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You are here: BAILII >> Databases >> The Law Commission >> CHILDREN: THEIR NON-ACCIDENTAL DEATH OR SERIOUS INJURY (CRIMINAL TRIALS) PART V [2003] EWLC 279(5) (30 April 2003)
URL: http://www.bailii.org/ew/other/EWLC/2003/279(5).html
Cite as: [2003] EWLC 279(5)

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PART V
OPTIONS WHICH WE REJECT

Introduction

In this Part we summarise the options for reform which the Team considered, which were the subject of informal consultation, and which we have decided to reject. Those are:

(1) That a legal burden should be imposed upon the defendant to provide an explanation for a child's death or injury, failing the discharge of which he or she will be guilty of murder or manslaughter. On consultation there was little support for this option though there were some consultees who did argue for this approach. We summarise their approach and why we have declined to accept their view in paragraphs 5.3 to 5.19 below;

(2) That an evidential burden should be imposed upon the defendant to provide an explanation for a child's death or injury, failing the discharge of which he or she will be guilty of murder or manslaughter. On consultation there was some important support for this approach. We consider this support. Some of it, upon analysis, appears in fact, to amount to support for permitting the jury to draw an inference of guilt from a failure to give evidence. This is an option which we are minded to recommend and we explain our reasoning in Chapter VI. We explain in paragraphs 5.20 to 5.27 below why we have decided not to go so far as to recommend an evidential burden;

(3) That it should be an offence punishable by a criminal penalty for a defendant to fail to provide an explanation for the child's death or serious injury. There was no support for this as an option. In paragraphs 5.28 to 5.40 below we summarise the Team's reasoning with which the respondents to the informal consultation paper substantially agreed;

(4) That the offence of manslaughter should be extended beyond its present scope to enable convictions for manslaughter in this type of case. We summarise in paragraphs 5.55 to 5.64 below our reasoning and address such points as were raised by respondents. We consider changes to the substantive law which we are minded to recommend in Part VII.

5.2

We have also decided not to recommend an option for which the Team indicated its support, namely: that a pre-trial statement made by one defendant should be admissible as evidence against the other in order to determine whether there is a case to answer. This suggestion was subject to widespread criticism, whether as a tool to permit the case to get beyond the close of the prosecution case or, if the case got beyond that stage, as a source of evidence for the jury to consider where that defendant did not give evidence. We explain in paragraphs 5.41 to 5.54 below why we have concluded that the criticisms were correct and why we do not intend to recommend this change.

Reverse burdens of proof

Placing a legal burden on the defendant

5.3

Placing a legal burden on the defendant means that the defendant must, as a matter of law, be presumed guilty if the prosecution can prove that a child has suffered non-accidental death or injury and that the defendant was within the limited group of persons one, or more, or all of whom must have committed the offence. This statutory presumption would provide that a person is criminally responsible for non-accidental injuries suffered by a child in such circumstances, unless he or she can prove that the injuries had occurred without his or her knowledge or involvement. A legal burden would be placed on the defendant to provide an innocent explanation for the apparently incriminating circumstances.

5.4

If the defendant bears a legal burden, then the defendant must prove his innocence on the balance of probabilities. This is a lower standard of proof than the prosecution must achieve to prove guilt. That standard is proof beyond reasonable doubt. Nonetheless, if a defendant fails to satisfy this requirement, he or she would have to be convicted even though the jury were left in reasonable doubt upon the issue.

5.5

The ECHR compatibility of provisions such as this has been considered in a number of recent cases. Placing a legal burden upon the defendant is not necessarily incompatible with the ECHR. In Salabiaku v France

^[1]

Presumptions of fact or law operate in every legal system. Clearly the Convention does not prohibit such presumptions in principle. It does, however, require the contracting States to remain within certain limits in this respect as regards criminal law. … [T]he object and purpose of Article 6 (art. 6),which, by protecting the right to a fair trial and in particular the right to be presumed innocent, is intended to exercise the fundamental principle of the rule of law. … Article 6(2) (art. 6-2) does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It requires States to define them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence.^[2]

Summarising this approach, in R v Director of Public Prosecutions, ex parte Kebilene

^[3]

^[4]

(1) what does the prosecution have to prove in order to transfer the onus to the defence? (2) what is the burden on the accused--does it relate to something which is likely to be difficult for him to prove, or does it relate to something which is likely to be within his knowledge or (I would add) to which he readily has access? (3) what is the nature of the threat faced by society which the provision is designed to combat?^[5]

