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Lord Clinton-Davis: I do not know what stage the noble Baroness has reached in her argument, but I am a little troubled by proposed new subsection (4). Does she propose to address it?

Baroness Gould of Potternewton: Actually, I do not. Part of the reason is that I am not certain whether I have the wording of the amendment absolutely correct. I am really trying to establish the principle behind what change is necessary. If there is advice that the wording is not correct, I am happy to take it.

My final point is about the clear cross-reference between domestic violence and violence against children. A review of 105 children in 1996 by Brandon and Lewis showed that domestic violence had taken place in almost half the families. When the proposals on the consultation paper on domestic violence are made into law, as I hope they will be, I hope that there will be a further opportunity to press for the change.

The public need to know that the penalty for such horrific cases involving serious injury or death to a child will be treated with the greatest gravity. All the evidence shows that our criminal justice system is failing one of the most vulnerable and defenceless groups in our society. Children suffer serious injury or die in the care of adults who should protect them, yet the number of convictions is minimal. The crimes go unpunished and the offenders remain at liberty, perhaps to offend again. As the Law Commission says, we must improve the law. I hope to hear from my noble friend that urgent action will be taken in line with the recommendations of the Law Commission. I beg to move.

Lord Waddington: I would very much like to give my general support to the noble Baroness. I shall not try to support every word of the amendment, but she is dealing with a very real problem that is thought by many people to be a real injustice in our law. To many people it seems odd and unjust that, if a person must have died at the hands of one of two people but the evidence does not point unambiguously to one rather than the other having committed the crime, in the absence of evidence of a joint enterprise neither can be convicted. That is the inevitable consequence of it being up to the prosecution to prove guilt beyond reasonable doubt.

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That does not mean that there may not be a case for creating new offences which catch those who ought to be convicted of some offence. That is what the noble Baroness, with great ingenuity, is seeking to do. If one were to direct one's attention to that problem, one would find, not only in the case of maltreatment of children but also in other areas of law, that one could create new offences which would prevent obviously guilty people getting away with not being convicted of any offence whatever.

There is nothing unjust in condemning someone who has the opportunity to protect a child from ill treatment and has failed to take it. There is nothing unjust in making that person guilty of an offence and subjecting them to punishment. I therefore hope that the Minister will take the matter away and think carefully about how we might deal with an area of law that has always worried me and many others.

Lord Clinton-Davis: I, too, support my noble friend Lady Gould, but I am rather worried about subsection (4) in her new clause. Frankly, it does not make a lot of sense. However, since she has said that she would be prepared to consider the issue, I recognise that what both she and the noble Lord, Lord Waddington, have said makes a lot of sense. Rather than weary the Committee, I shall merely offer her my support.

Lord Carlisle of Bucklow: I am full of admiration for my noble friend Lord Waddington and I have great respect for the noble Lord, Lord Clinton-Davis. I fully understand what is behind the noble Baroness's intentions in proposing the new clause. However, I come to a different conclusion from that of my noble friend Lord Waddington or of the noble Lord, Lord Clinton-Davis. I hope that the Government will make it clear that to introduce a new offence of that kind is not a serious, practical proposition.

One realises and understands, as the noble Baroness has said, the distress and anger that greets one when one hears that a child has been injured or killed, but that since the prosecution is unable to say which of two people have committed the offence, neither of them can be convicted and both are acquitted. One understands that position, but as I understand the clause, it provides that anyone who is responsible for that child or is one of those people with the child when the child is killed, although that person may be in no way responsible for its death, he shall nevertheless be guilty of an offence of failing to protect the child.

What does that mean? If a father, stepfather—as is often the case—or a stranger kills a child by shaking him or her to death, is one really to say that his or her mother, who may have had nothing to do with his or her death, is nevertheless in some way guilty of an offence, deserving of 14 years' imprisonment? That surely cannot be right.

Although one is then left with the challenge of looking at the evidence to try to prove which individual caused the death of the child, it is not a solution to say that someone else who happened to be

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present must be assumed, by virtue merely of their presence, to be guilty of an offence in failing to protect the child.

5.15 p.m.

Lord Waddington: Surely, if a person is present at the time when a child is killed, it is reasonable to assume, until the contrary is shown, that that person, as he or she was present, could have taken some steps to try and prevent the child being killed. If, therefore, the person were charged with failing to protect the child, it would then be open to that person, having entered the witness box, to show that he or she had no opportunity to protect the child. In those circumstances, that person would not be guilty of an offence, but at least the matter would be resolved, because the person would have had to have shown what actually happened.

Lord Carlisle of Bucklow: I do not accept my noble friend's argument. I am not sure what the phrase "whilst it is with two or more people" means. Does it mean that those people have to be present? How does one show that they were present at the moment when the act was committed? In those tragic cases where children are shaken—that is what normally happens—in order to cause injury or death, the act is usually carried out by one person, with nobody else in the room or in the presence of the child. To reverse the burden of proof and say to the other parent, "You must prove that you did everything to protect the child" is not the answer to the problem.

Although I sympathise with and understand the point that the noble Baroness has made, I hope, with great respect, that the Government will not accept her approach.

Baroness Whitaker: I support the amendment for all the reasons that my noble friend Lady Gould so eloquently gave, but in addition, I should like to say that when I sat regularly as a magistrate, which I did for more than 15 years, it became increasingly clear to me that what people expected of the justice system was, first and foremost, the full attribution of responsibility for criminal and illegal acts, and after that, of course, the right sentence.

The attribution of responsibility for crimes seems to me to be at the heart of justice. It is what marks the transition of a society from primitive theories of the causation of evil acts to a system based on reason and the rule of law.

Yet in one of the most heinous crimes of all—injuries to or even the murder of children—our law, in its present state, prevents the attribution of responsibility through the trial process when there are two or more adults who must have been involved in the assault, but when it cannot be established beyond reasonable doubt who did what. Those are adults who are in a unique position to safeguard the child or to account for any injuries, but they cannot be brought to book. The law remains impotent in the face of a clearly acknowledged, most serious crime.

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The amendment seeks to right that injustice. It does it through modest extensions of the criminal law which were first proposed by the Law Commission and have been endorsed, as my noble friend said, in its most recent report on the subject last month. To adopt this amendment would show real compliance with the spirit of the United Nations Convention on the Rights of the Child and it would ensure that we had brought justice closer to the important sphere of brutal violence within the family.

Lord Thomas of Gresford: While for various reasons I need not go into I cannot accept the working of the amendment, I see that it undoubtedly addresses a problem. The one-off attack on a child when there are two people living in the house is not too difficult to solve. It is usually obvious which of the two people committed the offence. However, the trouble is that in case after case of this type there is a long history of a child being battered and of non-accidental injury. In case after case that is brought before the court, there are the hospital records, the doctors' records and the social services records from which one can follow and trace the various injuries as they occur. In the usual position, it is difficult to attribute blame precisely to one or the other if the process of battering ends in death.

There is a considerable danger—and I speak from experience—of the wrong party being convicted and the person who carried out the final fatal attack not being charged. Again, speaking from experience, there is a considerable danger that a jury faced with the history of a battered child will convict both people. I have read and heard about people being acquitted because the jury cannot decide who carried out the act, although I have no experience of that. But far more often, the jury convicts both partners in the house. There are considerable dangers in the judicial process and in trying to identify who did it.

Therefore, such a provision carries a great deal of merit. Perhaps not in this Bill but in a future Bill, the matter should be truly addressed and dealt with.

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