Government amendment 3, in clause 2, page 1, line 14, at end insert—
‘(4) The amendments made by paragraphs 9 to 11 of Schedule (Consequential amendments) have the same extent as the provisions to which they relate.’.
Government new clause 1—Causing or allowing a child or vulnerable adult to suffer serious physical harm—
(2) In subsection (1)—
(a) in paragraph (a), after “dies” insert “or suffers serious physical harm”;
(b) in paragraph (d), for “V’s death” substitute “the death or serious physical harm”.
(3) In subsection (3)(a), for “V’s death” substitute “the death or serious physical harm”.
(4) In subsection (4)(b), for “V’s death” substitute “the death or serious physical harm”.
(5) In subsection (7), after “this section” insert “of causing or allowing a person’s death”.
(6) After that subsection insert—
“(8) A person guilty of an offence under this section of causing or allowing a person to suffer serious physical harm is liable on conviction on indictment to imprisonment for a term not exceeding 10 years or to a fine, or to both.”
(7) The italic heading before section 5 becomes “Causing or allowing a child or vulnerable adult to die or suffer serious physical harm”.
(8) The amendments made by this section do not apply in relation to any harm resulting from an act that occurs, or so much of an act as occurs, before the commencement of this section.’.
Government new clause 2—Evidence and procedure in cases of serious physical harm—
‘After section 6 of the Domestic Violence, Crime and Victims Act 2004 insert—
“6A Evidence and procedure in cases of serious physical harm: England and Wales
(1) Subsections (3) to (5) apply where a person (“the defendant”) is charged in the same proceedings with a relevant offence and with an offence under section 5 in respect of the same harm (“the section 5 offence”).
(2) In this section “relevant offence” means—
(a) an offence under section 18 or 20 of the Offences against the Person Act 1861 (grievous bodily harm);
(b) an offence under section 1 of the Criminal Attempts Act 1981 of attempting to commit murder.
(3) Where by virtue of section 35(3) of the Criminal Justice and Public Order Act 1994 a court or jury is permitted, in relation to the section 5 offence, to draw such inferences as appear proper from the defendant’s failure to give evidence or refusal to answer a question, the court or jury may also draw such inferences in determining whether the defendant is guilty of a relevant offence, even if there would otherwise be no case for the defendant to answer in relation to that offence.
(5) At the defendant’s trial the question whether there is a case for the defendant to answer on the charge of the relevant offence is not to be considered before the close of all the evidence (or, if at some earlier time the defendant ceases to be charged with the section 5 offence, before that earlier time).”’.
Government new clause 3—Consequential amendments—
‘Schedule (Consequential amendments) contains consequential amendments.’.
Government new schedule 1—Consequential amendments—
Criminal Justice Act 1982
1 In Schedule 1 to the Criminal Justice Act 1982 (offences excluded from early release provisions), in Part 2, in the entry relating to section 5 of the Domestic Violence, Crime and Victims Act 2004, for “the death of a child or vulnerable adult” substitute “a child or vulnerable adult to die or suffer serious physical harm”.
Coroners Act 1988
2 (1) The Coroners Act 1988 is amended as follows.
(2) In section 16 (adjournment of inquest in event of criminal proceedings), in subsection (1)(a)(iv), for “(causing or allowing the death of a child or vulnerable adult)” substitute “of causing or allowing the death of a child or vulnerable adult”.
(3) In section 17 (provisions supplementary to section 16), in subsections (1)(d) and (2)(d), for “(causing or allowing the death of a child or vulnerable adult)” substitute “of causing or allowing the death of a child or vulnerable adult”.
(4) The amendments made by this paragraph cease to have effect when the repeal of that Act by Schedule 23 to the Coroners and Justice Act 2009 has effect for all purposes.
Law Reform (Year and a Day Rule) Act 1996
3 In section 2 of the Law Reform (Year and a Day Rule) Act 1996 (restriction on institution of proceedings for fatal offence), in subsection (3)(c), for “(causing or allowing the death of a child or vulnerable adult)” substitute “of causing or allowing the death of a child or vulnerable adult”.
