Domestic Violence, Crime and Victims (Amendment) Bill

Lord Elystan-Morgan Excerpts

Friday 27th January 2012 Lords Chamber

[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.