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Baroness Scotland of Asthal: My Lords, we say that he or she is entitled to know. We have drafted this clause sufficiently explicitly for those cases, because we have made it clear that the person concerned either caused the death himself or herself or allowed it culpably to happen. The very mischief that we must address is that in many cases the only people who will be able to say definitively which part of the clause they fall under are the individuals themselves. Therefore, in this offence we have set out the criteria that would have to be satisfied by the prosecution before they were entitled to ask a jury to find that the offence was proven. We think that, as currently expressed, it has sufficient particularity to do just that.

Lord Campbell of Alloway: My Lords, I thank the noble Baroness. I shall not argue on Report, but the explanation that she has given is wholly unsatisfactory.

Lord Donaldson of Lymington: My Lords, before the noble Lord, Lord Campbell of Alloway, allows the Minister to sit down, perhaps I may seek a little help on Amendment No. 10. As I understand it, the noble Baroness is saying that, if as a lawyer you work your way through Clause 4, it becomes clear that this

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is a single offence with two alternative legs. I agree. But is she also saying that, where experienced practitioners such as the noble Lord, Lord Thomas of Gresford, say that it would be a real help to those drafting indictments and directing juries to have it all in one introductory sentence or even part of a sentence, you cannot move? If so, regretfully, I am reminded of something that I said during the debate yesterday: debates in a Committee of the whole House—we have not had a Committee stage in the ordinary sense—and on Report are a confrontational exercise, which they were never meant to be.

Baroness Scotland of Asthal: My Lords, I hope that in how I have handled the Bill I have sought to avoid confrontation. I believe that all noble Lords who have so far participated in the Bill have only one cause in mind; we are jointly and severally intent on ensuring that appropriate protection is given to vulnerable individuals, some of them children, who are being literally killed without any of us being able to bring those responsible to book. I understand absolutely that that is the sole intent of all those who have spoken so far in any of the debates on the Bill. If I may respectfully say so, that has been one of the joys of the Bill. In our different ways, we are trying to make the legislation as robust, clear and sound as possible. It is very much in that spirit that I welcome the amendments tabled by noble Lords opposite, and look forward to our debates.

Baroness Anelay of St Johns: My Lords, the noble Baroness is right to say that we are all working as one, but that on occasions we come from two different directions in trying to reach the same objective. That is precisely the basis of the debate on this group of amendments. I thank all noble Lords who have taken this matter a good deal further forward in this debate.

The noble Lord, Lord Borrie, wanted to look at the global nature of all my amendments. His concern—which would be justified, if what he said were so—was that the cumulative effect of my amendments would be so to constrict the operation of Clause 4 that those guilty in any normal, accepted sense of causing the death of a child or a vulnerable adult might go free, despite all our best efforts. I assure the noble Lord that that is the reason that I tabled my amendments in different groups. Perhaps I gave the noble Lord extra cause for concern by putting the first two groups together, in an attempt to save a little time on the Floor of the House. By separating my groups of amendments, I was trying to show that I do not want all the amendments on the face of the Bill. I agree with him that if each and every one of them were agreed, the Bill might still be defective. I am trying to search carefully for what might be a common agreed approach. Of the amendments in the groups today, some are essential and others need more than a little tweaking before they would be right. Others would overburden the Bill and make it too weak in its approach to people who cause or allow the death of a child or a vulnerable adult.

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I am grateful to the noble Baroness for the care that she has taken in her response. I shall have to think carefully about her response to Amendment No. 10, about which I feel strongly. I listened carefully to the contributions of my noble friend Lord Campbell of Alloway, the noble and learned Lord, Lord Donaldson of Lymington, and the noble Lord, Lord Thomas of Gresford. In this issue there is the core of something important that we must consider further before Third Reading. We were not able to discuss the matter in Grand Committee, so in a sense we are coming fresh to this way of solving the issues.

