissible.
It is a simple matter. It puts the question of what is a sample count within certain well known, well defined boundaries and limits. When we are dealing with an entirely new and almost experimental procedure of trial, without a jury, of indictable-only offences, it is a sensible provision. I beg to move.
My Lords, I rise briefly, but the brevity of my comments should not lead one to underestimate the strength of my support for the amendment. It clarifies appropriately the definition of "sample count". In Committee and on Report, I demonstrated our general support for the changes that the Government seek to make. Although it might appear to others that we seek to weaken the role of the jury, we agree with the Government that we are not doing so. But some parts of the clause need to be strengthened in making the necessary changes. This amendment achieves just such an objective.
My Lords, of course I understand that the noble Lord, Lord Thomas of Gresford, wishes to assist the Government in defining clearly a sample count, and I hear the warm support given by the noble Baroness, Lady Anelay. However, I cannot usefully add much to what my noble and learned friend Lord Goldsmith, the Attorney-General, said on Report.
Evidence admissible in respect of sample counts is likely to be admissible in respect of the subsidiary counts because they will be extremely similar. It is important that the prosecution should be able to rely on evidence adduced in that part of the trial that was heard by a jury. However, it would not be appropriate to use admissibility, as this amendment does, as a criterion for whether counts were similar enough for one to be a sample of another. The question as to what can be regarded as a sample count is best left to judicial discretion.
There is also the practical problem that it may not be clear at the time of the preparatory hearing whether evidence in respect of a count is admissible in respect of another count. We believe that in cases of this type, where a judge is considering whether a count is a sample of another, the judge can be relied upon to know what a sample count is. In essence, that is why we have not adopted the commission's proposal for cross-admissibility.
I hope that what I have said is helpful. I am sorry if my noble and learned friend was harder than I was in Committee, but as in all things I defer to his firmness.
My Lords, with the institution of a new procedure such as this, it is important that there be bounds to it. If it is simply left to the judge's discretion, that discretion may be taken in a way beyond that which Parliament envisages and it may be supported in the Court of Appeal. Therefore, it seems right that this definition should be clearly before the judge when he makes his pre-assessment. If, at that stage, he cannot say whether the evidence is admissible between counts—whether there is cross-admissibility—the procedure should not be adopted; it is as simple as that. I feel strongly enough about the matter as to test the opinion of the House.
My Lords, in speaking to Amendment No. 11, I shall speak also to Amendments Nos. 12 and 13, which are consequential. These clauses were inserted by the Government at Report stage. They remove from the jury the decision as to whether the defendant is fit to be tried, and give that decision to the judge alone. I made it clear at Report that I was somewhat sceptical about the Government's proposal. I said that I would carefully consider the arguments put forward and return to the matter at Third Reading if I was not convinced that the removal of this decision from the jury was necessary and appropriate.
I listened carefully to the Minister's reasons for removing that decision from the jury. I looked at the Auld report, which had been prayed in aid by the Government as the reason for the proposal. Of course, I accept that this is one of many recommendations made by Lord Justice Auld. The Government have not accepted all of his proposals and I agree with them on that. This is one more proposal that should, for the moment, be allowed to lie quietly unadopted.
Since 1997, the Government have been working assiduously to remove lay people from the judicial system. I call to mind lay members of the Social Security Appeal Tribunal and now the proposed unified Asylum and Immigration Tribunal, let alone the original proposals in the Criminal Justice Act and its Mode of Trial predecessors.
The layman has a vital role to play in our judicial system, which should not be reduced unless there is a strong reason to do so. We have accepted that there are occasions when that role should be reduced. We accepted that in the clauses that have transferred to judge alone the trial of sample counts.
In the matter of unfitness to plead it is right that the decision should remain with the jury. It is a matter of public interest and a jury has the competence to make the decision appropriately. The result of a decision that someone is unfit to plead can be draconian. It can be a hospital order without restriction as to time. At this stage, I believe that the decision should remain in the hands of the jury. I beg to move.
My Lords, we support the amendment. As the noble Baroness, Lady Anelay, said, it is very important that the public should have confidence in the system. In these cases, the position is that they are usually determined on the basis of medical reports, which very often are agreed but sometimes are conflicting, in which case evidence is called. The tribunal that determines whether the unfitness to plead is made out should be the jury. As the noble Baroness, Lady Anelay, said, the consequences of such a decision can be that a person can be locked up under a hospital order without any restriction as to time and is thereby deprived of his freedom.
