Domestic Violence, Crime and Victims (Amendment) Bill
(12 years, 10 months ago)
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Lord Laming
My Lords, the Domestic Violence, Crime and Victims (Amendment) Bill may be a slight document, but I hope the House will agree that it is one of the utmost importance in holding to account those who cause or allow a child or vulnerable adult to suffer awful deliberate harm.
Many Members of this House contributed most ably during the passage of the 2004 Act of the same title. Therefore, the House will recall that Section 5 of that Act introduced changes in the safeguarding of children and vulnerable adults that have proved to be enormously effective. That Act of 2004 provides that members of a household who have frequent contact with a child or vulnerable adult will be guilty if they cause the death of that child or vulnerable adult if three conditions are met. The conditions are: first, 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, they failed to take reasonable steps to prevent that person coming to harm; and, thirdly, the person subsequently died from the unlawful act of a member of the household in circumstances that the defendant foresaw, or ought to have foreseen. In my lay terms, this meant that adults in the household could no longer avoid prosecution either by blaming each other or by remaining silent.
It is encouraging that there is now a body of evidence that demonstrates both the wisdom and utility of that legislation. Indeed, its success was so well illustrated by the outcome of the prosecution of the defendants in the dreadful case known as Baby P. The case of Baby P rightly caused widespread distress across the nation. Without the 2004 Act, those responsible would not have been held to account for the awful suffering and terrible death of that defenceless child. Indeed, they were successfully found guilty of causing or allowing the death of Baby Peter and they were given the maximum sentence. During the passage through Parliament of the 2004 Act, careful consideration was given to whether the offence should include serious physical harm. At the time it was well understood that there was much to be said for doing this, not least because there was already clear evidence that some children had managed to survive despite being victims of deliberate harm. Sadly, some of these children have remained damaged for life. Indeed, in some cases it was a matter of chance that the authorities had been able to intervene just in time to save the life of the victim. Understandably, saving the life of the child was rightly the urgent priority but, sad to say, it often meant that the adults of the household could not be prosecuted unless they co-operated with the authorities.
After a great deal of thought, the then Minister in the other place said that,
“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, Commons, 27/10/04; col. 1473.]
We are now at that stage. Moreover, we now have the benefit of a body of evidence that indicates even more clearly that there is a real need for this legislation to include serious physical harm. Because of that, I am glad to say that there is widespread support for this Bill across government and throughout the front-line services. It comes to us having successfully completed its passage through the Commons.
I will spare the House details of individual cases as they are so awful, but I hope that it will help the House if I refer briefly to information from the Crown Prosecution Service. This is based on a survey undertaken by the chief prosecutors in six police areas: Sussex, Northumbria, Merseyside, Norfolk, Hertfordshire and Thames Valley, so it was a good cross-section of the country. The prosecutors were asked to identify the number of cases in 2010 in which they had been unable to prosecute for grievous bodily harm or cruelty to a child or vulnerable adult because there was insufficient evidence as to which of the members of the household was responsible for the injury. Those prosecutors identified a total of 20 cases involving children and three involving vulnerable adults that could not be prosecuted under existing legislation, and which they believed could be prosecuted under the changes proposed in the Bill. The areas surveyed account for 15 per cent of the Crown Prosecution Service’s business. If extrapolated, those figures produce national figures of no less than 133 children and 20 vulnerable adults. I am therefore sure that noble Lords will agree that this indicates as clearly as possible that there is now an urgent need for this Bill.
It is against that background that I hope the House will agree that this brief introduction will suffice. I know from my time in this House that we all attach immense importance to the protection of children and vulnerable adults. Our aim is to protect them from serious neglect and deliberate harm. This Bill affords the opportunity to hold to account members of a household who cause or allow such awful suffering to these vulnerable people. I beg to move.
Baroness Seccombe
My Lords, I am delighted to support this Bill, which was explained so clearly by the noble Lord, Lord Laming, the distinguished Convenor of the Cross Benches, who is taking it through this House as a Private Member’s Bill. I can think of no one better to pilot it through this House than the noble Lord. His professional career and his experience of listening to the horrific details of the appalling injuries that little children and vulnerable adults have suffered at the hands of those who were supposed to be caring for them must have been heartrending. I have always studied the outcomes of the inquiries conducted by the noble Lord and felt the frustration and sadness that he must have experienced. The loophole left by the 2004 Act has allowed guilty people to escape from the legal process through lack of evidence that would have brought them before the courts.
The Bill may be referred to as only a small Bill, but I see it as one of real importance because it seeks to right an appalling wrong that has existed in our legal system. Section 5 of the Domestic Violence, Crime and Victims Act 2004 came under the heading, “Causing or allowing the death of a child or a vulnerable adult”. It certainly broke new ground and was controversial at the time. I accept that an area of concern is the treatment of, for example, a woman who has been shocked and injured, either physically or mentally, into submission by some evil husband or partner. However, we also have to accept that sadly there are women who are complicit in the ill-treatment of their children. I therefore feel that this Bill would enable the statutory authorities to get involved at an earlier stage and establish what has happened. Therefore, now is the time to extend the 2004 Act with this amendment.
It will mean that in a case in which it is obvious that a child or vulnerable adult has suffered serious harm that must have been inflicted by one of a limited number of members of a household, the case should not fail because of insufficient evidence to point to the person responsible. In other words, it will bring those offenders who were previously outside the court’s jurisdiction before the court to answer for their actions.
I wish the Bill swift success as it makes its way through this House, and believe that the sooner it is on the statute book the better for the justice system.
