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National Minimum Wage Regulations 1999 (Amendment) Regulations 2004
Lord Davies of Oldham: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the draft regulations laid before the House on 18 March be approved [13th Report from the Joint Committee].—(Lord Davies of Oldham.)
On Question, Motion agreed to.
Domestic Violence, Crime and Victims Bill [HL]
11.36 a.m.
Lord Campbell of Alloway moved Amendment No. 1:
- Page 3, line 20, at end insert ", but in the interests of natural justice—
The noble Lord said: My Lords, in moving this amendment I thank my noble friend Lady Anelay of St Johns for her support. This amendment in no way slights the general intendment of Part 1 of the Bill. The object is to introduce safeguards which ensure the implementation of Clause 5 in accordance with the due and fair administration of justice. To this end, and in the interests of natural justice, it is proposed in this amendment to require, under paragraph (a), that the accused should know the case he has to meet at trial, while under paragraph (b), that he should know the basis on which he was convicted.
This is a qualification to Clause 5(3) which, when read in context with Clause 5(1)(d), affords three distinct bases on which conviction for the offence may ensue. Clause 5 makes this a unitary offence which may be committed only by a member of the household against another member of the household in one of three ways, referred to in Clause 5(3) as the first and second alternative, there being no obligation on the Crown to prove on which of the alternatives conviction is sought.
The three bases are as follows. On the first alternative, the accused—named "D" in this drafting—did the unlawful act which caused the death. On the two limbs of the second alternative, the first asserts that the unlawful act was done by another and that the accused was aware of the risk, could foresee the kind of act, and failed to the steps he could reasonably have been expected to take to prevent it. The second limb of the second alternative is that he ought to have been aware of the risk; that he ought to have foreseen the kind of act and failed to take steps to prevent it.
It is a fundamental requirement of natural justice that the accused is entitled to know the case he will have to meet at the trial, as opened to the jury, and to have an opportunity to repair his reputation and prepare a defence to that case. The other fundamental concept is that he is assuredly entitled to know on what basis he has been convicted. At all events, the trial judge—before summing up, at least—must know on which basis the Crown seeks conviction; and, indeed, for the purpose of sentencing, on what basis the verdict was given. There is a disparate gravity of offence between the three bases, and the maximum sentence is 14 years.
There is a further reason why one should know the basis on which the accused was convicted. This applies, in particular, to the second alternative. The failure to take the steps which a person could reasonably have been expected to take is common to both limbs of the second alternative and is an essential ingredient for conviction. One could well ask if the jury should consider whether the steps that were taken by the accused were steps that he would reasonably expect to take or be expected to have taken, or whether they should consider the "reasonable man", who is not a member of the household, who does not have the characteristics of the accused and who would be ignorant of the domestic circumstances. Is it the test that the reasonable man would have taken steps which the accused himself did not take and would not have taken?
If the first limb does not apply because the accused was not aware of the risk and did not foresee the act—and the jury are so satisfied—how can he be convicted on the second limb of having taken no steps to prevent something of which he was not aware and did not foresee? It is of interest—although it is, in a sense, water under the bridge now—that the Law Society Amendments Nos. 12 and 13, which were moved at Committee stage by my noble friend Lady Anelay of St Johns and which have not been retabled—sought to remove the second limb.
Is it not apparent that, on appeal against either conviction or against sentence—and there is ample scope for appeal on this direction on the second alternative—the Court of Appeal (Criminal Division) must know on which of the three bases the appellant was convicted? Inevitably in regard to this singular offence—"singular" in the sense that it may be committed only by a member of the household against another member of the household—on the second alternative, matters of construction arise as to whether the guilty mind is actual or the hypothetical concept of objectivity has to be established. The ultimate resolution of this may not be made by your Lordships or even by a court of first instance. Inevitably it will be afforded by the Appellate Committee of your Lordships' House. But to enable resolution at first instance and on appeal, the basis on which the conviction was made has to be known.
I hope that the amendment will commend itself. It in no way slights the general intendment of the Bill, which is acceptable to the party to which I adhere and, I gather, to all other parties. But, as a matter of justice, ought not the accused know what he has to meet and why he was convicted? Should he not have that knowledge—certainly on matters of construction on the second alternative—and the facility to appeal? I beg to move.