Criminal Justice and Court Services Act 2000
4 (1) In Schedule 4 to the Criminal Justice and Court Services Act 2000 (meaning of “offence against a child” for purposes of disqualification orders), in paragraph 3(sb), for “the death of a child or vulnerable adult” substitute “a child or vulnerable adult to die or suffer serious physical harm”.
(2) The amendment made by sub-paragraph (1) ceases to have effect when the repeal of that Schedule by Schedule 10 to the Safeguarding Vulnerable Groups Act 2006 has effect for all purposes.
Criminal Justice Act 2003
6 In Part 1 of Schedule 15 to the Criminal Justice Act 2003 (specified violent offences for purposes of Chapter 5 of Part 12 of that Act), in paragraph 63A, for “the death of a child or vulnerable adult” substitute “a child or vulnerable adult to die or suffer serious physical harm”.
Domestic Violence, Crime and Victims Act 2004
7 The Domestic Violence, Crime and Victims Act 2004 is amended as follows.
8 (1) In section 6 (evidence and procedure: England and Wales), in subsection (5), after “section 5” insert “of causing or allowing a person’s death”.
(2) The heading of that section becomes “Evidence and procedure in cases of death: England and Wales”.
9 In section 8 (evidence and procedure: the Court Martial), after subsection (3) insert—
“(4) Section 6A(1), (3) and (5) has effect in relation to proceedings before the Court Martial with the following adaptations.
(5) A reference to an offence—
(a) listed in section 6A(2), or
(b) under section 5,
is to be read as a reference to an offence under section 42 of the Armed Forces Act 2006 as respects which the corresponding offence under the law of England and Wales (within the meaning given by that section) is that offence.
(6) A reference to the court or jury is to be read as a reference to the court.”
10 In section 62(4) (extent of section 8), after “section 6” insert “or 6A”.
Coroners and Justice Act 2009
12 In paragraph 1 of Schedule 1 to the Coroners and Justice Act 2009 (suspension of investigations where certain criminal charges may be brought), in sub-paragraph (6), in paragraph (d) of the definition of “homicide offence”, for “(causing or allowing the death of a child or vulnerable adult)” substitute “of causing or allowing the death of a child or vulnerable adult”.’.
It is a position reversed with you as Chairman, Mr Gray, putting me in the more junior position, but I am here with pleasure. There is general support for this tiny Bill, but there is also a strong desire to be succinct, if not exceptionally prompt, in which I am sure you will assist us. For promptness, I wish to thank you and all the members of the Committee who agreed to attend, particularly those who have actually come along. I wish especially to thank two hon. Members: first, the Minister—[ Interruption. ]
Order. I am sorry, but the ruling I always apply in Committee is that hon. Members should follow the same dress code as in the Chamber, namely that we keep our jackets on.
I thank the Minister and his officials, who, as the Committee will see, will enable the original Bill to be translated from my amateur attempt at drafting into a measure that covers all appropriate bases, thus enabling it to become fit for purpose, to use a well-known phrase.
I also want to draw the Committee’s attention to the right hon. Member for Wythenshawe and Sale East, who was the Minister who steered through the Domestic Violence, Crime and Victims Act 2004, which I am aiming to amend. In fact, consideration was given in Committee to adding serious physical harm, along the lines of my intention. I hope that the right hon. Gentleman will agree with my interpretation of that discussion in Committee, in which he accepted the desirability of including serious physical harm. However, as section 5 was rather revolutionary, a “suck it and see” approach was desired. I hope the Committee will excuse my using Australasian slang, which is often crude but generally descriptively accurate. It would be fair to say that section 5 has worked well—it has been sucked and we have seen —and there is a considerable call for it to be extended, as is proposed today.
The current section 5 applies to the death of a child or vulnerable adult. It is best demonstrated by the Baby Peter case that so shocked the nation. Essentially, when the mother was accused, she said, “It was not me; it was him,” and her partner said, “It was not me; it was her.” Section 5 allowed for the prosecution of both and, as we all know, they were found guilty of causing or allowing the death of Baby Peter and sentenced to the maximum of 14 years. A key to the success of the prosecution case was that the pathologist was able, finally, to point to a cause of death.
