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Lord Carlisle of Bucklow: My Lords, I support as strongly as possible every word that the noble Lord, Lord Thomas of Gresford, said on the issue. We have debated the clause at considerable length in Committee, on Report and now again at Third Reading. I have done my best to read and understand the arguments put forward by the Minister, but I cannot see her answer to the statement that the clause allows a person to be convicted of murder merely on his silence. In that way, it totally reverses the burden of proof in the case, and means that it is contrary to Article 6 of the European Convention on Human Rights.

The clause states in terms that if someone is charged with a Clause 5 offence he may also be charged with murder, and that if he is so charged inference can be made from his silence to answer,

"even if there would otherwise be no case for him to answer in relation to that offence".

The first strange anomaly is that if one charges a person with murder alone, the clause does not apply. Therefore, in the normal way, one could rise at the end of the prosecution case and say that the prosecution had failed to make its case in any way. The judge would direct the jury that there was not sufficient evidence on which it could convict. If, on the other hand, one adds to the charge of murder a charge under Clause 5, one cannot make that submission, because it is said that the jury can draw such inferences as it wishes from the silence of the accused, and can convict although there is no other evidence against him.

The clause also states that, if one wants to make a submission of no case to answer, one must wait until the end of the whole evidence, both for the prosecution and for the defence. At Report, I understood the Minister to be saying—it can be found at col. 1186 of Hansard for 9 March—that the case may change. I understand her argument to be that although there is

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at first no evidence that one person committed the murder rather than the Clause 5 offence, nevertheless, by their silence and other evidence that may be given, there may at the end of the case be a case to answer that did not exist at the halfway stage.

If that is the argument, surely all one need do in the clause is delay the time at which the submission can be made to the end of the whole of the evidence, as the clause does. There is absolutely no need whatever for anything else. I think that the Minister's argument is that at that stage a judge would be unlikely to allow a case to go to a jury merely on inference from silence, as he would wish to see other evidence. She may be saying that, if other evidence occurs in part of the defence case and the time at which the submission can be made is delayed, the judge may decide that there is evidence on which a person can be convicted, but that is not what the clause says. The clause says that whenever the submission is made, the jury can convict on an inference purely from silence.

For the reasons advanced by the noble Lord, Lord Thomas, and the noble Baroness, Lady Anelay, that seems totally contrary to the legal traditions of this country. It is unnecessary in that, if what the Minister is asking us to accept is that the case may change, that can be met, if it is right to meet it, merely by delaying the time at which the submission is made, without the provision that a jury could convict,

"even if there would . . . be no case . . . to answer in relation to that offence".

Lord Donaldson of Lymington: My Lords—

Lord Campbell of Alloway: My Lords—

Lord Donaldson of Lymington: I give way, my Lords.

Lord Campbell of Alloway: My Lords, now I have to be rather more careful in what I say, in view of our past exchanges. Perhaps all that I can say is that I put my name to the amendment having fired the first warning shot over the bows of the clause in Grand Committee. I have since been described by the noble Lord, Lord McNally, who is not in his place, as a barnacled old legal man-of-war. I shall make steam for dry dock in a moment or two.

The defensive smokescreen was wholly penetrated in Grand Committee, as explained by the noble Lord, Lord Thomas of Gresford, whom I congratulate on his speech, and by my noble friend Lord Carlisle. When the amendment was tabled, the hope was always that the final engagement would be under the joint command of both parties in opposition, with perhaps some support from the Cross Benches and a little from the Labour Back Benches. Today the salvos of the joint command have crippled the clause. Yet another shot from this locker would be not only otiose, but extremely tiresome.

Lord Donaldson of Lymington: My Lords, I am happy to say that, in relation to the amendment, I have rejoined the fold of the lawyers—I did so in earlier stages of the Bill. I am even happier to say, in the light of the remarks made

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by the noble Lord, Lord Campbell, although I am not sure that he is right, but if this is the first occasion upon which he and I have ever agreed, that makes it a particularly important occasion. It possibly means that we are both right—although I am not so sure about that.

However, I shall turn to the merits of the amendment. Ever since I was called to the Bar, and for many years before that, it was the way in which the burden was kept on the prosecution that it had to prove a case to answer; it had to produce enough evidence so that the jury could properly convict simply on the evidence, if they were convinced by it. It is for that reason that it has always been possible at the end of the prosecution case to say to the judge, "Well, there isn't enough evidence" and the jury could not convict at that stage. That is an essential safeguard and I believe that—although it may not be wholly covered by the wording—it is wholly covered by Article 6, paragraph 2 of the European Convention, which says:

"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law".