My Lords, I am disappointed that the noble Baroness and noble Lord take that view. I am particularly disappointed that the noble Baroness should suggest that this clause seeks to remove lay people from the system. The clause has the effect of transferring responsibility to the judge to make the decision. However, noble Lords will note that the lay judgment remains in being because the jury still has a very powerful role.
Amendment No. 18 would remove a clause inserted during Report stage that would "streamline" the court process for vulnerable defendants who may be unfit to stand trial. The clause challenged makes changes to the Criminal Procedure (Insanity) Act 1964. The changes provide that the decision on whether a defendant is fit to plead to a charge should be taken by the judge and not by a jury.
I notice that the noble Baroness spoke only to the issue of jury trial and not to Clauses 19 and 20. The change is important to the efficiency of the court hearing where fitness is an issue. It is wasteful of court time and resources to have to convene two juries; that is, one jury to determine the issue of whether the defendant is fit to stand trial and, if not, another jury to determine whether he did the act or made the omission as charged.
It is not in the interest of vulnerable defendants to have to undergo a lengthy process involving two separate juries with the first having to hear evidence from at least two medical practitioners. The provision does not detract from the defendant's right to be tried by a jury. In the event that the defendant is found unfit to plead, a jury must still consider the facts of the case and acquit if not satisfied that the defendant did the act as charged. A finding that he did the act cannot lead to a conviction or punitive disposal.
I respectfully suggest that a jury is unlikely to be as well qualified as a judge to interpret the complex evidence of a professional nature. Moreover, under the new regime, if the defendant subsequently wishes to challenge a finding as to whether he is unfit to plead, he will have a judge's reasons for the conclusion under the new clause. That will help him to decide whether there is any basis for a successful appeal. Under the 1964 Act provision, which this amendment would restore, the jury has to give no reasons for its finding.
As the noble Baroness, Lady Anelay, has seen and read, the provision is a recommendation made by Lord Justice Auld. We do not think that it should stay on the shelf gathering dust. It has merit. It has been subject to consultation in the published consultation document accompanying the mental health Bill where it attracted support. It is too important to the courts and to vulnerable defendants to be delayed further. At best, it must be subject to considerable further delay if removed from the Bill.
Amendment No. 12 seeks to remove Clause 19, which was inserted at Report stage. I have grouped Clauses 19 and 20 with Clause 18. I do not know whether the noble Baroness is content with Clauses 19 and 20 and simply discontent with Clause 18. If I can assume that that is her position, I shall not deal with the other two clauses.
The time has come to deal with this issue. We do not think that it will be unjust. It is proper. As I said at Report, and I reiterate today, there are some real benefits. There would be a reasoned decision that is capable, in the interests of the defendant, of being challenged. He would still get the benefit of a jury to make the determination of fact, which is proper.
I know that the history of this House should have taught me otherwise, but I had hoped that this might have been a clause on which we would all gleefully agree. I have to express my disappointment.
My Lords, I am always sad to disappoint the Minister; naturally, nothing could be further from my objective.
However, I also do not want to disappoint those who seek to maintain a fair judicial system. I know that the Minister's objective is to ensure that there is a fair judicial system, but where we part company is on the question of whether a satisfactory case has yet been made as regards Clause 18. I should add that I am not addressing Clauses 19 and 20; my fire is directed towards Clause 18.
The Minister says that this will "streamline" the process for vulnerable people. There is also an argument that streamlining processes may prove to be a disadvantage in some circumstances. I hear what the noble Baroness says about the fact that a judge will be able to give reasons whereas a jury would not, but one could cite other circumstances where a jury trial might be thought inappropriate because reasons are not given. While I know that that is not what the Minister intends to imply, one has to consider the whole of the judicial system when seeking to assault one part of it.
As she did at the previous stage, the noble Baroness said that the jury might not be best placed properly to be able to deal with the evidence that might be adduced from medical reports. However, the great strength of a jury is that it is able to bring to its adjudication an understanding of what is right and wrong, and whether what it has been told is the truth. Members of juries are able to come to their decisions in such cases.
The noble Baroness also referred to the fact that this provision might have been included in the mental health Bill. As soon as we had sight of the first amendments tabled by the Government on this proposal, I took every opportunity to contact organisations that one would expect to have a direct interest in it. I know that the Minister has observed in the past that silence is consent, but I am not persuaded of that. I like to be sure that when serious changes are made, people are content. Despite my best efforts, I have still not heard whether people are content with the proposals. Since, despite repeated efforts, I have not directly received that response—it would have to come to me as the mover of the amendment—I am not in a position to agree that this particular clause should be put on the face of the Bill. As it stands today, therefore, I am not able to say whether Clause 18 should be included in the Bill.
