HC Deb 22 October 2003 vol 411 cc255-74WH

Motion made, and Question proposed, That the sitting be now adjourned.—[paul Clark.]

9.30 am
Dr. Desmond Turner (Brighton, Kemptown)

The publication of the Law Commission report represents what I hope is nearly the end of a saga. For me, it has been going on for at least five years; for many others involved in child protection, it has been going on much longer.

Over the past five years, while the topic has been under earnest debate, approximately 750 children will have been killed or seriously injured by their parents or carers. That gives us an insight into the scale of the problem. Of those deaths and injuries, few will have resulted in prosecution—and virtually none in prosecution for an offence that reflects the gravity of the crimes that have been committed.

The problem first came to my attention when a series of babies in my constituency died over a number of years. Only with the last two deaths was it realised that the deaths were not accidental but were the result of gross neglect and physical abuse. The National Society for the Prevention of Cruelty to Children reports of those cases made the same sort of harrowing and grisly reading as the account given in the Climbié report.

Not unnaturally, the matter was taken very seriously. It was the result of a total failure on the part of the child protection services, and it led to a prosecution. The parents were jointly charged with murder. However, the trial did not proceed far: the judge stopped it, I think even before the prosecution had finished their case, on the ground that it was not possible to bring a safe conviction against either parent because, from the evidence given to the court, it was not possible to decide who had done it.

That is the nub of the problem of joint enterprise. Everybody knows that one or both members of a couple—or even more—must be guilty of a serious crime, yet it is impossible to find evidence to decide which of them struck the fatal blow. I hasten to add that there was a successful prosecution of the couple in the end, but only for neglect. They received prison sentences of one and a half years and two and a half years respectively, and were probably released almost immediately.

My first action on hearing of that case was to see the then Home Secretary, together with the detective inspector who had been involved in the case, and relatives, to put to him the seriousness of such cases and the fact that gaps not only in the provisions of the law but in court procedures and rules of evidence had prevented a successful prosecution. The Home Secretary was sympathetic and promised that he would refer the case. He then referred it to Lord Justice Auld, who was conducting a review of the judicial system. It was later referred to the Law Commission for consideration. After years of earnest deliberation, we finally have the commission's report.

The National Society for the Prevention of Cruelty to Children convened a working group with the aim of gaining an idea of the number of such cases in the country. The same detective inspector undertook an intelligence-gathering exercise involving 43 police forces in England and Wales, the results of which were disturbing. He found that in the three years covered by the investigation, an average of three children under 10 were either killed or seriously injured every week. Of those cases, 83 per cent. involved children under two. In 61 per cent. of cases, there was no prosecution because of decisions taken by the police or the Crown Prosecution Service. There were convictions in only 27 per cent. of those cases, and those were only for the relatively minor offences of neglect or cruelty.

The disturbing situation is that murder—the only reasonable desrciption—is being committed with impunity by parents or carers, and that there are no prosecutions because of the conundrum of not knowing who did it. If neither party is prepared to give evidence against the other, it is difficult to decide who did it. I cannot imagine that the police or the CPS would allow an adult murder to go unpunished and unprosecuted so easily.

It is a sad fact that the authorities do not pursue cases involving the deaths of small children with the vigour appropriate to the gravity of murder. I put it to hon. Members that the unlawful death of a human being is equally grave whether the victim is one month old or 70 years old. How can we resolve the imbalance of justice that allows the most serious of crimes to go unpunished in literally hundreds of cases? The balance of justice is very much tilted in favour of the perpetrator of the crime because of the perfectly natural and laudable legal principle that before a person can be convicted of a serious crime, one must be absolutely confident that he or she did it.

Unfortunately, that principle gets in the way of successful prosecution. That is echoed in the Law Commission's early consultative report, which states: We conclude that there is ample evidence from disparate sources that the present rules of evidence and procedure which apply in criminal trials represent a significant obstacle to effective investigation into and identification and punishment of those who are guilty of the most serious offences against the most vulnerable member of society. Furthermore, the alternative offences, for which the present rules and procedures do permit convictions, do not appear satisfactorily to reflect the responsibility for the death of a child, either through the labelling of the offence which attaches to the conduct or in the severity of the penalties available. I doubt whether anyone would disagree with those words. What we need now is action. For many years, learned colleagues have cogitated on it and, until now, failed to find a way through the dilemma. Sooner or later, in every judge's deliberation, the classic case of Lane and Lane comes up, and we can go no further.

The question is what to do in a situation in which it is known, beyond all reasonable doubt, that either one or both of two people were responsible for a capital offence. Clearly, it is not possible to prosecute for the full gravity of murder in such circumstances. However, the original proposal, which was the line of thinking of the then Home Secretary, was a slightly lesser offence of killing as a result of cruelty, which would carry a sentence of, say, up to 14 years, which can be prosecuted according to the lesser standard of evidence, as long as we are confident that the murderer or murderers were part of a couple. That is what we have come back to.

I submit that that is reasonable, because even if one of the couple was completely innocent of throwing the baby at the wall, for example, they were complicit in, or at the very least accessories to, the act of murder by virtue of their silence, given that they knew the circumstances, and of their failure to take steps to protect the child. It would be reasonable, in such circumstances, to prosecute for joint enterprise. That also means changing the rules of evidence and procedures in court, and the Law Commission's recommendations coincide reasonably with the amendment to the Criminal Justice Bill tabled by my hon. and learned Friend the Member for Redcar (Vera Baird) and me. We did not press it to a Division, as we were awaiting the outcome of the Law Commission's report, which is now before us.

I remind the Minister that Baroness Gould tabled the same amendment in the House of Lords, which corresponds to, takes into account and anticipates the Law Commission's recommendations. There is still time for the Government to incorporate them into the Criminal Justice Bill by accepting the amendment. I await my hon. Friend's response to that fact with great interest.

