Grand Committee Report of 28 January 2004

Official Report of the Grand Committee on the

  Domestic Violence, Crime and Victims Bill [H.L.]
  Wednesday, 28 January 2004.
  (Third Day)
  The Committee met at half past four of the clock.
  [The Deputy Chairman of Committees (Baroness Fookes) in the Chair.]
  Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 31 A:
  Before Clause 5, insert the following new clause—
  "MANDATORY CAUTION
  (1)At the outset of any police interrogation of any person reasonably thought to have knowledge of the circumstances in which an offence under section 4 may have been committed, such person shall be cautioned that failure or refusal to answer any question put relating to such circumstances shall be treated as evidence on which an inference of guilt may be drawn if charged with such offence, subject to such as directions may be given by the trial judge.
  (2)No such inference shall be drawn unless such caution has been recorded as and when given."
  The noble Lord said: This is essentially a probing amendment to engender critical examination. It is related exclusively to interrogation concerning the commission of a Clause 4 offence for which the sentence is 14 years. The provisions of the amendment would not apply if other charges such as murder or manslaughter were to be laid in the same indictment and proceeded with at the same trial.
  In a sense, the amendment is an alternative build-up to subsections (1) to (3) of Clause 5 not standing part of the Bill, which will be moved in due course in Amendments Nos. 32 and 37. However, in another sense, it is free-standing. It is an amendment to the pre-trial procedure of general application on the form of caution, but in exceptional circumstances, amended as proposed.
  If the amendment were to commend itself, there would be absolutely no need to tinker with the mode of trial, as proposed in Clause 5, for example, or at all. There would be no need to engage Article 6 of the convention in the context of an unfair trial. It is not proposed to pre-empt the debate on Amendments Nos. 32 to 37 in the light of paragraph 2.8 of the report of the Joint Committee on Human Rights. That will be moved by other noble Lords.
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  This amendment provides for a mandatory form of caution to be given,
  "at the outset of any police interrogation of any person reasonably thought"—
  I have put "thought" rather than "suspected"—
  "to have knowledge of the circumstances in which an offence under Clause 4 may have been committed. Failure or refusal to answer any question relating to such circumstances shall be treated as evidence on which an inference of guilt may be drawn if charged with such offence, subject to such directions as may be given by the trial judge".
  There are many circumstances in which the trial judge may wish to use his discretion, but I shall not elaborate them in this short introduction.
  If the circumstances of death are inconsistent with apparent natural causation, and if they have arisen in the Clause 4 circumstances within that remit, such circumstances are known only to those who lived with, cared for or visited the deceased. It is not acceptable, I would suggest, in the interests of due and fair administration of justice, that the entitlement of silence of general application should apply to such persons. On a police interrogation there should be the exceptional caution, the exceptional provisions proposed by the amendment or a similar amendment of like effect. The presumption of innocence would be qualified only by an inference of guilt expressly drawn on the accused, of which he would be made aware. There is no fundamental unfairness in the proposal.
  In effect, the amendment would deprive the accused of any realistic option to elect not to give evidence at the trial. No lawyer worth his salt would advise his client in those circumstances not to answer questions during a police interrogation. The concern is not with advice tendered by lawyers to their clients under extant procedures. I heard some reference to "bent lawyers" in that context, but I could not find it in the Official Report.
  We are not concerned with that. We are concerned with whether extant procedures in such circumstances inhibit a fair trial. The right of silence should therefore be curtailed by statute. In the hope that this DIY draft of the amendment may commend itself in principle— and inevitably improved after critical examination by the Committee—I beg to move.
  Lord Thomas of Gresford: While we do not support the precise wording of the amendment, we would be grateful for some acknowledgement from the Minister that the codes of practice under the Police and Criminal Evidence Act would undoubtedly have to be amended to provide the appropriate safeguards for a person who was being questioned about the offence that is now set out in Clause 4. It is necessary for a particular type of caution to be given because, in many instances, a person who is in the position of responsibility for the victim will not know the true explanation for death and will have no means of knowing the facts that require to be explained. At the very least, some amendment to the codes of practice will need to be made.

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  There is great merit behind the concepts advanced by the noble Lord, Lord Campbell of Alloway, although a little more thought needs to be taken as to how it is to be expressed.
  Lord Carlisle of Bucklow: I support my noble friend Lord Campbell. Like the noble Lord, Lord Thomas, I believe his intentions are admirable. But, because of the way in which the amendment is worded, I am not quite sure what it will achieve and in what way it will change the law.
  As I understand it, my noble friend's intention is that in a case where Clause 5 is brought into effect— where the failure to answer questions may be taken, for example, at the end of the trial rather than half way through, and where it may stand on its own, without any evidence, as the basis of a conviction—the person to be charged should have a special warning given to him before his interview by the police.
  I ask what the amendment adds, because anybody cautioned by the police for any offence must, before being interviewed, be given a warning that if he refuses to answer any question, that failure to do so may be taken into account at a later stage—am I not right in saying that? Although I agree entirely with my noble friend's intention, does not the amendment as drafted merely restate current law, rather than achieve its end?
  Baroness Anelay of St Johns: I am very grateful to my noble friend Lord Campbell of Alloway for tabling the amendment. He has brought to the Committee's attention the important issue that the PACE code will have to be amended to ensure that somebody charged as a result of investigations into the Clause 4 offence will be in a special position. It would be important that they be made very aware of the change under Clause 5—for example, of the fact that by inference alone from their silence, they could end up being convicted of manslaughter or murder, in certain circumstances? Such people would be in a very vulnerable position as a result of the changes achieved in Clauses 4 and 5.
  When I saw my noble friend's amendment, I thought that, very cleverly, not only had he drawn the points to our attention, but he had reflected some of the views in the Law Commission's second report. In Clause 5 of its draft Bill it, too, had looked at what should happen when the police initiate investigations in such circumstances. The commission was hidebound by the fact that it had taken the line that there should be statutory responsibility at the first stage. I tabled an amendment on the issue which did not find favour with the Grand Committee during the previous sitting. I note that the Minister, although she acknowledged that there was some room for improvement in the Government's stance on the matter, did not acknowledge that there was room for developing their position.
  Although the Law Commission was more narrowly concerned with police investigations after the statutory responsibility, it too was as concerned as my noble friend with the importance of the police caution.
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  It pointed out the consequences of silence in this case. As my noble friend has rightly pointed out, this pre-trial procedure has general application as well.
  The amendment is an important contribution to the debate. I look forward to the Minister's response.
  4.45 p.m.
  The Minister of State, Home Office (Baroness Scotland of Asthal): I too am grateful to the noble Lord for tabling the amendment. I understand that he tabled it as an alternative to the scheme we have proposed, because, along with other noble Lords, he understands the need to address the very difficult issue of how to deal with cases where two or more people are responsible for a death but it is difficult to define.
  I do not think that we can accept the need for the amendment, but I hope that the noble Lord will understand that I welcome the opportunity to explore whether it could be a way forward. The noble Lord's amendment would place a statutory obligation on the police to give a special caution to a suspect when investigating the new offence proposed in Clause 4.
  As many noble Lords are aware, it is already possible to draw an adverse inference from a defendant's silence when interviewed under caution by the police. But it is worth considering the matter in more detail. As noble Lords know, under Section 34 of the Criminal Justice and Public Order 1994, where a defendant gives evidence and relies on some fact that he or she failed to mention on being questioned by the police and could reasonably have been expected to mention, the court or jury, in deciding whether the defendant is guilty, may draw such inferences from the failure as appear proper. The court may also take into account that silence when determining whether there is a case to answer. Section 35 of the same Act provides that, if a defendant chooses not to give evidence to the trial, the court or jury may once again draw an adverse inference if it is proper to do so. Of course, I emphasise "proper".
  We will be able to debate the implications of Section 35 for those cases in the context of the next group of amendments, and I anticipate that we shall do that at some length, so I shall not trespass too much on that debate now. However, the amendment helpfully poses the question of whether anything else is needed to ensure that inferences can fairly be drawn when a suspect gives a "no comment" interview to the police in such difficult cases. As I mentioned, the jury may already draw an adverse inference from a "no comment" interview under Section 34(2) of the 1994 Act.
  When the noble Lords, Lord Carlisle of Bucklow and Lord Thomas of Gresford, ask whether anything is added, we think that something may be, but not quite in the way that they would find helpful. In practice, Section 34(2) means that the suspect will have been interviewed under the PACE codes of practice

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  and given a formal caution about the implications of remaining silent. In other words, they were cautioned by the interviewing officer in the following terms:
  "You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence".
  The fact that a caution is given is also recorded.
  I am not aware of any concerns that the police are failing to give an adequate caution in those or any other cases that may justify the noble Lord's no doubt well intentioned proposal. A new mandatory caution would, if anything, add to the problems that can arise in investigating such difficult cases. For example, the mandatory requirement for a warning is linked to the circumstances of the new offence proposed under Clause 4, but it will not necessarily be clear at the very early stages of an investigation that the case will involve a prosecution for that offence. That places the police in a somewhat difficult dilemma about whether to give the new mandatory caution or the old one set out in Code C of the PACE codes of practice.
  I am concerned that adverse inferences from silence should be drawn only in circumstances where it is just to do so. The amendment would go significantly further than the current position in Section 34 of PACE, in allowing an adverse inference to be drawn from silence in police interview, whether or not the silence relates to something later relied on in court. Because the proposed new inference is free-standing, it would not invoke the safeguards under Section 38 of the 1994 Act. In particular, the limitations of the jury cannot convict on adverse inference alone, a point made in passing by the noble Baroness, Lady Anelay, when she said that there would be a risk of someone being convicted as a result of an inference alone. We are absolutely clear that that would not be appropriate, and that the current rules to prevent that happening should be maintained.
  Baroness Anelay of St Johns: The noble Baroness was right to say that we do not want to encroach on the debates on Clause 5. Naturally, I have read Clause 5 in the light of the statement in brackets relating to cases even where there is no other evidence. That means that I have been making the assumption that it is possible for a person to be found guilty if a jury draws inferences from silence alone but there is no other evidence of that person's direct culpability. I shall certainly bear in mind what she said when we come to Clause 5.
  Lord Thomas of Gresford: Perhaps I may follow that intervention. In stating the current caution, the noble Baroness has highlighted the problem. If Clause 5 is to remain, it does envisage that silence can turn what is not a case against a defendant into a case. Surely the caution that should then be applied to a suspect for an offence under Clause 4 should contain a form of words to the effect not of, "If you fail to mention a fact now on which you are relying for your defence, you may harm that defence", but rather of, "If you fail to mention a fact now, it may be evidence of your guilt". Clause 5 goes much further than the present position.
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  I know that the noble Lord, Lord Campbell, has proposed this new clause as an alternative to Clause 5, but if Clause 5 is to remain—I presume that the Government want it to do so—then something must be done about the form of caution. I have suggested amendments to the code of practice and I would be grateful if the noble Baroness could address them.
  Lord Campbell of Alloway: Could I just—
  Baroness Scotland of Asthal: I should answer the two sets of questions which have been put to me and respond to them now. I have quite a retentive memory, but I would be sad if I did not respond to those questions. I shall give way to the noble Lord, Lord Campbell, as soon as I have given my answers.
  While I do not want to encroach on the debate, when we come to consider Clause 5, I shall seek to explain how the PACE codes will interact with the new clause in a way that makes it compatible. So at this stage we are dealing with two different scenarios. The first relates to the caution which properly should be given at interview. Our proposals do not alter the procedure in police interviews. The adverse inference may be drawn from silence at trial, not under questioning by the police. Thus no change in the PACE code is likely to be necessary. The adverse inference will bite at a different point.
  Lord Campbell of Alloway: Would the noble Baroness be kind enough to give way?
  Baroness Scotland of Asthal: Perhaps I may say one more sentence before I do so. We believe that the current limitation stipulating that a jury cannot convict on adverse inference alone, which is an important factor in ensuring compliance with Article 6 of the European Convention on Human Rights, should be maintained.
  I am happy to give way to the noble Lord.
  Lord Campbell of Alloway: I think that we are getting into a muddle, largely because I have kept right off Clause 5. I do not propose to discuss it on this amendment—I have said so already. The noble Lord, Lord Thomas of Gresford, had it in one when he rose to say that if Clause 5 stands, then subsections (1) to (3) should stand part, while the basis on which this amendment has been put forward is that they would not. I have added my name in support of both of those amendments.
  If we try to discuss Clause 5 at this point, we shall get into a hopeless muddle.
  Baroness Scotland of Asthal: In responding to the noble Lord, Lord Campbell, I say that we do not believe that changing the caution in the way suggested by the noble Lord would obviate the need for Clause 5 because the caution that would be given at this stage would not materially improve the situation we face now when dealing with such cases. I suggest that the same problems would flow. That is why, as attracted as we may be to the simplicity of the proposal set out