In the present context, the answers to those questions would be that: (1) the prosecution would have to prove that a child for whose care a defendant was responsible had suffered non-accidental death or injury and the defendant was within a small group of persons, one or more or all of whom must be guilty of the offence; (2) the accused would be expected to provide evidence that the injury occurred without his or her knowledge or involvement, or in a situation where he or she was powerless to intervene; (3) the threat faced by society is the problem of a failure of the law to convict anyone for killing or seriously injuring a child where the death or injury occurs in a situation where the crown can prove that the guilty person must be within a known group of defined people.

5.8

The threat referred to in question (3) is obviously very serious. There is guidance from speeches in the House of Lords in Lambert

^[6]

^[7]

Lambert

^[8]

[A] guilty verdict may be returned in respect of an offence punishable by life imprisonment even though the jury may consider that it is reasonably possible that the accused had been duped. It would be unprincipled to brush aside such possibilities as unlikely to happen in practice. Moreover, as Justice has pointed out in its valuable intervention, there may be real difficulties in determining the real facts upon which the sentencer must act in such cases. In any event, the burden of showing that only a reverse legal burden can overcome the difficulties of the prosecution in drugs cases is a heavy one.^[9]

^[10]

^[11]

The law in this area is still developing, but some indications have emerged as to the types of case in which it will be permissible to impose a legal burden upon the defendant. For example, in Lambert,

^[12]

A strict responsibility may be acceptable in the case of statutory offences which are concerned to regulate the conduct of some particular activity in the public interest. The requirement to have a licence in order to carry on certain kinds of activity is an obvious example. The promotion of health and safety and the avoidance of pollution are among the purposes to be served by such controls. These kinds of cases may properly be seen as not truly criminal. Many may be relatively trivial and only involve a monetary penalty. Many may carry with them no real social disgrace or infamy.^[13]

Clearly offences against children would not fall into this category. However, there may be cases in which it is justifiable to impose a legal burden upon the defendant in relation to a serious offence. For example, in L v DPP

^[14]

Lambert

(1) ...The present situation is different in that it is for the prosecution to prove that the defendant knows he had the relevant article in his possession.

(2) There is a strong public interest in bladed articles not being carried in public without good reason....

(3) The defendant is proving something within his own knowledge... ^[15]

In his judgment in L v DPP, Poole J considered that there was an important difference between the provision in question, and the provision in Lambert :

… the essential point is that an accused who carries a knife (or other bladed or sharply pointed article) knows at the time he commits the act in question, that his conduct amounts to a criminal offence unless he can bring himself within the exemption specified within the section: contrast the accused in the prosecution under section 5(3) whose defence is that he did not know he was carrying drugs at all.^[16]

In our view the cases with which we are concerned are much more similar to Lambert than they are to Lynch. A parent whose child is killed or injured while he or she is out of the room may not be aware at the time that any crime was being committed or was even likely. He or she would have no idea, therefore, that his or her conduct might require justification. Lynch is not, therefore, a persuasive precedent for current purposes.

5.14

Imposing a legal burden upon the defendant in relation to the partial defence on a murder charge of diminished responsibility was approved by the Court of Appeal in Lambert, Ali and Jordan.

^[17]

Lynch

prima facie

Placing a legal burden upon the defendant was also held to be acceptable in an offence of drink driving in Drummond (Andrew).

^[18]

We agree with the Crown that not all apparently persuasive burdens have to be 'read down' to be evidential burdens; we think it necessary to look at the legislation as a whole in order to determine whether Parliament intended to impose a persuasive burden and whether such burden is justifiable.