Alternatively, the Government could proceed by putting the Law Commission's recommendations into effect on their own. I hope that my hon. Friend will tell me that they will do so. The recommendations are couched at great length in legal language, but the nub of them is fairly simple: the offence of killing by cruelty; a further offence of failing to protect; the requirement for a judge to allow the full case to be presented to the court before intervening to prevent the possibility of what he believes could be an unsafe conviction; and for the court to be able to draw conclusions from the silence of either or both of the accused, so that the court can bring in a verdict under the conditions of joint enterprise.

If the Government are not minded to accept the amendment, which is currently being considered in the House of Lords, I seek an assurance that they will legislate to put the recommendations into effect at the earliest opportunity. The current Home Secretary, Lord Falconer and the Solicitor-General have assured me that the Government have a strong will to do so. I will put my hon. Friend on the spot—that is what Ministers are for—by seeking from him an assurance that the Government will accept the legislative opportunity offered by our amendment to the Criminal Justice Bill or that the Queen's Speech will announce a domestic violence Bill that incorporates the new charges and changes to rules of evidence that arise from the report's recommendations.

This is a very serious matter. The current situation totally undermines the work of child protection agencies. It is not that prosecution by itself is necessarily a deterrent—we know that the abolition of the death penalty made no difference to the incidence of murder—but that society expects a reasonable degree of punishment for a very serious offence. It can do nothing for the morale of social workers, investigating police officers or health visitors, who must go through some difficult exercises to do their work, to know that they will end up with no result other than a dead child. It is therefore essential that this large gap in the operation of the legal system should be plugged at the earliest opportunity. We do not guarantee that this will stop parents from neglecting, battering or murdering their children, but it will contribute to a reduction in the incidence of such horrendous occurrences.

9.49 am
Tim Loughton (East Worthing and Shoreham)

I am grateful for the opportunity to speak on this subject, in which I have been interested for a number of years, both as Front-Bench spokesman on children's issues and from constituency experience, which the hon. Member for Brighton, Kemptown (Dr. Turner) knows well. I congratulate him on raising the subject again in this Chamber. As he said, he has been involved with it before. Uncharacteristically, I want wholeheartedly to support his case and the comments that he eloquently made. As he says, there is a gap in the law that must be plugged: it amounts, literally, to adults getting away with murder.

We in Sussex know—all too well, sadly—the problems of child abuse, cruelty and murder. The hon. Gentleman recounted several cases from his constituency, and I want to refer to a specific case that happened in my own. There was the murder of Sarah Payne a few years ago. I have been attempting to push the child rescue alert scheme, which was piloted by Sussex police, as a means of countering child abductions. The Minister knows that we currently have a few problems with that; I am glad that I shall meet his colleagues in due course.

Part of the problem nationally is that too many children are still being killed, let alone suffering abuse and serious injury, at the hands of their parents or carers. The number of children who die at the hands of their parents or carers is still said to average 79 or 80 a year, of whom—incredibly—over half are under the age of one. That figure has been fairly consistent over a number of years, despite improvements in the system of detection, and a greater awareness of child abuse problems, and it is still alarmingly high. We hope that improvements will take place as a result of Lord Laming's Climbié report, and the Green Paper that the Government announced last month, which we greatly welcome—but the proof of the pudding will be in the eating, and we need to see much more detail. We hope that, as part of the linking exercise between those who come into contact with children—be it social workers, teachers, GPs, other health workers, or police—that we can do something to bring down that number of deaths. At the same time, the point of today's debate, and the required legislation, is to ensure that the deterrent against those parents or carers who commit such heinous crimes is of sufficient severity to discourage them from doing so. A two-pronged approach is needed, which is why it is right that the hon. Gentleman proposes changes in the law.

The NSPCC, working with the Sussex police child protection unit, has done a lot of work on the subject. The hon. Gentleman referred to a study in which it considered a number of cases of non-accidental child deaths at the hands of carers, and surveyed 366 cases. In 225 cases, no further action was taken, not even the charging of parents or carers with a lesser offence—those cases never even proceeded to court. The perpetrators obviously got away with their crimes scot free. There were convictions in only 99 of those 366 cases, very few of which were for murder, as most were on lesser charges. The indictment rate for such cases has also been falling in recent years. It seems that the law is not being tightened up; if anything, it is going the opposite way.

I have taken up the issue in most of the six years that I have been in the House. Earlier this year, I revisited the subject with a private Member's Bill, urging the Government to do something about the joint enterprise loophole. What brought my attention to it was the case in my constituency in 1999. A four-year-old, John Smith, who I think was in the care of Brighton and Hove social services, had been placed with foster carers in Fishersgate in my constituency. The carers were the child's prospective adopters and were apparently sufficiently trusted by social services to put him in their care.

On Christmas eve 1999, the child died from brain injuries after six months of systematic abuse, resulting in 54 bruises, three adult bite marks and numerous burns being found on the body when the child eventually succumbed to the abuse. Those responsible, Simon and Michelle McWilliams, were prosecuted. In 2001, they were jailed for eight years, but on a charge of cruelty rather than murder, because each one denied responsibility and did not try to pin it on the other, so the joint enterprise loophole came into play. Amazingly, the couple appealed against their conviction, but fortunately the appeal was turned down and they are still serving part of that eight-year sentence—they could well be out in four years for good behaviour.

The verdict was an enormous blow to all the people who knew that the parents were guilty of a much more serious offence than cruelty. The report had enormous ramifications: social workers lost their jobs and health workers, including my constituents, were heavily criticised. Systemic failures were exposed in the case, and we hope that the Green Paper recommendations will resolve them. The frustration and demoralisation of professional workers who just want to do their best for the young people in their care is enormous when they see people getting away with murder altogether or facing much lesser charges.

The Government must revisit this issue. Whether through the amendment in the House of Lords, which the hon. Gentleman mentioned, or otherwise, we need to find a solution to plug the loophole. I am not a lawyer and do not know the technicalities of what would and would not wash in the legal system. However, I do know that a solution must be found and I support his proposal, as I, too, have suggested that there should be a charge of killing by cruelty, for which the sentence would typically be a maximum of 14 years.