Lord Lester of Herne Hill
My Lords, I, too, support the Bill, congratulate the noble Lord, Lord Laming, and echo what has been said by the noble Baroness, Lady Seccombe, about his unrivalled qualifications for carrying this gift from the other place into this House. Perhaps I may say a word about that process. This is a Private Member’s Bill from the other place, and those who have read the right honourable Jack Straw MP’s interesting article in today’s Times newspaper will note that he said:
“I can’t remember a time when Commons business was so light and the Lords so overloaded”.
One of the points that Mr Straw made was:
“The infant mortality of Private Member’s Bills is so high because they are vulnerable to all the 19th-century filibustering devices that were abolished decades ago for government Bills. These backbench measures should be taken from their Friday ghetto and brought into the normal Monday-Thursday Commons week. They should be sensibly timetabled like any others, so that MPs would be able to vote on their merits. This apparently prosaic change would wholly alter, for the better, the authority of MPs”.
We are privileged in this House to be able to introduce Private Member’s Bills, some of which actually reach the statute book without the fetters placed by the other place upon that process. This is a rare Bill that has been able to pass through the other place with government support and reach us today. Speaking for myself—I hope without causing offence to the other place—I suggest that when we consider reform of this place, it will be important to consider the reform of the procedures of Parliament as a whole and not merely ourselves. As to our procedure for Private Member’s Bills—and I speak as someone incontinent in my use of that procedure in the past 19 years—it has been very beneficial here, and it is a great day when something comes from the Commons as important as this Bill, about which I shall say very little because the Minister will be pleased with me if I am more brief than barristers normally are.
I should like to say just a few things. First, we are told by the Parliamentary Under-Secretary of State for Justice, Mr Crispin Blunt MP, who supported the Bill in the other place, that,
“the Government are committed to preventing the creation of unnecessary criminal offences”.
I fully support that and I look forward to the Queen’s Speech to see whether we are presented with yet another Bill containing further criminal offences. I hope that we will not be, because in the past two decades too many unnecessary criminal offences have been produced, especially by my former department, the Home Office. What the Minister said in support of the Bill in the other place is therefore good news.
On that occasion, he also said that the Government,
“consider the extension of the criminal law in the relatively limited way proposed in the Bill to be justified and appropriate. In reaching that conclusion, we have had regard to the possibility that those responsible for very serious injury may escape conviction”,
and—the noble Lord, Lord Laming, referred to this already—
“the vulnerability of both child and adult victims; and the special responsibility that members of the same household bear for the vulnerable with whom they live”.—[Official Report, Commons, 21/10/11; col. 1184.]
I shall not bore the House or take time by reciting that speech, and I hope that in his reply my noble friend the Minister will draw upon what was said in the other place.
One of the impressive aspects of the speech was the care with which the Minister in the other place explained why this is a proportionate measure and why it would be wrong to go further. When we introduce new crimes or extend existing crimes, there are some who believe that our purpose is to enforce morals. That was of course Lord Devlin’s famous idea: that the purpose of the criminal law was the enforcement of morals. I do not take that view. I think that the purpose of the criminal law is utilitarian; it is to deter serious wrongdoing and to punish.
We must be very careful, especially in the domestic violence field, to know exactly what we are doing. I give a couple of examples. The first is female genital mutilation. We passed a law some time ago to make that appalling atrocity a crime. There has been no prosecution. We then had to consider forced marriage, and the previous Government rightly came to the view that there was no point in making forced marriage a crime as we had sufficient criminal law, so this House and the other place eventually decided to use civil law and civil protection on the ground that it was better to use civil law than the police and the criminal standard of proof in dealing with such a sensitive matter. As Members of the House will know, the Government are now consulting on whether we should add forced marriage as a crime as well as a civil wrong. I think it would be risky to do that, as it might dishonour families and deter, but that is a very controversial matter.
There seems nothing controversial in what is proposed here. Therefore, to please the Minister with my brevity, I will leave it to him to develop what has been so well developed in the other place.
Baroness Butler-Sloss
My Lords, I hope to be equally, if not even more, brief on a matter which, I suspect, is not only of interest to but supported by the entire House. As a former Family Court judge who tried many child abuse cases, particularly very serious non-accidental injury cases, as they are called in the Family Court, I very much welcome this extension to the 2004 Act. Like those who have spoken before me, I warmly congratulate the noble Lord, Lord Laming, who has enormous experience of this area of the law—children and vulnerable adults—on his efforts in presenting the Bill. I sincerely hope they are successful.
It is important to recognise that this is an issue of protection of children and vulnerable adults and holding to account the perpetrators of their abuse. Where a child is badly injured in a household where several adults are living—generally mother and father or mother and her partner—it is often impossible to say which of the adults inflicted the appalling injuries from which so many children suffer. In the Family Court, we can protect the child by taking it away from the family, but it is very difficult—in many cases, impossible—to be certain who actually committed the offence.
As the noble Baroness, Lady Seccombe, said, not only are there mothers who protect their children, many mothers prefer the man to the child. She may or may not have committed the offence; much more likely is that she is covering up because the man is her support—financially and in every other way—and, when faced with the choice between a man and a child, again and again, in my experience, the woman has chosen the man. Children are not necessarily safe in the care of their mothers. That is a tragedy, but in the Family Court we can protect them. If the case goes to the criminal courts and it cannot be ascertained which of them did it, unless the child remains in care, the terribly difficult problem for the judge is to decide whether the child can go back to one of those adults. That is often the reason why the child does not go back to any adult and has to go into permanent care—to be fostered or, occasionally, adopted.
