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Lord Lloyd of Berwick: I do not wish to add anything to what I have already said. I take note of the fact that the noble Lord, Lord Carlile, did not even put it stronger than saying that very occasionally seven days may not be enough. In my belief that is not good enough to justify the amendment. However, it seems to me that some consultation with those who have had experience of dealing with these applications would be of great help. If that can be done before Report I should be happy not to press my objection now.

Clause 284 agreed to.

Baroness Scotland of Asthal moved Amendment No. 231:

"Enforcement of regulations implementing Community legislation on endangered species
(1) In this section— "the 1972 Act" means the European Communities Act 1972 (c. 68); "relevant Community instrument" means—
(a) Council Regulation 338/97/EC on the protection of species of wild fauna and flora by regulating the trade therein, and
(b) Commission Regulation 1808/01/EC on the implementation of the Council Regulation mentioned in paragraph (a).
(2) Regulations made under section 2(2) of the 1972 Act for the purpose of implementing any relevant Community instrument may, notwithstanding paragraph 1(1)(d) of Schedule 2 to the 1972 Act, create offences punishable on conviction on indictment with imprisonment for a term not exceeding five years.
(3) In relation to Scotland and Northern Ireland, regulations made under section 2(2) of the 1972 Act for the purpose of implementing any relevant Community instrument may, notwithstanding paragraph 1(1)(d) of Schedule 2 to the 1972 Act, create offences punishable on summary conviction with imprisonment for a term not exceeding six months.
(4) In Scotland, a constable may arrest without a warrant a person—
(a) who has committed or attempted to commit an offence under regulations made under section 2(2) of the 1972 Act for the purpose of implementing any relevant Community instrument, or
(b) whom he has reasonable grounds for suspecting to have committed or to have attempted to commit such an offence.
(5) Until the coming into force of paragraph 3 of Schedule 23 (which amends paragraph 1 of Schedule 2 to the 1972 Act), subsection (3) has effect—
(a) with the omission of the words "in relation to Scotland and Northern Ireland", and
(b) as if, in relation to England and Wales, the definition of "relevant Community instrument" also included Council Directive 92/43/EEC on the conservation of natural habitats and wild fauna and flora as amended by the Act of Accession to the European Union of Austria, Finland and Sweden and by Council Directive 97/62/EC.
(6) Any reference in this section to a Community instrument is to be read—
(a) as a reference to that instrument as amended from time to time, and

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(b) where any provision of that instrument has been repealed, as including a reference to any instrument that re-enacts the repealed provision (with or without amendment)."

The noble Baroness said: I hope that this amendment will be widely welcomed. The purpose of Amendments Nos. 231, 250, 251, 252 and 253 is to increase the maximum penalty for endangered species trade offences occurring within the United Kingdom from two to five years' imprisonment. Those offences will also become arrestable. I beg to move.

Lord Hunt of Wirral: The amendment is widely welcomed but remarkably late. It might assist the Committee if the noble Baroness explained why it has taken so long to bring forward this amendment and its accompanying consequentials. I have in mind particularly the exchange that occurred in the other place on 20th May when Mr Blunkett appeared to be unaware that an undertaking had been given to amend the Bill in the way described by the noble Baroness. An undertaking had been sought in particular by my honourable friends in the other place, including the Member for Faversham and Mid Kent. He agreed to withdraw his Private Member's Bill in return for an undertaking that was given by the Minister for Rural Affairs and Urban Quality of Life on 21st March. On 20th May the Home Secretary appeared to be unaware of that undertaking, but promised that effect would be given to it as quickly as possible.

I do not seek to make much of that except to say that there have been a number of other instances where Ministers have made promises to bring forward amendments and changes to this Bill but, in some cases, we still await those amendments and changes. I hope that the noble Baroness will be able to secure a system within the Home Office whereby every pledge and every promise that is made by a Minister, in particular by the Home Secretary, is carefully recorded and implemented as soon as possible.