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  by the noble Lord, Lord Campbell, we are not persuaded that it would have the effect of curing the mischief which still remains.
  I understand too that the suggestion may have sprung from the draft Bill produced by the Law Commission, a point made plain by the noble Baroness, Lady Anelay, in her remarks. The commission considered this point as a part of its review of this area of the law, but noble Lords will recollect that it recommended that those with responsibility for a child at the time that they are the victim of certain specified offences should be under a statutory responsibility to assist the police with their investigations.
  The Committee recognised that this proposal would have implications for the drawing of adverse influences under Section 34 of the 1994 Act. We dismissed in short order the suggestion that the Law Commission made in that regard on the last occasion that we met in Committee. Although we understood the reasoning for the commission's suggestion, we do not feel that this amendment will do what the noble Lord hopes it will.
  Lord Renton: Before my noble friend Lord Campbell of Alloway replies, there is one further point that should be borne in mind on this. That is that although silence may eventually be held as an indication on the part of the accused that he is guilty, nevertheless he has always had that right. Sometimes it works in his favour, but generally it does not. If this amendment were to be accepted, and if I read it as I think that it has to be read, we find,
  "that failure or refusal to answer any question …shall be treated as evidence on which an inference of guilt may be drawn".
  To have an inference of guilt at that early stage of an inquiry breaks new ground. We have to be careful about that.
  Lord Campbell of Alloway: I am very grateful for the criticisms that have been made, all of which have been most helpful. The last was particularly so, because the inference can be drawn only at the trial and I did not say so. The drafting is bad. I am grateful to the noble Lord, Lord Thomas of Gresford, for seeing the merits and saying that it has to be more thought out. I could not agree more. I am grateful for all the contributions that have been made, including those of the noble Baroness, Lady Scotland. I take the points that she has made and I have made a note of them.
  To save time I shall not detain noble Lords at the moment, but the amendment will come back in a revised form, largely because, as the noble Lord, Lord Thomas of Gresford, and my noble friend said, there is a need for a special form of caution. I cannot assume that Clauses 5(1) to 5(3) will stand part; I am opposing them. We shall divide on them and may win. Then this amendment will hold the fort in a sensible way and will ensure that we do not tinker with the process of trial. One cannot tell how things will work out until there are Divisions on Clause 5. In the mean time I shall do my best, with your Lordships' help, to seek to improve the drafting. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 5 [Evidence and procedure]:
  The Deputy Chairman of Committees (Lord Lyell): I advise the Committee that if Amendment No. 32 is agreed to, I shall not be able to call Amendments Nos. 33 to 36.
  Lord Carlisle of Bucklow: I should like to raise the question of whether the Government consider the clause contrary to the European Convention on Human Rights. Is it all right for us to raise that matter during the debates that we are about to have, or must I do it as a separate issue?
  The Deputy Chairman of Committees: I understand that it can be taken during the course of the debate, but it is not a matter for the Chairman.
  Lord Carlisle of Bucklow: I do not want to be ruled out of order when I raise it.
  Lord Campbell of Alloway: My name is attached to Amendment No. 32. I wholly accept that it is proper that it should be raised in the debate by the noble Lord, Lord Thomas of Gresford.
  5 p.m.
  Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 32:
  Page 3, line 33, leave out subsection (1).
  The noble Lord said: Interestingly enough, I was about to introduce the debate on Clause 5(1), which I seek to exclude, by reference to the certificate on the face of the Bill where the noble Baroness, Lady Scotland, makes the statement:
  "In my view the provisions of the Domestic Violence, Crime and Victims Bill are compatible with the Convention rights".
  It is very much up to her in due course to tell us how that can possibly be.
  The noble Baroness referred to Section 35 of the Criminal Justice and Public Order Act 1994. That provides that, at the conclusion of the evidence for the prosecution, Section 35(2) requires the court to satisfy itself that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can if he wishes give evidence; and that if he chooses not to give evidence or, having been sworn, without good cause refuses to answer any questions, it will be permissible for the jury to draw such inferences as appear proper from his failure to give his evidence or his refusal without good cause to answer any questions.
  We are dealing not with an ordinary offence to which we are accustomed; we are dealing with the strange offence established by Clause 4. In cases where a child is non-accidentally injured or dies, Clause 4 proposes very severe penalties of up to 14 years. It is grossly unfair to ask a defendant to provide an account in these circumstances on the basis that the case cannot be proved without an account or the adverse inference that is to be derived from failure to provide an explanation.
  In an opinion given for Justice, Anthony Jennings QC refers to the case of Slater v. Her Majesty's Advocate—a Scottish case in 1928—where the learned judge said:
  "The presumption of innocence applies to every person charged with a criminal offence in precisely the same way … [it] is fundamental to the whole system of criminal prosecution, and it is a radical error to suggest that the appellant did not have the benefit of it to the same effect as any other accused person".
  In Clause 5(1) the presumption of innocence is being removed. An account is required on the basis that if no account is given guilt can be proved by that failure.
  In the previous debate the noble Baroness said that Clause 5 applies only to proceedings at court. I had understood that the refusal to answer a question in Clause 5(1)(b) could also refer to the refusal to answer a question when interrogated by the police. If that is not the intention, then the Government will have to bring forward an amendment to demonstrate their interpretation that a failure to answer a question refers to the proceedings in court.
  In the case of Murray v. United Kingdom the European Court of Human Rights stated that an important protection in relation to a fair trial was that an adverse inference from a failure to give evidence could be drawn only if the prosecution case called for an explanation. So an inference can help a jury to reach its conclusion only if a case exists apart from the refusal to give evidence or refusal to answer a question. That is the current situation.
  The Judicial Studies Board's general direction advises the judge to tell the jury:
  "The defendant has not given evidence … That is his right. He is entitled to remain silent and to require the prosecution to make you sure of his guilt. You must not assume that he is guilty because he has not given evidence. But two matters arise from his silence.
  "In the first place, you try this case according to the evidence, and you will appreciate that the defendant has not given evidence at this trial to undermine, contradict or explain the evidence put before you by the prosecution.
  "In the second place, his silence at this trial may count against him. This is because you may draw the conclusion … that he has not given evidence because he has no answer to the prosecution's case, or none that would bear examination. If you do draw that conclusion, you must not convict him wholly or mainly on the strength of it … but you may treat it as some additional support for the prosecution's case.
  "However, you may draw such a conclusion against him only if you think it is a fair and proper conclusion, and you are satisfied about two things"—
  and here is the important point—
  "first, that the prosecution's case is so strong that it clearly calls for an answer by him … and second, that the only sensible explanation for his silence is that he has no answer, or none that would bear examination".
  So it is a prerequisite of any inference drawn from silence that a case exists. That is what Clause 5(1) is withdrawing. It says in terms that the court may draw an inference in determining not simply whether a person is guilty of the offence under Clause 4, but also in relation to a charge of murder or manslaughter, even if there would otherwise be no case for him to answer on that charge.
  I have referred to the European Court, which is generally regarded as authoritative in deciding how to interpret the convention. In R v Cowan, Lord Chief Justice Taylor said that the prosecution have to establish a prima facie case before any question of the defendant testifying is raised. Similarly, his successor, then the Lord Chief Justice Bingham, in the case of Birchill, said that there had to be a case,
  "sufficiently compelling to call for an answer",
  before an adverse inference can be drawn.
  This provision in the Bill drives a coach and horses not only through the basic, fundamental protection that it is for the prosecution to prove guilt—it has the burden of proof—but through the second protection, the right to silence. The judge must leave the case to a jury where there is no sufficient evidence under these provisions, in the hope that the defendant's silence will be sufficient to convict. It forces the defendant to give an account. That is why it denies the right to silence.
  We on this side of the Committee would oppose this clause even if it were confined to the offence created by Clause 4. In fact, however, it extends to offences of murder and manslaughter. We really do not understand why that should be so—why, simply by charging a new offence under Clause 4, all of a sudden, all the protections surrounding a person charged with the most serious offences of murder and manslaughter are thereby to be removed and a person should be convicted when there is no case against him.
  The noble Baroness referred on a number of occasions to the Law Commission's report, but the Law Commission did not suggest that. It did suggest that there should be a responsibility for a person to give an account. In part 4 of its paper it put it in these terms:
  "In our view, in furtherance of the discharge of the state's obligations towards children and of the United Nations Convention on the Rights of the Child and the European Convention on Human Rights, our domestic law should expressly recognise that the state is entitled to call on persons who have responsibility for a child during a time when the child suffers non-accidental death or serious injury to provide such an account as they can and assist those properly responsible for investigating what happened to the child. This giving of the account should be recognised as an incident of their responsibility for the welfare of the child".
  That is one thing, but suggesting that the failure to give an explanation, first to the police, or subsequently in court, should in itself provide the essential element which turns a case that does not exist into one upon which a jury can be satisfied of guilt has to be in breach of the European convention. That is why I look forward to hearing the noble Baroness's explanation in due course. I beg to move.
  Baroness Anelay of St Johns: I support the amendment. With the leave of the Committee, I shall speak also to my Amendments Nos. 33 to 37. I thought that it would help on this occasion for the amendments to be grouped together, so that we could have a full introduction to the debate. That will then give my noble friends an opportunity to draw attention to the issues raised by the Select Committee on Human Rights before we go further into the amendments.

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  Amendment No. 35 has the same objective as that of the noble Lord, Lord Thomas of Gresford, in Amendment No. 32, so I shall be very brief on it before I go on to the others. I made it clear at Second Reading that I expect the Government to give a justification in Committee for their provisions in Clause 5, which appear to be in breach of the ECHR. I also made it clear that I started from the position of hoping that the Government had got it right, because we are all keen to resolve the problem that exists. However, the more I have read and heard since Second Reading, the more sceptical I have become that there can indeed be a justification for subsection (1).
  As the Law Commission points out in its paragraph 5.11, the fact that new rules of procedure have been proposed in order to remove a present obstacle to the proper conviction of the guilty must be a legitimate matter for the legislature to consider if the procedure adopted can result in a fair trial. It is the whole issue of whether there would be a fair trial that is properly our province to debate.
  As the noble Lord, Lord Thomas of Gresford, said, a significant step is being taken. My worry is that it could be a precedent used to extend the consequences of drawing inferences from silence to other matters. The question really is about how can one be sure beyond doubt of someone's guilt where there is no evidence, but merely silence. Like the noble Lord, I had assumed from the drafting of Clause 5 that we were talking about silence not only in court, but from the beginning when there are interviews with the police.
  Justice provided noble Lords with a copy of the opinion of Anthony Jennings QC. I was certainly persuaded by him when he said, on behalf of Justice:
  "The provision undoubtedly waters down the burden of proof and fails to confine an adverse inference within proper limits … While the Bill has not adopted the approach suggested by the Law Commission which requires a defendant to provide an account to the police and the court as to what happened to the victim, it would appear that the same result is achieved by the proposed sections in the Bill. The defendant is not compelled into an explanation, but the pressure resulting from the consequences that could flow from not providing an explanation come perilously close to a statutory duty to provide an account. With this we disagree".
  I am grateful as ever to Justice for its briefing. I look forward to the Minister's justification, but I give notice that I need a lot of persuading on the matter.
  I shall move on to my other amendments, which I hope will round out the debate on Clause 5. The purpose of Amendments Nos. 33,34 and 36 is to probe the problem of the defendant who comes within the provisions of Clause 4 but did not actually commit the fatal act. However, the defendant is in this case in terror of the person who committed the act. I am thinking of a domestic violence situation, where one person is abused by another and their child or a vulnerable adult in their household is killed.
  Amendment No. 33 is a paving amendment for Amendment No. 36. This disapplies subsection (1) from a defendant whose physical or mental condition
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  is such that it would not be in the interests of justice for that person to be put in a position where inferences could be drawn from his silence, such that he could be convicted where there was no other evidence except his silence. Amendment No. 34 provides another route to protect a defendant who is in fear or who has been abused, since it confines the right to draw inferences from the defendant's failure to answer questions to those circumstances where his failure to answer is without good cause. I fully recognise that the drafting is faulty; it is my own. The intention is that a jury would have to consider whether there was evidence that a defendant had good cause to remain silent.
  Finally, the substantial amendment—Amendment No. 37—was put forward by Liberty, which I thank for the briefing. Of course, Liberty objects to the whole of Clause 5 standing part, and in particular to subsection (1). It says that even if one got rid of subsection (1) there is no way in which subsection (2) and subsection (3), which is parasitic on subsection (2), could be made to function satisfactorily by means of amendment. Liberty points out that subsection (2) attempts to sidestep the problems created by subsection (1) where, on a proper analysis, there is no real case to answer by postponing any consideration of whether there is a case to answer until the end of the defence case.
  Liberty says that the precise effect of subsection (2) differs depending on whether the defendant chooses to give evidence or not. However, whether he chooses to do so or not, in practice subsection (2) will remove the ability of a defendant to obtain an acquittal at the conclusion of a weak prosecution case, and will jeopardise his case. If the defendant gives evidence, a submission of "no case to answer" would be likely to fail. The defendant's evidence becomes evidence in the case. As a result, any submission can be met with the irresistible argument that the state of evidence has changed since the close of the prosecution case. If they wish, the jury is now able to treat such evidence as additional support for the prosecution. Presumably the question for the judge at this stage would be whether a reasonable jury could treat the defendant's evidence as supporting a prosecution. If so, Liberty believes that there are few cases that would not pass that test. It follows that defendants who give evidence will generally become unable to make a submission of no evidence on the facts.
  I believe that Liberty makes an important point regarding the fundamental flaws in subsections (2) and (3). It also says that the defendant choosing not to give evidence will also create a problem because, in deciding whether to withdraw the case from the jury at the end of the defence case, the judge must have express regard not only to the evidence but to such inferences as it would be proper to draw from the defendant's failure to give evidence or refusal to answer a question.
  Accordingly, by the time a defendant who has not given evidence is allowed to make a submission, he will find that the case against him must now include the additional component of a possible inference of guilt. It seems that the judge will be obliged to proceed on the