The child can be protected but at the moment the perpetrators are not brought to justice, as we heard from the figures given by the noble Lord, Lord Laming, of those who could not be successfully prosecuted. That is contrary to justice. It is not an issue of morals; it is an issue of justice, which may not be quite the same thing—but this is not the appropriate forum to discuss that. Most of us have a gut feeling that if people have committed offences or know about it and do nothing whatever to protect the vulnerable, they should be up before the criminal court and dealt with. That is what the Bill does. As the noble Lord, Lord Laming, said, it is purely an extension of the 2004 Act. The standard of proof will be exactly the same and the prosecution will be dealt with in exactly the same way, as the noble Lord set out in his speech.
It is a splendid Bill. It is exactly what is needed. It is overdue and I hope that it will be passed with acclaim by all Members of the House.
Lord Cormack
My Lords, no one is better qualified to give the Bill a testimonial than the noble and learned Baroness, Lady Butler-Sloss. I am sure that we are all delighted that she has done so. I add my congratulations to those of others to the noble Lord, Lord Laming, not only on introducing the Bill but on the manner in which he did so: with calm precision, unflamboyant language but clear dedication. No one in this country is better qualified to introduce such a measure than him.
It comes from another place, and that gives us all comfort, because we know that a Private Member’s Bill that has a fair wind from the Government and the Official Opposition has a really good chance of getting on the statute book. I am sure that, when he responds to the debate, my noble friend will be able to indicate that this will soon become law. It is a small but far reaching measure. We are talking about cruelty. Sometimes we use the word “abuse” too loosely. We are talking about cruelty to children and vulnerable adults. There should be no hiding place for those who are complicit in or guilty of acts of cruelty. To my mind, to be present is to be complicit; the noble and learned Baroness, Lady Butler-Sloss, almost said as much. If a woman is being intimidated by a man, nevertheless she knows that if cruelty is being inflicted on a child that is wrong. She should become a domestic whistleblower or suffer the consequences by being regarded as being complicit in an act of cruelty.
I very much hope that the Bill will quickly become law and will lead to some people who have hitherto escaped justice being brought to justice. Winston Churchill once said that one judges a society by the way in which it treats those who are imprisoned. I have always subscribed to that, because sending to prison is the punishment and the purpose of prison is rehabilitation; but one also judges a society on how it protects its most vulnerable members. Whether it be an incapacitated adult, for physical or mental reasons, or a child, it is the duty incumbent on all of us to ensure that—as far as it lies within us—there is absolute protection given. If people transgress and inflict cruelty, they must be brought to justice, adequately punished and, one hopes, properly rehabilitated. I am delighted to be able to support this Bill. I wish it a speedy passage and warmly congratulate the noble Lord, Lord Laming, on his initiative.
Lord Loomba
My Lords, I thank the noble Lord, Lord Laming, for initiating this debate. Domestic violence is an important issue which impacts on the lives of many families, including children. There is growing evidence that children who live in families where there is violence between parents can suffer serious long-term emotional, and lasting psychological, damage.
Let me first declare my interest as a vice-president of Barnardo’s, a leading charity in the UK which is working to address the problems of domestic violence and the effect that it has on the children in families. Barnardo’s aims to alleviate the long-term effects of domestic violence on children through counselling and family support services. Many mothers continue to provide love and stability for their children in very difficult circumstances and Barnardo’s tries to strengthen their ability to cope. Where a mother’s ability to look after her children has been undermined by the stress of living with fear, Barnardo’s tries to help her improve her confidence and self-esteem so that she can protect herself and her children from violence.
The violence between adults is often directly projected on to children. Many public inquiries into the deaths of children in recent years have shown that the men responsible for the death of children have a history of violence towards their female partners. In a liberal society equality should apply to all: legislation and practices should take into account the specific needs of all its citizens. UNICEF’s Convention on the Rights of the Child defines its mission as to protect children’s rights, to help meet their basic needs and to expand their opportunities to reach their full potential. Yet how often does this convention take into account the difficulties that families face?
For example, one of the areas that is least understood is the role that alcohol plays in the family structure. A man does not necessarily have to go to a pub or a bar; he can drink to excess at home and the family will not wish to publicise it to the outside world. In many cases neither social services nor alcohol dependency groups understand what is happening in such families, or how to create awareness within isolated communities. On average, women contact 11 agencies before they receive the help they need. The number increases to 17 in cases of black and ethnic minority women.
Domestic violence has often been seen as a problem between adults; it was thought that as long as children were not in the same room and caught in the crossfire they would not be affected by violence between their parents. However, there is a growing understanding of the risks to children. We must accept that children’s lives can be damaged by domestic violence. It is also clear that children are not deceived by closed doors. They are extremely aware of tension in the adult world, particularly the tension that leads to violence. This exposure to extreme and continuous violence without intervention allows the child to accept it as part of their development, often resulting in their perpetrating such violence in adult life. Through violence in the home, children may suffer emotional and psychological damage. The very young may show physical signs of distress such as bedwetting, stomachaches and disturbed sleep. Older children can become withdrawn or exhibit extreme behaviour such as misusing alcohol or drugs. Social workers need to be more aware of these inherent problems and what they can do to help.
Poverty often leads to domestic violence. People seek asylum in civilised countries because of the level of violence they face in their own countries. Forced marriage, as mentioned earlier, is another form of domestic violence, as the woman does not give consent to the marriage and the decision is made by family members, most likely for immigration purposes. Her body is violated against her will, which one can say is tantamount to rape. A message must be conveyed that forced marriages must never be tolerated, and stern action must be taken against those who perpetrate them.
I shall now refer to Clause 5. The ambiguity surrounding this part of the Bill needs to be promptly addressed, and I hope that this Second Reading will end the doubt surrounding the Bill. The noble Lord, Lord Laming, mentioned the case of Baby P. That case was shrouded in doubt as both defendants were passing the blame and the judge could not confirm which party was to blame. This seems not only flawed but quite simply a juvenile act which makes a mockery of the judicial system. Although resolution was eventually found and both the mother and her partner were sentenced, one must see that had the child not died, Clause 5 would have been negated, and there is a chance that no conviction would have been found.