The present case is, in our view, different from both Lambert and Carass in material respects. …

…

...features of the case make the defence of post-incident drinking not unlike the defence of diminished responsibility which also depends on material to be furnished by the defendant. On authority presently binding on this court (see R v Lambert, Ali and Jordan^[19] in the Court of Appeal) the requirement that a defendant has the burden of proving diminished responsibility in a murder case, if he wishes to raise it, does not infringe Article 6(2) of the Convention. Drink-driving and causing death by careless driving while over the limit are both much less serious charges than murder. Mr Turner relied on the fact that the maximum sentence for causing death by careless driving under section 3A is 10 years but was constrained to accept that the nature of the burden on the defendant could not be different for a section 3A offence from what it is for a section 5 offence for which the maximum term of imprisonment is six months.^[20]

As we have indicated, a small number of respondents indicated some support for imposing a legal burden. One, a circuit judge, felt that concern over such a measure reflected an unjustified lack of faith in the good sense and fairness of juries. The other, a Lord Justice of Appeal, expressed the view that nothing short of imposing a legal burden would succeed in addressing the failure to protect the fundamental human rights of the children under Articles 2 and 3 because all of the suggested alternatives "continue to permit both accused to put the prosecution to proof as to which of them actually committed the offence". He advocated the imposition of a legal burden as "the only practicable solution, because it provides a proper way of convicting the guilty whilst giving a proper opportunity for the innocent to exculpate themselves".

5.17

Having stressed the importance of decisions of the European Court of Human Rights concerning the duty of the State to protect the fundamental rights of children,

^[21]

Kebilene

^[22]

Lambert

^[23]

We invited this respondent to provide us with his answer to the concern that imposing a legal burden would have the effect that a jury in such a case would have to be directed that they must convict the defendant even though they may not be sure that he or she committed the offence because the defendant had failed to persuade them on the balance of probabilities that he or she had not committed it. He agreed that it was a theoretical possibility that a defendant would be convicted where the jury was only 51% sure that he or she did it but thought it more theoretical than real for a number of reasons. He emphasised the fact that in such a case the jury would have far more information about the family dynamics and family history which would enable them to make an informed and sophisticated judgment on the veracity of each defendant. He stated that agonising about percentages of probability was not likely to feature in that enquiry. He concluded that the jury could be trusted to reach a rational conclusion.

5.19

We do not doubt that juries should be assumed to be reasonable, fair and sensible and we are sure that, were there to be a legal burden, the jury would receive much more evidence. Nonetheless, the suggestion that there be a legal burden imposed on the defendant has embedded within it that the jury must as a matter of law convict even though they are not sure of the person's guilt where that person does not discharge the burden of persuading the jury that it is more likely than not that he or she did not commit the offence. That is not just a theoretical possibility but is of the essence of the imposition of a legal burden of proof. There is a keen distinction between the imposition of a legal and an evidential burden. It would be an extreme measure to place a legal burden on the defendant to prove that he or she did not kill a child. We are worried that the ostensibly reassuring assumption we are invited to make that juries can be trusted only to convict those whom they believe are guilty in truth really amounts to assuming that juries will have the good sense and fairness to ignore the strict letter of any direction they are given by the judge and will do what they believe to be right regardless. We do not believe that this is a viable basis for a proposed reform of the law.

Imposing an evidential burden

5.20

Our consultation process revealed that there are different understandings of what is meant by the imposition of an evidential burden. A significant number of respondents to the informal consultation paper, many of whom are senior members of the judiciary, appeared to be in favour of imposing an evidential burden. However, upon close examination, it became apparent to us that their reasoning flowed from a concern that there should be some means of marking the expectation of society that a person, who has responsibility for the care of a child who suffers non-accidental injury, ought to provide such account as they can for how it came about and of giving effect to the implications of their not having done so. We have great sympathy with the need to address this concern and we return to it in Part VI. It was not apparent, however, that these respondents were necessarily advocating all the consequences which would flow from imposing an evidential burden upon a defendant.

5.21

At the outset, therefore, it is important to define what we mean by an evidential burden. It is accurately described by Professor Tapper in this way:

The evidential burden is the obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue…^[24]

Whether sufficient evidence has been adduced to raise such an issue is a question of law for the judge. If he concludes that there has not been sufficient evidence presented, then it is for him to withdraw the issue from the jury.

In L v DPP

^[25]

Moreover, the so-called [evidential] burden may not in substance be a burden on the defendant at all. Evidence raising the issue will often emerge from the evidence, direct and circumstantial, called by the prosecution. A defendant is entitled, if the hearing is to be a fair hearing under Article 6, to have that evidence scrutinised by the court.^[26]

An evidential burden would not necessarily result in the defendant giving evidence to provide an innocent explanation for the child's injuries, since the possibility of an innocent explanation may arise from the prosecution case.

5.24

The Team did not consider the imposition of an evidential burden to be a promising avenue for reform, and we remain of this view for two linked reasons.