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  basis that an inference of guilt may be drawn from the defendant's silence. It would therefore appear that those who did not give evidence would in practice also be unable to make submissions. Liberty adds that in order to be fully effective, this proposal presumably also requires the abolition of the right to apply for charges to be dismissed following transfer to the Crown Court on the basis that there is no case to answer. It seems that a case can proceed from automatic transfer to conviction without any necessity for a case to answer at any point in the process.
  I appreciate that I have gone on at some length on Amendment No. 37. It was originally intended to be a standalone debate but, after representations from my noble friends with their greater wisdom, I conceded that it would be better to put it as part of the whole debate on Clause 5.
  5.15 p.m.
  Lord Borrie: Perhaps I can say a few words about the purposes of Clause 5 and the mischief with which it seeks to deal. Under the present law the prosecution and the public interest suffer because in so many cases of domestic violence there is no one present at the moment the deed is done, except the victim and the perpetrator of the deed. There may be other people, but I do not want to complicate my point by talking about the difficulties when the perpetrator of the deed may have a husband, boyfriend, spouse or whatever also present, who may be very reluctant to give any evidence against the perpetrator.
  Let us suppose that there simply is the perpetrator of the deed and a young child or a baby. Let us suppose that there is no evidence as to what happened from any third party; everything occurred in private. The victim is not there to give evidence and, in any case, would have been too young. We have only the alleged perpetrator of the deed and he—it might be a she, but let us say he—declines to speak to the police when interrogated or declines to say very much.
  The noble Lord, Lord Thomas of Gresford, referred to "responsibility" in the statements of the Law Commission as, in the facts that I am describing, a desirable responsibility that should be on the alleged perpetrator. That responsibility should be there, and it should be a legal one at that. And, on the facts that I am supposing, a failure to respond to that responsibility surely justifies, in the public interest, inferences to be drawn. Otherwise, there will continue to be far too many cases where no one is charged and no one is convicted for what may be a most serious offence.
  One of the most important points in Clause 5—I think that the Minister has referred to it already in a preliminary way—is in subsection (l)(b), which states that,
  "the court or jury is permitted … to draw such inferences as appear proper from the defendant's failure to give evidence or refusal to answer a question".
  There might be all kinds of complications that justify a failure on the part of the alleged perpetrator of the offence to give a full account of what had happened or
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  not to answer certain questions, and there may be a lack on the part of the prosecutor in terms of having any other evidence at all. But there almost certainly will be some other evidence, such as the child or baby being seen perfectly fit and well the day before, but being dead the following day. In between, no one appeared to be there. There is no evidence of any kind as to what happened, except that the alleged perpetrator was on the scene.
  That seems to call for quite a lot of explanation on the part of the defendant. I fully agree with the noble Lord, Lord Thomas of Gresford, that the responsibility on the prosecutor to prove his case must continue to be part of our law—no question. But I do not see that Clause 5 completely changes things so that the accused has to establish innocence. The presumption of innocence is still there. But, in the circumstances that I described, the inference is, to some extent, rebutted. In those circumstances, I do not see anything wrong in the accused person having to get over that and explain that he really is innocent and had nothing to do with the offence. The word "responsibility" used by the Law Commission is extremely important and should be embodied in law in the form of what Clause 5 attempts to do.
  Lord Thomas of Gresford: Before the noble Lord sits down, he must concede that he is reversing the burden of proof and that he is requiring the defendant to prove innocence by what he says. If I am wrong about that, would he mind explaining?
  Lord Borrie: That is why I chose to quote the words about the court drawing only,
  "such inferences as appear proper from the defendant's failure to give evidence".
  There will be other facts, as I described, such as when the child was last seen, when other people were last in the house, and so forth. There will be those points to be made. On that basis, it will be for the court and the jury to draw such inferences that are proper. I fully agree—no doubt any judge would repeat the point— that it is for the prosecution to prove the case.
  Lord Thomas of Gresford: With respect, that is already in Section 35(2) of the Criminal Justice and Public Order Act, which states that it would be permissible for the jury to draw such inferences as appear proper from someone's failure to give evidence or his refusal without good cause to answer any question. We have not reversed the burden of proof so far as a result of Section 35(2). So why do these words in Clause 5(1) justify reversing the burden of proof this time?
  Lord Donaldson of Lymington: Perhaps I may intervene in this interesting dialogue. I am at a loss about this. I originally understood—I still understand—the problem which arises where there are two parents and you cannot prove which of them killed the baby. You may be absolutely certain it was one of them, but that does not get you anywhere That remains the position under the first sentence of Clause 4(l)(d), where the possibility is that "D" was the person whose act caused the death.

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  As I understood it, the skill of Clause 4 was that it left the ordinary burden of proof in relation to proving who killed "V" exactly as it is under the law at the moment. I did not understand then and I do not understand now why we need Clause 5 at all, unless it does something that I have not contemplated.
  If the prosecution is in the classic position of having two potential defendants and cannot prove which one is guilty, it can go on to an alternative new offence— and a perfectly proper offence, as I see it—which consists of the elements in paragraph (d)(i) to (iii). Paragraph (d)(i) is about whether:
  "D was, or ought to have been, aware of the risk".
  I imagine that the prosecution in most cases will not be able to prove that "D" was aware of the risk, but it may be able to. However, it is quite sufficient if it can prove that he ought to have been aware of the risk, and it will be able to prove that from the surrounding circumstances. It will not require any assistance from the accused for that.
  Paragraph (d)(ii) is about whether:
  "D failed to take such steps as he could reasonably have been expected to take to protect V from the risk".
  That is an objective test. Were there steps which he might reasonably have been expected to take?
  Paragraph (d)(iii) deals with whether,
  "the act occurred in circumstances of the kind that D foresaw or ought to have foreseen".
  So we get the prosecution sketching in a general situation where there was a clear risk of which the defendant ought to have been aware; where there was a failure to take such steps as the prosecution may suggest he could reasonably have been expected to take; and where the act occurred in circumstances, the prosecution will seek to persuade the jury, that "D" ought to have foreseen.
  If the prosecution proves those matters, as I understand whatever Act has been quoted, it would be perfectly permissible under the existing law for the jury to say, "Well, he has not told us why he could not reasonably have been expected to protect 'V' from the risk. He has not told us why he ought not to have been aware of the risk"—because, for instance, he spent the previous three months in Australia or whatever it may be. "He has not told us why he did not foresee the risk and there was no reason why he should have foreseen the risk".
  If the accused fails to answer any of those questions, he will be convicted under the existing law. What on earth do we want Clause 5 for? I do not understand it.
  Lord Carlisle of Bucklow: Like the noble and learned Lord, Lord Donaldson, I say at once that I fully appreciate the intention of the Government in trying to avoid the situation that now exists, which we discussed on the previous occasion, where a serious offence is committed and neither of two people can be convicted. I, too, believed that the new Clause 4 was intended, in part at least, to meet that position—although the offence is different and lesser, perhaps,
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  than that of murder and manslaughter. We are told that the maximum term of imprisonment is 10 years. Therefore it is in itself a serious offence.
  Lord Campbell of Alloway: It is 14 years.
  5.30 p.m.
  Lord Carlisle of Bucklow: Although I accept the Government's intention, like the noble and learned Lord, Lord Donaldson, I must ask: "Is Clause 5 necessary?", "What does it do in practice?" and, "Does what it does in practice do such harm to the general principles of our law as not to be acceptable even in these circumstances?"
  I am sorry if my knowledge of the law is out of date, but I think that I am right in saying this. If I am standing on my feet in the Old Bailey or some other court defending a person charged with murdering a child, at the end of the prosecution case, if I consider that the case is weak, I can rise to my feet and make a submission of "no case to answer". If the judge is satisfied either that there is no evidence or that there is not sufficient evidence on which a jury could properly convict—and I emphasise the words, "not sufficient evidence on which a jury could properly convict"—he will stop the case.
  On the other hand, if the judge feels that there is sufficient evidence, he will allow the case to continue. The jury may, as has been said, examine the totality of the case and take into account any inference that it wishes to draw from the failure of the defendant to give evidence if I do not call him or his refusal to answer certain questions if I do.
  What would be the position if Clause 5 came into force? First, as I understand it, if I am defending a person who is merely charged with murder, Clause 5 does not come into effect at all. Clause 5 deals with a case in which a person is charged in the same proceedings with an offence of murder or manslaughter and with an offence, under Clause 4, in respect of the same death. If the DPP decides in their wisdom to charge murder and nothing else, there is no change in the present situation. On the other hand, if they want assistance so far as probity of matters may be concerned, after the law comes in, there is nothing to stop them taking route two, which is to add a charge under Clause 4 and to have them tried together. There is no way to stop them.
  What would be the position then? Surely, it dramatically changes. As the person defending the man charged with both offences, I would get up and make the same submission as I would have done before with only one offence. However, if Members of the Committee read the whole of Clause 5(1)—let alone Clause 5(2)—they will see that it states:
  "the court or jury may also draw such inferences in determining whether he is guilty on the charge of murder or manslaughter"—
  that is, inferences from his failure to give evidence—
  "(even if there would otherwise be no case for him to answer on that charge)".
  That must mean that, if I get up at the halfway stage, the judge may say, "I am sorry Lord Carlisle. I hear what you say. I also consider that there is no case