Murder and manslaughter are dealt with in sentencing, yet if a child is seriously harmed, left with broken bones and multiple wounds, Clause 5 will not be applicable. This clause desperately needs to be extended to include serious physical harm, as there are far too many cases when no conviction of parent or carer is found because of each passing the blame and the fact that the child is alive, even if it is in a vegetative state. Many more convictions and much more resolution will be found by the expansion of the Bill to include the term “serious harm”.
Significant reductions in the vital help and support available to women and children at risk will put additional pressures on the services that survive. The impact of reduced specialist domestic violence services as well as cuts to other services, such as police, risks an increase in deaths or serious harm caused by domestic violence. We cannot afford to take that risk. I urge the Minister to examine these cuts, because when you assist a woman you are actually helping the entire family. Today’s debate indicates how important it is to focus not only on domestic violence but on its impact on the family and, more importantly, more generally. No civilised society or nation can live in peace if crimes are committed against women and children. We must set an example to the rest of the world in affirming that women are the cradle of civilisation and we will not be compromised by any legislation that treats them differently, particularly on issues of violence.
Lord Elystan-Morgan
My Lords, like all other Members who have spoken, I warmly applaud the Bill. I consider that Sir Paul Beresford MP, who introduced it in the Commons, has placed the community very much in his debt. As for the noble Lord, Lord Laming, there cannot be anyone better qualified, through his distinguished services already in this field, to lead the Bill through the procedures of this House.
The list of credits does not end there. I warmly applaud the Minister—the Deputy Leader of the House—and Her Majesty's Government for the support that they have given in this regard. It has not always been the case over the past 18 months that I have been able, with metronomic regularity, to extend such felicitations to the Government, but I do so with very great sincerity and conviction in this case.
It seems to me that the story starts a quarter of a century ago with the case of R v Lane and Lane, which the House will recollect. A 22 month-old child sustained dreadful head injuries—multiple fractures of the skull—and died. The mother blamed the stepfather; the stepfather blamed the mother. Both were charged with manslaughter and convicted. They appealed to the Court of Appeal, which ruled that their convictions were unsustainable. As lawyers appreciated, the ruling was in no way confined to family situations. One might have a situation where a document could have been forged only by A or B. That would not allow one to convict A or B. The same is true in relation to theft, any form of assault and a dozen other criminal situations. It means that a person can be convicted only if it is clearly shown beyond reasonable doubt that they have committed a particular offence. It is as cerebral as that.
In 1985, following the decision by the Court of Appeal, a thrill of horror ran through the community, which appreciated exactly what this could mean in so many domestic situations. In consequence, the NSPCC, to its eternal credit, compiled a comprehensive and excellent report—in 2002, if I remember rightly. That led to the Law Commission's two reports—a consultative report in April 2003 and a final report in September of that year—which urged legislation in relation not only to murder and manslaughter but to causing serious harm to a child. Today, that chapter is rapidly coming to a close.
In 2004, it was only in relation to murder and manslaughter that this protection was given to children and vulnerable adults. However, I understand the reticence with which Parliament proceeded. In one sense, it was in a jurisprudential context breaking very new ground. In another it might not have been all that revolutionary. Section 1 of the Children and Young Persons Act 1933 sets out two types of responsibilities. One relates to active acts: conscious, deliberate acts of commission against a child. The second covers acts of omission: failing to feed or clothe a child, or to give them proper medical attention. Therefore, there was nothing quite as revolutionary in this development as might have been thought. In any event, it was the attitude of government—understandably—that there should be an experimental period. The case of Baby P shows clearly how well this law can be applied and how necessary it is now to fill in the rest of the lacuna.
I will mention one or two relevant matters. I am very pleased that in this legislation, as in the 2004 legislation, there is a provision that orders a judge not to throw out a case at the end of the prosecution evidence but to hear the whole of the evidence before coming to a determination on whether the case should go to a jury. That is a very important matter. In practice it means that very often a defendant or defendants will go into the witness box, and on cross-examination it may be that they will produce evidence on which they could be convicted. Failing that, each defendant might blame the other. That is admissible evidence, subject of course to a stern warning from the learned judge. It is a matter of some importance that the provision is retained.
My technical point is that under Section 5 of the Indictments Act 1915 it is open, where two persons are charged as joint defendants in relation to the same offence, for an order of severance of trials to be made. In a case such as this, a competent defending counsel would immediately advise that there should be severance. Twenty years ago, it was said that the high-water mark in relation to severance in such cases had been reached. Since then it has been rather difficult for such an order to be given where joint defendants face the same charge. However, Section 5 gives the learned judge total discretion, and the first thing that counsel for either defendant in a situation like this would do would be to apply for severance. It may be that the precedents are such that few judges would grant such an application, but it is possible. It might not be a bad thing—I put this as a humble suggestion to the Government—if there were to be either a directive or legislation dealing specifically with the matter.
The other issue relates to civil matters such as family law hearings that do not come before the criminal courts. This matter was dealt with very fully by the noble and learned Baroness, Lady Butler-Sloss. By a different path, much the same solution has been reached. In her modesty she did not refer to the case of Baby B, which was decided by this House in its appellate capacity in 2003. The House said then that in a situation where it was clear that Baby B had suffered abuse that could have been committed only by one or both of two persons, in those circumstances it would be grotesque—that was the word used by the House—to pretend that Baby B was not in a situation where a care order should be made, and therefore that both A and B, as possible perpetrators, were regarded as persons who would place Baby B at risk. The jurisprudential path was very different to that adopted by the legislation we are dealing with, but it achieved a just and practical result.
