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Baroness Scotland of Asthal: My Lords, I thank the noble Baronesses, Lady Anelay and Lady Walmsley, and the noble Lord for the way in which they have approached this issue. I say straightaway that I recognise the description given of the impact that domestic violence can have on women, who are effectively robbed of their sense of self and wellbeing. Although we discussed the matter at some length in Committee, the issue has caused a great deal of concern and it is right that we should return to it.

That concern has quite properly been vested in the difficulties suffered by people who are themselves vulnerable. The noble Baroness referred to domestic violence, but there are other situations which make people vulnerable so that they have less ability than others to be as robust as we would like in the burden that we are placing on them to act or face the possibility of prosecution.

The Bill is about domestic violence in all its aspects. The noble Baronesses, Lady Walmsley and Lady Anelay, are absolutely right that violence against a child may all too often mean there is violence or the threat of violence against the mother too. Anyone living in a violent household is likely to be frightened and dispirited and there will be cases where the defendant is vulnerable, because of violence or for other reasons, and there is very little they could do to protect themselves, let alone protect the victim. They might be the victims of domestic violence themselves, or the defendant might be young and uncertain, unfamiliar with the social services, frightened of the police, mistrustful of teachers or doctors or others in authority, and simply not know where to turn.

We knew that we had to take all this into account when formulating the offence. We had to make sure the offence would not place unjustifiable burdens on people. That is why the offence will only apply when a child or vulnerable person has been killed by someone in the household and the defendant was aware, or ought to have been aware, of the risk and failed to take reasonable steps—I emphasise reasonable steps—to protect the child or vulnerable person from the risk. It is the concept of reasonable steps that is at the very heart of the offence and which is crucial to ensure that

9 Mar 2004 : Column 1163

it does not place an unacceptable burden on other vulnerable people in the household. I shall turn to this in more detail in a moment.

We hope that the offence, together with the procedural measures which accompany it, will help to solve the "which of you did it?" cases. But the new offence goes beyond that. We would not be justified in introducing an offence only for that purpose; it must be justified in its own right. The behaviour which it covers must be sufficiently reprehensible that we would regard it as criminal regardless of the other considerations we have outlined. The Law Commission was very clear on this and we agree with its reasoning.

The offence will change the way in which we view responsibility within a domestic setting and the way in which we deal with it in the criminal law. It makes it clear that it is not acceptable to be a member of a household in close contact with a vulnerable person, knowing that they are at significant risk, and do nothing. It is not an acceptable position for a parent—no matter how vulnerable or fearful they are for themselves—to do nothing for a child who is at risk. The offence of child cruelty or neglect is based partly on this principle: that to stand by and do nothing is not acceptable.

The new offence will make that position even clearer. It makes the responsibility bite on all members of the household who have frequent contact with the child or vulnerable adult and who are, or should be, aware of the risk to it of serious harm. We think that this is right morally and as a matter of law. It is right that people in this position should be liable to prosecution and, indeed, that prosecution should normally take place if the case is made out.

But, as I said earlier, the concept of reasonable steps is fundamental to the formulation of the offence. It is a crucial part of the way in which the offence works and it provides an important safeguard. In deciding whether there is sufficient evidence to prosecute, the Crown Prosecution Service will have to consider what the person did in the light of what they could reasonably, in the circumstances in which they found themselves, have been expected to do. If the Crown Prosecution Service believes that there is a realistic prospect of conviction, it will then be a matter for the jury to decide whether the prosecution has established beyond reasonable doubt that the defendant failed to take reasonable steps.

We talked in Committee about guidance to be issued by the CPS to prosecutors dealing with these cases. We shall return to this when we get to the later amendment about guidance tabled by the noble Baroness, Lady Anelay, and the noble Viscount, Lord Bridgeman. The question of what steps were reasonable for a victim of domestic violence is, of course, ultimately an issue for the jury, albeit that the prosecution will have to identify the steps that the defendant could have reasonably taken as part of the Crown case.

As in all cases, the Crown Prosecution Service will apply the two-step test for prosecution: that is, is there sufficient evidence to afford a realistic prospect of a conviction; and is a prosecution in the public interest. In

9 Mar 2004 : Column 1164

a sense, the offence itself defines the public interest in creating a duty on members of a defined group to protect children and vulnerable adults. The public interest will normally lean strongly towards prosecution. It will be the exception rather than the rule if it is decided not to proceed with prosecution.

I sympathise with the concerns behind the amendment. However, we must be clear that protections and safeguards are in place for victims of domestic violence and others who are vulnerable. We believe that the new responsibility we are creating must be weighed in the balance.