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  against your client, but I cannot stop the trial. It must go on because the jury are entitled to take any inference that they wish from the fact that the defendant chooses not to give evidence or fails to answer certain questions".
  The noble Lord, Lord Borrie, suggested that there was always other evidence—that the child was perfectly fit shortly before and then dead the next day, for example. In that case, there is some evidence on which the judge may choose to decide that it is right for the case to go to a jury. However, if there is no evidence against the person at all—they have got the wrong person—the jury may be told, "Although we have no evidence against this man, merely what may look very suspicious circumstances, he failed". As my noble friend Lord Thomas said, "Does that mean failed as well at an earlier stage to the police or merely failed in the court?" The judge may say to the defendant, "Because you failed to give evidence, you can be convicted of murder".
  A third example would be when two people are charged. One is charged with the offence of murder and the other is not. Clause 5(2)(b) states that,
  "the question whether there is a case to answer on the charge of murder or manslaughter is not to be considered before the close of all the evidence at trial".
  Again, in that circumstance, a man charged with murder, against whom there is no evidence whatever at the halfway stage, cannot have his question of no case to answer considered at that stage. The trial has to go until the end. At the end of the trial, the judge can say, "Of course, although there is no other evidence, you are entitled to infer guilt against the defendant if you think that that is right on the basis that he chose not to give evidence".
  I agree with my noble friend Lord Thomas, that that drives a coach and horses through the presumption of innocence and the fact that no man has to prove his innocence in this country. Perhaps there is no other way out of this problem, but it needs strong justification from the Minister. Like the noble and learned Lord, Lord Donaldson, I cannot see why merely proceeding on Clause 4 would not sufficiently meet the concern that exists, without making major changes in our criminal law.
  My final point relates to the Joint Committee on Human Rights. As my noble friend Lord Thomas of Gresford said, the provision is a breach of Article 6.1 of the right to a fair trial. It is also a breach of Article 6.2, which relates to the presumption of innocence until proven guilty. Although the Minister has put her name to a certificate on the front of this Bill, the Joint Committee on Human Rights has examined the Bill and queried its legitimacy. The Committee wrote to the Home Secretary on 6 January, setting out the arguments much more lucidly than I have done. The letter states:
  "In the light of this, why does the Government consider that clause 5 would not allow a conviction to be based mainly (but not wholly) on an inference from a defendant's failure to give evidence, and why accordingly there is no probability of a violation of ECHR Article 6?".
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  That letter was sent on 6 January. Has a reply yet been sent to the chairman of the Joint Committee on Human Rights? If so, when? May we see a copy? I know that the Minister is very busy, but when is it likely to be sent and when will we see a copy? Perhaps we may keep that question open. I see that the Minister is being advised firmly from the box. Surely, we should know the view of the Home Office before finally leaving Clause 5.
  Lord Renton: I wish to make a fundamental but short point on Clause 5(2). It states:"Where—
  (a) a person is charged with an offence of murder or manslaughter, and (b) he or another person is charged in the same proceedings with an offence under section 4 in respect of the same death".
  Then we have these words at the top of page 4:
  "the question whether there is a case to answer on the charge of murder or manslaughter is not to be considered before the close of all the evidence at trial".
  Does that mean that at the conclusion of the prosecution case the defence will not be able to say that the prosecution have not made out a case to answer? It would be absurd if that were not so.
  Lord Campbell of Alloway: I agree with the representations of the noble Lord, Lord Thomas of Gresford, and of my noble friend.
  Let me deal shortly with the report of the Human Rights Commission and the way in which it works. The committee never says, "Your certificate is wrong". We never say that. If we believe it is wrong we say something like, "In our view, the provisions of Clause 5 may give rise to a risk of incompatibility with the right to a fair hearing under Article 6. We have raised this matter with the Government and expect to report further on it in due course". The letter to which my noble friend referred was then sent on 6 January and, as far as I am aware, there has been no response. If there had been by the date this document was published on Monday, there would have been a copy with it. But there is nothing unusual in that. The Government often do not reply for months.
  As to the business of the certificates—and I am not getting at the noble Baroness, Lady Scotland—this kind of thing goes on in all departments the whole time. There are numerous erroneous certificates. You cannot blame the Ministers because they act on departmental advice—and the departmental advice is absolutely hopeless. Over and over again you get erroneous certificates.
  The first time this issue arose was when I challenged a certificate of the noble Lord, Lord Bassam. He claimed parliamentary privilege and refused to disclose the substance of any reasons for which the certificate had been given. This is a very good example. At the next stage of the Bill, I cited three or four authorities of the European Court of Human Rights. I said, "On the basis of these authorities, I must be on the way to being right. May I know the substance of your argument?" "No. Privilege". So I gave up. A year later I read in the papers that a High Court judge in

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  Hull had decided that my submissions were totally right; that the Government were totally wrong; and said so.
  We then got to the stage where the issue was raised as an oral Question at Question Time. The noble Lord, Lord Filkin, took the point straightaway and said, "We will do something about it". The law has been changed and you will now find little boxes on your electoral forms which you can tick if you do not want to be on the general register and receive junk mail. I am only telling the Committee this—it is all recorded— because the certificate of the department is not a safe basis on which to proceed. I shall not take time, because this is a document available to everyone, but I invite you to read the letter at Appendix 2. It is not very long. It puts the essence of the argument in support of the view of the committee very clearly and as yet has had no response.
  5.45 p.m.
  Lord Donaldson of Lymington: In a conversation with the Attorney-General, I moved on to this question at one stage. I said that I was rather surprised at some of these certificates and asked if he was ever consulted. The impression that I got was that he was consulted and, contrary to my impression and that of the noble Lord, Lord Campbell of Alloway, these certificates were taken very seriously and that, if anyone had any doubts, the Attorney-General was consulted. I would prefer to think that my impression was right, but different conclusions can be reached according to what the starting point is. It is not unknown for counsels to have different views bona fide. We should not assume that Ministers casually sign certificates that are put in front of them. Nevertheless, they may well be wrong.
  Lord Campbell of Alloway: This is no place to argue with the noble and learned Lord, but, outside this Chamber, I shall show him Hansard and perhaps he will then understand that I know exactly what happened and will refer him to it.
  Lord Carlisle of Bucklow: So far as this case is concerned, and from what the noble and learned Lord, Lord Donaldson has said, I was not intending to challenge the fact that the Government had given consideration before the Minister put her signature on the Bill. I hope that she did not get that impression. If so, I immediately withdraw it. I was saying that, since the Government came to that view, the Joint Committee has come to another view, and has conveyed that view to the Home Secretary. Has it influenced or changed the view that he had at that time?
  Lord Mayhew of Twysden: Before the Minister replies, from my position in the steerage, I raise one question that I hope she will be good enough to deal with. It derives from Clause 5(2); the provision to which we have already been alerted. It states:
  "the question whether there is a case to answer on the charge of murder or manslaughter is not to be considered before the close of all the evidence at the trial".
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  Looking at paragraph 38 on page 7 of the Explanatory Notes, I am reminded that:
  "The clause makes clear that the inference can be drawn, even where there would not otherwise be a case to answer on that charge. This is subject"—
  and this is my point—
  "to the safeguard in section 38(3) of the 1994 Act, which has the effect that a defendant may not be convicted solely or mainly on the basis of an inference from silence".
  If that is to remain the governing safeguard, why on earth should that defence not be taken at the conclusion of the prosecution case? Why should it have to be postponed until the close of all the evidence at the trial?
  Baroness Scotland of Asthal: If I may respectfully say so, we have had a fascinating and important debate. I reassure the noble Lord, Lord Campbell of Alloway, that the issues arising as a result of the European Convention on Human Rights and our own human rights legislation were taken very seriously indeed. I can reassure the noble Lord that we bore in mind that we were seeking to do something innovative to address a real mischief. We wished to do that in a way that was fair, proportionate and in compliance with the Human Rights Act 1998. Therefore, in crafting Clause 5, all those issues were at the forefront of our minds. At the end of the day, our judgment was that the provisions, as drafted, do not fall foul of the Human Rights Act or its principles. I hope that I will be able to explore and explain why we say that.
  The Government answered the questions raised by the Committee on 27 January. That reply has now been given to the Committee in the usual way. As the noble Lord knows, it will be for the Committee to consider that and publish the letter, together with its response to that letter, in any further report that arises out of its deliberations. If Members of the Committee, contrary to the normal way of dealing with such matters, wish to see a copy of that, I am most happy for it to be made available and a copy put in the Library. Indeed, I will ensure that noble Lords in the Committee today are sent their own copy, if they feel that that would be of some little assistance.
  Bearing in mind the depth of the comments and questions that have arisen, it would be right for me to answer those questions very fully indeed. If I may respectfully say so, I endorse the comments of my noble friend Lord Borrie, who rightly reminded us of the nature of the mischief that we seek to cure. I also pray in aid the fact that the noble and learned Lord, Lord Donaldson, amplified his comments by directing the Committee's mind to the mischief that we sought to lay to rest in Clause 4.
  Before I go into the detail, it might help if I mentioned some issues that Members of the Committee should bear in mind. The reference that we have made relates only to silence at trial, as does Section 35. Section 34 deals with silence during questioning by the police. The reference that we make in Clause 5 is to Section 35. Clause 5(1)(b) uses the words,
  "by virtue of Section 35(3)".

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  That refers only to silence at trial. We have made that matter plain in the Bill.
  The noble and learned Lord, Lord Donaldson, asked why we needed Clause 5. I shall deal with that now because the explanation will make the matter clearer. We need it because we have created a new offence in Clause 4 that will deal with the mischief with which we have erstwhile been unable to grapple sufficiently well. We still need Clause 5 to enable the appropriate conviction to be secured against the more culpable party. We do not wish for a person who is responsible for a murder or the commission of manslaughter simply to have a Clause 4 offence established against them if it is not the proper offence with which they should be convicted on the evidence produced to the court. Clause 4 is not intended as a substitute where murder or manslaughter can be established.
  As I say, it would not be a just outcome if a conviction for a Clause 4 offence is achieved where it can be shown that a defendant is in fact guilty of murder or manslaughter. We therefore believe that we should aim to pursue charges for murder or manslaughter where those charges properly reflect the culpability of the defendants. The measures included in Clause 5 aim to allow more charges of murder or manslaughter to be left to the jury safely in those very difficult cases.
  The Law Commission did a great deal of very helpful work on the subject. Members of the Committee will remember that it recommended in its report, Children: Their non accidental death or serious injury—Report No. 282—that, subject to certain safeguards, adverse inferences should be able to be drawn where the other evidence did not amount to a technical "case to answer", and that in certain circumstances the "case to answer" decision should be postponed until the end of the case.
  Certain comments made by a number of Members of the Committee—it was touched on in part by the noble Baroness, Lady Anelay, the noble Lords, Lord Carlisle of Bucklow, Lord Renton and Lord Thomas of Gresford, and the noble and learned Lord, Lord Donaldson—almost suggested that the Government propose to expunge the opportunity for a defendant to make a case of "no case to answer". That is not so. At the end of the totality of the evidence, it will still be possible for that submission to be made. We do not seek to transfer the burden of establishing a prosecution case on to the defence, as that would be improper.
  We have taken forward in the clause both of the principles I have discussed, although the circumstances in which our procedural measures are triggered are somewhat different. We have linked our procedural measures closely to the circumstances of our proposed new offence, which we believe produces a coherent and effective package of measures targeted at the core cases of familial homicide. Members of the Committee will know from our earlier discussions that one of the problems we often have is that, where two
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  or more are charged with an offence, the game goes if both remain silent—they both go free. How to unravel that knot has proved difficult.
  Amendments Nos. 32 to 35 deal with the circumstances in which, under Clause 5, adverse inferences can be drawn from the defendant's silence at trial. It may be helpful to put that debate in its proper context by setting out briefly why we have taken this approach to the drawing of adverse inferences under Clause 5 before turning to the detail of the amendments. I do so particularly to answer the request made by the noble Baroness, Lady Anelay.
  We believe that where a defendant remains silent in circumstances that clearly call for an explanation from him, the jury should be able, where it is proper to do so, to draw an adverse inference from the defendant's silence. That is why we have linked the drawing of the adverse inference on a charge of murder or manslaughter to the circumstances of the new offence. My noble friend Lord Borrie was right to say that, in a number of circumstances already described, it is demanded as a responsibility for the person to give an explanation.
  For the inference provision in Clause 5 to apply, there must already be a "case to answer" on the Clause 4 offence. That is to say that the prosecution will have shown evidence that a member of the victim's household, who had frequent contact with the victim, caused the death. It will also have produced evidence showing that the defendant was such a member of the household, and evidence to show that the defendant either caused the death of the victim or was aware of a serious risk to the victim and had failed to take reasonable steps to prevent the death. We believe that that situation calls so clearly for an explanation that it is fair to draw an adverse inference on both the new offence and an accompanying charge of murder or manslaughter. That, I know, is the issue with which the Committee has been most troubled.
  That leads to the issue raised by Amendment No. 35, tabled by the noble Baroness, Lady Anelay of St John, and the noble Viscount, Lord Bridgeman, and by Amendment No. 32 in the names of the noble Lords, Lord McNally and Lord Thomas of Gresford. Amendment No. 32 would remove the provision for the drawing of adverse inferences under Clause 5. Amendment No. 35 would remove the possibility of drawing an adverse inference from the defendant's silence at trial on a charge of murder or manslaughter, unless a technical "case to answer" had been made out on each charge.
  Of course, where a case to answer has been made out, the existing provisions in Section 35 of the Criminal Justice and Public Order Act 1994 allow for an inference to be drawn. So the effect of Amendment No. 35 would also be to nullify the adverse inference drawing provision under Clause 5 and maintain the position under the current law in relation to the drawing of adverse inferences from silence. However, as Members of the Committee will be aware, the current requirement that the court first find a case to answer on the prosecution evidence before it can draw