The other matter is small. Clause 2(2) of the Bill defines “relevant offence” as,
“an offence under section 18 or 20 of the Offences against the Person Act 1861 (grievous bodily harm)”.
I understand, since the harm that is aimed at here is serious physical harm, why there should be the words in brackets. However, the technicality of the situation is that in both Section 20 and in Section 18 of the Offences Against the Person Act 1861, which covers the more serious offence, there are the alternatives of grievous bodily harm or unlawful wounding. In relation to Section 20, unlawful wounding would probably not be an appropriate category for consideration. Under Section 18, which covers unlawful wounding with intent to do grievous bodily harm, it undoubtedly would be. This is a small matter that I am sure will be attended to. One could have had a most interesting discussion today about whether this Bill falls under the Wolfenden principle of practicality, the John Stuart Mill concept of criminal responsibility or the Devlin concept of morality and criminal responsibility. I believe that it probably qualifies on all counts, and I wish it well.
Lord Sheikh
My Lords, I begin my remarks by congratulating the noble Lord, Lord Laming, on presenting this Bill to the House. I warmly welcome the opportunity to debate it and I am a strong supporter of measures which assist the prosecution of people who hurt children or vulnerable adults and those who stand by and allow such acts.
Maintaining a wall of silence should not be a way to escape responsibility for perpetrating or allowing truly horrible offences against children or vulnerable adults in their own homes. This issue is one in which I have long taken an active interest. We should all want to do what we can to ensure that those who stand by or carry out abuse are not able to evade justice by passing the buck.
I recall well the background which led to the passing of the Domestic Violence, Crime and Victims Act 2004. I commend the continuing work done by the NSPCC in highlighting the problem of securing convictions when a child dies or is seriously injured by parents or carers. I also want to place on record my appreciation of the work of the Law Commission, whose efforts have done much to bring this debate to where we are today.
Section 5 of the 2004 Act created the offence of causing or allowing the death of a child or vulnerable adult, but the offence is limited to incidents where the victim died of an unlawful act and applies only to those members of the household who had frequent contact with the victim. The household member must have caused the death or failed to take reasonable steps to protect the victim, and the victim must have been at significant risk of serious physical harm. Only those over 16 may be guilty, unless they are the mother or father of the victim.
At the time that the 2004 Act was debated, the Minister made clear that it was important to establish the new offence before consideration was given to extending its provisions. The Act has been widely considered to have worked well in practice and to have operated in the way intended. During the period 2005 to 2008, the offence was used successfully in prosecuting 17 people, including the mother of Baby Peter Connelly and her boyfriend and lodger. In that case, it was clear that one of those three was responsible for the death of the child, but the police were not able to prove which one. In consequence, all three were found guilty of causing or allowing his death. Noble Lords cannot have failed to notice the considerable public anguish which that case aroused in the country. It is not my argument that this Bill should be a response to that concern, but rather that this is an appropriate next step to protect the most vulnerable.
I acknowledge that some have expressed concerns about potentially criminalising those who are themselves vulnerable or victims of domestic violence. I am satisfied that the threshold of “reasonable steps” is adequate to protect people in those circumstances from unwarranted prosecution. I understand that the Crown Prosecution Service is actively supportive of attempts to extend the scope of the offence. Its data suggest that in 2010, in six areas there were as many as 20 cases that could not be prosecuted under existing arrangements, but which might be under the proposed new offence.
This Bill, by amending Section 5 of the 2004 Act, would widen its scope to include situations where children and vulnerable adults have been seriously harmed. The Bill will apply to cases of causing or allowing a child or an adult to suffer physical harm. It will apply to members of the victim's household who have frequent contact with the victim and who should have been aware of the situation or who caused the injury or death. It must be established that there had been a history of violence and that the victim had been subjected to abuse and hence was in danger. It will not be necessary to establish whether the person who is accused was responsible for causing the death or serious physical harm or for allowing the death or serious physical harm.
Widening the scope is still very much in keeping with the spirit and objectives of the 2004 Act, and, I believe, is very much to be welcomed. In total, this represents a healthy package of measures which would be fair and proportionate and would provide strong protection for some of the most vulnerable people. I recognise that this is quite a complicated area in which to legislate and I understand the caution which was applied during earlier debates.
One outcome that I would like to see from this Bill is an improved ability to enable the person who caused the victim's death to be identified so that they can be prosecuted for murder or manslaughter, if appropriate, but a conviction under Section 5 would not necessarily lead to a further prosecution. The offence could stand alone. I recognise that the measures contained in this Bill were given some consideration at the time that the 2004 Act was debated in this place. None the less, it is proper that we should give them further consideration now, and I offer my support to the noble Lord. We should not tolerate a situation where, on the basis that the victim has escaped death, a successful prosecution is endangered. This could arise, for example, where a victim might be too young to give evidence or might not be able to do so as a result of injury or fear.
I welcome the inclusion in the Bill of a maximum penalty for the extended Section 5 offence. We need to make sure that the punishment for the extended offence is proportionate to the harm caused. It is also appropriate that the definition of serious harm does not include psychiatric harm, as the risk of this would be much harder to identify, and we should not wish to deter people from caring for vulnerable adults for fear of prosecution for failing to foresee a psychiatric injury. I welcome the inclusion of transitional provisions in the Bill that will ensure that there is no retrospective effect for the extended offence. I believe that the proposed maximum of 10 years’ imprisonment for an offence of causing or allowing serious physical harm strikes the right balance, particularly in the context of a 14-year maximum sentence for causing or allowing death and when compared with sentences for other offences of grievous bodily harm.
