The Law Commission

PART II

THE EXTENT OF THE PROBLEM

2.1      It was abundantly clear from the responses which we received to the informal consultation paper that this is an area which has aroused concern in members of the judiciary, practitioners and academics. Although there are differences of opinion as to the best way in which to tackle this issue, there is near universal recognition that the problem is extremely serious and that reform is necessary. Rose LJ, Vice-President of the Court of Appeal Criminal Division, began his response by stating that "[t]he present position is wholly unsatisfactory". Curtis J echoed this, noting that "[h]aving tried a number of murders in which babies are the victim, I consider the law is long overdue for reform". Buxton LJ noted at the outset of his response that:

[The informal consultation paper] gives a depressingly accurate account of the way in which courts, in the civil as well as the criminal jurisdiction, have felt obliged to subordinate the particular interests of child protection to the demands of general and non-situation specific rules of English procedure.

2.2      In this section we will give consideration to research which has been undertaken in order to establish the scale of the problem. The NSPCC Working Group sought information from 43 police forces throughout England and Wales in an attempt to address the question "are these but isolated, sensationally reported, cases or is there truly a failure in our society to afford justice to child victims of serious crime?".^[1] The findings of the Working Group were summarised by the Chair of the Group, Her Honour Judge Isobel Plumstead.
2.3      The research revealed that during the three year period covered by the survey "no less than three children under 10 years old a week were killed or suffered serious injury".^[2] Of these children, just over half were under 6 months old, and 83% were under 2 years old. 61% of investigations which reached a conclusion resulted in no prosecution, due either to a police or Crown Prosecution Service decision. Of the 27% of cases which resulted in conviction for a criminal offence, only a small proportion of those led to conviction for either homicide (murder or manslaughter) or wounding/ causing grievous bodily harm.
2.4      Judge Plumstead noted that there was a lack of data as to how many children incur injuries which are not reported to the police although there may be medical suspicion that the injuries were non-accidental. She said, however, that experience of care proceedings would suggest that there is likely to be a degree of under reporting, in particular if the injury is less serious or isolated.
2.5      The nature of this type of case is such that it would be rare that the identity of those adults who were with the child when the offence was committed would not be known. She noted that "[i]n almost all cases, it can be said with certainty that one of two people must have caused the serious injury".^[3] She stated:

The conclusion must be drawn that it is lack of evidence against supposed individual perpetrators which leads to so few of the cases of serious and fatal injury against children coming to the criminal courts. Of those cases that do proceed, the majority result in convictions (69%).^[4]

2.6      Further support for the conclusion that there is a significant problem with the law as it currently operates can be derived from other research into prosecutions for child abuse.^[5] A study undertaken by the Department of Law at the University of Bristol found that where a very young child had been physically assaulted and had been in the care of a number of different people, it was particularly difficult to identify the perpetrator of the offence. A police officer was quoted as stating:

If you have a victim without a voice then you have got to prove that whoever had responsibility for that child is the person who caused that injury. … The CPS will not prosecute a case where there is a possibility someone other than the offender has caused that injury.^[6]

2.7      The study also revealed a problem concerning the attitude of the police:

Some police officers whom we interviewed did not believe that they could charge two parents who had sought treatment for their child, even where the child's injuries were clearly non-accidental.^[7]

In addition the study demonstrated that police officers involved in some cases of this type did not believe that charges under the Children and Young Persons Act 1933 reflected the seriousness of the child's injuries. Cases were cited in which children had suffered serious injuries and the defendants had received either non-custodial or short sentences.^[8]