The hon. Gentleman spoke about a responsibility on a parent or carer to have a joint duty of care for the welfare of the child and to take action if he or she reasonably believes that the partner is abusing the child. We can learn from the Scottish system. Changes made to Scottish law in the 1990s introduced a duty of care over children for whom parents or carers had a joint responsibility.

I do not suggest any practical, specific solutions at this stage, but I add my weight to the case advanced by the hon. Gentleman. The number of children who are abused and killed in our society is a terrible indictment of it, certainly when compared with the experience in other European countries. There must be a two-pronged solution. We need a better system working to prevent such cases, with properly joined-up professionals who are properly in touch with the intelligence on the ground and who have the power and the teeth to do something about it. The buck should stop with the person who can ensure that something is brought to bear. Equally, the law must be tightened up so that anyone who is minded—incredibly—to inflict the terrible injuries on children that we all find extraordinary will think twice about the odds of being prosecuted and the severity of the implications of a successful prosecution. At present, the chances of a serious prosecution with serious consequences are simply not high enough to act as a deterrent.

I hope that the Minister will take those points on board and that we can see a change in the law to make such child killings a real offence, punishable by a charge equivalent to murder.

9.59 am
Vera Baird (Redcar)

First, I apologise for my late arrival, which was attributable to the Victoria line for about the 15th time in the past few weeks. It is discourteous of me, and it also means that I did not hear what my hon. Friend the Member for Brighton, Kemptown (Dr. Turner) said. If I start to repeat what he said, I hope that someone will pull a face at me. I pay tribute to both him and the hon. Member for East Worthing and Shoreham (Tim Loughton). Both have worked with great fortitude to change the anomaly in the law, and I am pleased to be able to add my support.

Reference has been made to the work done by an NSPCC committee, which collected figures on children who are killed or receive serious injury. I heard the hon. Member for East Worthing and Shoreham talking about the numbers—476 children in three years, which amounts to three a week. On those figures, by far the highest homicide rates for both males and females are among infants. A casual thinker might guess that young men between the ages cf 18 and 20 or 25 were the most likely people to be killed. In fact, 33 such young men per million are killed by homicide, whereas 44 little boys per million are murdered.

The causes of death are almost as horrific as the numbers. More than 60 per cent. of the 476 deaths were caused by either a skull fracture or an intracranial injury, including a haemorrhage, which suggests that the child was shaken, thrown against a wall or banged on the head. Another 10 per cent. of deaths were from suffocation or strangulation. The hon. Member for East Worthing and Shoreham noted the different figures. Let me specify the important one: only a quarter of the cases that were reviewed resulted in a successful prosecution.

As the hon. Gentleman demonstrated, and I am sure that it was said earlier too, that is principally because few cases go to court. When cases reach court, the conviction rate is well above average, but few get there. The point has also been made that although the rate is above average, convictions are often for a lesser offence, under section 1 of the Children and Young Persons Act 1963.

Like others, I must pay tribute to the NSPCC's work and the "Which of You Did It?" working group, which has been chaired by Judge Isobel Plumstead and in progress since 2000. A principal reason why convictions are difficult is that more than one person often bears direct responsibility for the child's death. Even when they are not killed, small children are often unable to say who harmed them, and a child old enough to give information is rarely able to go to court.

Carers cannot be compelled to give an account, as there is a justifiable privilege against self-incrimination in court. I have never understood why people are surprised about that privilege. People cannot be forced to talk; we do not torture them. However, we can back up the exercise of that right with consequences if it is unreasonably exercised.

As I am sure that others have referred to the case of Lane and Lane, I shall do so fleetingly. It ruled that in the absence of evidence that indicated which person of several had inflicted assault or that they acted together, none of the people involved could be convicted of murder or manslaughter. In some cases, conviction for cruelty or neglect under section 1 of the Children and Young Persons Act 1963 might follow, but there is no reason to settle for that. If a person has been killed at the hand of another, the right charge is murder or manslaughter, depending on how the facts marry up. There is nothing to justify having only lesser charges available when the killing is of the most vulnerable youthful members of society.

Section 1 of the Children and Young Persons Act 1963 has served as an excellent back-stop in many cases, but even that is sometimes difficult to achieve. The law was not designed to be the way it is, and nobody wants it to be so. We have a common-law system and a non-codified criminal system, which means that if an issue arises in a trial or on appeal, the decision in strict law is made in a piecemeal way and is specific to the case. That then stands as a precedent for other cases that cannot be distinguished from it, unless or until it is overturned by a higher court.

One could never have expected the Lane and Lane case to be overturned in a higher court, because it conforms to the main principles of criminal evidence and justice. The courts do not say, "This is not how it should be, so we will change it." They apply the law; they do not take into account what might be called public policy if it conflicts with ordinary criminal law. They take little account of what is desirable in society, or in that case, of what is utterly undesirable. In Lane and Lane, the Court of Appeal said that, distressing though it may be, a serious crime is likely to go unpunished. It is absolutely certain that one of two people in that case, and in most such cases, committed the most serious offence known in law on a child, so that statement was a significant understatement.

Lane and Lane took place in 1987. The verdict was never morally correct, as opposed to technically correct in the limited confines in which judges are allowed to think. For 17 years that has been the law, and nobody has done anything significant about it, although many social workers and CPS lawyers have tried to find a way around it, usually through section 1. However, that law has prevailed, many children have been killed, and many deaths have gone unpunished for an extremely long time.

For the courts, it represents what Lord Justice Buxton described to the Law Commission as a depressingly accurate account of the way in which the courts have felt obliged to subordinate the particular interests of child protection to the demands of general and non-situation specific rules of English procedure". It is curious that judges have the responsibility to apply the law systematically and almost mechanistically. When they see, as they must, something wrong with that application, there is no systematic channel for ensuring that that news passes to those who could, many years ago if the will and knowledge had been available, have done something to change it.