We think, too, that we would be wrong in singling out victims of domestic violence in the way proposed by the amendment; others will be vulnerable. When you single out a particular group in this way you inevitably give the impression that other vulnerable groups are less important. Just as we are saying that the victim will be protected if they are vulnerable for whatever reason, so we must say that those who neglect a clear responsibility will be punished.

We believe that the way in which we have phrased the provision gives enough of a safety net to make sure that the sort of protection that we wish to see will be in place. However, that protection must be given first to the vulnerable child and/or the vulnerable adult who, because of their demise, will have no one else to speak for them.

Baroness Anelay of St Johns: My Lords, I am grateful to all noble Lords who have taken part in this brief debate; it was, of course, foreshadowed by a much lengthier one in Grand Committee. I appreciate what the noble Baroness, Lady Walmsley, said, and her understanding of the situation in which people may find themselves in an abusive household, which was echoed by the Minister. Again, we are speaking with one voice in recognising the appalling difficulties that can be the day-to-day, minute-by-minute experience of people in abusive households. That is why I brought forward the amendment.

I am grateful to my noble friend Lord Campbell of Alloway for his support. As he said, the whole point about the reasonableness of taking steps means that it provides the gateway to guilt. Because of that, I think it vital that we have on the face of the Bill the certainty that inexperience of domestic violence should be taken into account when one is considering how reasonable are the steps that have been taken. I came to that conclusion by listening to people from organisations such as Refuge, Women's Aid and the NSPCC. I listened to them both before Grand Committee, and subsequently, since when they have had the opportunity properly to consider the Minister's response. Therefore, I do not think she will be too surprised if I say that I do not want to use the amendment to prevent others arguing that they had a reason not to take or to take steps. But in a domestic violence Bill, I think there is a special case for saying there should be consideration of those who suffer from domestic violence. On that basis, I wish to test the opinion of the House.

9 Mar 2004 : Column 1165

5.42 p.m.

On Question, Whether the said amendment (No. 14) shall be agreed to?

Their Lordships divided: Contents, 149; Not-Contents, 130.

Division No. 1

CONTENTS

Addington, L.
Alton of Liverpool, L.
Anelay of St Johns, B.
Arran, E.
Ashcroft, L.
Astor of Hever, L.
Attlee, E.
Barker, B.
Beaumont of Whitley, L.
Biffen, L.
Blackwell, L.
Blaker, L.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Buscombe, B.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Carlisle of Bucklow, L.
Carnegy of Lour, B.
Chadlington, L.
Chalker of Wallasey, B.
Chester, Bp.
Clement-Jones, L.
Colwyn, L.
Cope of Berkeley, L. [Teller]
Courtown, E.
Craigavon, V.
Dahrendorf, L.
Dean of Harptree, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dundee, E.
Eccles of Moulton, B.
Eden of Winton, L.
Elton, L.
Falkland, V.
Fearn, L.
Ferrers, E.
Flather, B.
Fookes, B.
Forsyth of Drumlean, L.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
Glentoran, L.
Goschen, V.
Hanham, B.
Harris of High Cross, L.
Harris of Richmond, B.
Hayhoe, L.
Henley, L.
Higgins, L.
Holme of Cheltenham, L.
Home, E.
Hooper, B.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Jenkin of Roding, L.
Jopling, L.
Kimball, L.
King of Bridgwater, L.
Knight of Collingtree, B.
Laird, L.
Lester of Herne Hill, L.
Lindsay, E.
Liverpool, E.
Livsey of Talgarth, L.
Lucas, L.
Luke, L.
Lyell, L.
MacGregor of Pulham Market, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
Maddock, B.
Mancroft, L.
Mar and Kellie, E.
Marlesford, L.
Marsh, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Miller of Hendon, B.
Monro of Langholm, L.
Monson, L.
Montrose, D.
Moynihan, L.
Murton of Lindisfarne, L.
Newton of Braintree, L.
Noakes, B.
Northbrook, L.
Northesk, E.
Northover, B.
Oakeshott of Seagrove Bay, L.
Palmer, L.
Palumbo, L.
Park of Monmouth, B.
Parkinson, L.
Patten, L.
Peel, E.
Perry of Southwark, B.
Powell of Bayswater, L.
Quinton, L.
Razzall, L.
Reay, L.
Redesdale, L.
Rees, L.
Rennard, L.
Renton, L.
Renton of Mount Harry, L.
Rodgers of Quarry Bank, L.
Roper, L.
Russell-Johnston, L.
Saltoun of Abernethy, Ly.
Sanderson of Bowden, L.
Seccombe, B. [Teller]
Selsdon, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Sheppard of Didgemere, L.
Shutt of Greetland, L.
Skelmersdale, L.
Smith of Clifton, L.
Soulsby of Swaffham Prior, L.
Southwark, Bp.
Stewartby, L.
Stoddart of Swindon, L.
Swinfen, L.
Taylor of Warwick, L.
Thatcher, B.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Tordoff, L.
Trefgarne, L.
Tugendhat, L.
Waddington, L.
Wakeham, L.
Wallace of Saltaire, L.
Walmsley, B.
Weatherill, L.
Windlesham, L.
Wolfson, L.