We should all feel a heavy duty to do what we can to help the vulnerable in our society. Children and vulnerable adults have a right to feel safe and secure in their homes. Those at risk of serious physical harm from members of their own household should be able to look to the law for protection. The Bill is a useful step in that direction. I am pleased to offer the Bill my full support.
Baroness Howe of Idlicote
My Lords, I add my thanks and congratulations to the Convenor, my noble friend Lord Laming. As others have said, there is no one in your Lordships’ House or outside with greater knowledge and experience of this whole issue and no one more suitable to take the Bill forward.
When I first became a juvenile court magistrate in the 1960s, domestic violence was not even seen in most areas as a law-enforcement matter. It was something to be settled within the family. Even in the 1970s, at the beginning of my 20-year chairmanship of the Inner London Juvenile Court, dealing with domestic violence only gradually became recognised as an important part of UK law enforcement. Today, dealing with such violence is increasingly seen and recognised as a law enforcement priority.
I warmly welcome this Bill, which extends the 2004 Act to bring justice not only to those whose actions result in the death of a child or vulnerable adult but also where serious injury to the victim has occurred. I hope that this will go some way to increasing support for greater powers to deal with other forms of family violence. Barnardo’s tells us that the number of sexually exploited children it works with has grown by 8.4 per cent to 1,190 over the past year. The Bill will also raise awareness of what has sadly become an increasing problem; that is, the abuse and trafficking of women and children into this country for sexual and other forms of exploitation.
Considerably more people today are able to travel and trade in different parts of the world but groups of countries, such as the EU, make it far easier for citizens of member countries to cross borders. With mobile phones and the internet, there are increasingly effective ways of setting up and operating evil trades as well as perfectly legitimate businesses. That is exactly what has been happening in the UK. The numbers trafficked into the UK for sexual or domestic purposes have grown alarmingly and we need far more effective ways of dealing with this situation.
I want to mention two associated areas of violence which need to be taken more seriously. First, trafficking is taking place not only from other countries into the UK but within the UK. The internet is increasingly used by groups of UK traffickers for grooming vulnerable youngsters and then moving them round the country for sexual exploitation. We need far better communication between individual police forces as well as changes in the law to deal with this issue.
Secondly, there is a growing concern about the crime of stalking and especially cyber, or internet, stalking where the stalker uses the internet to hound—and I mean hound—his victim. A group of parliamentarians, of which I am one, has been taking evidence on this issue and will publish a detailed report early next month calling for new and far more effective legislation to deal with the situation. The stories of deaths and injuries that we have heard from victims of stalking—the majority of whom, but not all, have been women—are horrifying. Often, whole families have had their lives literally destroyed as they move from place to place trying to escape a stalker’s obsession. All that points to a clear need for far tougher legal action to deal with the situation, which I hope will follow from this Bill. Other noble Lords have mentioned areas such as female genital mutilation, which absolutely is part of the same theme.
In the mean time, I congratulate all those who brought forward this Bill. I add my congratulations to the Government, who have played a major part in speeding up the process. I will not delay any longer its swift progress through the Lords.
Lord Reid of Cardowan
My Lords, in the gap I want to add my voice to those who this morning have been commending and supporting this Bill. I have a confession: I was not scheduled to be here. Through the wonders of modern telecommunications, I happened to listen to the opening speech and changed my arrangements in order to be here. On hearing the discussion of wrongs of commission and omission, it seemed that by that definition it would be a wrong of omission for me not to be here, partly because when I was Home Secretary, which I suppose is a declaration of interest, I felt a degree of impotence and frustration when watching the expedient use in the courts of the blaming of the other party and thus the avoidance of justice.
It will be known to all noble Lords that I did not always agree with every nuance of every utterance of every judge throughout that period. But, having listened to the noble and learned Baroness, Lady Butler-Sloss, I thought that she gave a perfect encapsulation of the reasons why we should support this Bill.
There is a broadly moral basis in our responsibility to support those who are least able to defend themselves and sometimes to speak for themselves. But that is not the precise reason for supporting this Bill. It is a matter of justice in allocating responsibility to those who are guilty of omission, although we should never forget the many cases of women—it is mainly women who are involved in this—who, as the noble and learned Baroness, Lady Butler-Sloss, said, are entirely dependent financially and emotionally, and perhaps out of fear, on the male partner. Ultimately, the responsibility for someone who is even more vulnerable—the child or the incapacitated adult—overrides that.
Basically, as someone who has had to preside over the broad custody of the execution of some parts of justice in this country, I say that this is way overdue. I congratulate the people who have brought it in. I wish that previous Governments had made such an amendment but there are rarely occasions when the country, both Chambers, all parties and the whole cross-section of individuals in Parliament agree on an issue. If there was one, this is it and I hope that it gets a fair wind through this House.
Baroness Gale
My Lords, I thank the noble Lord, Lord Laming, for bringing this Bill before us today. As other noble Lords have said, with his vast experience in this field, there could be no one better. I thank other noble Lords too for their contributions. It is obvious that there is support for this Bill all around the House, as was the case in another place. The 2004 Act is very important and has proved to have worked well.
My noble and learned friend Lady Scotland took the then Bill through your Lordships’ House. In Committee, the noble Baroness, Lady Walmsley, spoke about the Law Commissioner and the NSPCC’s concern about cases where children were seriously harmed. She suggested that it was unacceptable to leave no remedy for these cases. My noble and learned friend said:
“In looking at this, I am conscious of the magnitude of the step we are already taking in our proposals in terms of attributing responsibility to those who do not already have a duty of care to a vulnerable child or adult. We are breaking new ground with this offence. Offences that result in the death of the victim have always been viewed in our legal system as particularly serious and meriting unique treatment. This makes a natural and appropriate starting place for extending the bounds of responsibility in the way we propose. I am not ruling out revisiting the question in the future, when we have seen how the new offence works in practice, and possibly extending it to serious harm. But I am very reluctant indeed to do so at this stage. We should be aiming for something clear, simple and well focussed initially to add to the statute book”.—[Official Report, 21/1/04; col. GC 341.]