I suppose that I take rather an old-fashioned view of Report stage in that I believe that it is the stage when a Bill is reported to this place with or without amendments. It is not the stage at which completely new amendments should be introduced. I very much hope that the noble Baroness agrees with me. In the circumstance that we still await certain amendments, I have a distinct foreboding that we shall see a number of government amendments on Report and, indeed, at Third Reading. That would echo the very effective intervention of the noble Countess, Lady Mar, earlier today when she said that Bills must receive greater scrutiny before they are introduced and that pledges and commitments that are given should be very carefully thought through and introduced at a much earlier stage. But having said all that, I warmly welcome the introduction of these measures.

Lord Renton: Although I support what my noble friend Lord Hunt said, I feel bound to add that it seems

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to me very extraordinary that we should have the proposed new clause at all. Subsection (1) of Clause 306 points out very clearly:

    "Subject to the following provisions of this section, this Act extends to England and Wales only".

The Bill is concerned with criminal justice in a broad sense. However, for us to add the rare application of some "regulations implementing Community legislation" simply on endangered species seems to me to be right outside the themes of this Bill. One could imagine other occasions when the measure might be implemented. Indeed, it would not surprise me if it were technically feasible to do so by regulation instead of by amending the statute. The Bill is so lengthy anyway. I wonder whether the noble Baroness, Lady Scotland, would be so good as to consider whether it would be better not to add this minor addition to the Bill.

Baroness Scotland of Asthal: As the noble Lord, Lord Hunt, said, the amendment is widely welcomed. It was brought forward by the Government in response to an amendment tabled in the other place. The Government gave an undertaking to do that as swiftly as possible. The Committee will be aware of the arrangements in the other place in relation to tabling amendments. The amendments were not tabled in the other place because some key policy provisions, such as sentencing principles for murder, were brought into the Bill on Report in the Commons. The Government said then that they would table these amendments in the Lords. They have been tabled as quickly as was reasonably practicable.

I know that the noble Lord, Lord Hunt, would wish the Government to continue to consider very carefully each and every suggestion made by Her Majesty's loyal Opposition together with the other parties before considering the final position at which they rest. We have done that and we have responded. I had hoped in moving the amendment to give the Committee a little pleasure and respite. I apologise if that is not the case. I reassure the noble Lord, Lord Hunt, that there is indeed a system in the Home Office whereby commitments made by Ministers are monitored. In each and every Bill to which I have been party we have without exception tried to honour those matters.

On Question, amendment agreed to.

Clauses 285 to 289 agreed to.

5 p.m.

Baroness Gould of Potternewton moved Amendment No. 232:

    After Clause 289, insert the following new clause—

(1) When a child aged under sixteen suffers serious harm or death deriving from ill-treatment, whilst it is with two or more people, at least one of whom has responsibility for it, and the death or injury must have been caused by one or more than one of those people, all of those people shall be guilty of an offence of failing to protect the child and shall be liable on conviction to imprisonment for a term not exceeding 14 years.

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(2) Serious harm deriving from ill-treatment will be established where the child is the victim of an offence of—
(a) murder;
(b) manslaughter;
(c) assault under section 18 or 20 of the Offences Against the Persons Act 1861 (c. 100);
(d) rape; or
(e) indecent assault.
(3) It is a defence to a charge under subsection (1) if a defendant shows that he did all that it was reasonably practical to do, in the circumstances, at the time of the serious harm deriving from ill-treatment.
(4) In a trial for an offence under subsection (1), any decision whether or not there is a case for any defendant to answer shall not be taken by the judge before the end of the defence case."

The noble Baroness said: The amendment is tabled in my name and that of the noble Baroness, Lady Whitaker. It calls for joint liability for harming children. It is a very important amendment to which I hope the Government will respond favourably.

Proposed new subsection (1) defines the problem and proposes that there be joint liability when more than one person might be involved in an offence of failing to protect a child. It also imposes a maximum sentence of 14 years. Proposed new subsection (2) defines serious harm. Proposed new subsection (3) identifies a positive defence, and proposed new subsection (4) clarifies that a judge should not take any decision, whether or not there is a case for the defendant to answer, before the end of the defence case.