If the House agrees that Clause 18 should not be added to the Bill and it is further discussed in another place, it may well be that further evidence comes to light. But I have to say that the scepticism I expressed when we considered this on Report has since hardened. Therefore, I seek to test the opinion of the House.
My Lords, I wish to rise before the noble Baroness resumes her place. On this occasion it is not a question of silence. I hope that I made it clear that the consultation document accompanying the draft mental health Bill contained these provisions. I understand that, within that consultation, they attracted support. This is not a question of silence; the consultation document indicated that there was positive support for these provisions.
My Lords, I shall not trespass too much on the rules at Third Reading, but I should say that I looked at that consultation document. A fleeting, passing reference was made to this proposal. As it was so fleeting and passing, I sought assiduously to find out what the major organisations—I named them on the previous occasion—felt about it. However, at this point I do not have the evidence to hand to allow me properly to accept that this proposal should go forward. I wish to test the opinion of the House on whether to leave out Clause 18.
moved Amendment No. 14:
After Clause 25, insert the following new clause—
(1) Section 17 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) (witnesses eligible for assistance on grounds of fear or distress about testifying) is amended as follows.
(2) After subsection (4) insert—
"(4A) Where the complainant in respect of proceedings relating to any form of molestation, including violence, involving the complainant, a cohabitant, a relevant child or associated persons, is a witness in such proceedings, the witness is eligible for assistance in relation to those proceedings by virtue of this subsection unless the witness has informed the court of the witness's wish not to be so eligible by virtue of this subsection.
(4B) For the purposes of this subsection, "cohabitant", "relevant child" and "associated persons" mean a person as defined by section 62 of the Family Law Act 1996 (c. 27) (meaning of "cohabitants", "relevant child" and "associated person") as amended by sections 2 and 3 of this Act.""
My Lords, Amendment No. 14 stands in my name and in the names of my noble friend Lady Anelay, the noble Lord, Lord McNally, and the noble Baroness, Lady Walmsley. May I first thank the Minister for agreeing to meet Victim Support, as we suggested, after the Report stage?
This is the same amendment as the one we moved on Report, when I gave notice to the Minister that we would not divide the House at that stage. The point at issue remains—that is, the concept that one size does not fit all, as the Minister put it so succinctly at earlier stages of the Bill. As an example, the Minister painted the scenario of a complainant who, in effect, wants maximum publicity by saying,
"'I am going to stand up for myself, and I am not going to allow you to see that you have obliged me to take special measures to hide from you'".—[Official Report, 15/3/04; col. 32.]
The Minister quite rightly said that some cases go one way and some go the other.
But, in my amendment, the proposed new subsection (4A) expressly provides for the witness to opt out of the right to special measures,
"unless the witness has informed the court of the witness's wish not to be so eligible by virtue of this subsection".
This exactly follows the wording of Section 17(4) of the existing Act, which relates to sexual offences. So the victims will be able to opt out of the special measures provided for under our amendment.
The Minister reminded us on Report that as the Bill now stands the victims have the right to special measures under Sections 16 and 17 of the Youth Justice and Criminal Evidence Act, but the difference between us remains. The statutes at present give the protection at the discretion of the court; our amendment gives it as an absolute right. At the risk of repeating what I said on Report, we think this is of fundamental psychological importance to the witness. If the provision draws in some trivial cases which are not in themselves deserving of special measures, so be it. The opt-out provision to which I have referred is there.
I hope that the Minister will, at this late stage of the Bill's passage through your Lordships' House, be able to agree what we on these Benches regard as a fundamentally important modification of the Bill. I beg to move.
My Lords, in rising to support the amendment I would like very much to reiterate the words of the noble Viscount, Lord Bridgeman, in regard to the opt out provided in the proposed new clause, which counters the arguments made by the Minister at Report stage.
The noble Baroness also argued that Sections 16 and 17 of the Youth Justice and Criminal Evidence Act 1999 already enable victims of domestic violence to have access to special measures where a court decides that it is appropriate. That is the sticking point and the reason that we are being so tenacious in again bringing forward the amendment. We feel that it is always appropriate at least to offer these measures to victims of domestic violence. As we have heard, the victim may reject the measures for his or her own reasons; he or she would have a right to do that.
