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Clause 5
The offence
Mr. Heath: I beg to move amendment No. 37, in
clause 5, page 2, line 39, after 'dies', insert 'or is seriously harmed'.
The Chairman: With this it will be convenient to discuss the following amendments:No. 38, in
clause 5, page 3, line 5, after 'death', insert 'or serious harm'.
No. 39, in
clause 5, page 3, line 20, after 'death', insert 'or serious harm'.
No. 40, in
clause 5, page 3, line 30, after 'death', insert 'or serious harm'.
Mr. Heath: We come to a critical part of the Bill that covers the creation of a new offence to deal with the mischief of where a child has died in the care and protection of more than one person and where it is clear that one of those people has committed a very serious offence—a murder, in the case of the death of a child—and yet it is impossible to determine which of them dealt the fatal blow. That lacuna in the law has been identified for a long time; it is well documented.
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This group of amendments will not greatly surprise anybody, because it has been well advertised by the National Society for the Prevention of Cruelty to Children and other organisations. It proposes to revert to part of the formulation that was encompassed by the Law Commission in its report on this subject, which went beyond the position of death to that of serious harm.
I seek to do that because very often what has occurred is a series of events that may or may not cause the death of a child but that is extremely serious in itself. It is inconceivable that we should wish to ignore circumstances in which, for instance, a child has been so badly beaten that it has suffered serious brain damage. Sadly, that is not an uncommon event. Why should that not be encompassed by these proposals? I agree that that falls short of death and of the specific offence that the Government have included in this Bill, but it is as serious. There may be no difference in intent between a case where a person beats, shakes and almost fatally injures a child, and a case in which a child dies.
It is essential at least to consider this. I was given some reassurance by Baroness Scotland in another place. She responded in a reasoned tone to the same amendments tabled there by my noble Friends. She made it plain that the Government have seriously debated this matter over some time and that there was doubt as to whether the Law Commission proposals in their entirety should have been presented or whether the provision should cover death alone.
I have mentioned children throughout my comments, but this also applies to vulnerable adults, and one of the arguments that has been adduced against these proposals is that there should not be the same arrangements for children as for vulnerable adults. I do not accept that argument for a moment. The more cogent argument, which we may hear today, is that the new offence is a matter of concern for the human rights of the accused. That is a legitimate argument, which has to be weighed extremely carefully. I am given some reassurance by those in the other place who have considered the matter purely on the basis of the human rights implications, and have considered that the balance should come down in favour of the new offence. My noble Friend, Lord Lester of Herne Hill, is a very satisfactory guide on what is appropriate.
Mr. Grieve: I am mindful of the view in the other place about the new offence, although it is noteworthy that the other place was not in a position to consider new clause 18; I hesitate to raise that matter now, but it is relevant. In my view, and the hon. Gentleman may agree, new clause 18 impinges substantially on the question of rights and the propriety of the way in which a trial procedure takes place, and has a direct bearing on the amendment, which would extend the clause to include serious harm.
Mr. Heath: I accept what the hon. Gentleman says, but we should have that argument at a different point in the proceedings.
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At the moment, I am attempting to argue that, although I accept that the proposed new offence would have serious human rights implications, I do not believe that they would be different in the cases of murder and serious harm; exactly the same arguments would apply. Therefore, if the Committee and the House felt at the end of the day that it would be appropriate to have the offence in its present form, there would be no additional argument on human rights grounds as to why the offence should not include serious harm. The argument that to extend the range of offences is somehow to extend the potential for a restriction on human rights is wrong. It is an absolute: either the proposed procedure would disregard human rights or it would not.
The other argument is that ''serious harm'' is too vague a phrase, and too open to construction by the courts. I am not sure that I accept that argument, although I understand the point. I would have no great difficulty in accepting the Government's position if they said that they would home in on a more restrictive interpretation of ''serious harm''—grievous bodily harm is defined, I believe, in the Offences Against the Person Act 1861? Such a position would be perfectly arguable, but justice for the child or the vulnerable person requires that we identify ways of dealing with those who commit the offences but will not own up to them.
The Government lay great store on the idea that this will act as an incentive—the mere fact of the penalty will encourage one or other of the accused to come forward with evidence. That is a serious point, and I hope that the penalty will work in that way. If it does, it will work as effectively for cases of serious harm as for cases in which there is suspicion of murder, manslaughter or unlawful death.
3.30 pm
There is a perfectly sound argument for accepting the evidence that the Law Commission so assiduously collected before making its proposals. It has argued its case very carefully, and as I have said, I was impressed by the quality of its argument. It has done a good job of assessing the rights and wrongs of the case.