Before I discuss the current proposals for change, I want to point out that the figures collected by Judge Plumstead's working group showed a large discrepancy in the outcome of such cases among the police forces that were surveyed. The figures are small, so not too much can be based on them, but it is worth noting that although the West Midlands force achieved a successful prosecution in 50 per cent. of all cases that came to it—not just those that it took to court—in Essex, there were only four successful prosecutions, which represent 8 per cent. of the total. The remainder of cases in Essex resulted in no further action and did not get near court. That is a massive discrepancy between the two.

It is possible that, because of Lane and Lane, which has existed for so long, police, CPS lawyers, lawyers at court and judges may have developed the idea that there is not much prospect of success if there is a possibility that two or more people committed the offence. That may then become a self-fulfilling prophecy, rather analogous to the way in which rape has historically been treated. If there is perceived to be only a remote prospect of a successful outcome, it is probable that less effort is put in all the way along—for example, there might be insufficient active investigation to try to secure evidence that would point to A as opposed to B.

There is also the possibility of the impact of imminent legislative changes. I am strongly opposed to the admission of previous convictions in prosecutions because those convictions are there. However, if the Criminal Justice Bill successfully completes all its stages and is implemented, it will be possible for previous offences, acquittals and violent behaviour to be admissible, where relevant, in cases of this kind.

Before turning to the new proposals, I shall make only one further point, because it is difficult, in a debate of this sort, to have the sort of debate that one would have in Standing Committee about the technical nature of the law. However, I shall make that point as strongly as I can.

There is powerful evidence that cruelty to children, assaults on children, and killing of children are closely linked to domestic violence in general. As long ago as 1996, evidence presented by Brandon and Lewis showed that in half of 105 cases of children who had been killed or injured by a carer, domestic violence had taken place in those families.

Two conclusions may be drawn from that. First, with regard to what I said earlier about the Criminal Justice Bill and the proposed wider admissibility of evidence of previous conduct, if domestic violence has occurred, there may be evidence of earlier violent conduct by one party or another, demonstrated by police call-outs.

Secondly, the domestic violence victim is a potential witness, particularly if the woman concerned called out the police. As we know, 90 per cent. of domestic violence is man on woman, so I shall speak as if the woman was the victim, while taking due regard of the fact that it is sometimes the other way around. As is fairly well known, women tolerate a very great deal in domestic violence cases. They sometimes ask for help and often stay even after the help has come, but it is often when an assault has occurred on a child that the link breaks, and the woman realises that she must make the move. An assault that results in death or serious injury can happen suddenly, so the woman has no time to protect against it or to leave, but in that situation she may be a useful witness, rather than a defendant.

However, the approach taken must be a cautious one. Women do not easily talk about domestic violence; it fills them with shame and guilt, and they are sometimes too afraid to talk about it. That represents a challenge for the police. They must be aware that there is a well-proven link between child killing or child injury and domestic violence against an adult partner, but it is critical that that issue is approached with care. It is also critical that policewomen be involved in that delicate area, and that both parties are represented by solicitors who understand the implications.

Even now, prior to any change in the law, some steps could be taken that might mean that more cases are successfully prosecuted. I have discussed the provisions of the Criminal Justice Bill and the understanding of the potential impact of domestic violence, which is likely to have been present, and have asked the question whether the existence of Lane and Lane for so long has led to a state of mind in which the police and the CPS do not pursue cases as actively as they should.

I respectfully suggest that a thematic review by the inspectorate of constabulary and the inspectorates of the CPS of how such cases are prosecuted would be a good step, pending legislation—I do not know when it will be possible to legislate, and I am as keen as other hon. Members who have spoken to encourage it quickly. That would not be like the usual inspections of police forces in, say, Cleveland or Essex; rather, we should look at all the police forces and ask how they are doing this. Is there best practice that can be learned from? Is there best practice that can increase the rate of conviction, even on the law as it currently stands?

In 2002 there was such a thematic review of the law on rape and how rape is prosecuted, which was very important indeed in unlocking some of the measures that are now being taken to improve prosecutions and convictions. A similar course could unlock some of the no further action cases and lead to more being carried on with, irrespective of any changes in the law. However, there are also good recommendations from the Law Commission for changes in the law, and I, too, urge that they be taken up quickly.

At trial, the prosecution go first and present their evidence. Given the evidence, they might say, "It's more likely to have been A," or, "It's more likely to have been B," or, "The circumstances suggest that they were working together on this," or, "In the instant when the action took place, they were of the same mind and are parties to a joint enterprise." If so, the case just stops, because the defence then have a right to say, "We don't have anything to answer here, as there is no case against either A or B." That has happened many, many times. A and B will have said nothing in the police station, and will of course never have to face the prospect of saying anything in court, because only the prosecution are heard from. The two do not have to answer if there is no case presented against them at court.

It is not the work of wicked lawyers to tell people not to speak, however. In the aftermath of Lane and Lane it would be gross negligence if a lawyer did not say to a person in the police station, "You must say what you wish, but let me tell you, if there is no evidence that picks out that it's either you or her, there will be no conviction against either of you."

There is an inference in the law from silence, but it does not work at that early stage, when the prosecution case is being called. It therefore cannot carry someone over that halfway stage, because they have not been given a chance to speak or say nothing in court in order to rectify their silence in the police station, so the inference does not work. There is an excellent proposal from the Law Commission that echoes the amendment that my hon. Friend the Member for Brighton, Kemptown and I tabled in Committee, which is that the right to submit that there is not a case for a defendant to answer should be deferred to the end of the defence case and not taken at the end of the prosecution case.