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  an adverse inference from silence was set out in the case of Cowan, which has been referred to already in Committee. Of course, at present, under traditional procedures, as the prosecution must establish a "case to answer" before the defence responds, the court will always be satisfied that there is a case to answer before a Section 35 inference can be drawn.
  The Law Commission looked closely at whether the requirement in Cowan was necessary to ensure fairness. It was of the opinion that it was,
  "unduly technical and artificial … that the only legitimate meaning of… 'a situation which clearly calls for an explanation' is that on the evidence, without any inference being drawn, a jury could convict a particular defendant".
  We agree with that analysis. We therefore do not consider that in all cases there need be a technical "case to answer" before it is fair to draw an adverse inference.
  For that reason, we do not think that the strict requirement of Cowan should apply in these cases. I refer specifically to the cases with which the Committee has been seized, and the nature of the cases with which we have dealt. The key question is whether the circumstances where an inference can be drawn are such that they call for an explanation from the defendant. For the reasons that I have outlined, Clause 5 sets out appropriate circumstances in which inferences should be able to be drawn in cases of that kind.
  There is also the related issue of whether a conviction following such an inference could be considered fair. The concern raised is that such a conviction would necessarily be based wholly or mainly on the adverse inference from silence and, as such, would be incompatible with Article 6 of the European Convention on Human Rights. Let me first make absolutely clear that we do not advocate convictions based wholly or mainly on inferences from silence. Indeed, by linking the adverse inference that can be drawn to the existing provisions under Section 35 of the 1994 Act, we ensure that the protection afforded by Section 38(3) of that Act applies.
  6 p.m.
  Lord Carlisle of Bucklow: Perhaps I may ask a question on what the Minister has just said. What is the purpose of the words,
  "even if there would otherwise be no case for him to answer on that charge"?
  As I understand it, the Minister is saying that if you are charged with a Clause 4 offence and murder, you can still make a submission to the judge that there is no case to answer. But how does that relate to the provision that they can be convicted on inferences even if there would otherwise be no case to answer on that charge? Surely, if there would otherwise have been no case, the judge would have already withdrawn it.
  Baroness Scotland of Asthal: We are talking about the opportunity to postpone the "no case to answer" submission. As the noble Lord knows, currently the submission of "no case to answer" is put forward at the
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  end of the prosecution case alone, so if at that stage there has not been an explanation and the case comes to an end, the whole process often comes to a halt. In these circumstances, where D has a responsibility to V in a household, by creating Clause 4 we are placing a responsibility on D to give an explanation. In effect, where what is charged is murder and/or manslaughter and a Clause 4 offence, instead of having the "no case to answer" submission made at half time—at the end of the prosecution case—it is postponed until the end of all the evidence. That is the shift being made.
  Lord Thomas of Gresford: I—
  Baroness Scotland of Asthal: I would be grateful if I could continue my response. Members of the Committee have made some very complex submissions. If I can explain the scheme and deal with the questions, I hope that the Committee will be able to understand why we have said what we did. Afterwards, of course, I will be more than happy to answer questions. I am afraid that I must give a long explanation in order to respond to the plethora of quite proper questions that I have been asked.
  The effect of what I have described is that a defendant may not be convicted solely or mainly on the basis of an adverse inference from his silence. However, there will be circumstances where the adverse inference drawn under Clause 5 will supplement the other evidence in the case in such a way as to take the evidence as a whole over the threshold necessary safely to leave the case to the jury without the inference being the sole or main basis for the conviction.
  Let me explain why. We concur with the reasoning of the Law Commission, which looked at the issue very carefully. It said that an inference could be drawn in circumstances where there was not otherwise a "case to answer", and that an ensuing conviction could be fair. In its analysis, with which we agree,
  "an 'eloquent silence' of the defendant might be said to be the 'decisive' element in a decision to convict but it would not mean that the defendant was convicted 'solely or mainly' on an inference from silence any more than the 'decisive' straw is the 'sole or main' cause of the camel's broken back".
  We agree. I think that I heard the noble Lord, Lord Thomas of Gresford, say, "I'll bet you do".
  Lord Thomas of Gresford: No, I said "rubbish and rhetoric".
  Baroness Scotland of Asthal: I thank the noble Lord for his usual graceful language.
  The fact that such an inference may be drawn may encourage the giving of evidence. Evidence, rather than silence, may mean that a case to answer is established. Therefore, we do not think that Clause 5 will result in any unfairness. It will be an important part in ensuring that more people who cause the death of children and vulnerable adults are convicted and sentenced for an offence commensurate with their guilt.

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  I am aware of the difficulties in drawing adverse inferences from silence and am strongly of the view that there should be effective safeguards. By linking the measure under Clause 5 to the existing provision of Section 35 inferences, we have ensured that important safeguards in the 1994 Act apply.
  One such safeguard is that raised by Amendments Nos. 33 and 36, tabled by the noble Baroness, Lady Anelay of St Johns. Those amendments aim to ensure that an inference can not be drawn where the court has reason to believe that physical or mental condition makes it undesirable for someone to give evidence. This safeguard replicates that found in Section 35(1)(a) of the 1994 Act. We agree that this is an important safeguard and that inferences should not be able to be drawn in these circumstances. However, we do not agree that this amendment is necessary to give effect to that aim. This safeguard will still apply under Clause 5.
  I am able to provide similar reassurance about Amendment No. 34. This amendment would state that an inference could not be drawn unless the defendant remained silent without good cause. The principle behind the amendment is that where the defendant has a proper reason for his silence, other than his guilt, the jury should not draw an inference. This is a principle that we support and endorse. However, we think that it is already achieved by the current drafting.
  Clause 5 already provides that only such inferences that appear "proper" can be drawn from the defendant's silence. The meaning of a "proper" inference has been developed by the court to mean that an inference can be drawn from the defendant's silence, where the only sensible explanations for the defendant's silence were that he had no explanation or none that would stand up to cross-examination. Therefore, the amendment is unnecessary and might cause confusion. I understand that the noble Baroness, wants to tease out how this would operate. It is the same in relation to Amendment No. 37, which would remove the provision to allow for the "case to answer" decision to be postponed until the end of the case, under Clause 5.
  Noble Lords will be aware that under the current law, as reflected in the 1986 Court of Appeal decision in the case of Lane and Lane, a judge must withdraw the case at the end of the prosecution case before any of the defendants has given evidence, if at that stage the prosecution is unable to establish a case to answer against the defendant. This case has given rise to the perceived loophole in the law that we have been discussing in these cases.
  We think that it is entirely logical to delay the question of case to answer on a murder or manslaughter charge until after the defence has presented its evidence, providing that the prosecution has established a case to answer in relation to the Clause 4 offence. In these cases, as my noble friend Lord Borrie said, it is often only the defendant who will know the circumstances in which the offence was committed. We therefore propose that in these
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  circumstances the court proceedings should operate in such a way as to give the opportunity for the evidence of the defendants to be heard.
  It goes without saying that a criminal trial is not a game where tactical considerations are paramount. Indeed, tactical considerations should not act to hinder the true story being aired in court. While postponing the case to answer decision may therefore remove a tactical advantage from the defendant, we do not think that it will result in unfairness. The Law Commission in its consultative report on the subject made that plain. Its non-accidental death or injury report said that postponing the case to answer decision in certain circumstances,
  "would remove a present hindrance to the effective discharge of the state's duty to protect the fundamental human rights of the child".
  We unreservedly agree.
  We also reject any notion that this provision will lead to speculative prosecutions based on insubstantial evidence. For the decision on a case to answer on the charge of murder or manslaughter to be postponed, the prosecution must be able to demonstrate a case to answer on the Clause 4 offence. We regard that as an important requirement. Where that is met, the prosecution will have shown evidence that a member of the victim's household, who had frequent contact with the victim, caused the death. The core cases at which our proposals are targeted are where there is a closed group of suspects, one or more of whom must have been responsible for the death. That is the group that we want to answer for their actions. There is no convention right to make a submission of no case to answer. In these particular circumstances we consider that it is right that the question on whether there is a case to answer in relation to murder or manslaughter be postponed, and where a defendant opts to give evidence in defence to the Clause 4 offence, additional evidence may well be uncovered that makes it fair to leave to the jury a charge of murder or manslaughter. Alternatively, it may be that the defendant does not give evidence, as is his right, and an adverse inference can properly be drawn that supplements the other evidence in such a way that it is fair to leave the charge to the jury. Where that is the case, it is important that a procedural technicality does not prevent the judge from leaving those charges to the jury, where it is safe to do so.
  I hope that I have been absolutely clear that we do not propose to leave cases to the jury where the court considers that there is not enough evidence to found a conviction. The clause postpones the case to answer. However, at the end of the case the judge will address the question of whether there is sufficient evidence— considering the prosecution evidence, defence evidence and any permissible adverse inferences from silence—on which a jury could safely convict. If the judge does not so find, it would be proper for him not to leave that charge to the jury. Bearing in mind the experience of our judiciary, I am confident that our judiciary is perfectly capable of performing that exercise.

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  The noble Lord, Lord Thomas of Gresford, raised the issue of Murray, specifically Article 6. He asked whether the provisions reach Article 6. Our short answer is "No". The Law Commission, at paragraph 4.11 of its report, dealt with why it did not believe that the provisions are in breach. I would adopt that position. The commission said:
  "Although the right to a fair trial under Article 6 is unqualified, this right attaches to the fairness of the trial overall and not to each and every manifestation of it. Thus the question is always whether, looking at the proceedings as a whole, the defendant has had a fair trial".
  We believe that, as a result, there is nothing under the convention to make a submission of "no case to answer" at the close of the prosecution case. The presumption of innocence will remain. All we seek to achieve is the postponement.
  In relation to Murray, we believe that the circumstances in Clause 4 call for an explanation. It is important to bear in mind that in these cases the prosecution will have established that the death was caused by a person who was a member of the household. We believe that Section 38(3) of the 1994 Act applies, as interpreted in the Murray ECHR case. This has the effect that an adverse inference cannot form the whole or main basis of the conviction. We do not propose that it do so.
  There are two parts of Murray which I shall not read out but will pray in aid. Paragraph 47, on page 17 of the judgment, is relevant. The matters were dealt with also at paragraph 51. I shall read a short extract from that, as the noble Lord has placed great emphasis on it. The judgment states:
  "In the first place, before inferences can be drawn under Article 4 and 6 of the Order appropriate warnings must have been given to the accused as to the legal effects of maintaining silence. Moreover, as indicated by the judgment of the House of Lords in R. v Kevin Sean Murray the prosecutor must first establish a prima facie case against the accused, i.e. a case consisting of direct evidence which, if believed and combined with legitimate inferences based upon it, could lead a properly directed jury to be satisfied beyond reasonable doubt that each of the essential elements of the offence is proved".
  It continues:
  "The question in each particular case is whether the evidence adduced by the prosecution is sufficiently strong to require an answer. The national court cannot conclude that the accused is guilty merely because he chooses to remain silent. It is only if the evidence against the accused 'calls' for an explanation which the accused ought to be in a position to give that a failure to give an explanation 'may as a matter of common sense allow the drawing of an inference that there is no explanation and that the accused is guilty'. Conversely if the case presented by the prosecution had so little evidential value that it called for no answer, a failure to provide one could not justify an inference of guilt".
  For all the reasons that we have set out—and, as my noble friend Lord Borrie said, because of the way in which they arise such cases call for an explanation—we believe that these provisions are ECHR, and therefore Human Rights Act, compliant.
  6.15 p.m.
  Lord Renton: The noble Baroness may have answered my query indirectly and I have not
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  understood. I asked her to consider the effect of the first two lines at the top of page 4. It seems to me that a case could go on until the defence had produced any evidence.
  Baroness Scotland of Asthal: I have answered that issue at inordinate length. I do not know whether the Committee want me to do so again, but my answer is unlikely to change.
  Lord Campbell of Alloway: Does the noble Baroness accept that the report of the Human Rights Commission does not take the point that postponing the submission of no case is contrary to Article 6? The point has never been taken.
  Baroness Scotland of Asthal: That is why we will explain in the letter the Committee will see that we are not suggesting that the inference alone is anything upon which one could rely. I hope that the explanation I have given will enable the Committee to feel content that these provisions are indeed Article 6 and Human Rights Act compliant.
  Lord Donaldson of Lymington: I know that there is a feeling that these proceedings should be drawing to a close—I share the feeling—but perhaps I may thank the noble Baroness for her explanation which, as far as I am concerned, has made matters crystal clear. But, lest I misrepresent her now or hereafter, perhaps I may tell her what I understand her to have said.
  I start from the point that up until now the law has been that where you are darn certain that one of two people did the damage to the child but you cannot show which, the prosecution has failed to discharge the burden of proof. The noble Baroness says, "Ah, but that is a technical matter". I do not believe that it is. I have never heard it suggested up until now that there is anything technical about that.
  The noble Baroness goes on to say that, in effect, Clause 4 has a duality of offence wrapped up in it. I agree that you have to charge separately, but essentially what she is saying is that the alternatives in 4(l)(d)—where it states,
  "either D was the person whose act caused these deaths or"—
  are a duality of offence; that you could, on that, provided you charged him, find the defendant guilty of being the cause of death even though up until now you never could.
  I do not believe that is what Clause 4 does at all. It produces a single offence. If by chance the prosecution can prove that D was the person whose act caused the death, the probability is that it would have charged murder or manslaughter. As far as the offence in Clause 4 is concerned, it makes no difference whether you prove the actual causing of the death or whether you prove the alternatives in sub-paragraphs (i) to (iii). That offence does not need Clause 5. The ordinary rules will apply to it and if the prosecution can prove the matters in sub-paragraphs (i), (ii) and (iii) it will succeed. It does not need Clause 5.
  If one goes back through Hansard I think it will show that the Minister said that the only purpose of Clause 5 is to extend the cases in which charges of