I accept entirely that the approach of my other amendments to the definition of "household" has not been successful today. I must confess that I did not expect that they would be, as I recognise that it is extremely difficult to define "household" appropriately. I give notice that I shall need to return to the matter, particularly because I notice, for example, that the Children's Rights Alliance for England, in its briefing to noble Lords, has pointed out that it and other bodies such as the NSPCC think that the Government's definition of "household" in Clause 4 goes far too wide and far beyond what the organisations had originally envisaged would be the definition.

I shall ask the noble Baroness one question, to which I hope she may respond on another occasion. Interestingly, she raised the question of the position of service personnel, where somebody is posted overseas, serves there, and, after their return, there is a death. As I understand it, the Minister's argument is that such a person should be held culpable of that death, if he or she is a member of the household. Perhaps she could consider before Third Reading the position where the death of the child occurs while the service member is serving overseas. As I read the Bill, a service member, even when overseas, could be held as a member of the household and therefore liable for the death of a child. I need to reflect further on the matter and would be grateful if the noble Baroness could consider it before Third Reading. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 11 not moved.]

5 p.m.

Baroness Anelay of St Johns moved Amendment No. 12:

    Page 2, line 38, leave out "or ought to have been"

The noble Baroness said: My Lords, in moving Amendment No. 12, I shall speak also to Amendment No. 13. Both amendments are also supported by the noble Lord, Lord Thomas of Gresford.

The purpose of these amendments is to change the mental element of the offence in Clause 4 so that it is limited to what the defendant actually knew or suspected. The offence in Clause 4 is widely drawn, and while it must be so in order to reflect the offending behaviour, the Law Society has pointed out in its helpful briefing to noble Lords that the clause could be narrowed and still be effective. The Law Society points

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out that there could be some narrowing of those persons who might be caught by the offence. This amendment is one way of achieving that.

The basis of the offence that the Government provide is objective. It applies where the defendant ought to have known and foreseen a risk, rather than just where the defendant actually knew or suspected that something was going on. It is arguable that there should be a positive duty of care on all of us to protect the vulnerable in our society, but it could also be argued that using an objective test in this matter goes too far. To couple this objective test with a definition of household that would include persons who had no involvement or nexus with the child is, it is argued, unnecessarily wide. For example, in the circumstances of a child's death, a jury might consider that a person on the same premises ought to have been aware of family arguments—going back to the lodger argument in Grand Committee—and ought to have been aware of the risks that those arguments posed to the child. In practice, many persons do not make that connection, but it is those people who might be caught both by the wide definition of household and then by the objective limb of the mental element.

In Grand Committee and today, we have tried to give detailed consideration to the definitions of household and relationship. However, there is still a concern that the drafting of the Bill does not properly reflect current behaviour in relationships and that it will catch people who do not have a real connection with the child or the vulnerable adult. I beg to move.

Lord Thomas of Gresford: My Lords, we support this amendment. The defendant may be guilty on two bases—as we have previously discussed—first, because he caused the death of the child or vulnerable adult, and secondly, because he was aware of the risk, or the act occurred in circumstances of a kind that he foresaw. Then the clause adds,

    "or ought to have been, aware of the risk",

and "ought to have foreseen". That introduces an objective element. He may not have been aware of the risk, and he may not have foreseen it, but he is still going to be convicted of an offence carrying 14 years' imprisonment.

We have visited this area of objectivity in criminal law on a number of occasions. I recall well the Caldwell case. That was decided in the early 1980s, and it has taken something like 20 years for that decision to be reversed. There again, an objective test was introduced in the offence of arson and committing criminal damage, and it was all on the basis that the person ought to have foreseen a risk. The House of Lords Judicial Committee overruled that recently, and we are now back in the position where the subjective mens rea is an essential element of those crimes. Here too, it should be for a person who had actually foreseen something to be found to have the guilty mind that renders him liable to such severe punishment.

As a matter of principle, it is highly objectionable to punish someone for negligence in a criminal court—that is what it is. If we introduce an objective test, as

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this clause seeks to do, we are punishing someone for being negligent, sentencing them perhaps to a term of imprisonment of 14 years because they failed to do something or failed to foresee something that they ought to have foreseen. It is highly objectionable.

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