5.25

The first concerns the structure of the law. The imposition of an evidential burden would be fundamentally different in this kind of case from those cases where presently an evidential burden is placed on the defendant. In all of those cases the prosecution has to prove the essential elements of the case before any question of an evidential burden arises. In a case of murder or manslaughter whether the defendant killed the deceased is, by the very nature of the offence, bound to be a fact in issue, unless admitted by the defence. Thus in cases of self defence or duress the prosecution has to prove that the conduct and the mental elements of the offence were committed by the defendant. If it does, then it is for the defendant to raise the exculpatory defence by adducing evidence. If he or she does not do so, the jury can convict, as the prosecution will already have proved all the elements of the offence to the necessary standard. All the evidential burden does is to reflect the fact that if the prosecution proves all the elements of the offence it does not, in addition, have to disprove each and every exculpatory defence which might, theoretically, arise. If, however, there were to be an evidential burden in this type of case, it would be triggered by the prosecution proving, to the criminal standard, that a child had died non-accidentally and that the defendants were within the group of known people, one or some or all of whom must have committed the offence. If the defendant failed to discharge the evidential burden then, as a matter of law, the jury would have to convict even though the prosecution had not already proved each and every element of the offence against the defendant. In this type of case, therefore, the concept of an evidential burden is intrinsically flawed, unless it is a label which is used to mean something different, for example permitting the jury to draw inferences from the defendant's failure to give evidence.

5.26

The second reason flows from the first. The difference between imposing an evidential burden and enabling a jury to draw an inference of guilt from a failure to give evidence is fundamental. In the former case a conviction flows automatically from a failure to discharge the evidential burden. This would either be on the basis that the jury has to find the person guilty, even though all the elements have not been proved against him or her, or the conviction illustrates the fact that such a person is deemed to be guilty by reason of their failure to adduce evidence. In the latter case the jury only convicts if it is sure of the person's guilt. There is nothing automatic about the conviction. The jury is permitted, but not obliged, in considering whether it is sure of guilt, to decide whether to draw an adverse inference from a failure to give evidence.

5.27

The offences with which we are concerned are very serious. We are not persuaded that to go so far as to impose an evidential burden, with the above consequences, would be a proportionate response by the State for the purpose of discharging its duty to protect the fundamental human rights of the children whose Articles 2 and 3 rights have been abused.

Compulsory questioning

5.28

Another option for reform considered in the informal consultation paper involved placing a direct obligation upon the defendants to provide an explanation of the child's death or injury, with punishment for a failure to provide an explanation. There are numerous statutory obligations of this sort. The use of information obtained in this way as evidence in a criminal trial against the maker of the statement would, however, cause considerable problems of compatibility with the ECHR. In Saunders v UK,

^[27]

[The Court] does not accept the Government's argument that the complexity of corporate fraud and the vital public interest in the investigation of such fraud and the punishment of those responsible could justify such a marked departure as that which occurred in the present case from one of the basic principles of a fair procedure. Like the Commission, it considers that the general requirements of fairness contained in Article 6 (art. 6), including the right not to incriminate oneself, apply to criminal proceedings in respect of all types of criminal offences without distinction from the most simple to the most complex. The public interest cannot be invoked to justify the use of answers compulsorily obtained in a non-judicial investigation to incriminate the accused during the trial proceedings. It is noteworthy in this respect that under the relevant legislation statements obtained under compulsory powers by the Serious Fraud Office cannot, as a general rule, be adduced in evidence at the subsequent trial of the person concerned. Moreover the fact that statements were made by the applicant prior to his being charged does not prevent their later use in criminal proceedings from constituting an infringement of the right.^[28]

The Court concluded that there had been an infringement of the defendant's right not to incriminate himself. As a result of Saunders, a number of statutory provisions were amended by the Youth Justice and Criminal Evidence Act 1999, section 59, and Schedule 3, to provide that answers obtained under compulsion should not be admissible in a subsequent criminal prosecution of the maker of the statement. Although child abuse is a very different type of social problem from corporate fraud, it is noteworthy that a similar strategy was adopted in section 98 of the Children Act 1989

^[29]

We believe that reversing this approach, so that statements made under compulsion in civil child protection proceedings would be admissible in subsequent criminal proceedings, would be deeply problematic. Apart from the human rights issues, the present provision reflects a public policy that a court hearing civil child protection proceedings should be able to obtain the fullest possible information to allow an assessment of future risks to the safety of the child concerned. If statements obtained in this way were admissible in subsequent criminal proceedings, there would be a danger that this would reduce the civil court's ability to protect children. Several respondents to the informal consultation paper stressed, and we agree, that reforms of the criminal law should not compromise the effectiveness of child protection in the civil courts. On the other hand, where information has been obtained in civil proceedings without compulsion, this may be made available to the criminal courts. It also appears that statements obtained under compulsion may be used as the basis for a police investigation, even if they are not directly admissible as evidence in criminal proceedings.