I move the amendment with some trepidation as a layperson and having had nothing to do with the law in the past. However, I am concerned that there should be a change to our criminal proceedings, to ensure that those who harm children cannot use a loophole in the law that prevents them being prosecuted. I appreciate that the amendment deals with an extremely complex and difficult aspect of the law, which is presumably why action has not already been taken. It is purely a probing amendment at this stage.

During the debate in the other place, my right honourable friend Hilary Benn identified that:

    "It is wholly wrong that those who abuse children, and particularly those implicated in their killing, should be able to play the system and get away with such crimes simply because it cannot be established beyond reasonable doubt which part each individual played".—[Official Report, Commons Standing Committee B, 4/3/03; col. 1268].

I am very pleased that the Law Commission's report last month said exactly the same thing—that there was a need to change the law. It said that it was time to stop parents who killed children getting away with murder.

That report arose from a joint working group with the NSPCC chaired by Judge Isobel Plumstead. I make no apology for going into some detail on the findings of that working group, because they need to be placed on record.

Research evidence from 43 police forces throughout England and Wales showed that, during the three years covered by the survey, no fewer than three children a week under 10 years old were killed or suffered serious injury by suffocation or violence. Of

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those children, a little more than half were under six months old, and 83 per cent were under two years old. Shockingly, 61 per cent of investigations that reached a conclusion resulted in no prosecution. Of the 27 per cent of cases that resulted in a conviction, only a small proportion led to conviction for either homicide or causing grievous bodily harm.

Of 366 cases of death or serious injury to children analysed by the NSPCC, 99 cases resulted in a conviction, 21 in acquittal and 21 in the case being dismissed. No further action was taken in 225 cases. They were not even brought to court. That only slightly more than a quarter of those terrible cases resulted in a successful prosecution is a real indictment of our legal system.

The report of the working group identifies the present difficulties in getting a prosecution—that the fatal injury may have been suffered when the child is in the care of both his or her parents, one parent and a new partner, relatives, foster carers or adoptive parents. The child is unable to tell. Even when an assault is not fatal, an infant or very young child is unable to say who caused the harm. Nor are the carers compelled to account for the period when the injury was inflicted. When interviewed by the police, they can make no reply, not say who did something or blame each other. Article 6(1) of the European Convention on Human Rights has strengthened the common law privilege against self-incrimination.

The position is further exacerbated by the 1987 Lane v Lane case, when the Court of Appeal ruled that in the absence of evidence that indicated which of the two parents had inflicted the assault that led to the child's death, or of evidence that they had acted in concert to assault the child, neither parent could be convicted of murder or manslaughter. In some circumstances, however, there might be a conviction for cruelty or neglect to a child. The consequence is that the Crown can show only that the child was seriously injured or killed when A and B were present. It cannot show that A and B acted together. It cannot determine who was responsible. At the same time, it has to ensure that the person who was not responsible is acquitted. As a result, no conviction follows.

Many cases illustrate the effect of the Lane v Lane judgment, and I shall briefly cite three. In Aston v Mason in 1991, both carers were prosecuted for the murder of a 16 month-old child. There was a conviction for manslaughter at trial, but that was quashed because there was no clear evidence of which parent was present when the fatal injury was inflicted. Applying Lane v Lane, that meant that there was no case to answer.

In Strudwick v Merry in 1994, both parents were convicted of manslaughter but the convictions were quashed. However, the Court of Appeal upheld convictions in that case for long-term cruelty based on other evidence, but the parents evaded conviction on the more serious offence. More recently, in S v C an 18 month-old child suffered a series of assaults over three months and a number of serious and horrifying injuries during a period of 19 hours. Convictions at

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trial for grievous bodily harm and child cruelty were quashed by applying Lane v Lane. Those cases clearly establish that a conviction for murder, manslaughter, wounding or assault is currently impossible if the prosecution cannot establish which of the child's parents was present when the injuries were inflicted.

It might be argued that a higher sentence, as in the amendment, will not act as a deterrent. That is an imponderable. However, it is important for society to send the message that people who commit such crimes must be detected and will face severe penalty if convicted.

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