That brings me to one reason for my desire for the extension to cover serious physical harm. I understand that sometimes in such cases—this is not too infrequent—an actual cause of death cannot be specified, and section 5 cannot therefore be utilised. Additionally, if Baby Peter had been seriously physically harmed but had survived, even in a vegetative state, section 5 would not have applied. My attention was drawn to that problem by Detective Chief Inspector Dave Marshall of the Metropolitan police. Those who work in child care and child protection accept him as one of the experts in the area throughout the United Kingdom. He has recently retired and now teaches police officers about the detection and prosecution of such cases.
I recently attended a UK police course lecture by Dave Marshall. He cited several cases, but the one that stuck in my mind was the near death of a three-month-old child. If I recall correctly—we saw photographs and the case was horrendous—the wee baby had both legs broken, one broken arm and 15 breaks in the ribs. As he pointed out, the child could not be picked up to be comforted, because the moment that was done, the breaks in the ribs caused absolutely excruciating pain. Each of the two adults associated with that wee mite’s situation blamed the other, but section 5 could not be applied as the baby survived—just.
The case is not that unusual. I understand at second hand from the Wiltshire chief constable that, in the past two months, his force has had two cases relating to young vulnerable adults, in which the parents could not be convicted. They would be in future, assuming that the Bill is enacted. Over three years, from 2005 to 2008, the Met police undertook research into cases of intra-familial grievous bodily harm to children and looked at 179 cases of such allegations in London alone. In 69 cases, there was no prosecution. In the opinion of the police researchers, of the 69 cases, 39 would have been considered under section 5 if the amendments that have been proposed today had been made to it.
As the Committee will probably know, many of the organisations involved in child protection have been pressing for such changes for some time. I have received support from the National Society for the Prevention of Cruelty to Children, and I draw the Committee’s attention to a document that it published in 2003 entitled, “Which of you did it?”, which centred on the problems of achieving criminal convictions when a child dies or is seriously injured by parents or carers. Now—some eight years later—we are actually getting round to resolving such problems.
Although I am tempted to expand my remarks at great length, I am aware that members of the Committee, especially the Minister and the shadow Minister, desire our business to be concluded positively and promptly. The Minister will speak about several Government amendments and new clauses. My experts and I have discussed such proposals with him and his officials, and we agree with them. I therefore ask the Committee to vote against clause stand part, and to support the Government’s new clauses and amendments to rewrite the Bill effectively so that it will be fit for purpose.
It is a pleasure to be here under your chairmanship, Mr Gray. I heard you say that, when you were the special adviser to the hon. Member for Mole Valley, he did not take much notice of your opinion. At that time, he was local government Minister and I was leader of a Labour local authority, so you can imagine what notice he took of my opinions when I presented them.
I hope that the hon. Gentleman and I will be of one mind today because the Opposition support the Bill, and I shall outline the reasons why. I am grateful to him for ensuring the Bill’s speedy and efficient passage through the House, and clearly no disrespect is meant to him by the Government’s tabling tidying-up amendments to the measure and consequential amendments to other legislation. The Bill was accepted in the Chamber on 18 March without objection on Second Reading, showing that it had all-party support, and that remains the case today.
The issue has been identified by the judiciary as having been a problem for decades as, indeed, it has by civil society. As the hon. Member for Mole Valley said, it is a matter to which a solution was proposed almost 10 years ago by the NSPCC report, followed by the Law Commission and legislation introduced by the Labour Government. I am pleased to see my right hon. Friend the Member for Wythenshawe and Sale East in Committee. He was the Minister responsible for putting the substantive Domestic Violence, Crime and Victims Act 2004 through the Commons, and I hope that I will not embarrass him by quoting what was said at the time. It shows that this sitting is part of a wholly logical sequence of amending the legislation.
Everyone knows that the issue was a difficult legal problem, but one that needs to be resolved because of cases such as Baby Peter, which have shocked the nation over a long time. It is right to say that considerable controversy surrounded that part of the Act, but that controversy certainly did not apply to serious harm. It centred a little on the possible criminalisation of victims of domestic violence. At the time, Women’s Aid and other groups made representations. Often, in households where children are being harmed, the mother of the child would also be subject to violence. There was concern that, despite the fact that she was intimidated and cowed, she was at risk of prosecution. I think that the issue was resolved in favour of its being a matter for the judge or jury to take into consideration, and it was decided that it should not prevent the case from going to law.