^[30]

Saunders was distinguished by the Privy Council in Brown v Stott.

^[31]

The jurisprudence of the European Court very clearly establishes that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly within Article 6 are not themselves absolute. Limited qualification of these rights is acceptable if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for. The general language of the Convention could have led to the formulation of hard-edged and inflexible statements of principle from which no departure could be sanctioned whatever the background or the circumstances. But this approach has been consistently eschewed by the court throughout its history.^[32]

In the same case, Lord Hope of Craighead stated the test to be applied when considering whether a statutory provision is incompatible with a right under Article 6:

The question whether a legitimate aim is being pursued enables account to be taken of the public interest in the rule of law. The principle of proportionality directs attention to the question whether a fair balance has been struck between the general interest of the community in the realisation of that aim and the protection of the fundamental rights of the individual.^[33]

It may be significant that in Brown v Stott Lord Bingham concluded that Article 6 of the ECHR was not infringed because section 172 of the Road Traffic Act 1988 "provided for the putting of a single, simple question" regarding the identity of the driver at the relevant time, rather than "prolonged questioning about the facts alleged to give rise to criminal offences"

^[34]

Saunders

^[35]

In Brown v Stott, Lord Bingham stated that "all who own or drive motor cars know that by doing so they subject themselves to a regulatory regime", and that section 172 of the Road Traffic Act 1988

^[36]

^[37]

^[38]

Saunders was a case in which the use, in a subsequent criminal trial, of the product of compulsory questioning, undertaken in the course of a statutory investigation process, was held by the European Court of Human Rights to be in breach of the Convention. Heaney and McGuinness v Ireland,

^[39]

[T]he "degree of compulsion", imposed on the applicants ... with a view to compelling them to provide information relating to charges against them under that Act, in effect, destroyed the very essence of their privilege against self-incrimination and their right to remain silent.^[40]

The Court refused to accept that the provision was a proportionate or justifiable response to threats to public order and security. Some of those who responded to the informal consultation paper suggested that offences against children should be treated differently from crimes against the State, such as terrorist crimes. We are doubtful, however, whether the rights of children to protection under Articles 2 and 3 of the ECHR can justify compulsory questioning of suspects if the same rights of the victims of terrorism are insufficient to justify such measures.

5.37

It is important to realise that there are other ways in which an explanation can be obtained, without the need to impose a direct threat of imprisonment for failure to explain. In Heaney and McGuinness, the European Court of Human Rights referred to the following argument:

The applicants further considered the Government's reliance on matters of public security and proportionality to have been misplaced, noting that the Court in the above-mentioned Saunders case pointed out that the public interest could not be invoked to justify the use of answers compulsorily obtained in a non-judicial investigation to incriminate the accused during later trial proceedings. In any event, the public policy and security concerns could have been addressed otherwise. Accordingly, if the purpose of the section 52 request was to prosecute the person to whom the request was made, certain negative inferences could have been drawn from that accused's silence ... or if the objective of the section 52 request was to investigate a crime committed by others, the request could have been coupled with a clear immunity from prosecution in favour of the addressee of the request in respect of and based upon answers so provided.^[41]

We believe that these issues are relevant to the issue of offences against children. We have already considered the possibility that a prosecution might be brought against one person who is accused of injuring the child, relying upon the evidence of the other person who might have inflicted the injury.

^[42]

The overwhelming majority of those who responded to the informal consultation paper agreed with the Criminal Law Team's provisional conclusion that there should not be a criminal penalty for failure to provide an explanation for a child's death or injury. A small number of respondents did believe that such a measure would be justifiable, although in some cases they also agreed that this approach was unlikely to survive human rights challenges.