At first sight there is a logical inconsistency about that proposal, because it is a bit funny to make a submission that there is no case to answer after one has given one's evidence or chosen not to do so. However, that is just a pedantic turn of phrase. We need a system in which, because solicitors will perhaps for the first time not give such advice so freely, people will have to consult their conscience about what they intend to do. Their child or a child whose care they were responsible for has been killed. They are now before a court, a case has been presented and the jury are looking to them. Can they sit throughout the case when the judge says to their barrister, "Have you told this person that now is their opportunity to give their explanation? Have you told them that it can be held against them if they don't?" In such circumstances, people will find it far harder to keep their heads down and their mouths closed through that stage, and more are likely to speak.

The Law Commission also has a proposal to beef up the adverse inference that would follow if either or both of the accused did not speak. Once one has passed the end of the prosecution and has started on the defence, the adverse inference works—juries can draw such inference as they think proper from the failure of defendants to speak, and in many cases they will. However, there is an irony in that. Because one cannot carry the adverse inference over from the end of the prosecution case and set up a case to be answered, if there is no more evidence at the end of the defence case because the defence have not spoken at all, but have kept mum and brazened it out, there is no more evidence than there was at the halfway mark. Logically, the adverse inference should not carry one any further in the absence of positive evidence one way or the other.

That is why the Law Commission proposes beefing up the process by setting up a statutory duty on a person who has care of a child, so that should anything happen to that child, he or she would have to give an account of how it occurred and what he or she knows about it. The Law Commission believes that that is key. It will permit more powerful adverse inference to be brought into play: in court, the moral pressure will be twice as large if one does not merely recite the ordinary rules but says, "You have a statutory duty to speak now," and the person still remains quiet. The Law Commission's view is that if somebody remains quiet in the face of that, the adverse inference should be large enough to allow for a conviction.

Mr. Dominic Grieve (Beaconsfield)

Clearly, it will remain the case that, notwithstanding any adverse inference, if the evidence is not there at the close of the defence case—even with the statutory obligation to give an account—some prosecutions will have to be thrown out by the judge. That issue has troubled me, too. Can the hon. and learned Lady give examples of cases in which the statutory duty to give an account will make a difference if the evidence is not there in the first place that would have carried the prosecution through under the present rules?

Vera Baird:

I know exactly what the hon. Gentleman means. While I was in durance vile on the Victoria line, I went step by step through the proposals, trying to cast my mind around what difference it would make in practice.

First, we should think about the period before trial and consider the police investigation. It would be a potent tool for police to tell people that they had a statutory duty to tell them what had happened, and that if they did not speak out either then or when the matter came to court, everybody would know that they had failed in their statutory duty. When the matter came to trial, it would also be a powerful tool for the judge to announce in the face of a jury that the person would be failing in that statutory duty by not speaking. I hope that the impact will be to encaurage more people to speak, but it might work in the odd case even if they do not.

Dr. Turner:

Is this not a lesser problem than it might seem, because we are talking strictly about a situation in which we have hard evidence of every element apart from which defendant did it. We know that there is a dead child, and we are confident that one or both of the two people were responsible. It is a self-confining and self-defining situation, and the proposed new rules will put enormous pressure on both defendants, if they wish to defend themselves, to speak. If they fail to speak, they can be reasonably assumed to be guilty.

Vera Baird:

I am grateful for my hon. Friend's intervention, although I do not entirely accept his last point. For instance, one would have to be very careful in a case where domestic violence could have taken place, because the victim of that violence may be intimidated and so not speak. Only the adverse inference that it is proper to draw can be drawn. If the jury think that A is not speaking because A is scared, or is protecting B rather than himself or herself, that will still lead to some difficulty. Creating a statutory duty, rather than leaving the law as it is now, can make a difference. All the pressure that I have referred to will come to bear on people, and will enter the mind of the jury as a factor for consideration.

A judge who thinks at the end of a defence case that there is no evidence that points either way or shows joint enterprise will still have a duty to throw out the prosecution. Some cases will have to be withdrawn; we are not legislating to achieve 100 per cent. convictions. In fact, it is probably not appropriate to have 100 per cent. convictions. However, we are trying to improve matters in the ways that we can.

As my hon. Friend said, one could envisage that in certain circumstances, where there was a dead child, the jury would see A and see B and assess from their silence in the face of their statutory duty whether the evidence about the circumstances allowed the view to be formed that the two might well have acted together. There are juries that convict because it is clear that two defendants are acting together in deciding not to speak. Members of the jury take back an inference that if the defendants are conspiring to keep quiet, it is probable that they conspired together before.

All such circumstances need to be examined carefully, and the jury will have to ask whether there is something in the evidence that, coupled with the silence of A and of B, makes it possible to be satisfied either that A is responsible, or that A and B were acting together. The extra power that the Law Commission proposes to add to that inference is probably important. It also suggests an extension of the section 1 offence, which would include neglect or assault from which death follows. That would be helpful, but it cannot be a substitute for charges of murder and manslaughter.

My hon. Friend the Member for Brighton, Kemptown and I toyed with another approach. That was to state that anybody with a duty to protect who is present when a child is killed or injured, is guilty, unless they could say that they took all reasonable and practical steps, and could satisfy the court that they did so. In other words, they would have to speak or they would be convicted. That would not reverse the burden of proof once they had spoken; that is, in a sense, the Law Commission's idea of a duty to explain—backed up by a conviction. That approach, however, is probably a step too far.

In the 1997 case to which the hon. Member for East Worthing and Shoreham referred, an inquiry took place in Sussex. In April 2000, the police met the then Home Secretary, now Foreign Secretary, who said that the Home Office was urgently considering changing the law. The "Which of You Did It?" working group has been sitting since 2000.

My hon. Friend the Member for Brighton, Kemptown and I raised the issue at the outset of the Criminal Justice Bill. We both raised it in Committee. The then Home Office Minister, my right hon. Friend the Member for Leeds, Central (Hilary Benn) said that it is wrong that those who abuse children should be able to play the system and get away with it. The Law Commission was asked to produce a consultative document in haste, in the hope that something could be put into the Criminal Justice Bill. On Third Reading, the Home Secretary said that he was keen to legislate. Finally, last week, on 15 October in the other place, Baroness Scotland said that the Government were immensely keen to legislate. All of that has passed, the Law Commission has done its best and the final report of "Which of You Did It?" is imminent and is going to be far more about procedure and less about the law, because the Law Commission has dealt with that.