The second area of controversy was procedure. There was a defeat in the House of Lords, and it was described as monstrous on that occasion to amend procedure in such a way. As a member of the criminal Bar at that time, I might have weighed in on the side of the people who objected to procedural changes, but that is history. Although the consequential amendments deal with that, it is not a matter that is particularly before us today. We should concentrate on the single purpose of the Bill, which is to add the concept of serious harm. It is right to say that that has been contemplated since the original NSPCC proposals. It was discussed extensively.
Without wishing to quote him in his presence unduly, my right hon. Friend the Member for Wythenshawe and Sale East—the then Minister in the Commons—and Baroness Scotland considered the matter carefully. There were amendments to include serious harm. On balance, it was decided not to include them because it was quite a significant change in the law for the reasons that I have given. It was a difficult matter on which to legislate, and therefore one needed to proceed with caution. It was also felt that, where victims had not suffered death but serious injury, they might be available to give evidence, or that one of the accused—one of the possible perpetrators—having seen the level of injury, would be more prepared to come clean and to give evidence. Those points may have been valid at the time, but the key reservation was that this was a legislative leap, and therefore it was right to see whether the law worked. We have seen that it does work, and the Government were simply proceeding with caution at that stage. I will not speak for him, but I suspect that that is now the view of my right hon. Friend: time has passed and we have seen that happen. He concluded his rejection of the amendment at that stage by saying that the
“examples are compelling, which is why I do not rule out extending the offence at some time in the future. It is important, first, to put in place the new offence. Let us get that right first and see how the provision operates. If appropriate, we may return to the problem at a later date.”—[Official Report, 27 October 2004; Vol. 425, c. 1473.]
That later date is now. The case has been well made that serious harm—grievous bodily harm—is in many cases as serious an issue in terms of the injustices done and in the effect particularly on a young child, who may be brain damaged or incapacitated for life. It is right that the provisions in the original Act are extended to cover such cases, and therefore I lend my support to the Bill.
In keeping with the hon. Member for Mole Valley, who is promoting the Bill and who was brief and to the point as always, I will also be brief. I want to pay tribute to him in this context. I would call him an hon. Friend, because when I was the Minister, he was assiduous in paying attention to any measure to protect vulnerable children from harm and sexual exploitation, and he has had other successes. I wish him well and I am sure that he will continue.
I was slightly concerned when I arrived in Committee this morning to find that both the hon. Member for Mole Valley and my hon. Friend the Member for Hammersmith had quotes from what I said seven years ago. Fortunately, they are quotes that I am happy to stand by, and I will support the hon. Gentleman’s measure. He and others will remember the case that most concentrated our minds back in those days—that of Lane and Lane. It involved a 22-month-old baby who had a fractured skull and died. Clearly, one of two people was responsible. They would not point the finger at one another. They were convicted but they won on appeal, because the law could not sustain their conviction.
The Law Commission did some tremendous work. We grappled with all that, because it was a new departure. Thank goodness we had the courage to see it through. It was sensible to do it in a staged way, and it worked. The conviction of those responsible for killing Baby Peter is evidence of that. The case is now made to extend that measure to include serious harm. I wish the hon. Member for Mole Valley well, and I will continue to support the Bill until it is enacted, I hope with active support from the Government.
Having been in post for some time, the Minister will no doubt hear Members of all parties complaining about new criminal justice measures and legislation coming out of the Ministry of Justice. I urge him to hold fast, because that was a criminal justice Bill, one of the many that the previous Government were derided for introducing. This was part of it. The year before, we introduced another new offence of grooming children for sexual exploitation. That same year we changed the rule on double jeopardy, so that people who are guilty face the punishment they deserve. I say to the Minister: when the case is made, follow it through, regardless of the complaints from people around you.
I want purely to place on record my thanks to the hon. Member for Mole Valley. He knows of my interest in the matter, particularly in the causes of child protection and domestic violence, its prevention and dealing with its impact, for more than 25 years. Anything such as this Bill, which fills a hole in legislation—the critical matter of serious harm—is to be supported right the way through.
It is a pleasure to serve under your chairmanship, Mr Gray, as I reflect on how our careers have proceeded in parallel; we were both special advisers under Sir John Major’s Administration. We can reflect on the relative success of those who have had the benefit of our special advice, although this might not be the moment to do that.