I am not convinced by the Government's apparent view that one must test the offence in the most serious case—of course, murder is the most serious case—before being able to apply it in any other case. The distinction in the case of serious harm, or the unlawful killing of a child or vulnerable person, is one of extent, not intent.
I shall listen carefully to the Minister's reply. I understand that the Department's view is not closed and that it is open to discussion; indeed, discussions have been going on. Perhaps, therefore, he can explain the Government's position. Are any of the points that have been adduced still under consideration? Is it possible, even at this late stage, to extend the provisions and finish the job? If so, we can resolve an issue that the Law Commission went such a long way towards addressing in its very good report.
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Ms Meg Munn (Sheffield, Heeley) (Lab/Co-op): I want to raise the issue of vulnerable adults and to hear the Minister's view about it. As I said this morning, I chair the all-party Voice group, which raises issues relating to learning disabled adults. I have had considerable discussions with Voice UK and Values into Action—another organisation that promotes the rights of learning disabled adults—and they both agree that it would be useful to have an offence covering serious harm. They welcome the offence in the Bill as a way of tackling domestic violence against vulnerable adults, which they believe has not been properly dealt with—perhaps for the same reasons why all domestic violence is under-reported. It is important for us to consider therefore whether it would be possible also to have an offence of serious harm.
I have had some correspondence with Richard Crompton, from the police. Although he has responded in a personal capacity, he has been involved with the Association of Chief Police Officers in considering issues relating to vulnerable adults in the context of this Bill and the Mental Incapacity Bill, which the House will consider later. His personal view, from his vantage point in the police service, is that it would be beneficial to have an offence covering the ill-treatment and neglect of vulnerable adults. He believes that that would help the police to know how to respond to specific situations, particularly those in which vulnerable adults have been cared for either by those with a statutory responsibility or in a family setting. He believes that it would be appropriate to consider the issue in the context of this Bill because it is not purely about those who lack capacity. I look forward to the Minister's comments.
Mr. Grieve: I listened with great care to the speech by the hon. Member for Somerton and Frome (Mr. Heath), and there is a logic to what he says. If we are criminalising causing death in cases where someone dies as a result of the offence in clause 5, why not extend the offence to include serious bodily harm? The point is often made at the Bar that murder is grievous bodily harm with a corpse. My difficulty with that view, and I do not have a settled view on the matter, is that we should also be mindful of the novel nature of the offence that we are creating under the clause. This may be an opportunity to touch briefly on it, although it will also impinge on the other amendments that we will consider.
The origin of the clause was the concern that had been expressed about the impossibility of securing a conviction in cases involving the apparent murder of a child in which it became abundantly clear that only one of two, or possibly three people—a restricted number—could have committed the offence. Whether or not they blamed each other, it was impossible to tell which of the two had done it. The public concern that individuals were getting off was the starting point of the legislation. That concern was absolutely warranted.
I do not criticise those who drafted the Bill, but it was not drafted to deal with a conviction in circumstances in which two people blame each other and it is impossible to tell which of them has
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committed murder or grievous bodily harm. What the Bill has done is to create an offence of negligence, which is different in quality from manslaughter. Indeed, if one must try to find a sort of derivative, it belongs more to health and safety legislation than to anything else, because the nub of the offence is the failure
''to take such steps as he could reasonably have been expected to take to protect''
the victim from the known risk.
In a sense, we are taking an offence from health and safety law, creating an offence of negligence, and punishing the perpetrator with 14 years' imprisonment. One need only consider the draconian penalty that attaches to the offence to see that this is a novel area of criminalisation. I therefore understand the Government's reluctance to extend it to anything beyond the very worst case, which is a death, and their possible wish to wait and see how the offence works out in practice, including the way in which it is tried, the penalties that may be imposed on those convicted, and any challenges that may be made following the operation of this legislation.
As I told the hon. Member for Somerton and Frome earlier, I do not believe that his amendment can be considered in isolation. We should take care to consider the totality of the consequences of the clause. I do not seek to anticipate my own amendments, but we need to consider whom the offence bites and the extent to which the Government intend it to have an impact on other charges that may be brought against an individual, as is shown in new clause 18, before I can decide whether the amendment is right. I look forward to hearing the Minister's view about the extension. As I said at the outset, there is undoubted logic to what the hon. Gentleman says, but I am anxious because it appears that the offence could extend much further than the circumstances in which a person would have been charged with murder, but a conviction cannot be secured because one cannot say which of two people did it.
The offence could apply across a very wide spectrum of circumstances in which a person has a responsibility of care for a child. We need to be cautious, so I reserve my position and look forward the Minister's response to this very pertinent amendment.
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