5.40

We do not recommend that there should be a criminal penalty for a defendant who fails to provide an explanation for the child's death or injury.

Admitting incriminating statements made by one defendant against the other

5.41

Under the current law, a pre-trial statement which is incriminating, or partially incriminating, may be admitted as a confession under section 76 of the Police and Criminal Evidence Act 1984, as evidence against the defendant who made the statement. A confession by one defendant is not, however, admissible as evidence against a co-defendant. Furthermore, a purely exculpatory (non-incriminating) statement is usually not admissible (though in practice such a statement is frequently led by the prosecution). Therefore, where one parent makes a pre-trial statement incriminating him or herself and also incriminating the other parent (for example, a statement admitting neglect, but accusing the other parent of deliberately inflicting injuries), this will be admissible against the parent who makes the statement but not against the other parent who is being accused. If the parent makes a pre-trial statement denying responsibility for the child's death or injuries and blaming the other parent (either explicitly, or by necessary implication), this will not usually be admissible as evidence against the other parent who is on trial. For example, in Strudwick,

^[43]

During her long interview with the police [the mother] blamed Sophie's injuries on [the mother's boyfriend]. She made particular reference to the events of the Friday afternoon when she described how he had pulled Sophie from her chair and swung her around by the arms, injuring her in the confined space. She claimed that the first appellant was so big and strong that she was unable to protect Sophie as she wished.

...

The allegations made by the [mother] against the [mother's boyfriend] in the police interviews were of course not evidence against him, and it seems to this Court there was no real evidence which identified him as the one who delivered the two fatal blows to Sophie or that he was supporting the child's mother in an attack by her.^[44]

If the defendant chooses to give evidence and repeats the statement in court, or adopts it as true, then this will be evidence against the co-defendant who is incriminated by the statement. The jury will usually be directed to give more weight to the parts of the testimony which incriminate the person giving the evidence than those parts which incriminate the other defendant. If the defendant gives evidence in a way which is inconsistent with a pre-trial statement then, at the moment, the pre-trial statement may be admitted for the limited purpose of assessing the credibility of the evidence. It does not become admissible for any other purpose. Therefore, for example, if the mother has made a pre-trial statement which accuses the father of deliberately inflicting injuries but gives evidence that neither she nor the father was responsible, it may be possible to use the existence of the pre-trial statement to reduce the credibility of her evidence. The statement may not, however, be used as evidence against the father, unless the mother changes her evidence when questioned about her previous statement.

5.43

Of course, where one parent makes a plausible pre-trial statement incriminating the other parent, it is possible that she will not be charged with any offence (or will plead guilty to a lesser offence) and may be called as a prosecution witness in the trial of the other parent.

^[45]

Where both of the possible perpetrators are on trial then, unless the statement implicating the co-defendant is admissible as part of the prosecution case, it cannot be used to allow the case against that co-defendant to proceed past the 'no case to answer' stage. The opportunity for either defendant to testify will not arise unless there is some other admissible evidence which establishes a case to answer. In the informal consultation paper, the Criminal Law Team put forward the possibility of reforming the law to allow a pre-trial statement by one of the defendants to be used as part of the prosecution case for the limited purpose of establishing a case to answer against the other defendant.

5.45

The informal consultation paper noted that the admissibility of statements of a co-accused was recommended by a majority of the Criminal Law Revision Committee, in its Eleventh Report.

^[46]

The provision involves a question of policy, and our decision to recommend it is a majority one. The majority think it right to make the provision on the ground that there are many cases where the interests of justice require that what any of the accused have said out of court about the part played by the others in the events in question should be before the court. For example, it often happens that, when A and B are jointly charged with an offence, A has made a statement implicating them both and B has made no statement; or again each may have made a statement seeking to throw the blame on the other. In the latter kind of case there may be much truth in both their statements, and their stories may be changed by the time of the trial. If there are discrepancies of this kind, it seems to the majority particularly desirable that the out-of-court statements should be admissible in evidence in order that they may be compared with the makers' evidence at the trial.^[47]

When the Law Commission considered this issue in the context of the reform of the hearsay rule, we did not recommend such a change. In our report, Evidence in Criminal Proceedings: Hearsay and Related Topics,

^[48]