It is also a pleasure to present the Government’s position and to congratulate my hon. Friend the Member for Mole Valley, who has been my parliamentary neighbour since I was elected in 1997. The hon. Member for Hammersmith reflected on my hon. Friend’s career as a Minister—whether or not he benefited from your special advice, Mr Gray. By that stage, my hon. Friend was already a distinguished former leader of a local authority, and has been recognised for that. The right hon. Member for Wythenshawe and Sale East made clear that my hon. Friend has now added a substantial string to his bow with his proud record of championing the cause of vulnerable children.
It is a pleasure to bring the Government’s adjustments to the criminal principle that he has brought to the House in the Bill, to assist it on to the statute book. My hon. Friend’s Bill would provide increased protection for children and vulnerable adults who were at risk of serious harm from members of their own household, and the Government are pleased to support it. We heard of Bills introduced by the right hon. Member for Wythenshawe and Sale East. I also have a couple of different quotes, which would put me in danger of slight repetition.
The advance that we are considering this morning was contemplated seven years ago. However, there were perfectly sensible questions about whether it would work, as it was breaking new ground, and the important procedural issues referred to by the hon. Member for Hammersmith were also new and potentially legally controversial. I will address those matters later.
It is a pleasure to follow the right hon. Member for Wythenshawe and Sale East, who, like us, Mr Gray, was first elected to this place in 1997. He was my neighbour—in an office sense—in those days, and I know that he is an extremely civilised and decent man. He was a Minister in the previous Administration, and I am proud to follow in his footsteps with the responsibilities that he held in earlier times.
Having said that, I want to reflect on the right hon. Gentleman’s advice about legislating when the case is made. I agree up to a point. Between 1997 and 2010, there were a horrifying number of criminal justice Acts. One of the issues that we are addressing is the extremely complicated statute book. The Government have not lightly reached the decision to support the Bill presented by my hon. Friend the Member for Mole Valley. In the first instance, we want to consider the blizzard of legislation on the statute book and see whether there is a way of using the existing law to achieve the policy objective that hon. Members propose, if it is supported by the Administration. We have carefully examined the available powers and we believe that the case for the Bill is made. I am clear, however, that our principle is not to legislate in haste, but to take that position as the last option if we cannot achieve the policy objective through the legislation that is already available.
As my hon. Friend the Member for Mole Valley explained, the intention of his Bill is to amend section 5 of the Domestic Violence, Crime and Victims Act 2004 to include cases of causing or allowing serious harm to a child or vulnerable adult, and to apply the evidential and procedural provisions under section 6 of the 2004 Act to the extended offence. As we have heard, extending the law in that way was anticipated in 2004, and people have continued to press for that extension since then. Indeed, the NSPCC and others argued at that time for the section 5 offence to extend to serious harm in the first place. The offence and associated evidential and procedural provisions were considered novel at the time and the then Minister argued for a cautious approach.
Some six years on, however, we know that the existing legislation on the offence has worked well in practice. It has been used successfully in a number of cases, not least in the tragic one of baby Peter Connelly. We agree that the time is right to consider extending the law, so we support, in principle, the Bill’s aim. It addresses difficult issues in a serious area—cases in which, although it is clear that the injuries suffered by a child or vulnerable adult must have been sustained at the hands of one of a limited number of members of a household, there is insufficient evidence to point to the person responsible.
In such cases, when serious injury short of death has occurred, it might not be possible to mount a successful prosecution. The victim might be too young to give evidence, or might not be able to do so as a result of injury or through fear. Offenders in such cases should not be able to escape justice simply because the victim has escaped death. However, this is an already complex area of law and we must ensure that the extended offence is proportionate to the harm, and does not criminalise behaviour more broadly than is necessary. In addition, we must ensure that the application to the extended offence of the evidential and procedural provisions under section 6 of the 2004 Act is workable and appropriate.
We do not believe that clause 1 achieves fully what my hon. Friend intends. I am grateful to him for engaging constructively with my officials and me in drafting the Government amendments to which I shall now speak, which better reflect the aims of the Bill. If hon. Members agree that the clause should not stand part of the Bill, it would be replaced in the first instance by Government new clause 1, which would extend the offence under section 5 of the 2004 Act to causing or allowing serious physical harm.
