Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Hunt of Wirral: The Committee is grateful to the noble Baroness, Lady Gould of Potternewton, for moving the amendment and to the noble Baroness, Lady Whitaker, for having reminded us of the need to ensure that we answer the concerns raised outside the House and her wish to see the full attribution of responsibility.

I benefited greatly from the contributions of my two noble friends Lord Waddington and Lord Carlisle of Bucklow. I agree with them both. It may seem curious that I am in agreement with them when they disagree with each other, but here we have a serious problem. The noble Lord, Lord Thomas of Gresford, identified that and I agree with the context in which he put it.

Some high profile cases are crying out for a solution. However, as my noble friend Lord Carlisle said, there are some serious problems. I have seen cases in which one person stands by and does nothing while an abuser is committing criminal acts which can amount to murder and manslaughter. There is sometimes a

15 Oct 2003 : Column 977

reason for that. In cases I have seen, the partner of a defendant is often abused and is frequently powerless to stop what is happening.

The clause offers such people a defence, but the burden is put on them to show that they were suffering from abuse at the time. I know from my own practice that many battered women do not admit, even in open court, that they are so treated. Therefore, there is the danger that they will be punished twice.

Furthermore, as I am sure my noble friend had in mind, there have been circumstances in which the partner did not suffer abuse but simply was completely unaware that the abuse was taking place. A whole range of situations must be carefully considered, which is why the matter has received such excellent scrutiny from the Law Commission.

I return to my support for my noble friend Lord Waddington. He rightly says that there is nothing unjust in penalising someone who is just standing by when the crime is committed. That is why I agree with both my noble friends and now look to the Government, with all their resources, to do what Mr Hilary Benn said would be done: to find a solution.

I warmly congratulate the noble Baronesses on providing the Committee with this important debate and I now look forward to hearing the Minister's response.

Baroness Scotland of Asthal: I, too, congratulate my noble friend on moving the amendment. I totally take into account the fact that she does not propose to pursue it or to suggest that it has anything other than a number of fundamental flaws. She has moved the amendment to enable us to have a debate and I thank her for doing so.

Any death of a child is obviously a sad and terrible matter, as the noble Lord, Lord Carlisle of Bucklow, made plain. We are all concerned to ensure that prosecution in cases of non-accidental death is not hampered by the perceived loophole in the present law. It is not acceptable that those guilty of killing a child in their family should escape because the law cannot determine who struck the fatal blow. A number of agencies have examined the problem, most recently the NSPCC and, very helpfully, the Law Commission.

I regret to tell the Committee that I have experienced cases in which the jury could not decide which person committed the act. Mainly, those were cases in which neither defendant gave evidence. One of the problems we have is that it is difficult in that situation for the court—for the jury—to make a determination as to guilt. The noble Lord, Lord Hunt, is right in saying that in many such cases often the woman, regrettably, has been brutalised and subjugated to such an extent that not only has she not been able to protect her child but she has become unwilling or unable to give evidence against her partner and as a result justice cannot be done. I understand all those problems and they are difficult to solve—not least because if they were easy to solve, governments in the past 100 years would have done so.

15 Oct 2003 : Column 978

But we believe that we may be edging our way towards a solution. We have previously made clear our determination to act. We are wholly committed to legislation in order to resolve this problem. But we need to get this right and to legislate on a complete set of measures to achieve our goal. There are some tricky issues for us to balance. I do not believe that the amendment gets it right, but I entirely understand the thrust of what my noble friend is seeking to achieve. We therefore had, and continue to have, detailed discussions with the Law Commission and others on their proposals in this area.

We have also been working on our own measures in discussion with other government departments, the police, the NSPCC, the working group and other professional people. We have a duty to secure an effective investigation and adjudicative process to protect the rights of children and, indeed, of other vulnerable people. It has been my pleasure to expend a not inconsiderable amount of my time trying to help craft the solution.

We believe that part of the solution lies in changes in procedure and part lies in the creation of a new offence, to which the noble Lord, Lord Waddington, made reference. However, the two need to work together to provide the answer that we need. The amendment before us acknowledges that. I agree with the noble Lord, Lord Hunt, that there is much merit in what the noble Lord, Lord Carlisle of Bucklow, said in relation to caution, and there is much in the passionately expressed opinion of the noble Lord, Lord Waddington, that we must get on and try to do something.