NOT-CONTENTS

Acton, L.
Ahmed, L.
Amos, B. (Lord President of the Council)
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Bhatia, L.
Billingham, B.
Blackstone, B.
Bledisloe, V.
Boothroyd, B.
Borrie, L.
Bragg, L.
Brooke of Alverthorpe, L.
Brookman, L.
Campbell-Savours, L.
Carter, L.
Chan, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Craig of Radley, L.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Donaldson of Lymington, L.
Donoughue, L.
Dubs, L.
Eatwell, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. (Lord Chancellor)
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Finlay of Llandaff, B.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Gilbert, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Haskel, L.
Haskins, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Howarth of Breckland, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jones, L.
Kirkhill, L.
Lea of Crondall, L.
Lipsey, L.
Listowel, E.
Lockwood, B.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate,
L.
Maginnis of Drumglass, L.
Mason of Barnsley, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Mitchell, L.
Murray of Epping Forest, L.
Orme, L.
Parekh, L.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Prashar, B.
Prys-Davies, L.
Puttnam, L.
Radice, L.
Ramsay of Cartvale, B.
Rea, L.
Rendell of Babergh, B.
Robertson of Port Ellen, L.
Rogan, L.
Roll of Ipsden, L.
Rooker, L.
Sainsbury of Turville, L.
St. John of Bletso, L.
Sawyer, L.
Scotland of Asthal, B.
Sheldon, L.
Simon, V.
Simon of Glaisdale, L.
Smith of Leigh, L.
Stone of Blackheath, L.
Strabolgi, L.
Taylor of Blackburn, L.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Triesman, L.
Turner of Camden, B.
Walpole, L.
Warner, L.
Whitaker, B.
Whitty, L.
Williams of Elvel, L.
Williamson of Horton, L.
Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

9 Mar 2004 : Column 1167

5.52 p.m.

Lord Monson moved Amendment No. 14A:


    Page 3, line 5, at end insert "and"

The noble Lord said: My Lords, last Thursday afternoon, while discussing an amendment moved by the noble Lord, Lord Renton, we had a lively ding-dong about new modes of drafting, grammar, clarity and the correct use of the English language generally, involving the noble Lord, Lord Renton, the noble and learned Lord, Lord Mayhew, the Minister and others. I hope that this modest drafting amendment is less contentious. It is designed to make subsection (3) of Clause 4 more comprehensible to those who will eventually have to interpret it when it becomes law, whether they be professionals or lay persons.

Subsection (3)(a) stands alone. It is not dependent on subsection (3)(b). However, the reverse is most definitely not true. Subsection (3)(b) on its own is complete nonsense. It is wholly consequential on subsection (3)(a). At first glance, the reason for including subsection (3)(b) in the Bill at all, seems to be to allow for the prosecution of a 15 year-old who happens to be—as sometimes happens—six feet two inches tall and weighs 10 stone, and who was therefore deemed to have no excuse for not intervening when the person causing harm to the vulnerable adult or child is only five feet four inches tall, weighs seven stone and lacks a black belt in a martial art.

The Explanatory Notes categorically state that:


    "Subsection (3) provides that only those who are 16 or over may be guilty of the offence, unless they are the mother or father of the victim. Members of the household under 16 will not"—

and I stress the word "not"—


    "have a duty of care or be expected to take steps to prevent a victim coming to harm".

If that is the case, and it seems pretty categoric, I can see no reason whatever for the existence of subsection (3) (b). It only sows confusion and muddies the waters.

There may be some arcane reason for the subsection of which I am unaware, but subsection (3) as a whole forms a single sentence and, if read as such, it will be seen how necessary the insertion of the word "and" is. Admittedly, even with the inclusion of "and", I do not think that the subsection will win any awards from the Plain English Campaign—except perhaps the wooden spoon—but it is probably too late at this stage to redraft the entire subsection. At least this amendment makes it more grammatically accurate and, above all, more comprehensible to those destined to study and refer to it in years to come. I beg to move.


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