Under the new clause, the maximum penalty for the extended section 5 offence would be 10 years’ imprisonment. Before I explain why we have concluded that the extended offence should be restricted to serious physical harm, let me remind hon. Members of key elements of the section 5 offence as it stands.
Section 5 provides that members of a household who have frequent contact with a child or vulnerable adult will be guilty of an offence if they cause the death of that child or vulnerable adult or if each of three conditions is met: first, that they were aware or ought to have been aware that the victim was at significant risk of serious physical harm from a member of the household; secondly, that they failed to take such steps as they could reasonably have been expected to take to protect the victim from that risk; and thirdly, that the victim subsequently died from the unlawful act of a member of the household in circumstances that the defendant foresaw or ought to have foreseen.
In considering the parameters of an extended section 5 offence, we have had regard to the definition of “serious” harm already contained in the 2004 Act. Section 5(6) of that Act provides that “serious” harm means harm that amounts to grievous bodily harm for the purposes of the Offences Against the Person Act 1861. That definition would apply to the extended offence as it does to the existing one. However, grievous bodily harm for the purposes of the 1861 Act includes psychiatric injury.
Although the section 5 offence places no particular duty on any person, to avoid committing the extended offence, those in a household could be liable if they had failed to take reasonable steps to protect the victim from psychiatric harm. The risk of that kind of harm is much more difficult to identify than the risk of physical harm, and there is a potential risk that a broad offence that covered psychiatric harm could deter people from caring for vulnerable adults, because they feared being prosecuted for failing to foresee a psychiatric injury. We have no wish to cause such fear to family members and carers, who can be under great pressure in difficult circumstances.
In addition, the offence is most likely to be of relevance where the victim is unable to give evidence, such as in the case of very young children or mentally incapacitated adults. It would be extremely difficult to show any psychiatric harm in such cases. Restricting the offence in that way is also consistent with the existing position in relation to the need to show a pre-existing risk of “serious physical harm” in subsection 5(1)(c) of the 2004 Act, and is consistent with the Government’s commitment not to criminalise behaviour more broadly than is necessary.
I turn now to the maximum penalty for the extended offence. The Bill makes no provision for penalty, which reflects my hon. Friend’s intention that the maximum penalty for the extended offence should be the same as for the existing offence—that is, 14 years’ imprisonment. However, we need to ensure that the maximum penalty for causing or allowing serious physical harm is proportionate when considered against the maximum penalties for causing or allowing death, which is 14 years’ imprisonment, and against those for other offences of grievous bodily harm. For example, the maximum penalty for an offence under section 20 of the 1861 Act—inflicting grievous bodily harm without intent—is 5 years’ imprisonment.
The Government’s view is that a maximum of 10 years’ imprisonment for an offence of causing or allowing serious physical harm would strike the right balance. Accordingly, new clause 1(5) would amend section 5(7) of the 2004 Act, so that the maximum penalty of 14 years would apply only to the offence of causing or allowing a person’s death. New clause 1(6) would insert a new subsection (8), providing a maximum penalty of 10 years for the offence of causing or allowing serious physical harm. Finally, as is usual when creating new offences, new clause 1 includes a transitional provision to ensure that the operation of the extended offence would not have retrospective effect.
New clause 2 would apply similar procedural and evidential provisions at section 6 of the 2004 Act to the extended section 5 offence. The effect would be to insert a new section 6A into the 2004 Act, covering evidence and procedure in cases of serious physical harm. To put the changes into context, it may be helpful if I first explain how sections 5 and 6 of the 2004 Act operate to prevent those responsible for the death of a child or vulnerable adult from escaping justice.
To secure a conviction for the section 5 offence, the prosecution need not prove which of “causing” or “allowing” the death the defendant was responsible. The defendant will therefore be convicted of the same offence whether he was personally responsible for the unlawful act that killed the victim or whether he was a member of the same household that failed to take steps to protect the victim when he knew, or ought to have known, about the risk of harm that existed in that household. That means that it is much harder for defendants to evade justice by virtue of simply remaining silent or blaming each other, as was illustrated in the case referred to by the right hon. Member for Wythenshawe and Sale East.
