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Baroness Scotland of Asthal: My Lords, I am very sorry that the noble Lord, Lord Monson, has only just received my letter. I note from my copy that it was sent on 23 March. I know that it sometimes takes a little time. I am sorry that he has not had a longer opportunity to consider it.

The noble Lord has taken a particular interest in the provisions of subsection (4), which is a welcome reflection of his concern to ensure that we do not include anything in the Bill that is unnecessary or misleading. However, as I have previously explained, I am absolutely convinced that Clause 5(4)(b) is necessary. Perhaps I may set out why I believe that that is so.

The measure is important because the process of taking "reasonable steps" is not usually a single event but a course of conduct that takes place over a period of time. Clause 5(4)(a) ensures that a person is not charged with the offence if they are under 16, whereas Clause 5(4)(b) is intended as a safeguard to ensure

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that, once they have turned 16, they are not held responsible for taking reasonable steps before they were 16.

We see a need to ensure the exclusion of any part of the course of conduct that may have taken place before the defendant's 16th birthday which leaves them in a position now, at age 16, of not having taken reasonable steps. It may be that, even without this clause, a court would not have convicted a person in this situation, but we need to be certain, which is why we have introduced this important safeguard. It was decided that one should have this responsibility at 16-plus, not 16-minus. This provision simply underscores that and puts it beyond doubt.

I hope that the noble Lord will recognise that this clause is not superfluous and that it provides an important and necessary protection within the offence for those who are perhaps under 16 when the course of conduct started, but over 16 by the time the event actually occurred. Those are the reasons. However, I understand why the clarification I have just given was perhaps necessary.

Lord Monson: My Lords, I am grateful to the noble Lord, Lord Renton, for his qualified support and very grateful to the Minister. I do not think there is any fault on the part of her department. I was not in the House yesterday and her letter was hidden among a huge pile of mail that I received only 15 minutes ago. I have only just come across it in the course of going through that.

Of course the Minister knows better than I do the interpretation of Clause 4. I think it is very important to ensure that no unjust prosecution takes place. Therefore, if paragraph (b) is necessary, so be it. I should like to reiterate, though, that I hope the other place might be able to tidy up the wording. It still could be improved, as I think the noble Lord, Lord Renton, suggested. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 [Evidence and procedure: England and Wales]:

Lord Thomas of Gresford moved Amendment No. 3:

    Leave out Clause 6.

The noble Lord said: My Lords, when a juryman takes an oath at the beginning of a trial he swears that he will faithfully try the defendant and return a true verdict according to the evidence. I emphasise two aspects of that: that he is to act in good faith; and that he is to act upon the evidence. It is the duty of the judge to determine, according to our procedures, whether there is sufficient evidence upon which a jury can safely return a verdict. The presumption of innocence means that the juryman will not agree to a verdict of guilty unless he is sure of guilt.

That has given rise to the problems, which have been addressed in Clause 5, where a death occurs within a household and it is impossible for a juryman to say beyond reasonable doubt, to be sure on the evidence, which of two or more parties killed the child or vulnerable adult. We have supported Clause 5 throughout the passage of the Bill

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although we have attempted to improve the wording, and succeeded to some extent. Even so, in Clause 5 there is a considerable difference between being the person whose act caused the victim's death and being the person who should have been aware of the circumstances in which the death occurred. Either of those two wide apart positions can result in a conviction under Clause 5.

The new offence follows the Law Commission's report. What the Law Commission did not do in its report was attempt to extend the principles behind this offence, dealing with a specific problem, to the law of murder or manslaughter. That is what Clause 6 refers to. Although Clause 6 is headed, Evidence and procedure: England and Wales, in effect it extends evidential provisions which are suitable for dealing with the new offence under Clause 5 to the position where a jury is considering not only the new offence but also on the indictment murder or manslaughter.

What is so objectionable is that Clause 6 creates a new way in which murder or manslaughter can be proved. Even if there is no case for him to answer in relation to murder or manslaughter, under Clause 6(2) a person may be convicted simply by remaining silent. That means that a juryman who conscientiously applies himself to his oath will convict a person of murder or manslaughter, not on the evidence because by the terms of the definition there is no case to answer—there is no evidence upon which a jury could safely convict of murder or manslaughter—but on a hunch, a guess. That is contrary to centuries of history of the English criminal law. For a juryman to be asked to guess between, shall we say, two people which one is guilty of murder or manslaughter simply because that person does not give evidence or has failed to reply to questions put to them by the police, and to convict a person in that way, is contrary to that juryman's oath.