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  murder and manslaughter can be made to stick. If she is right about that, we do not need Clause 4. It means that, unbeknownst to any of us, there was a perfectly simple way of getting round the awkward fact that, in cases where we are certain that one of the defendants did it but not which one, no one has ever thought it proper to convict either of them of murder or manslaughter. There is a real change there. So for that purpose, yes, Clause 5 is necessary. But in my book it is a—perhaps I should not use the phrase—wholly improper purpose. At any rate, it is such a departure from the law as we have always understood it that I shall not accept it and I hope that the House as a whole will not, in due course, accept it. That is by the way, but that is what is happening.
  Clause 4 is perfect in its own terms—it does not need any alteration of inference or anything else—but on top of that we are being asked to produce a different situation in relation to murder and manslaughter where the inferences can be carried over. I am quite sure that the noble Baroness will say that it is a technical matter because anyone applying any common sense will know that if there are two people in the dock, one or other of whom must have committed the offence—which is a common situation; it is what we have all been talking about—and neither of them will say a word, the obvious inference is that one or the other or both did it. Any jury would draw that inference without the slightest difficulty. But they are not allowed to because of the presumption of innocence.
  The twin of that—this is absolutely fundamental— is that the prosecution has to prove its case in its own time. Not in the case as a whole; it has to prove it in the prosecution case. Unless the prosecution can do that so that there could be a conviction then and there if nothing further were said—or arguably it could; there could be submissions by the defence and so one cannot reach that conclusion—then that is the point at which the presumption of innocence applies. Clause 5 seeks to wipe that away. It will not do.
  Baroness Scotland of Asthal: I respectfully suggest that the noble and learned Lord puts the matter a little too simplistically, which is unusual for him.
  Lord Donaldson of Lymington: I am a simpleton.
  Baroness Scotland of Asthal: I would never accept that. The noble and learned Lord will not tempt me into agreeing with him. Many of these cases, as we have just described, are extremely difficult. We have thought long and hard about postponing the "case to answer". The noble and learned Lord accepts that Clause 4 is perfectly good, but we may be left with a scenario where we get past half-time and there are inferences, which it would be proper for the jury to draw at full-time, that one or either defendant caused, contributed to or was responsible for the death.
  Once the case goes past half-time one may then be faced with a situation where one or other defendant decides that he or she does not wish to be dealt with as being equally responsible for causing the death, and one or other of the defendants gives evidence. So
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  whereas at the close of the prosecution case it was not clear that there was significant evidence that one defendant was guilty of the murder of the child, by the end of the defence case it does become clear.
  One is left with a situation where the judge and the jury have heard evidence on which one or other of the parties properly could be found guilty of the murder but, at half time, on a technicality, that charge of murder or manslaughter has already been withdrawn from the jury. The postponement of the case to answer to the conclusion of the defence case will not jeopardise the fairness or otherwise of the case that may be left to the jury. There is no change in relation to evidence for murder or manslaughter. If the only evidence before the court is the evidence in relation to Clause 4, the judge would be perfectly and properly within his or her rights to withdraw the other charge from the jury and to not allow it to enter a verdict in relation thereto.
  6.30 p.m.
  Baroness Anelay of St Johns: I am very grateful to the Minister. If the noble and learned Lord, Lord Donaldson, thought that we were hurrying to a close, I am sorry he got that impression—far from it. I was somewhat taken aback that so many Members of the Committee were trying to intervene. Of course, the great joy of Committee is that we can come back at any and every stage.
  Lord Donaldson of Lymington: I drew a wrong inference.
  Baroness Anelay of St Johns: I was very grateful for the additional words from the noble and learned Lord, Lord Donaldson. He clearly put to me some of the reasons why I still have concerns. It might be helpful for Members of the Committee and for the Minister's officials if I made it clear that I was particularly grateful for her responses to Amendments Nos. 34 and 36. I accept her explanations and can indicate that I shall not return to those on Report. I thought that I might have to, but I will not.
  With regard to Amendment No. 37 on the postponement of a submission of "no case to answer", I remain severely concerned with that. I am sure that we shall have to return to it.
  Lord Thomas of Gresford: In her response, I noticed that the noble Baroness used the words "technicality" and "tactical procedures" with the same vehemence as I use the words "rubbish" and "rhetoric". There is a fundamental problem, and I should like the noble Baroness to interrupt me and explain. This clause creates a different class of murder. It introduces different laws of evidence and different procedures. It does not do so in respect of a person who comes within a particular class; that is, someone to whom Clause 4 applies, such as a member of the same household and so forth. It does not apply if it is proved that the person is a member of the same household and, therefore, comes within that class, but merely if the person is charged with being in that category. So, merely by

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  charging someone under Clause 4, the possibility of convicting someone for murder on a different ground is introduced.
  Baroness Scotland of Asthal: The noble Lord asked me to interrupt him, and I shall. That is not the case if a person is charged. We are saying that the prosecution would have to prove at trial that a person was a member of the household, so those issues would have to be established by the prosecution at the end of the prosecution case. Of course, it would be perfectly proper for there to be vigorous debate. We expect that there might be certain cases in which the defendant was not a member of the household, could not be so classified and does not fall within the definition. It is not the charge alone. It is the prosecution producing evidence at trial that establishes that to be the case.
  Lord Thomas of Gresford: With respect, the clause does not say so, if that is the intention of the clause. As I said, as drafted, it creates a different class of murder, different procedures, and different laws of evidence from every other type of murder. Every other type of murder has well known ingredients—I shall not repeat them—and well known procedures to prove them. The suggestion now is that, at half time, there can be a debate with a judge on whether there is a case to answer on the basis that the person is not a member of the household. Then, at the end of the defence case— or the silence, if no evidence is called, two minutes later—there is a debate about whether there is a case to answer overall. Surely, that is a legal nonsense and must be opposed completely.
  The Minister gave us her explanation of the purpose behind this clause by reference to the Law Commission. The Law Commission produced a scheme that is different from the Government's, which I am sure she will concede. It was a fundamental part of the Law Commission's proposals that a statutory responsibility should be placed upon somebody if they are part of the household—I will use that as shorthand for all the other possibilities that may exist. That is not repeated in the Bill so, in some ways, the Minister draws something from the commission, but not the whole scheme. The result is a hotchpotch.
  Let me explain it this way. The Minister says that a defendant can be guilty of murder or manslaughter if there is no case to answer and the defendant gives no evidence, because an adverse inference can be drawn from the fact that no evidence was given. I think that the Law Commission's proposal is rather different. It proposed that, although there may be no case to answer at the end of a prosecution case, there is a statutory responsibility to fulfil. It is the failure to meet that statutory responsibility which might give rise to an inference for the jury to consider. It is not a question of refusing to give evidence, failing to give evidence or failing to answer a particular question. The scheme is quite different.
  The issue of whether there is a case to answer is not a technicality. The question that the judge must generally ask himself at the end of a prosecution case is, "Is there a case such that a reasonable jury, properly
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  directed, could convict?" If there is no case, the defendant has no case to answer. He is not called upon to answer something that does not exist. That is the end of it. I do not know how it is possible to move from that to saying, at the end of the prosecution case under these provisions, "There is no case to answer. You're not required to answer it, but we will wait until you and your co-defendant refuse to say anything. We will then say to the jury, 'They had their opportunity and did not take it. Therefore, you can convict them'", even though there is not sufficient evidence that a jury, properly directed, could convict.
  In my view, these provisions have been cobbled together in a way that does not make logical sense and is contrary to principle. I take on board everything said so cogently by the noble Lord, Lord Borrie. However, one must not be carried away by the fact that because this has been included in some form within the Bill, there is a possible principle on which one can act in response. I shall withdraw the amendment at this stage, but I hope that I have given sufficient notice that we will return to this matter on Report, when the Bill will be debated in the Chamber. We will seek to remove completely from the Bill this clause and anything that depends upon it.
  Lord Donaldson of Lymington: Before the noble Lord withdraws his amendment, I should like to ask a simple question to which I ought to know the answer and I am sorry that I do not. Under the Law Commission's scheme, there was a statutory duty to explain, as far as possible. However, if that duty was not complied with and the defendant simply stayed mum—refused to give evidence and so forth—was the defendant convicted of murder or a breach of the statutory duty? There is a difference.
  Lord Thomas of Gresford: I am most grateful to the noble and learned Lord for his intervention because he raised a point that I wanted to make. The Law Commission confines it to the new offence—not to murder and manslaughter—creating a new type of murder that applies only if a household position is established or proved in a particular way. It makes my point that the Government are moving way beyond the Law Commission's position into territory which really ought not to be discovered.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 33 to 37 not moved.]
  On Question, Whether Clause 5 shall stand part of the Bill?
  Lord Carlisle of Bucklow: Perhaps I may clear my own mind. Is the Minister saying, in simple terms, that before you can be convicted under Clause 5 there must be evidence of an offence under Clause 4 to leave to a jury, although thereafter you can be convicted of murder or manslaughter merely on the basis of silence or failure to answer? Must there at least be some evidence to leave to the jury on Clause 4 before the jury can consider a charge of murder or manslaughter?
  Baroness Scotland of Asthal: If Clause 4 is established, that enables you to postpone the

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  argument as to whether there is a case to answer in relation to murder or manslaughter until the end of the prosecution and defence evidence. It would not prevent you from restoring a submission that there is no case to answer in relation to murder or manslaughter until the end of the case.
  Of course, if in making the "no case to answer" submission the defence were to say to the judge, "We do not intend to call any further evidence of whatever nature, in relation to either Clause 4 or a murder/manslaughter charge", it would in effect be a submission made at the end of all the evidence, and those submissions would be dealt with at that stage. It would then be for the judge to determine whether the evidence submitted in relation to Clause 4 was or was not sufficient to get past what had hitherto been half-time in relation to the murder/manslaughter charge. If the judge came to the view that there was insufficient evidence to leave the murder/manslaughter charge to the jury, he would be duty bound not to do so. I hope that that is clear.
  Lord Thomas of Gresford: Perhaps I may add a practical comment. The decision to call the client— who has a fundamental right to a fair trial—will not be taken before a submission of "no case to answer" has been made. That simply will not happen. You cannot take that decision until you know what the response of the judge is to that. You cannot say to the judge, "I am not going to call any evidence, and now I am saying that there is no case to answer". It is just not possible.
  Baroness Scotland of Asthal: Then I suppose you could have a technical procedure. For example, you could say, "I will make my submission that there is no case to answer", and when the judge asks you to call your evidence, you say, "I call no evidence". The judge would then ask, "Would you like to reply and refresh your application for no case to answer, Lord Thomas?" and would then deal with that application. Those who have dealt again and again with such cases know what happens in practice.
  Clause 5 agreed to.
  6.45 p.m.
  Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 38:
  After Clause 5, insert the following new clause—
  "EVIDENCE AND PROCEDURE: NORTHERN IRELAND
  (1) Where—