The section 5 offence is a serious stand-alone offence that carries a high maximum penalty, but the aim of the Bill is to identify the person who caused the victim’s death, so that that person can be convicted of murder or manslaughter if appropriate. By itself, however, the section 5 offence may not always open the way to such a conviction. The less culpable party could still not be willing to explain what had happened, or they might only give their version of events after the close of the prosecution case. By that time, the judge would already have withdrawn the murder or manslaughter charge from the jury on the basis of there being no case to answer in the absence of any evidence identifying which of the defendants was responsible for the death.
In an effort to identify the actual perpetrator, therefore, section 6 of the 2004 Act modifies certain evidential and procedural provisions in relation to alternative charges in trials involving the section 5 offence. The modified procedures apply where a defendant is charged with the section 5 offence and with murder or manslaughter in the same proceedings and in relation to the same death.
There are two main changes to normal trial procedure. First, during the trial, a submission of no case to answer on the murder or manslaughter charge is delayed until all the evidence is heard—both from the prosecution and the defence—rather than taking place at the close of the prosecution case. The judge therefore makes the decision after the defendants have given their evidence, if they have chosen to do so.
The second change concerns the drawing of adverse inferences from silence in court. Where a defendant refuses to give evidence in court, any adverse inference that may be drawn in relation to the section 5 charge may also be drawn in relation to the murder or manslaughter charge, even if there would otherwise be no case to answer on that count. Although a jury cannot convict solely on the basis of an adverse inference, such an inference may strengthen the prosecution case when the delayed submission of no case to answer is made and afterwards.
The section 6 procedures are intended to encourage defendants to give evidence and to ensure that the more serious charge—murder or manslaughter under the law as it currently stands—remains available if evidence emerges as to who was responsible for the death during the trial. Against that background, the Government agree with my hon. Friend the Member for Mole Valley that the evidential and procedural provisions in section 6 of the 2004 Act should apply to the extended section 5 offence. Given the extraordinary nature of these provisions, however, they should apply only to the more serious offences that are likely to be tried with the extended section 5 offence.
Accordingly, new clause 2 would provide that, in the context of causing or allowing serious physical harm, the procedural provisions should be limited to cases where the defendant is charged with the extended section 5 offence and either with an offence under section 18 or section 20 of the Offences Against the Person Act 1861 or with attempted murder under section 1 of the Criminal Attempts Act 1981. As with the existing offence, the modified procedures would apply where a defendant is charged with the extended section 5 offence and one of the other offences in the same proceedings and where the two offences arise from the same serious physical harm caused to the victim.
Grievous bodily harm could result from other offences such as sexual assault or child cruelty. In almost any other case in which grievous bodily harm results from another offence, however, an offence under sections 18 or 20 of the 1861 Act could, nevertheless, be charged, so we think it right to limit the modified procedures to those offences and to attempted murder.
As Members will know, the procedural measures in the 2004 Act were discussed at length during the passage of the existing legislation. The hon. Member for Hammersmith has alluded to what his position might have been as a member of the criminal Bar at the time. The provisions, however, have worked well in practice and have, to the best of our knowledge, operated in the way intended. The extended offence and procedures are intended, like the existing ones, to be a package of measures that is both fair and proportionate.
I turn to the other amendments, new clause 3 and the new schedule standing in my name. Amendments 2 and 3, new clause 3 and new schedule 1 are consequential to new clauses 1 and 2. New clause 3 refers to new schedule 1 containing consequential amendments to other legislation.
Paragraphs, 1, 4 to 6, 11 and 12 of new schedule 1 amend references to the section 5 offence in other legislation to include the “causing or allowing of physical harm” limb. Paragraphs 2 and 3 amend references to the section 5 offence so that they are restricted, where appropriate, to the “causing or allowing death” limb. Paragraphs 7 to 10 amend the 2004 Act so that the effect of the new procedural and evidential provisions on serious physical harm is reflected in proceedings before a court martial.
Amendment 3 inserts new subsection (4) in clause 2 to provide that the consequential amendments made to other legislation by paragraphs 9 to 11 of new schedule 1 have the same extent as the provisions to which they relate. Amendment 2 inserts words at the beginning of clause 2(3) to provide that the extent of the Bill—England and Wales—is subject to new subsection (4).