I pointed out on Report that when we are dealing with a death in a household and the police are met with silence it is not the same as other cases where there is silence. Silence from a person who is being questioned by the police or facing a trial in a domestic situation may well not indicate guilt. It may indicate his love and affection towards the person he knows has committed the offence. It may emanate for all kinds of reasons which are peculiar to that household. It may emanate from the fact that he or she fears the person whom they know to have committed the offence. Love, fear, loyalty, family solidarity are all reasons from which it would be unsafe to draw the inference of a person's guilt where there is no other evidence, as Clause 6(2) states, upon which the juryman in carrying out the burden of his oath could properly come to the conclusion that that person is guilty.

Someone somewhere, possibly within the Home Office—I doubt whether it is a Minister—has thought to himself, "We have read the Law Commission's report. We have read that there is a particular way of proving the new offence. What a good idea to see whether we can catch people for murder or manslaughter anyway". We hear a lot these days about the fact that this House is challenging the Government: that this House is preventing the Government carrying out their programme. We hear that it is an insult to their integrity if we come to a different

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conclusion. The truth of the matter is that someone had a very bad idea. Someone who did not understand the processes of the criminal law in this country sought to extend these procedures, far beyond that which the Law Commission envisaged, to murder and manslaughter. It is unacceptable that there should be a different practice and procedure for proving the most serious criminal charge in the calendar in a particular circumstance where a household is involved as opposed to any other circumstance.

From Second Reading on, we have put all these objections to the Government and listened to their response. There was some response to the original proposal but not enough. The Government's supporters and their Back-Benchers may, out of loyalty to the party, follow them through the Lobby. But this is so contrary to the spirit and principles of the English criminal law that the provision must be thrown out today. I beg to move.

Baroness Anelay of St Johns: My Lords, as the only non-lawyer in the group who put their names to the amendment, I add my wholehearted support. The noble Lord has given such a forceful argument that there is nothing from the legal point of view that I could hope to add—even had I the ability.

I strongly support what the Government seek to do in redressing the mischief put forward because of the problems in the case of R v Lane and Lane. We have had full debates on the matter. I give my full support to Clause 5 as currently drafted after our recent Division today. I hope that another place may consider it again and seek to improve it in some measure. I realise how difficult it was for the Government to draft the clause in such a way as not only to be fair but also to catch those people whom we wish to see prosecuted. As my noble friends have pointed out in the past, if one is convicted of what we might now call a Clause 5 offence, one could face a maximum penalty of 14 years.

I believe that the response in Clause 5 is proportionate to the mischief—the evil—of those offences. However, Clauses 6 and 7 go beyond what can be acceptable in dealing with the offence that has occurred. We all want to see someone prosecuted who has either perpetrated the offence of causing the death of a child, or been involved in allowing the death of a child or vulnerable adult in circumstances where no one would excuse their behaviour. We want those people to be prosecuted and convicted, and certainly, where there is evidence so to do, that can happen under Clause 5. But I fully support the view put forward by the noble Lord, Lord Thomas of Gresford, that Clauses 6 and 7 risk overturning a vital principle of our justice system.

12.30 p.m.

Baroness Whitaker: My Lords, as another non-lawyer, I take part again in the debate on this clause because I think that law is not ultimately for lawyers, any more than water is for water engineers or health is for doctors. Law is for people to enable justice—the

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proper attribution of responsibility for serious and harmful acts. Even when people love or fear, everyone has a role in that process.

It seems to me essential to have the procedural measures in Clause 6 as well as the new offence under Clause 5 for, without them, it would not be possible in the "Which of you did it?" cases to get the right conviction. Where a child or vulnerable adult has been murdered or killed by some other unlawful act, the only conviction that would be right is murder or manslaughter. The new offence in Clause 5 on its own would prevent those responsible for those deaths escaping all justice, but it and the sentence that goes with it do not fully reflect the serious nature of the crime that has been committed. There is almost nothing more serious than killing a child.

Where at least one of a closed group of suspects must be responsible we ought, I submit, to do everything that we can while remaining fair—which, again to a non-lawyer, the proposals are—to bring that person to justice. It seems to me that we would be failing in our duties as legislators if we did not.

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