That was in 2004 and, indeed, it was breaking new ground. It also recognised that time was needed to see how the 2004 Act would work and that there would be the need to revisit it in the future.
The law now deals with the death of a child or vulnerable adult at the hands of parents or other members of the household, and no longer can they escape justice by remaining silent. I believe that everyone will agree that the Act was the correct way to proceed in 2004, but now in 2012 it is time for us to look at it again, as the noble Lord, Lord Laming, has proved with the cases he cited, where children or vulnerable adults have received serious physical injuries. At present, perpetrators escape justice simply by remaining silent, which proves that there is a need for the Bill before us today. It will close a gap in our legislation. The data that the noble Lord, Lord Laming, shared with noble Lords today show clearly that there is now a need to amend Section 5 of the 2004 Act. Eight years on since its passing, now is the correct time to take action. Were a Labour Government in office now, I have no doubt that we would either have brought forward legislation or would be supporting a Private Member’s Bill of this nature. So we fully support this Bill and look forward to working with the noble Lord, Lord Laming, to ensure its smooth passage through your Lordships’ House.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, first, I thank the noble Baroness, Lady Gale, for that promise of Official Opposition co-operation, and I fully accept what she said about the earlier Act. It was a unique step that broke new ground. The job of the Opposition at the time was to press the Government of the day, and the job of the Government of the day was to make a judgment about how the issue should be dealt with. The noble Baroness, Lady Gale, quoting the noble and learned Baroness, Lady Scotland, said that it would be revisited at an appropriate time. As a number of noble Lords have said, including the noble Baroness, Lady Gale, and the noble Lord, Lord Laming, when he introduced the Bill, now is the time. I am most grateful to all noble Lords who have contributed to the debate.
In his brief intervention, the noble Lord, Lord Reid, emphasised the difficulty that Ministers face in dealing with these issues. They are extremely emotive and need to be addressed with due proportionality. The noble Lord and the noble and learned Baroness, Lady Butler-Sloss, and indeed the noble Lords, Lord Lester, Lord Cormack and Lord Sheikh, raised the question of whether this Bill is proportionate. I have no hesitation in repeating the assurances given by my honourable friend Crispin Blunt in the other place about co-defendants:
“If one of the defendants has been the victim of, or a witness to, domestic violence, the steps that that defendant could reasonably have been expected to take may be more limited than the steps that someone not suffering or witnessing the violence could reasonably have been expected to take. Depending on the facts of the case, the court may find that it was not reasonable for the defendant to take some of the steps that might otherwise have been available to them. The same principles will apply to the extended offence. In other words, the offence will be sensitive to the circumstances in each case”.—[Official Report, Commons, 21/10/11; col. 1184.]
That addresses the point which has troubled a number of noble Lords.
Several speeches went far beyond the scope of the Bill: stalking, trafficking, forced marriages and genital mutilation. All those are serious and important issues and none the worse for being given an airing in this Second Reading debate, but the Bill is specialist in its intention. I add my tribute to the noble Lord, Lord Laming. The comments made by the noble Lord, Lord Cormack, the noble Baroness, Lady Howe, and others made it clear that this country is in his debt for the contribution he has made to the intensely difficult and emotional issue of violence against children and vulnerable adults. I am honoured to be part of a debate that has been initiated on an issue like this.
Likewise I pay tribute to Sir Paul Beresford in the other place. The noble Lord, Lord Elystan-Morgan, said that we are all in his debt. Sir Paul already has a very distinguished parliamentary CV, but taking the Bill through the other place and getting it this far, with all the tribulations that Jack Straw has referred to, will be a badge of honour on that CV for the rest of his life. We are very grateful to Sir Paul for the work that he has done. As for the role of the Government, I shall treasure the tribute paid by the noble Lord, Lord Elystan-Morgan, and hope that it is the forerunner of many to come, but I will not hold my breath.
On the co-operation of Sir Paul, I should also put on the record that we have worked closely with him through the Commons stages of the Bill and we are satisfied that, as amended in Committee in the Commons, the scope of the offence is restricted to what is needed to fill the gap that a number of noble Lords saw and which was acknowledged in the original Bill. The original Bill has worked and it is right to extend it, and that is what we are trying to do today.
The offence in Section 5 of the 2004 Act—causing or allowing the death of a child or vulnerable adult—was introduced by the previous Government in 2003. Under the law as it then stood, if a child or a vulnerable adult suffered a non-accidental death and it could be proved that one or more members of the household had caused the death, but not which of them, none of them could be convicted of a homicide offence. As has been explained, that is what the 2004 Act addressed. The aim of the Section 5 offence was to remedy that injustice. As the noble Lord, Lord Sheikh, and others have pointed out, it was used successfully in bringing charges against those who had abused baby Peter Connelly. The crucial aspect of the Section 5 offence is that the prosecution need not prove whether the defendant is responsible for “causing” or “allowing” the victim’s death. This means that it is much harder for those co-accused of the death of a child or vulnerable adult to evade justice by virtue simply of remaining silent or of blaming each other.
However, we know of cases where, although it is clear that serious injuries short of death suffered by a child or vulnerable adult must have been sustained at the hands of one of a limited number of members of the household, there is insufficient evidence to point to the particular person responsible. In such cases, it may not be possible to mount a successful prosecution. Sometimes the victim may be too young to give evidence, or too severely injured or afraid to do so. But offenders in such cases should not be able to escape justice because the victim has escaped death. We therefore agree that it is right to extend the Section 5 offence in the way proposed by this Bill.
