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Standing Committee E
Thursday 24 June 2004
(Morning)
[Dame Marion Roe in the Chair]
9.10 am
The Chairman: I remind the Committee that there is a Ways and Means resolution in connection with the Bill. Copies are available in the Room.
The Parliamentary Under-Secretary of State for the Home Department (Paul Goggins): On a point of order, Dame Marion. I know that the amendments on victims' issues, particularly the proposed surcharge, have been eagerly awaited. They will be tabled this morning, while the Committee is sitting. I have made arrangements with officials for the amendments to be distributed to hon. Members at the end of the sitting.
The Chairman: Thank you very much. Let me add that I have verified that the air conditioning is working, and we have opened a window. However, because it is so hot in the Room, hon. Members may remove their jackets if they so wish. Clause 6
Evidence and procedure: courts-martial
Question proposed, That the clause stand part of the Bill.
The Chairman: With this it will be convenient to discuss the following: Government new clause 18—Evidence and procedure: England and Wales.
Government new clause 19—Evidence and procedure: Northern Ireland.
Paul Goggins: New clause 18 makes provision for evidential and procedural changes in trials involving familial homicide in England and Wales. New clause 19 makes similar provision for Northern Ireland, and clause 6 does the same for courts martial. My comments will be about all three.
In the debate on clause 5, we explored at some length the loophole in current law whereby those who kill a child or vulnerable adult can escape justice. Such cases arise when a vulnerable person has been unlawfully killed and the killer or killers must belong to a small and closed group of people, all of whom are suspects and, often, the only witnesses. In the face of their determined silence, the prosecution may be unable to identify the actual killer. Many hon. Members share our concern that something must be done. I am sorry to say that some of us have constituents who have been directly affected by the apparent powerlessness of the legal system in such cases. Their grief at losing a loved one in the most horrendous circumstances is only made more terrible to bear by the anger and frustration that comes from knowing that the perpetrator has got away scot-free.
Let me again make it clear that we are not willing to accept the current situation. We are determined to
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reform the law to ensure that a greater number of offenders are brought to justice in such sort of cases. The new offence in clause 5 is an important part of that reform, but it is not on its own the solution to the problem. The clauses before us are no less essential to ensuring the effectiveness of our scheme.
A key problem in pursuing murder and manslaughter convictions in cases of familial homicide is that the case can be withdrawn at half-time—after the prosecution has put its case—on the basis that there is no case to answer. That is because the prosecution, in cases in which there is more than one accused, may not have been able to produce enough evidence by that stage to show which of the accused actually caused the death, or whether it was a joint enterprise. The clauses are designed to overcome that obstacle and to allow more charges of murder or manslaughter safely to be left to the jury to decide. That is an important aim, because, as I said on Second Reading, a conviction for the new offence under clause 5 would not be a just outcome if it could be shown that a defendant was in fact guilty of murder or manslaughter.
As hon. Members know, the Law Commission has undertaken a great deal of helpful work on the issue. In its report ''Children: Their Non-Accidental Death or Serious Injury'', it recommended that it should be permissible for adverse inferences to be drawn, subject to certain safeguards, where the other evidence did not amount to a technical case to answer.
Mr. David Heath (Somerton and Frome) (LD): The hon. Gentleman will recall that the Law Commission proposals were based not only on that premise, but on a statutory duty that the defendant would be required to fulfil; if he did not fulfil it, the jury would be able to draw an inference. Why have the Government omitted that essential part of the proposals?
Paul Goggins: I am sure that we will discuss the differences, slight though they may be, between the Law Commission's recommendations and our proposals. The main reason for them is that the offences that the Law Commission proposed are different from the new offence that we are proposing in clause 5. Its proposals were for an offence of aggravated child cruelty and failure to protect. The Law Commission has undertaken a great deal of helpful work on the issue. We are seeking to reflect both principles in the clauses, although the circumstances in which our procedural measures are triggered differ slightly, as I have just mentioned. We have linked our procedural measures closely to the circumstances of our proposed new offence, and we believe that that produces a coherent and effective package of measures targeted specifically on cases of familial homicide.
On Second Reading, the hon. Member for Beaconsfield (Mr. Grieve) indicated that many concerns that were raised in the other place about the proposals' compatibility with human rights, and added his voice to those expressions of concern. We believe that the provisions are wholly compatible with the rights of defendants under article 6 of the European convention on human rights—the right to a fair trial. Crucially, the Joint Committee on Human
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Rights gave the measures a clean bill of health: I refer hon. Members to the Joint Committee's fourth report of this Session, which sets out why it came to that conclusion.
Our proposals would take effect only in trials involving both a charge of murder or manslaughter and a charge of the new offence under clause 5. However, their operation would be subject to certain safeguards. The link with clause 5 is important in that context. The proposed procedural and evidential measures would come into play only when a case to answer in respect of the new offence under clause 5 is made out against the defendant in the standard way, and only when that same defendant may also have committed the murder or manslaughter.
The first measure is seen when there is a clear set of circumstances calling for an explanation from the defendant. We think that his or her failure at trial to give any evidence in his or her defence, or his or her refusal to answer certain questions put to him or her should lead to the possibility of adverse inferences being drawn from that silence in wider circumstances than would currently be available. Secondly, we want to ensure that there is an opportunity for all the evidence in the case to be heard, so the clauses provide that in certain circumstances, the question whether the evidence against the defendant constitutes a case to answer should not be considered until all the evidence in the case has been heard. Both the drawing of adverse inferences from the defendant's silence and the postponement of the ''case to answer'' decision were recommended by the Law Commission in its report.
I move now to the provisions for courts martial. Clause 6 ensures that if a case involving an offence under clause 5 is tried by a court martial, the procedural and evidential provisions that I have described will apply. Courts martial have the power to try persons subject to service law for civilian offences. Persons subject to service law include service personnel at all times, their families when they accompany service personnel abroad, and civilians and their families who accompany or are employed by the armed forces abroad. We have a sizeable community of service and civilian families abroad, particularly in Germany and working in NATO headquarters around Europe.
If an instance of the offence under clause 5 occurs in a situation in which a court martial rather than a civilian court is to try the case, our procedural and evidential measures must also apply. Subsection (2) is required because, when civilian offences are tried by courts martial, the charges are laid under the sections listed in that subsection. Subsection (3) reflects the court martial procedures whereby any inference of guilt is drawn by the court, which is composed of a panel of military officers sitting with a judge advocate.
Mr. Geoffrey Clifton-Brown (Cotswold) (Con): The Minister will recall that when we changed the law and updated it in relation to courts martial, differences between each of the three armed services remained. Will the procedure in respect of the new offence be the same for all three armed services in courts martial?
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Paul Goggins: My understanding is that it will apply equally to all three, but I will have that checked. If my assurance is not right, I will correct it later in our deliberations.
We consider that the circumstances of the new offence under clause 5 are such that, where there is a case to answer in respect of that offence, the prosecution will have shown evidence that the defendant is connected with the offence in such a way that it is fair and proper for the procedures in the clauses to apply. By postponing the decision on whether there is a case to answer and enabling an inference to be drawn in circumstances in which that would not currently be possible, we consider that more of these cases will be able to safely be left to the jury. The new offence under clause 5 will help to pin responsibility for the unlawful death of a child or vulnerable adult in specific circumstances to the people or person who caused it. Only when that is coupled with the procedural measures in these provisions will we be able to ensure, as far as we possibly can, that full justice can be done.
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