As I said, the two need to work together, but the present Bill is not the right vehicle for a new offence. We believe that, although the Law Commission has taken this whole issue much further than has previously been the case, there may be a little further to go before we are sure that we have the right answer. It must be compatible with the ECHR, the Human Rights Act and all the other matters with which we shall have to deal.

I want to commend my noble friend Lady Gould, who tabled the amendment. It is right to keep this issue in the public eye and, if I may respectfully say so, to keep up the pressure up on the Government, which I feel. The voice of others has been very helpful in ensuring that that happens. I particularly commend my noble friend Lady Whitaker for her ceaseless efforts in this regard. We intend to see that the desire expressed in Committee today is fulfilled. Children have every right to place their trust in their carers and not to discover, to their cost, that it is sadly misplaced and that justice is thwarted. We need to ensure that their killers are brought to justice and that those who stand idly by are also brought to account where that is justified.

15 Oct 2003 : Column 979

With that reassurance, I hope that the noble Baroness will feel content. We shall continue to pursue this issue with a great deal of energy and we hope to find an early opportunity to return to the House when we have an appropriate legislative slot.

Baroness Gould of Potternewton: I thank my noble friend very much for her remarks. I also thank everyone who has spoken in what I believe has been a very important and interesting debate. I said at the start that I have no legal training, and therefore I tabled the amendment with some trepidation. It was a probing amendment because I felt sure that the wording would not be as it should. I accept that without a doubt. However, I am very pleased that many noble Lords have spoken in support of the principle of the amendment.

I am pleased, in particular, that my noble friend said that the solution is under serious consideration and discussion. Like the noble Lord, Lord Hunt, I look to the Government to arrive at a solution and to bring before the House another Bill that will stop this appalling situation. It has gone on long enough, and those who commit such terrible crimes must be brought to justice. However, at present, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 232A had been withdrawn from the Marshalled List.]

5.30 p.m.

Baroness Scotland of Asthal moved Amendment No. 232AA:

    After Clause 289, insert the following new clause—

(1) Section 23A of the Criminal Appeal Act 1968 (c. 19) (power to order investigations by Criminal Cases Review Commission) is amended as follows.
(2) In subsection (1) after "conviction" there is inserted "or an application for leave to appeal against conviction,".
(3) In paragraph (a) of that subsection—
(a) at the beginning there is inserted "in the case of an appeal,", and
(b) for "case", in both places where it occurs, there is substituted "appeal".
(4) After paragraph (a) of that subsection there is inserted—
"(aa) in the case of an application for leave to appeal, the matter is relevant to the determination of the application and ought, if possible, to be resolved before the application is determined;".
(5) After that subsection there is inserted—
"(1A) A direction under subsection (1) above may not be given by a single judge, notwithstanding that, in the case of an application for leave to appeal, the application may be determined by a single judge as provided for by section 31 of this Act."
(6) After subsection (4) there is inserted—
"(5) In this section "respondent" includes a person who will be a respondent if leave to appeal is granted.""

The noble Baroness said: The Government's proposed new clause in Amendment No. 232AA amends the Criminal Appeal Act 1968 to allow the

15 Oct 2003 : Column 980

Court of Appeal to direct the commission to investigate a report on any matter on an application for leave to appeal against conviction, as well as on an appeal against conviction. The proposed new clause in government Amendment No. 232AB makes equivalent provisions for Northern Ireland. There are related minor and consequential amendments to Schedule 30 and Clause 306. Unless noble Lords wish me to do so, I do not propose to go into greater detail.

The Court of Appeal has expressed concern that, on occasions, its consideration of an application for leave to appeal against conviction has been fettered by the lack of a power to have certain issues investigated by the Criminal Cases Review Commission and that it has therefore been unable to consider whether leave should be granted. In the amendments we have sought to address the concerns properly raised with us by the judiciary, and I commend them to the House. I beg to move.

Next Section Back to Table of Contents Lords Hansard Home Page