  (a) a person is charged in the same proceedings with an offence of murder or manslaughter and with an offence under section 4 in respect of the same death, and

  (b) in relation to the offence under section 4, the court or jury is permitted, by virtue of Article 4(4) of the Criminal Evidence (Northern Ireland) Order 1988 (S.I. 1988/1987 (N.I. 20)), to draw such inferences as appear proper from the defendant's failure to give evidence or refusal to answer a question,

  the court or jury may also draw such inferences in determining whether he is guilty on the charge of murder or manslaughter (even if there would otherwise be no case for him to answer on that charge).
  (2) Where—

  (a) a person is charged with a offence of murder or manslaughter, and

  (b) he or another person is charged in the same proceedings with an offence under section 4 in respect of the same death,

  the question whether there is a case to answer on the charge of murder or manslaughter is not to be considered before the close of all the evidence at trial.
  (3) Where—

  (a) a magistrates' court is considering under Article 37 of the Magistrates' Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)) whether to commit a person ("the accused") for trial for an offence of murder or manslaughter, and

  (b) the accused or another person is charged in the same proceedings with an offence under section 4 above in respect of the same death ("the section 4 offence"),

  then, if there is sufficient evidence to put either the accused or the other person upon trial for the section 4 offence, there is deemed to be sufficient evidence to put the accused upon trial for the offence of murder or manslaughter.
  (4) An offence under section 4 is an offence of homicide for the purposes of the following provisions—

  Article 17 of the Criminal Justice (Children) (Northern Ireland) Order 1998 (S.I. 1998/1504 (N.I. 9)) (mode of trial of child for indictable offence);

  Article 32 of that Order (power and duty to remit children to youth courts for sentence)."

  The noble Baroness said: These amendments deal with the position in Northern Ireland. We dealt with them in part during the previous sitting. We debated at length the provisions in the Bill that relate to familial homicide. Those measures will address a particularly harmful loophole in the law, as I have already made plain.
  Amendment No. 38 provides a procedure in Northern Ireland for dealing with the evidence and procedure in relation to offences under Clause 4. It mirrors what applies in England and Wales, with the exception that it does not refer to trial by jury because of the different system that applies in Northern Ireland involving Diplock courts and, therefore, the possibility that someone may not be tried by a jury for the offence under Clause 4.
  Amendments Nos. 108, 109 and 110 are consequential upon Amendment No. 38. I signal our intention to bring more amendments to Clause 5 on Report to meet the specific needs of the Armed Forces. Those amendments would ensure that the provisions apply equally for a trial by court martial as they would if the trial were in the Crown Court. I beg to move.
  Baroness Anelay of St Johns: I am grateful to the Minister for introducing the amendment. The Minister will know that at the beginning of Grand Committee I made it clear that we would object to the amendments on this occasion simply because we appreciated that they were controversial matters that were tabled very late. We are grateful to the Home Office for giving us the earliest possible notice of the amendments, but it was given on the day on which tabling closed for the first day of Grand Committee. We felt that it would be only proper to object to the amendments so that we could make our own

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  soundings in Northern Ireland and with our colleagues who deal with such matters. Those consultations and soundings have begun.
  I thank Home Office and Northern Ireland Office officials, who forwarded to us a note explaining the background to the consultation that had taken place in Northern Ireland and the rather accelerated timetable to which it had been subject. As I understand it, although the consultation took place over a relatively brief period, attempts have been made to "major" in the subject—if I can call it that without being too flippant—and intensive workshops were held. That was a helpful indication.
  Although I object to these amendments today, that will not necessarily hold true to all the government amendments that may come before us today. I suspect that only those regarding Northern Ireland will be opposed. I would be grateful if the Minister could withdraw the amendment and bring it back on Report.
  Baroness Scotland of Asthal: I am very happy to do so.
  Amendment, by leave, withdrawn.
  Baroness Thornton Baroness Thornton moved Amendment No. 39:
  After Clause 5, insert the following new clause—
  Amendments to Children Act 1989 (c. 41)
  "PARENTAL CONTACT WITH CHILDREN AFTER SEPARATION IN CASES INVOLVING ILL-TREATMENT OF THE CHILD OR ANOTHER PERSON
  In Part 2 of the Children Act 1989 (c. 41) (orders with respect to children in family proceedings), after section 8 insert—
  "8A ALLEGATIONS OF ILL-TREATMENT MADE IN SECTION 8 PROCEEDINGS
  (1)Where it is alleged that a party to the proceedings has inflicted ill-treatment on the child or on another person, the Court shall, as soon as practicable, determine on the basis of the evidence presented to it by or on behalf of the parties to the proceedings, whether the allegation of ill-treatment is proved.
  (2)Where the Court is satisfied that a party to the proceedings (in this section referred to as the abusive party) has inflicted ill-treatment on the child or on another person, the Court shall not—

  (a) make any order granting the abusive party residence of the child; or

  (b) make any order granting the abusive party contact (other than supervised contact) with that child, unless the child wants to see the abusive party and the Court is satisfied that the child will be safe while the abusive party has residence of or contact with the child.

  (3) Notwithstanding subsection (1), where in any section 8 proceedings—

  (a) the court is unable to determine on the basis of the evidence presented to it by or on behalf of the parties to the proceedings whether or not an allegation of ill-treatment is proved; but

  (b) the Court is satisfied that there is a risk of harm to the child,

  the Court my make any order under this Act that it considers necessary to protect the child."
  "8B PARENTAL CONTACT WITH CHILDREN AFTER SEPARATION IN CASES INVOLVING ILL-TREATMENT OF THE CHILD OR ANOTHER PERSON
  When determining whether the child will be safe if contact or residence is granted to the abusive party, the Court shall, so far as is practicable, have regard to the following matters—

  (a)the nature and severity of the ill-treatment;

  (b)how recently the ill-treatment occurred;

  (c)the frequency of the ill-treatment;

  (d)the risk of further ill-treatment occurring;

  (e)the physical, sexual or emotional harm inflicted on the child or harm suffered by the child as a result of seeing or hearing ill-treatment of another person;

  (f) whether the other party to the proceedings—

  (i) considers that the child will be safe while the abusive party has residence of, or contact with, the child; and

  (ii) consents to the abusive party having residence of, or contact with, the child;

  (g) the wishes of the child, if the child is able to express them, and having regard to the age and maturity of the child;

  (h) any steps taken by the abusive party to prevent further ill-treatment from occurring; and

  (k) any other matters as the court considers relevant.""

  The noble Baroness said: Noble Lords involved in debates on the Adoption and Children Bill two years ago may be forgiven if they have a strong sense of déjà-vu with this amendment, because it deals with the issue discussed during the passage of that Bill, which started with a similar amendment. I would dearly like not to move this amendment again, but the truth is that we have not yet cracked the issue. I thank the noble Lord, Lord McNally, and the noble Baroness, Lady Walmsley, for their support in this amendment.
  Some children and parents are still badly served by courts and court services when child-contact issues are at stake. I appreciate that we are discussing very few cases, but they are very hard ones that can, and do, put children at risk.
  The amendment is supported by a coalition of children's charities—the NSPCC, the children's charity NCH, Childline and Women's Aid—all of whom support the principle of children maintaining contact with both parents following separation where it is in their best interests, including their safety and protection. Between them, those children's organisations have wide experience of working with children and provide a wide range of services, including helplines, family support services and specialist domestic violence projects. We are concerned that the existing system fails to listen to children where they have concerns about contact with a parent and fails to protect them from abusers who are known to them. It is important that the child's voice, including concerns about their safety, is not lost during the debates on this Bill.
  The experience of the children's charities suggests that, under the present system, some children are unable to voice their concerns about contact and continue to have contact with a parent who has abused

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  them. The question is whether the courts are listening to children about contacts and their concerns about safety.
  A recent study by Women's Aid and the NSPCC found that only 6 per cent of practitioners working with women and children believed that children who say they do not want contact with a violent parent are being listened to and taken seriously. In most cases, 57 per cent say that this only happens in some cases and 13 per cent say that children are never listened to.
  Urgent action is required to address the risk to children when courts grant unsupervised contact with abusive parents. A man who has been convicted of a Schedule 1 offence would not be allowed to drive the school bus but could be granted unsupervised contact with children he has abused. It is an irony that public law seems to give greater protection to children than that afforded by private proceedings.
  The children's organisations are convinced that 10 children have been killed in connection with contact arrangements in England and Wales since February 2002. In 2002, the courts granted 61,356 contact orders in England and contact was refused in only 518 cases, even though the Association of Chief Officers of Probation stated in 1999 that domestic violence is involved in about 16,000 cases a year—almost half of the cases where a Section 7 court report is ordered.
  We need to ask whether there are a significant number of cases where domestic violence may be an issue and is being missed by the court system. I believe that we have failed to overcome the problems that arise out of the case law on this issue. I hope that the Committee will bear with me because some Members will have heard me speak of these cases in the past.
  It is frequently claimed that the welfare principle in the Children Act 1989 provides adequate protection for children. However, case law precedents have altered the meaning of the Children Act in ways that can be damaging, especially in cases involving violence and abuse.
  The Children Act states that the welfare of the child is paramount. However, in Re A and N (Refusal of contact) [1996], the Appeal Court ruled that the welfare of the child is not paramount in committal proceedings. In this case the mother was sentenced to six weeks in prison for not complying with a contact order even though the father had a history of violence, including a very serious assault on his former wife for which he was sent to prison.
  Assurances have been made that the standard of proof required under the Children Act is the balance of probabilities. However, the House of Lords ruled in Re H and R that a higher standard of proof should be required in family law cases involving more serious allegations. As the Committee will know, dissenting from this ruling, the noble and learned Lord, Lord Browne-Wilkinson, stated that he feared it would make the Children Act unworkable because child abuse, particularly child sexual abuse, is notoriously difficult to prove in a court of law. As a result of this
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  ruling, we believe that it is now harder to protect a child who has been physically or sexually abused than a child who has witnessed violence.
  It was hoped that family court practice would improve following the Appeal Court judgment in Re L, V, M & H, in which four violent fathers were granted only indirect contact with their children. However, this judgment stated that it was in no way inconsistent with earlier decisions and therefore judges can still apply the presumption that contact is almost always in the interest of the child without fear of legal challenge. Many of the recommendations contained in the Re L, V, M & H judgment were also set out in Guidelines for Good Practice on Parental Contact in cases where there is domestic violence, endorsed by the Government in April 2001—but these guidelines are not mandatory and do not overrule the case law precedents which have proved so problematic.
  We have to ask the question: was this issue covered in the Adoption and Children Act 2002?
  I join with the children's charities in welcoming the changes made in that legislation to give children a voice in private proceedings and acknowledge the issue of domestic violence for children in children care legislation.
  The Adoption and Children Act 2002 extended the definition of significant harm in the Children Act to include harm a child may suffer as a result of witnessing ill-treatment of another person (Section 120). The Adoption and Children Act also requires the courts in private family proceedings to consider whether the child should have separate representation (Section 122). Neither of those clauses have yet been implemented. I am informed that the Department for Constitutional Affairs is unable to say when that will happen.
  Although the reforms are welcome, I wish to query whether there is still a need for legislation to require the courts to ensure that contact and residence arrangements are safe for children. Furthermore, the Adoption and Children Act 2002 does not address the problems created by the Re H & R judgment on the standard of proof in cases involving more serious allegations.
  My amendment addresses the issue by stating that, if a parent is found to be violent within the family, the court must not grant residence or unsupervised contact to the violent parent unless the child wants contact and the court is satisfied that that can he arranged safely. That rebuttable presumption is closely based on Section 16B of the New Zealand Guardianship Act, and similar measures have also been adopted by 17 states in the USA.
  Furthermore, the amendment states that, if there is not sufficient evidence to prove abuse but the court is satisfied that there is a real risk of harm to the child, it can make whatever order it considers appropriate to protect the child. It reflects the difficulties in proving domestic abuse, which generally occurs behind closed doors when no independent witness is present. It also allows the court to uphold the guiding principle that the welfare of the child is paramount and overrules the