My question is now: have we not passed the stage at which asking as a tool for examination the rhetorical question, "Which of you did it?" has got to change to asking the Government directly, "When are you going to stop it?"?

10.30 am
Mr. David Heath (Somerton and Frome)

I congratulate the hon. Member for Brighton, Kemptown (Dr. Turner) on having secured the debate. We have already heard two very important contributions. Sadly, the 10 minutes allotted to the Front Bench in these circumstances is barely adequate to cover a matter that has been niggling away for years. I pay tribute both to the hon. Members who have already spoken and to organisations such as the NSPCC and various constabularies, particularly that in Sussex, for taking the subject so seriously. They do so because all of us consider infanticide to be a uniquely repugnant crime and all of us are concerned about the apparent gap in the law that is so amply demonstrated by the huge disparity in the prosecution rates for those suspected of killing a child in their care and those suspected of killing a child who is a stranger. That tells an important story.

As has been said, we had a canter down this course during the Committee stage of the Criminal Justice Bill. I see many of the contributors to that debate in the Chamber today. As the hon. Member for Brighton, Kemptown and the hon. and learned Member for Redcar (Vera Baird) know, in Committee I was very supportive of their amendment, with one exception. They included a provision for admitting pre-trial incriminating statements made by one defendant against another. I was unhappy with that, feeling that it was likely to be a breach of human rights legislation, and I am happy that the Law Commission formed the same view.

We need to dwell on what the Law Commission has said in dealing with the narrow legal points, but we should also recognise that there is a wider aspect to the matter. Improvements need desperately to be made in protection—I do not say deterrence, because I accept the view expressed by the hon. Member for Beaconsfield (Mr. Grieve) that deterrence is of limited value in this area. Protection is certainly a proper concern, and we should provide a better service to children and young people.

I would also consider investigation. I wholly endorse what the hon. and learned Lady said about a thematic review of both investigation and prosecution procedures. That is a sensible suggestion that should be acted on at the earliest opportunity. I also feel that there is a gap in paediatric pathology that needs to be addressed as a matter of urgency. We do not necessarily have experts who are doing the job as well as they should be, and that has been illustrated in a number of cases.

I am pleased that the Law Commission is absolutely clear about the need for the prosecution to prove that a crime has been committed before the rest of its provisions come into force. There have been serious question marks over some cases that have been brought even though it is not clear that a crime has been committed, and people have been wrongly convicted on the basis that a crime has been committed, although the event was happenstance or accident. We must clearly distinguish such cases, because to put them together is to confuse the situation.

Various hon. Members have referred to Lane and Lane, and I am not going to quote others unnecessarily. I think that the hon. and learned Lady quoted Lord Justice Croome Johnson. It is a huge misfortune that, so many years after that case, nothing has been done. Looking back, I was surprised that the royal commission on criminal justice in 1993 came to such a weak conclusion about identifying an area of difficulty. It did not accept an argument about evidence at that stage, and expressed sympathy about the public concern over such cases but did not come to firm conclusions. That was an error.

Since then, some cases have provided partial remedies. The Law Commission refers to them: in relation to inferring joint enterprise it refers to the cases of Marsh and Marsh v. Hodgson, and Russel and Russel, as well as matters relevant to increasing the penalties for lesser offences. However, it does not get to grips with the basic issue that the Law Commission has now addressed.

As we have heard, the Law Commission has made proposals relating to the evidential and procedural arguments, and to new offences, with the statutory statement of responsibility. I believe that that is a productive and beneficial move, which ties in with what hon. Members proposed for the Criminal Justice Bill. A knock-on consequence, which has been referred to briefly, is a requirement for separate legal advice for the parties in the case, because the possibility of conflict of interest becomes so much greater. That must apply from the moment of arrest and interview at the police station. A change in solicitors' procedure may be needed for such cases.

The second point made by the Law Commission is that in certain cases the judge may not decide whether the case should be withdrawn from the jury until the close of the defence case. The hon. and learned Member for Redcar explained the consequences of that. Her analysis is correct, and I support her in it. The Law Commission has also dealt with the inference from failure to provide evidence.

As to the new offences of cruelty contributing to death and failure to protect a child, I cannot believe that anyone would argue about the first of those. It is self-evidently a valuable prosecution tool that that offence should be available, to he treated with the greatest seriousness. There is an argument for extending the offence of failure to protect a child, to make it apply more widely than to those with the connections set out in the Law Commission framework, resulting in a wider and more general duty to protect a child. I can see that it would be a difficult matter to enforce or prosecute, but it might also be a useful deterrent in statute. I should like to explore that possibility further.

The other question that needs to be discussed in relation to failure to protect a child is the maximum penalty of seven years. I can see the balancing act that the Law Commission is trying to carry out. Clearly, the offence is a lesser one than murder, but in some cases it may be a substitute for a murder charge. Is seven years the appropriate maximum penalty? I am not sure. In due course we shall need to address that matter.

What the Law Commission has come up with is a viable framework for reform, which appears in the draft Bill on offences against children. We have already heard that the Government are committed to act on this. The then Home Office Minister, who is now Secretary of State for International Development, said: We are committed to legislating en the matter, once we have found the right solution. That was keeping the door open. He went on: We will then proceed with legislation as quickly as possible, either in the Bill if there is still time,"— he was referring to the Criminal Justice Bill

or in a future Bill, because we are committed to making a difference on that aspect of the law."—[Official Report, Standing Committee B, 4 March 2003; c. 1269.] It is clear to me that the matter that we are considering is one of urgency in the law. The Law Commission has done good work on it. There remains theoretically an opportunity to amend the Criminal Justice Bill. I would understand if the Minister's response was to say that there are so many interconnections between the proposed legislation and other legislation currently passing through the House that it would be better to have a freestanding Bill in the next Session. If that is his argument, I will accept it, provided that there is indeed a freestanding Bill in the next Session. What I cannot countenance, and I hope that he will not accept this either, is the matter simply sitting on a shelf gathering dust while the situation described by the hon. Member for Brighton, Kemptown continues. This problem is susceptible to a remedy, which the Law Commission has pointed out, and it behoves Parliament to do its job by producing legislation at the earliest opportunity.