We are concerned that there may be situations where the court may not allow special measures when it would be appropriate to do so. The nature of the power relationship is not always reflected by the seriousness of the particular assault that brought the parties to court on the day. That means that the court may not feel that the assault is serious enough to require the special measures to be made available to the victim. But the court cannot see into the mind of the victim; it cannot know how demoralised is the victim of the assault.
We want vigorous, good-quality evidence, given with the kind of conviction that will convince the court. A woman who is cowering in fear of her assailant will not be in a position to give that good-quality evidence—and on that good-quality evidence depends the justice that will result from the hearing on the day.
It is for that reason that we vigorously support the amendment. We hope that it will find favour with the Minister. We all want exactly the same thing; that is, that genuine perpetrators are brought to book and that women are given the courage to come forward and complain about domestic violence.
My Lords, I absolutely agree with the last statement of the noble Baroness, Lady Walmsley. We all agree about that. There has never been a murmur of dissent among any of us in terms of our aspirations in regard to what we wish to make available to victims.
The noble Viscount, Lord Bridgeman, referred to the comments that I made on Report. I am grateful to him for that. It is right that we should look at each case on its merits. We agreed during the Report stage that where there is clear evidence of the victim being too frightened or distressed to give evidence, special measures are available; and that Section 17 of the Youth Justice and Criminal Evidence Act 1999 already enables victims of domestic violence to have access to special measures where the court decides it is appropriate. So we think the amendment is unnecessary. However, I understand the difference in emphasis that the noble Lord and the noble Baroness, Lady Walmsley, seek to make.
As the noble Viscount, Lord Bridgeman, said, Section 17 states that the court must take into account, among other things, such factors as the domestic circumstances of the witness, any behaviour towards the witness on the part of the accused and the nature and alleged circumstances of the offence. The noble Lord said at Report that he was aware of magistrates who were unwilling to give special measures because they had been applied for only on the day of the trial, and representatives from Victim Support, who met my officials this week, were concerned that the courts were not always willing to allow victims of domestic violence access to special measures. The organisation did not say on how many occasions that happened, but even one occasion is one too many.
Of course, leaving an application for special measures until the day of the trial cannot be good practice. The way that we set these things up now is that there should be good preparation for these hearings and such applications should be made at an early stage. It would indicate, perhaps unfairly, a lack of preparation of the case, and would take up valuable court time. Applications should be made at the pre-trial hearing because, if nothing else, that would provide a greater degree of certainty to the victim about how they will give their evidence at the trial.
We should all accept that these measures are still relatively new, and access in the magistrates' courts has so far been limited to child witnesses. It is important that we do not act hastily but instead wait for the findings of the independent evaluation of special measures which will report in the summer, which is quite soon. We would aim to address any teething problems through training and guidance, rather than automatically consider the legislative route. The Government do not believe that legislation is the cure to all ills. Some people say that legislation can be the opposite. I will be meeting Victim Support shortly to discuss the Bill as a whole and I hope we can reach a common understanding about how it will support vulnerable and intimidated witnesses, victims in general and domestic violence victims in particular.
As I said in the debate last time, I expect courts to be sensitive to the needs of victims of domestic violence and grant special measures when appropriate. I also hope that the rules of court that we are putting in place make it clear that proper applications should be made to prepare for these cases so that when the vulnerable person comes to give evidence they know that they will be properly accommodated during the proceedings, and will be best able to describe what happened to them.
For those reasons, I hope that noble Lords will understand that I cannot accept the amendment and that they will not press this matter today. I hope that they will accept the assurance that we will do all that we can to ensure that these issues are accommodated in a proper way.
My Lords, I am grateful to the noble Baroness, Lady Walmsley, for supporting this amendment and to the Minister for the limited assurances that she has given us. Only this morning I received further brief from Victim Support that paints an unsatisfactory picture of the working of the special measures in the courts, probably largely through ignorance. I have not had time to digest it all, but I will read two comments from its members. The first says:
"Victims are often terrified at the thought of seeing their abuser. It would be helpful if they knew that they would be protected from view by screens".
The second is:
"I believe that a number of clients who refuse to give evidence would be willing to go ahead with cases if they have a screen or video link. Many get here and then refuse to give evidence. It is important that the witness knows"—
I repeat knows—
"what to expect before they arrive".
We will take up this point in another place during the passage of the Bill there, so I shall not divide the House today. I beg leave to withdraw the amendment.
My Lords, this is a probing amendment. I am very grateful to the noble Lord, Lord Hylton, for adding his support to the amendment. It would make it clear on the face of the Bill that the clauses relating to the functions of the Commissioner for Victims and Witnesses should apply as much to the victims of illegal trafficking as to anyone else in this country. I tabled the amendment to ask the Government to clarify the position of those people who are trafficked illegally into the UK for either sexual or non-sexual exploitation.