2.8      Research has also been undertaken by a multidisciplinary team from the Cardiff Family Studies Research Centre^[9] on the cases of 68 children under the age of two who had suffered subdural haemorrhage between 1992 and 1998. The research identified that "the main suspects at the start of the police investigation were usually the natural parents of the child and occasionally other carers".^[10]
2.9      The study highlighted a problem identified in Part I above which is particularly acute in cases involving non-accidental injury to children. It noted that in many of the cases included in the study it was impossible to identify a single perpetrator of the crime as, at the time of the crime, the child had been in the care of more than one person. In this context, the rule in Lane and Lane^[11] operates to the effect that "unless it can be proved that one carer failed to intervene to prevent the harm (and is thus liable for aiding and abetting the assault), no conviction is possible".^[12] The research went on to state that its findings "clearly indicate that the greatest obstacle to prosecution in cases of SBS ["shaken baby syndrome"] is proving who inflicted the injury".^[13] Further, the research found that this is not a problem which is uniquely associated with SBS.^[14]
2.10      Although the nature of this type of crime makes it particularly difficult to assess the precise number of cases involved, the research referred to demonstrates that the type of scenario which is typical in such cases represents a widespread problem. The inevitable conclusion on the basis of this research seems to be that a significant number of children are being killed or seriously injured and that a relatively small number of those responsible are being convicted of any criminal offence. Concern has also been expressed that where a conviction has been obtained, the charges and sentences do not reflect the gravity of the offence.
2.11      We conclude, therefore, 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 the effective investigation into and identification and punishment of those who are guilty of the most serious offences against the most vulnerable members 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 label by which guilt of the offence attaches to the conduct or in the severity of the penalties available.
2.12      This is not a situation about which there can be any complacency. In subsequent Parts of this report we consider the impact of international obligations upon the State both to ensure fair trials and to protect the fundamental human rights of, amongst others, children. The present unhappy state of affairs calls into question whether we have currently achieved a correct balance between these different, often competing, rights. It is our view that we should carefully examine our present laws and procedures to see whether their present configuration may be changed to achieve a better balance between the right of a defendant to a fair trial and the duty upon the State to protect the fundamental rights of children who are victims, by having an effective system for identifying and punishing those who have attacked and, often, killed them.

Note 1    Judge Isobel Plumstead, Papers for the NSPCC “Which of you did it” Conference in Cambridge, 2 November 2002, Introduction and Background, para 8. The police forces were asked to give details about cases where children were suspected of being killed unlawfully or receiving serious injury between 1 January 1998 and 31 December 2000, where more than one parent or carer could possibly have been responsible for the child’s injuries. The 40 police forces which responded gave information about 492 children aged 10 years and under who had been unlawfully killed or seriously injured during this period. Of these 492 children, the NSPCC received details of 366 cases which had either reached a conclusion in court, or which had been discontinued prior to court. Of these 366 cases, 225 were discontinued prior to reaching court, 21 defendants were acquitted, 21 dismissed, and in 99 cases there was a successful prosecution. Further statistics were given by the Solicitor General in a Written Answer to a question from Vera Baird MP (Hansard, (HC) 24 February 2003 col 57W). The Department of Health gave information on 133 serious case notifications, a serious case notification being concerned with cases in which there has been the death of or serious injury to, a child where abuse and/ or neglect may have been a factor. Of those 133 cases, there were 103 in which the child had died, and 30 in which the child had suffered serious injury.    [Back]

Note 2    Her Honour, Judge Isobel Plumstead, Papers for the NSPCC “Which of you did it” Conference in Cambridge, 2 November 2002, Introduction and Background, para 9.    [Back]

Note 3    Ibid, para 13.    [Back]

Note 4    Ibid, para 14.    [Back]

Note 5    Department of Law, University of Bristol: Gwynn Davis, Laura Hoyano, Caroline Keenan, Lee Maitland and Rod Morgan, “An Assessment of the Admissibility and Sufficiency of Evidence in Child Abuse Prosecutions: A Report for the Home Office” (1999).    [Back]

Note 6    Ibid, at p 43.    [Back]

Note 7    Ibid, at p 44.    [Back]

Note 8    In one such case the child’s arm had been broken. The research stated “[This defendant] was also dealt with for a spate of burglaries, and was sentenced to a total of 30 months imprisonment” (at p 44).    [Back]

Note 9    Cathy Cobley, Tom Sanders and Philip Wheeler, “Prosecuting Cases of Suspected ‘Shaken Baby Syndrome’ – a review of current issues” [2003] Crim LR 93.    [Back]

Note 10    Ibid, at p 97.    [Back]

Note 11    (1985) 82 Cr App R 5.    [Back]

Note 12    [2003] Crim LR 93 at p 98.    [Back]

Note 13    Ibid.    [Back]

Note 14    The study referred to the Guardian, “Killing with impunity”, September 24 2000, which made reference to the NSPCC research referred to earlier at paras 2.2 and 2.3.    [Back]