10.40 am
Mr. Dominic Grieve (Beaconsfield)

This debate has been needed for a long time, and the hon. Member for Brighton, Kemptown (Dr. Turner) is to be warmly congratulated on bringing this matter to our attention.

I declare at the outset that I am in favour of a reform to the law in this area, so I hope that the hon. Gentleman will forgive me if I start with two words of caution before I talk about the details of the Law Commission's proposals. The first point, which my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) made very tellingly, is that the number of incidents in which very young children are killed by their carers or parents is surely an indication less of wilful evil in those carers or parents and more of an appalling and systematic failure in socialisation and the teaching of parenting skills in this country.

It is noteworthy that that failure has been constant for a very long time. I therefore do not believe that we should look to legislation that may raise the conviction rate in such cases to provide a deterrent against the perpetration of the offences. I very much doubt that if we were to increase the rate of conviction to 90 per cent., there would be a substantial diminution in the number of these terrible killings.

We have always hoped that society would evolve and become a better place through education and the intervention of social services, and that we would be able to see an improvement. The terrible truth, which I know from numerous episodes in my constituency, is that social services departments are ill equipped to deal with these problems, which continue from one generation to another. Parents who are likely to be violent to very young children, out of frustration or because they have violent personalities that have never been subdued and contained through the usual processes of education in their own childhoods, have often been subjected to violence themselves. The remedy that we are looking for in legislation will not solve that problem.

The second issue, which the hon. and learned Member for Redcar (Vera Baird) properly highlighted, is that there is no point in saying that Lane and Lane is an outrageous statement of the law. Lane and Lane is merely a statement of the general principles of our law, which no one, as far as I am aware—certainly no one during the passage of the Criminal Justice Bill through Parliament—has said they want to tear up, applied to the particular problem that arises when two or three people must have committed the offence but no one can tell who did it.

The only reason why we focus on this problem in this particular framework is that it happens over and over again that a young child is killed by carers, one of whom must have committed the offence, but there is a risk of convicting the person who had nothing to do with it if we start tinkering with the existing rules and principles of our law, which state that the prosecution must satisfy the jury that they are sure that the defendant was involved in the offence. The difficulty in such cases is that it is a question that the court knows only too well the jury will be unable to answer—as in cases such as Lane and Lane, where there is no evidence on which one could decide which of the two people did it.

I am sympathetic to seeing what could be done to try to address that problem. However, I must tell the hon. Member for Brighton, Kemptown and others who have participated in the debate that we must be careful not to construct special rules that do away with the general principles of our law. Although one or two hon. Members have suggested that they should be done away with, on the whole such a move is resisted, and the Government have never suggested that they should go. Indeed, the human rights convention, which is now incorporated into our law, derived many of its principles from the way in which our common law had been applied. The privilege against self-incrimination, the right to a fair trial and the burden of proof being on the prosecution are all principles that I would not wish to be done away with.

It seems to me that the Law Commission has come up with an interesting formula. I have no difficulty with the principle of changing evidential and procedural rules for murder and manslaughter, as suggested by the Law Commission, in order to allow a decision to be taken at the end of the defence and not at the end of the prosecution case. If it has the beneficial result that the hon. and learned Member for Redcar suggests, I would be wholly comfortable with it. I question the extent to which that may happen, but I emphasise that we should not raise too many hopes that it will lead to a revolutionary new position in respect of murder or manslaughter trials of two carers or parents accused of killing a young child. It may lead to some benefit, but it will not lead to a major shift. Indeed, the Law Commission considered a number of draconian proposals that would do away with the general principles of English law, but it rightly decided to reject them.

I am also quite happy about emphasising to the jury that they should take into account the responsibility on carers or parents for the welfare of a child when considering whether an inference can be drawn against the defendant or whether the case has to be withdrawn at the close of the defence's case. However, as I pointed out in an intervention, although that may help in one or two limited grey area cases, as defendants often stay silent until the end of the defence case, and as their lawyers argue that there is no evidence to say which of the two people did it and no evidence of joint enterprise, I think that we will still see acquittals under the commission's proposal.

I believe that the Law Commission is right to look beyond that to whether there should be changes in the substantive law, and the principle that an offence of child cruelty under section 1 of the Children and Young Persons Act 1963 that leads to death should incur a much bigger penalty. Again, I think that it is right to consider whether 14 years is the correct maximum. That is a matter that the Government should take on board.

I also welcome the idea of a new offence, where a person who undertakes responsibility for a child fails, so far as is reasonably practical, to protect that child from serious harm deriving from ill-treatment. The merit of such an offence is that it would enable action to be taken if a parent or carer had allowed the other parent or carer to carry out a systematic campaign of cruelty towards that child, potentially leading to its death.

These are important proposals, and I welcome the opportunity to discuss them. However, they are complicated. If they were to come back as an amendment to the Criminal Justice Bill—as a Lords amendment, to he discussed in the Commons—it would be rather difficult to be satisfied that we had achieved the correct outcome. I would urge the Government to introduce a short Bill in the next Session—I assure the Minister that the Opposition would co-operate to achieve short Bills on discrete issues—or to use the vehicle of the proposed domestic violence legislation. There is certainly a close correlation between the two offences. I look forward to the Minister's response.