We have welcomed the measures both in the Sexual Offences Act and in the current Asylum and Immigration (Treatment of Claimants, etc.) Bill with regard to closing down any opportunity for such illegal trafficking. However, will the Commissioner for Victims and Witnesses be under an explicit duty to promote the interests of these victims? During Second Reading of the asylum Bill last week, I pointed out that the victims Bill before us today makes no specific reference to support for victims of trafficking. I am trying to ensure that they are included within its protection. I beg to move.
My Lords, I was happy to agree to add my name to the amendment. We ought not to be in any doubt at all that people who have been trafficked into this country are definitely victims. They have normally suffered from fraud, deceit, coercion and so forth, and they do not arrive here with their full consent. They may have been transported by various means over hundreds or thousands of miles before they arrived here. I hope that the Government will look with some sympathy on this amendment. I have drafted an amendment to the recently published asylum Bill that is intended to secure proper treatment and protection of victims of trafficking once they are here.
My Lords, I thank the noble Baroness, Lady Anelay, and the noble Lord, Lord Hylton, for indicating that this is a probing amendment which seeks to add to Clause 31(3) so that the needs of the victims of human trafficking are brought within the remit of the Commissioner for Victims and Witnesses.
Given the already substantial scope of the commissioner to consider the needs of various victims, I will resist this amendment on the basis that it is already part of his powers to make recommendations to the Government about this group of victims. But I welcome this opportunity to associate myself with the comments made by both the noble Baroness, Lady Anelay, and the noble Lord, Lord Hylton, and to inform the House of the steps that we have already taken to offer support to such a vulnerable and exploited group of victims. I assure the noble Lord, Lord Hylton, that we do indeed see this category of people as victims.
Since 2002, the Home Office has been working in partnership with the voluntary sector to put in place provision for those who have been trafficked for the purposes of sexual exploitation. In March 2003, we launched a pilot project to provide safe accommodation and access to health and other support services for female victims who have been trafficked into prostitution. The victims were given the opportunity to make informed choices about whether, and to what extent, they were able actively to assist the authorities. An additional aim of the pilot, therefore, was to enable UK enforcement authorities to gather information on and take action against the traffickers. It became apparent towards the end of the initial six-month pilot period that further time was required to ensure that robust evaluation evidence on its impact could be gathered.
The pilot period was therefore extended for a further three months to December 2003. The formal pilot phase has now concluded but feedback from key stakeholders such as the police, local healthcare professionals, the immigration service and non-government organisations has been very positive.
Early evaluation findings also support the continuation of the project and, pending full evaluation and to ensure continuity of service provision for this extremely vulnerable group of victims, we will maintain the project at its current level. We are continuing to monitor the numbers of and outcomes for victims entering the scheme. This information will also feed into the evidence base for future service developments. We expect the final evaluation report on the pilot phase to be available during the summer of 2004. We will use the period up to April 2005 to consider in detail the evaluation evidence and to take decisions as to the type and extent of support needed in the future.
At the same time, we are currently looking at the issue of provision for victims of people-trafficking for the purposes of labour exploitation—another issue in which I know noble Lords have been interested. We want to gauge the scale of the problem and to see what scope there might be for identifying and providing support also to victims of this form of exploitation. The needs of victims of all types of trafficking are likely to be firmly within the vision of the new Commissioner. The Bill as currently drafted allows him or her to make recommendations to Government on what other or further action we need to take.
I therefore very much welcome this opportunity to outline what we have achieved so far. I am very grateful for the support that the House has given in the past and for the implicit support given by the noble Baroness, Lady Anelay, and the noble Lord, Lord Hylton, to these efforts. I hope that the noble Baroness and the noble Lord will not be surprised to hear that I will nonetheless be resisting their amendment. However, I hope that they will fully understand why the amendment is not necessary.
My Lords, I am indeed grateful to the Minister and I accept her argument. I am pleased to hear that her opening remarks were firmly that such a concern for the victims of trafficking would be part of the Commissioner's powers. It would be good to have that on the record.
I was also very grateful to her for putting on the record in a fair amount of detail the work that has been carried out with regard to trafficking and those who are subject to sexual exploitation. We certainly await with interest the further evaluation of that pilot as it is maintained. We would also welcome any work that could be done to look at those who are exploited for non-sexual reasons.
I beg leave to withdraw the amendment.