Broadly speaking, the Bill extends the offence by inserting references to “serious physical harm” at appropriate places in Section 5 of the 2004 Act so that the same conditions which apply in the case of causing or allowing the death of a child or vulnerable adult will also apply in the case of causing or allowing serious physical harm. In particular, the extended offence will be limited to cases where the victim has died or has suffered serious physical harm as a result of an unlawful act; it will apply only where the victim was at significant risk of serious physical harm, and only to members of the victim’s household who had frequent contact with the victim, and could therefore reasonably be expected to have been aware of a risk of serious physical harm to the victim, and to have protected the victim from such harm. The extended offence will not apply to a death or serious physical harm which results from an accident or from natural causes, nor will it apply if there was no reason to suspect a risk of serious physical harm. I hope that that gives some assurances to noble Lords who have expressed concerns about the proportionality of the Act.
The noble Lord, Lord Sheikh, welcomed the provision in the Bill for a maximum penalty of 10 years’ imprisonment for causing or allowing serious physical harm. The Government believe that this is proportionate when considered against the maximum penalty for causing or allowing death, which is 14 years’ imprisonment, and against those of other offences of grievous bodily harm.
The noble Lord, Lord Elystan-Morgan, gave a welcome tutorial on Section 6 procedures. However, perhaps I may make a small point on procedure to so distinguished a judge. There are times when I thought he thought he was appearing before the noble and learned Baroness, Lady Butler-Sloss, in that he addressed her directly when making these complex legal arguments. I know that old habits die hard. The points he made on these procedures were pertinent and I shall read Hansard carefully, take advice on them and see what we can do in response.
The evidential and procedural provisions are in Clause 2. They are similar to those in Section 6 of the 2004 Act and apply to the offence of causing or allowing serious physical harm in the same way that Section 6 applies to the offence of causing or allowing death. Section 6 of the 2004 Act modified certain evidential and procedural provisions on alternative charges in trials involving the Section 5 offence. The modified procedures apply where a defendant is charged with a Section 5 offence and with murder or manslaughter in the same proceedings and in relation to the same death.
Briefly, there are two main changes in normal trial procedures, a point raised by the noble Lord, Lord Sheikh. The first change means that 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, again a point to which the noble Lord, Lord Elystan-Morgan, drew attention. The second change concerns the drawing of an adverse inference from silence in court. Where a defendant refuses to give evidence in court, any adverse inference that may be drawn in relation to a 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.
These changes to normal trial procedure are intended to encourage defendants to give evidence and to ensure that the more serious charge of murder or manslaughter remains available if evidence emerges during the trial as to who is responsible for the victim’s death. In other words, the aim is to identify the person who caused the victim’s death or injury so that defendants can be convicted and sentenced according to their culpability.
The Bill applies similar evidential and procedural provisions to the extended Section 5 offence. However, in keeping with the extraordinary nature of these provisions, they apply only to the more serious offences that are likely to be tried with the extended Section 5 offence. So, in the context of causing or allowing serious physical harm, the procedural provision would be limited to cases where the defendant is charged with the extended Section 5 offence and with either a serious assault offence under Section 18 or Section 20 of the Offences Against the Person Act 1861—another point made by the noble Lord, Lord Elystan-Morgan, which, again, I would like to take advice on—or with attempted murder under Section 1 of the Criminal Attempts Act 1981. As with existing offences, 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. These explanations will appear in Hansard and I hope that they will be read as being the desired but proportionate extension.
The noble Lord, Lord Loomba, reminded us of our responsibilities under the Convention on the Rights of the Child. Every time one of these cases arises it causes real indignation and often fire is directed at the authorities. I remember a director of social services who was in the centre of one of these media fire storms saying to me, rather ruefully, “You know, no social worker has ever been convicted of the death of a child and yet they have to take these awesome responsibilities on behalf of us all”. The Bill is an attempt to amend and extend a good law to ensure that those responsible for these terrible crimes bear the responsibility and face the full force of the law.
The noble Baroness, Lady Howe, said quite rightly that we have come a long way since the term “a domestic” meant that the police and the authorities did not take much interest in what was going on behind closed doors. The Bill is an extension of the increasing commitment of society as a whole to ensure that these crimes do not go unpunished and that for those who are complicit in cruelty to and abuse of a child or a vulnerable adult, to use the words of the noble Lord, Lord Cormack, there will be no hiding place.
I am very pleased to have taken part in the debate and to be able to say on behalf of the Government that we wish the Bill well.
Lord Laming
My Lords, I thank the Minister for his helpful and encouraging comments. I also thank government Ministers in other departments for warmly supporting the Bill and for their generosity in allowing us to have the benefit of the help of their officials.
We have been treated today to one of the great merits of your Lordships’ House—outstanding and well-informed contributions from all sides of the House in favour of our principal concern of safeguarding children and vulnerable adults. Such is the distinction of the contributions and the Members who made them that it would be presumptuous of me to even comment on the wisdom of what they have said.
As the House knows, the Bill was ably steered through the other place by Sir Paul Beresford. That being so, I felt distinctly apprehensive this morning about taking on that responsibility in your Lordships’ House. I am therefore particularly grateful to all noble Lords who have spoken so helpfully and constructively. It is clear that my anxiety was misplaced.
There are, of course, still hurdles to be overcome and some way to go before the Bill reaches the statute book. At this stage, I thank all noble Lords most warmly for the contributions that they have made and the support they have given. I invite the House to give the Bill a Second Reading.