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  damaging precedent set by the Re H & R judgment, which states that the court should require a higher standard of proof in cases involving more serious allegations. Again, that is based on the New Zealand amendment. This clause is likely to be particularly valuable in cases where a child has been abused but is too young to give evidence.
  Is this approach justified? The measures contained in proposed new Section 8A reflect the advice provided by two eminent child psychiatrists for the Court of Appeal when it considered four test cases involving child contact and domestic violence. In their report on the effects of domestic violence on children, Dr Claire Sturge and Dr Danya Glaser made the following comments:
  "Research indicates that children are affected as much by exposure to violence as to being involved in it. The ongoing fear and dread of it recurring is also emotionally very damaging… We take the position that all children are affected by significant and repeated inter-partner violence, even if it is only indirect".
  Noting that emotional trauma continues even when a child is removed from a violent situation, the psychiatrists comment:
  "The child needs to be protected from all this … The fear that one of their parents might be killed during the violence is often a significant part of the trauma to the child … We consider that there should be no automatic assumption that contact to a previously or currently violent parent is in the child's interests: if anything the assumption should be in the opposite direction".
  The report also emphasises that the child's wishes must be respected:
  "In domestic violence, where the child has memories of that violence we would see their wishes as warranting much more weight than in situations when no real reason for the child's resistance appears to exist".
  Unfortunately, the judgment in Re L, V, M & H does not appear to have improved court practice significantly. The Sturge and Glaser report, however, has been widely praised by family court professionals, and the views expressed in it are reflected in this amendment.
  The Government previously pledged to change the family proceedings rules after the Adoption and Children Act 2002, to require the courts to decide whether allegations of violence are proved before granting contact. A clause on deciding whether allegations of ill-treatment are proved is included for comprehensiveness, and the terms "ill-treatment" and "harm" are used because they reflect those used in Section 116 of the Adoption and Children Act 2002.
  Subsection (3) of proposed Section 8A is intended specifically to deal with the problems created by the House of Lords ruling in Re H & R on sexual abuse in 1995. It is included because it is linked to the previous provisions.
  Proposed new Section 8B is based on Section 16B(5) of the New Zealand Guardianship Act. The effectiveness of that legislation in tackling domestic violence in private law family proceedings is largely attributed to this mandatory risk assessment checklist, which provides a framework for all court welfare reports in cases involving allegations of abuse. The
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  terms "ill-treatment" and "harm" are used because they reflect those contained in Section 116 of the Adoption and Children Act 2002.
  I do not expect my noble friend to fall on my neck and say, "Welcome, welcome", but I hope that she may agree that she too is disappointed at the lack of progress in this area since we last considered it during the adoption Bill.
  In conclusion, I end with some quotes from children given to me by Childline and the NSPCC. One child said this to Childline:
  "Mum's solicitor and school staff suggested I ring you. I don't want to live with my dad. He's beating me. I want to live with my mum. There's going to be a court case but no one's listening to me".
  An eight year-old girl said:
  "The courts have said I've got to see my dad but I don't want to. I'm nervous and I want him to leave me alone. Nobody has asked me what I want".
  Similarly, the NSPCC told me that:
  "A mother and two children had been separated from the father for some years. However, the father was given unsupervised contact by the courts. The children reported that the seven year old was hit several times during a contact visit".
  The charity went on to say that:
  "The fear of the court upholding an order for contact has led a child to believe that they have no choice but to run away from home. If the order is upheld they feel that they have not been believed and need to take matters into their own hands. This causes additional worries for the mother about the risk of this happening on top of the anxiety about the hearing".
  I beg to move.
  7 p.m.
  Baroness Walmsley: On behalf of myself and my noble friend Lord McNally I rise to support the amendment, mainly because I am concerned that the existing system fails to listen to the concerns of some children about contact with parents. In some cases it fails to protect them from abusers who are known to them.
  The amendment gives a comprehensive structure to the factors which must be taken into account when contact is being decided upon, including the views of the child and the need to address the problems that have been thrown up by the case law mentioned by the noble Baroness, Lady Thornton. Currently, children involved in domestic violence cases are unable to voice their concerns about contact and are forced to continue to have contact with the parent who has abused either them or their mother.
  Some noble Lords may have received briefing from Fathers for Justice. The organisation makes the point that more children die at the hands of their mothers than at those of their fathers, but of course more children are looked after by their mothers than by their fathers. However, that said, we must bear in mind that sadly some mothers do commit violence against their children. No doubt the courts will bear that in mind when making the orders.

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  The basic and fundamental problem here is that the sooner our society outlaws the routine physical abuse of children, the better. That will create a completely different culture, one in which this kind of thing will not thrive as widely as it does now.
  I join with the noble Baroness, Lady Thornton, and the children's charities in welcoming the changes made in recent legislation to give children a voice in proceedings and which acknowledge the issue of domestic violence in childcare legislation. As the noble Baroness pointed out, the measures for listening to children in the Adoption and Children Act 2002 have not yet been implemented. I understand that we have not been told when they are going to be implemented.
  It is clear that we need to move towards a culture where not only are children listened to but action is taken as a result of the serious concerns they express. On that basis, I am very happy to support the amendment.
  Baroness Anelay of St Johns: I thank the various children's charities for their briefing on this matter. It is an important and complex issue. Unfortunately, I was not one of those noble Lords who took part in the proceedings on the Adoption and Children Bill. Obviously the noble Baroness and the Minister had a good experience and I wish that I had been able to join them.
  Certainly it is the case that disputes over contact can cause the deepest anguish among both parents and the children; they can lead to all manner of allegations, including false allegations. However, I acknowledge that this is a very complex and difficult area. My only experience of it took place several years before I came to this House, when I chaired family courts. Despite all the training we went through, we still found the duty of making orders of this nature one of the most difficult. In many cases I found them more difficult to make than when dealing with orders for imprisonment. It was an extremely complex matter.
  I appreciate the concern expressed that it is important that children's voices, including their concerns about safety, are not lost during our debates on this Bill. We have to thank the noble Baronesses, Lady Thornton and Lady Walmsley, for making sure that their voices are not forgotten. I shall be interested to hear from the Minister when she responds whether she believes there is evidence that children's voices have been lost as a result of the accretion of case law, which is the argument put forward by the noble Baroness, Lady Thornton. Seven years ago, when I was considering the welfare checklist under Section 1 of the Children Act, I did not feel encumbered by case law that prevented me from looking at a child's welfare first on each and every occasion.
  I speak only as a layman, but I am intrigued by the drafting of subsection (2)(b) of the proposed new clause. It states that the court shall not give contact to the abusive person,
  "unless the child wants to see the abusive party and the Court is satisfied that the child will be safe".
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  I like the words, "the Court is satisfied", but the difficulty lies in the first words in which the child must express a view; that is mandatory. What if the child is too young to express its own views, or is physically or mentally unable to do so? What would happen then? The amendment does not seem to allow the court to grant contact come what may, even if that was the right order to make in all the circumstances. The court is not given any discretion. Perhaps it is wording to which the noble Baroness is not absolutely wedded.
  It is right that we should have on record the Government's views on this matter. The Minister practised in family law over a number of years and I am sure will be able to bring a special perspective to our debate on how the attitude of the courts has developed since the time of Lacey v Lacey in 1980, when violence within marriage was described by a court as "not serious", which is extraordinary.
  Does the Minister agree that the way forward was presaged by Wall J, recently promoted to Wall LJ, in Re H [Contact: Domestic Violence]? He said that:
  "The point that has troubled me most on this aspect of the case is the question of domestic violence. Can it be said, as a matter of principle, that it is in the interests of children to impose an order for contact on a mother who is caring for them well in favour of a father who has treated her with such violence as to give her good and valid reasons to oppose contact?".
  Having asked the question, he went on to say that the answer must be, as a matter of principle, that domestic violence of itself cannot constitute a bar to contact. Each case must inevitably be decided on its facts. Domestic violence can be only one factor in a very complex equation. There will be contact cases where it is decisive against contact, but there will be others in which it would be peripheral. He concluded that the matter is therefore not one of principle, but of discretion. I would be interested to know whether the Government share that view.
  Baroness Scotland of Asthal: I thank my noble friend for raising this issue and tell her without any qualification that she would never give me anything other than pleasure by raising issues in relation to children. These are extremely important matters. I should also say that I agree very much with the comments of the noble Baroness, Lady Anelay. These cases and the decisions that judges, whether lay or professional, have to make are by nature the most difficult and testing.
  The import of Re H—and I commend also the words of Lord Justice Wall because he has specialised in this field over a long period—is high. I can reassure the noble Baroness that the welfare of the child, pursuant to Section 1 of the Children Act 1989, remains the paramount concern. Regrettably, no two cases are the same. That which is to be commended as a proper solution for child A may be disastrous for child B. For that reason, the court must exercise its discretion in each case in order to promote the paramount best interests of the child with which the court is dealing on that day as opposed to any other.
  I too am disappointed that we have not been able to implement the provisions more quickly. I shall turn to that point in more detail in a moment.

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  Noble Lords will recall from our discussions that in its 1999 report, Contact and Domestic Violence, the Lord Chancellor's Children Act Sub-Committee rejected the proposal to amend legislation to have a presumption of no contact in cases of domestic violence as not being in the child's best interests. Instead, it produced new guidelines on how the courts should deal with such allegations.
  Re L, the Court of Appeal judgment in 2000, partially incorporated the guidelines into law and the guidelines were promulgated in 2001; perhaps I may say that they are good. The guidelines require the courts to consider at the earliest opportunity any allegations of domestic violence and decide whether the nature and effect of the violence is such that it is likely that an order of the court for contact should be affected.
  The issue of a presumption of no contact in cases where domestic violence is alleged was considered during the passage of the Adoption and Children Bill in 2002. At the time we talked about this extensively and very properly. We said then and we still believe that an automatic presumption of no contact would not be in the child's interests. I cite here too some of the reasons outlined by the noble Baroness, Lady Anelay. However, before decisions about contact are made, allegations of domestic violence should be investigated and findings of fact made.
  To strengthen the courts' ability to consider allegations of violence and the impact on the child, Section 120 of the Adoption and Children Act 2002 amends the Children Act 1989, referred to by the noble Baroness, Lady Anelay, and my noble friend Lady Thornton, so as to extend the courts' definition of what might constitute harm a child might suffer to include any harm as a result of witnessing violence.
  We also made a commitment during the passage of the Adoption and Children Bill to introduce new forms for applications under Section 8 of the Children Act 1989 covering contact, residence, prohibitive steps and specific issue orders. These forms enable parties to Section 8 applications to highlight allegations of domestic violence right at the start of the proceedings. The courts could then make findings of fact before deciding what, if any, order to make.
  I recognise that there has been a delay in implementing the new definition of harm and the new forms to highlight domestic violence. I can reassure
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  noble Lords that we are totally committed to their implementation and introduction and I undertake a commitment to coming back to this issue on Report. I hope that I shall be able to give a fuller and more pleasing answer then.
  Finally, I would be very concerned about the provision in the amendment which makes a presumption of no contact, but which can be overridden by the child, so long as the court is satisfied about safety—again, for many of the reasons set out by the noble Baroness, Lady Anelay. While the Children Act already requires the court to have regard to the child's wishes, it would seem to put the child in a very difficult position if the child could, in effect, seek to overturn the court's decision prohibiting direct contact with the non-resident parent. It could open up all kinds of pressures and counter-pressures on the child from both parents, as well as allegations of undue influence from either party. I know that that is not something which either my noble friend or the noble Baroness, Lady Walmsley, would wish to see.
  I can reassure the Committee that this is something about which we are very concerned. We want to see it resolved and we want to make good our commitment in relation to this matter. For those reasons, I cannot accept the amendment and I invite my noble friend, with her usual generosity of spirit, not to press it.
  Baroness Thornton: I thank the noble Baronesses, Lady Walmsley and Lady Anelay, for their remarks. I thought that the question that the noble Baroness, Lady Anelay, put at the end of her remarks was very interesting. It is a better response than I received last time, and I am very grateful for that. I will take the matter away and look at the wording, because a good point was made there. I thank the Minister for her response and look forward to re-engaging with the matter on Report. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Bassam of Brighton: In view of the complexity of the next amendment, I propose that the Committee adjourn for today.
  The Deputy Chairman of Committees (Baroness Gould of Potternewton): The Committee stands adjourned until Monday 2 February at 3.30 p.m.
  The Committee adjourned at quarter past seven o'clock.