Baroness Anelay of St Johns: My Lords, I have attached my name to the amendment to signal my support for my noble friend in the way in which he has sought to take one stage further forward the debates
Lord Thomas of Gresford: My Lords, I support the amendment. It is a perennial problem that the basis of a jury's verdict is not clear; the jury returns a verdict of guilty and the judge makes up his own mind, without any help from the jury, as to what has happened and sentences on his view. On many occasions these days, applications for a special verdict to be returned, so that the basis of the jury's verdict can be ascertained, are refused.
Let me give an illustration. I was involved in a drugs trial where the case against my client was that he was the "main man". After about an hour's retirement—and this was a case which had lasted for four months—the jury came back with the question, "Can we convict the defendant even though we do not think he is the main man?" It was a conspiracy case and the judge directed the jury, "Yes, you can". He was convicted. The judge in his sentencing said, "You are the main man" and gave him 25 years' imprisonment, which was significantly more than anyone else who had been convicted of that conspiracy. The judge had made up his own mind about the criminality of the particular defendant.
So in a case like this, where we are creating an offence which has two very clear bases—that the death was inflicted by one member of the family but the second member of the family is guilty because of a failure to prevent that death—it would be highly advisable that the judge should not be left to his own devices and that the jury should indicate, in one way or another, precisely the basis for their conclusion of guilty against a particular defendant.
It may be that I do not entirely go along with the wording of the noble Lord, Lord Campbell of Alloway, but I certainly go along with the spirit in which the amendment is brought forward. In an offence such as this, it is important that the jury, who have control of the case, should have the opportunity of expressing why they have come to the conclusion they have reached.
Lord Donaldson of Lymington: My Lords, I disagree with all three speakers. The noble Lord, Lord Campbell, suggested that there were three alternatives. Apart from the linguistic problem of that, there are not—there are only the two identified in the clause. However, my real objection is not to paragraph (a) in his amendment, but to paragraph (b). On paragraph (a), of course, it is highly desirable—so far as possible, I hope that this does occur—that the accused should know the factual basis of what is alleged against him. Perhaps I am not up to date, but I should have thought that that would be made clear by the prosecution as a matter of routine.
Where the noble Lord goes completely adrift in my estimation, however, is with paragraph (b). This is, as paragraph (a) says, a unitary offence. Furthermore, Clause 5 itself states that:
Finally, there is an argument, although not one put forward by the noble Lord, about reasonableness. It is an interesting legal argument, but it will not be resolved, and certainly not by his amendment. Whether it can be resolved by a different amendment is different matter. We would have to consider whether it was the man on the Clapham omnibus or the member of the household whose reasonableness had to be judged. Leaving that aside, I cannot see anything wrong with the historic function of the judge as the person who fixes the sentence rather than the jury. He has heard the whole case and he is in at least as good a position as the jury to know what is the seriousness of the case in the context of many other similar cases of which the jury will be wholly ignorant.
It is quite wrong that the jury should be expected to give a verdict that unscrambles the unitary offence. The prosecution do not themselves have to opt for one or the other—or both. Also, I add a criticism of paragraph (a) of the amendment, which seems to assume that there is a necessary disparity between the first alternative, which involves being directly concerned with the death of the vulnerable child or adult, and the idea that the second alternative is necessarily much less heinous. If it is straightforward wilful murder, then yes, but if it is manslaughter, the heinousness of the two offences may well come close to each other. Certainly, I would not wish to try to split one from the other.
(a) the prosecution shall have provided particulars of grounds and circumstances in support of allegations that either alternative applies to enable D to know the substance of the case to answer at the trial charged with this unitary offence having regard to the disparity of criminal conduct under the first alternative on which D committed the act which occasioned death as compared with the diverse quality of criminal complicity under the second alternative on which such act was committed by another of which D ought to have been aware foreseen and prevented; and
(b) on conviction a verdict which identifies the relevant alternative shall be returned so that the basis of the conviction shall be known."
11.45 a.m.
"The prosecution does not have to prove [which] alternative".
Having done that, the noble Lord expects the jury to unpick the evidence and fit it into one box or the other. That is completely contrary to the approach of the clause.
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