10.49 am
The Parliamentary Under-Secretary of State for the Home Department (Paul Goggins)

I congratulate my hon. Friend the Member for Brighton, Kemptown (Dr. Turner) on securing this important debate. He said that he became interested in the issue with a constituency case, and that is often the driving force for hon. Members to raise issues of national importance and policy. The hon. Member for East Worthing and Shoreham (Tim Loughton) reminded us of the dreadful case of John Smith. He, too, has rooted his concerns in that constituency case.

I pay tribute to my hon. and learned Friend the Member for Redcar (Vera Baird) and others, who have assiduously pursued the issue at each and every opportunity. We have had debates on the matter on the Criminal Justice Bill and, as recently as 15 October, in the House of Lords. Baroness Gould moved amendments that were not the same as those moved by my hon. Friend and his colleagues in the House of Commons. My noble Friend Baroness Scotland asked for those amendments to be withdrawn, given the assurances—I give them again—that the Government will introduce legislation at an early date.

I pay tribute, as other hon. Members have done, to the work of the NSPCC. The "Which of You Did It?" initiative has clearly been instrumental in informing and expanding the campaign, and the analysis provided is very helpful. The deeply worrying conclusion that only one quarter of cases result in a successful prosecution should concern us all. The challenge—as simple as it is complicated—is how to prosecute a case in which a child is looked after by two people, in which the Crown can prove beyond reasonable doubt that the child has suffered non-accidental death or injury, and in which it is clear that one or both must be guilty of the offence, but either through silence or because they blame each other, it is impossible to say precisely who. Parliament is united in a deep conviction that it is entirely wrong that, whatever reason is given, people can walk away from the court, one guilty and neither convicted.

Whether that is a cynical ploy on the part of the two people involved, or the result of domestic violence, it is clearly a matter of deep concern. My hon. and learned Friend spoke about the issue of domestic violence and how it is relevant. I accept that, for many women in domestic violence situations, this is the breaking point at which they decide that enough is enough. I can only begin to imagine the anguish of a woman who cannot protect her child and at the same time cannot protect herself. We also need to bear that scenario in mind.

We now have the Law Commission's report and recommendations. It is a detailed analysis on which it has consulted widely. We are always grateful for the commission's thinking on issues involving extremely complex areas of the law, particularly in a case such as this, in which the issues have seemed intractable for such a long time. The analytical part of the report brings home how widespread the problem may be, so it is good to read its conclusions and believe that it may have helped us to get a little closer to the solution.

The Law Commission proposes two new offences and a number of procedural measures designed to tackle the problem. The first builds on the current offence of child cruelty in cases in which the child dies. The second applies to a much wider group of people and goes beyond circumstances in which a child is killed. I assure the House that we are carefully considering those offences with a view to introducing firm proposals. We have been working closely with the Law Commission and shall continue to do so, but I do not think that we have yet arrived at the complete answer.

The Law Commission published its report on the non-accidental death or serious injury of children on 15 September 2003. The report recommends two changes to the substantive law. First, an offence of cruelty contributing to death—a new and aggravated form of child cruelty offence—should be created. Secondly, there should be a new offence of failure to protect a child, which would be committed if a person responsible for a child failed to take reasonable steps to prevent the commission of the offence. The commission also advocates evidential and procedural changes, to which my hon. and learned Friend referred. They include a statutory responsibility on all those responsible for the child when he or she sustained the injury or was killed to give the police or the court such account as they can of how that came about.

There is a second recommendation, that in certain cases the judge must not decide whether the case should be withdrawn from the jury until the close of the defence case, so the defence will have to decide whether to give or call evidence without the protection of the present obligation on the court to consider a submission of no case to answer at the conclusion of the prosecution case. It also recommends that if a defendant in such a case fails to give evidence, the jury should be permitted to draw such inferences as may be proper from that failure.

Helpful as the Law Commission's work has been, we are concerned that the two offences that it proposes do not solve the problem. The first offence would still require there to be a causal link between the assault or neglect, the child cruelty offence, and the eventual death. That means that we would need to know a considerable amount about how the child died and, probably, who committed the act as a result of which the child died.

We are not sure that building on the child cruelty offence is the best way forward. Child cruelty and neglect are mainly offences that are proved on the basis of past abuse. In those circumstances, both defendants may be found guilty, but it does not follow that the court will accept that one or both can be found guilty of a more serious offence when the prosecution has been unable to prove who was responsible for the fatal blow.

The second Law Commission offence is of failing to protect a child. It is drawn very widely to include any relative of the child. It requires the prosecution to prove that the defendant had not taken reasonable steps to prevent the offence, but it would apply to the risk of an offence taking place anywhere, so the parent who knows that the child may be attacked or injured by a bully at school but does not take action, or the 16-year-old babysitter who knows that a child is at some risk from someone and does nothing about it would be caught. That is to draw the offence very widely indeed, and deals with a different set of issues from that of ascertaining who actually killed the child.

We are considering the evidential and procedural measures proposed by the Law Commission. There is merit, for example, in the proposal to delay the point at which the judge decides whether a case should be withdrawn until after the defence has presented its case. We are keen, too, to ensure that inferences from silence should be capable of being drawn in appropriate circumstances. We need to think carefully whether a statutory duty to co-operate with the police would provide further help in these cases.

We need to consider carefully how any new offence would interact with the procedural and evidential measures that have been proposed. As far as possible, we wish to produce a coherent and integrated set of proposals that will encourage people to give evidence and is targeted on the problem cases that we have discussed.

It seems from previous comments that I am the last in a long line of Ministers who have promised hon. Members that we intend to legislate. I make that promise again today. I cannot confirm to my hon. Friend the Member for Brighton, Kemptown precisely when the measure will be announced or when it will be introduced, but it will be at an early opportunity. We must be confident that the offence is correctly drawn up, and about how it will interact with the procedural changes that we may also introduce. We have to know that it is compatible with human rights legislation and we must have an appropriate Bill within which to include it. In dealing with this matter, soon is not soon enough, but we must introduce the legislation properly so that killers are brought to justice and those who stand by are brought to account. I cannot confirm when, but I can confirm that the Government will introduce the legislation.

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