Of course, the let-out for the Minister would be to say, "We are altering the law". But, I do not believe that that was what was contemplated by the convention. So up to this moment, the clause would be contrary to law. A good deal of play was made earlier by the references that one sees in the clause to an ability to draw inferences, which is approved of and permitted by the Criminal Justice and Public Order Act of 1994. There is a new and sensible offence that addresses the real need of a "don't know" case, so that when the prosecution proves that the defendant or defendants failed to take such steps as were reasonably foreseeable in relation to the facts of the case, and that the act was caused by that failure, and that the accused ought to have foreseen the need for them, if the accused does not choose to say "Well, I did not foresee it and I could not have been expected to foresee it", or, "I did, in fact, try to take those actions but it did not work"—if the accused does none of those things, then of course there is a reasonable inference. It would not require the 1994 Act to produce that result. Any jury could then draw that inference.

However, we are now being asked, as noble Lords have described, to allow inferences to be drawn when, contrary to the system of justice as we have known it for a very long time, there is no evidence on which a jury could convict at the end of the prosecution case. It seems that this is trying, in an oblique way, to reverse the rule which gave rise to all the problems in the "don't know" cases, because it was in those cases that the counsel, on behalf of the accused, were standing up at the end of the prosecution case to say "There is no evidence as to which of these people committed the offence. You may well say that one or other must have done, but unless you can show who, you can't convict". No one has ever suggested that there is anything wrong with that. What they have said is that, "We cannot allow that situation to continue; we have to tackle it from a different angle". That is what Clause 5 does, and does very efficiently.

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However, Clause 6—and Clause 7, in due course—is intended to reverse the problem, to get rid of the problem which existed, and which Clause 5 is meant to tackle; not by getting rid of the problem, but by riding around it in a perfectly straightforward way that is in accordance with all of the traditions of justice that have been known in this country for a very long time. Clause 6 is extraordinary. I think I can understand its genesis—someone thought that they were on to a good thing and could make the situation even better—but protests have been made on all sides of the House, not entirely from lawyers, although it is natural to hear more from lawyers as they have been brought up in that tradition of fairness, in accordance with the law. It is not an abstract concept, but has been honed by many years of experience. Faced with the protests, I am surprised that the Minister has resisted.

I shall make one more comment. In the course of the Bill, on many occasions there have been very well earned tributes paid to the noble Baroness for her expertise as a lawyer, her expertise in presenting cases and her willingness to enter into discussions with people. All of that is admirable, but the bottom line is the same line as has to be looked at in court. Counsel arrive in court and it is their job to make a case, even if they do not believe in it. I would never ask counsel in court whether he believed in his case and I do not ask the Minister whether she believes in her case here, but it would be a great mistake if it was admiration for the noble Baroness that led us to think that she was doing other than acting as an advocate in supporting the clause.

12.45 p.m.

Baroness Scotland of Asthal: My Lords, with silver-tongued flattery the noble and learned Lord wished, perhaps, to distract me, but he must know from the past that that would be difficult, even with his lures.

I know that the noble Lord, Lord Campbell of Alloway, says that I have the full battalions ranged against me on this clause. May I remind him that it is a long-held British tradition that when right is on our side and the balance appears to be against us, we still persevere? I am afraid that I have to tell the House that I intend to persevere on this occasion, but to reassure noble Lords that I am in agreement with those who say, as has the noble Lord, Lord Thomas of Gresford, that the juryman's oath should not be suborned and I would like to reassure noble Lords that in this clause we are not thinking to suborn that oath; neither are we trying to convict, or cause to be convicted, people on evidence which is a hunch or a guess. Neither are we asking anyone to guess, nor are we seeking to suggest, that some improper construction should be put on silence, which may derive from love, fear, loyalty or family solidarity—as has been suggested.

I take full responsibility if I have not been sufficiently clear, both in Committee and at Report, but I had hoped that the way in which we believe this clause hangs together with Clause 5 had been understood. The noble Lord, Lord Carlisle of Bucklow, addressed the issue of the postponement, because that is, in effect, what this clause and Clause 7

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seek to do—the postponement of an argument of "no case to answer" from the close of the prosecution case to the end of the evidence. That is what this clause does. However, in the light of the debate that we have had, it is only right that I should explain, perhaps a little more clearly this time, why the combination of the agreement of the noble and learned Lord, Lord Donaldson, and the noble Lord, Lord Campbell of Alloway, on this one occasion proves that, with regret, they are both wrong.

We need to remind ourselves of the way in which the Law Commission was very clear in the way in which it summed up the problem. Your Lordships will remember that, in the form of two questions, it said at Command No. 282:

"(1) Must it be the case that a fair legal system is helpless to convict a parent who has murdered his or her own infant child, where it is clear that one, or other, or both parents has killed, or is complicit in the killing of the child, merely by the device of each parent refusing to respond to questions about the child's death?

