Domestic Violence, Crime and Victims (Amendment) Bill

Lord McNally Excerpts

Friday 27th January 2012 Lords Chamber

[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.