"(2) More particularly, must it be the case that recommendations for reforming the rules of procedure and evidence which seek effectively to resolve, or respond to, this conundrum are doomed to failure either because they will be ineffectual in that they do not address the problem of the silent defendant, or will inevitably and unduly impact on the fundamental requirement of a fair trial by bringing the consequences of such silence to bear upon the question of guilt?"

Those two questions were correctly framed.

I should like to reassure the noble Baroness, Lady Anelay, that we do not believe that Clauses 6 and 7 go beyond that which is acceptable or risk our vital position on justice. We believe that it is absolutely incumbent on us to close the legal loophole that exists in these "Which of you did it?" cases. Where a child has been killed by a private individual, constituting a breach of his or her rights under Articles 2 and 3 of the European Convention on Human Rights, the Law Commission suggests that the Government have a duty to ensure that such deaths can be properly investigated and the perpetrators identified and punished appropriately.

That was echoed by the Joint Committee on Human Rights. We take seriously its view that the rights under Article 2 of the victim and his or her close relations may be violated if it is "systematically impossible to carry out an inquiry into the death which will establish the cause of death and allow the guilty party to be punished". I was interested that both on Report and at Third Reading none of those who spoke to these amendments dealt with the proper analysis of the provisions undertaken by the Joint Committee on Human Rights.

I accept that the new offence will provide for at least something to be done in future, whereas those who have caused these terrible deaths have until now been able to walk away scot-free. But we need to face the fact that a conviction only for the new offence is a second-best result. It does not provide for an effective means of securing a conviction that represents the gravamen of the crime that has been committed. The sentence that can be imposed for the new offence, severe though it is, is significantly lower than that

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which Parliament has decided should apply in cases of murder or could apply in cases of manslaughter. Someone who has committed murder or manslaughter should be convicted as such and should be made liable to face the penalties that go with it, provided that the process we adopt is fair.

In order to do that, we need the new offence but also the procedural measures that we are proposing. The new offence will ensure that a case will come before the courts and be put to the jury. However, without the procedural measures, which would allow evidence to emerge during the course of the trial, even if the evidence that would support a higher charge emerged and the jury was able to determine beyond any reasonable doubt who killed that child or vulnerable adult, the higher charge may no longer be available. As a matter of justice to the dead victim and to his or her family, we need to be able to try the suspected killer for murder or manslaughter and sentence him or her appropriately. If we do not have Clause 6, we shall not be able to do that and we shall be left with a lesser charge and a lesser sentence. The Government do not feel that that is acceptable or justifiable by any standards.

The rules and procedures of our courts exist to protect the innocent from wrongful conviction; and may that always be the case. However, they also exist to reveal the truth and to convict the guilty. At present, in the cases about which we are talking, the rules and procedures work wholly in favour of the defendants. But they are not defendants entirely without responsibility. None of them is an innocent bystander who simply became erroneously caught up in the police investigation. Those on trial on charges under the new offence that we are debating today are a closed group of suspects, all of whom, the prosecution will show, were in some way responsible for the child's or vulnerable adult's death, and at least one among their number must actually have caused that death.

We must not ride roughshod over our legal traditions in attempting to get at the truth and secure convictions. For all of us, that is unpalatable and something that we would not tolerate. However, the tradition of our common law prides itself on its flexibility in satisfying the requirements of justice.

In failing to provide an effective mechanism for bringing to justice those who have killed in these circumstances, our current law does a grave disservice to the victims and families in such cases—families such as that of John Anthony Smith, whose aunt graciously wrote to me this week with her support for what we are trying to do today. What happened in that family was truly terrible, and I want to pay tribute to the courage shown by Linda Terry in her campaign for justice in such cases. The experience of that family is by no means unique, and that is a great tragedy indeed. We are talking about people who are responsible for sometimes committing grave offences against children, often their own, or against other vulnerable members of the household. We find it totally unacceptable that, through the simple expedient of determinedly remaining silent, it

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should be possible to render the system powerless where, for obvious reasons, the victim is unavailable to give evidence, even when it is known that one or more of a very limited number of suspects must have committed the offence.

Our proposals do not offend the common law, and I reject the contention that they do. Furthermore, we believe that they are fully compatible with the right to a fair trial under Article 6 of the ECHR. In its 4th report this Session (House of Lords Paper 34), the Joint Committee on Human Rights has supported that view. Noble Lords have on many occasions praised the Joint Committee for its vigour, its attachment to fairness, its rigour in considering each and every clause fearlessly, and its ability to tell the Government exactly what it thinks about the provisions that we have tabled; and that Committee has given this proposal a clean bill of health.

1 p.m.

Lord Campbell of Alloway: My Lords, I declare an interest as a member of that committee. Its remit is to examine only whether a provision is contrary to the convention. We are not concerned whether it is contrary to the convention; we are concerned with whether it is contrary to our concept of criminal law. The two are totally different concepts, unless there is a collision and a conflict.

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