Where a confession is admitted against one accused on behalf of a co-accused, the fact-finders may consider the admission as exonerating the defendant who did not make it, but may not take it as evidence against the defendant who made it. A hearsay admission is still evidence only against the person who made it, and a jury must be warned accordingly. A number of our respondents thought it extremely important that this principle be retained, and we agree.^[49]

In that report we were not, however, considering the special problems which occur where a child has been injured by one or more of the people who are responsible for him or her. In the informal consultation paper, the Criminal Law Team suggested that, in such cases, it might be in the interests of justice for the court to be able to consider what one accused has said about the involvement of the other as part of the prosecution case. Nevertheless, the informal consultation paper acknowledged that there might be human rights difficulties with this approach. In Lucà v Italy,

^[50]

^[51]

The European Court of Human Rights confirmed that the right to silence and the right not to incriminate oneself are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Therefore, the Court said, the domestic authorities had had no alternative but to accept the decision of the co-accused not to give evidence, since requiring him to repeat his statements at the trial would have entailed a violation of his fundamental rights. The Court noted the arguments of the Italian Government that "three interests had been at stake: the right of the co-accused to remain silent, the right of the accused to examine a co-accused witness and the right of the judicial authority not to be deprived of evidence obtained during the investigation".

^[52]

As the Court has stated on a number of occasions ..., it may prove necessary in certain circumstances to refer to depositions made during the investigative stage (in particular, where a witness refuses to repeat his deposition in public owing to fears for his safety, a not infrequent occurrence in trials concerning Mafia-type organisations). If the defendant has been given an adequate and proper opportunity to challenge the depositions, either when made or at a later stage, their admission in evidence will not in itself contravene Article 6 paragraphs 1 and 3(d). The corollary of that, however, is that where a conviction is based solely or to a decisive degree [emphasis added] on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6 …

In the instant case, the Court notes that the domestic courts convicted the applicant solely on the basis of statements made by N. before the trial and that neither the applicant nor his lawyer was given an opportunity at any stage of the proceedings to question him.

In those circumstances, the Court is not satisfied that the applicant was given an adequate and proper opportunity to contest the statements on which his conviction was based.

The applicant was, therefore, denied a fair trial. Accordingly, there has been a violation of Article 6 paragraphs 1 and 3(d).^[53]

This case presents considerable difficulties in relation to the admissibility against a defendant of a pre-trial statement made by another defendant. If such a statement is presented as part of the prosecution case and a conviction is based "solely or to a decisive degree"

^[54]

The Team acknowledged these difficulties in the informal consultation paper but nonetheless put forward a proposal that, subject to safeguards, a pre-trial statement made by one defendant should be admissible as evidence against the other defendant for the purpose of determining whether there is a case to answer. The Team acknowledged that such a statement may not be used as the sole or decisive basis for a conviction.

5.51

The great majority of those who responded to the informal consultation paper were opposed to this option for reform. Some respondents had difficulty with the logic that evidence should be taken into account by the judge in order to decide whether there is a case to answer but that the same evidence should not be considered by the jury when it decides whether the prosecution has proved its case beyond reasonable doubt. We see the force of this and we address it in the wider context in Part VI of this report.

5.52

Many more respondents, however, were opposed on substantive grounds. They emphasised the limited evidential value of such a self-serving statement casting blame upon the other defendant. Several respondents supported the reform of the law to allow wider use of statements made by one co-accused against another but did not consider that it would be justifiable to limit such a reform to cases involving the death or injury of a child.

^[55]

Some respondents suggested that the clause of the Criminal Justice Bill currently before Parliament, which gives effect to the Law Commission's recommendation in its report on Evidence in Criminal Proceedings: Hearsay and Related Topics

^[56]

We do not recommend that the law should be changed so that a pre-trial statement made by one defendant may be admissible as evidence against the other defendant in order to determine whether there is a case to answer.

Reforming the substantive offence of manslaughter

5.55

In Part VII we consider the possibility of introducing new criminal offences to deal with situations where a child has suffered non-accidental death or serious injury.

^[57]

^[58]

Presently a person may be guilty of involuntary manslaughter on two bases which are relevant to this kind of case: unlawful act manslaughter and gross negligence manslaughter.

5.57

'Unlawful act' manslaughter requires the following to be proved:

^[59]

(1) the killing must be the result of the accused's unlawful act (though not his unlawful omission);

(2) the unlawful act must be one, such as an assault, which all sober and reasonable people would inevitably realise must subject the victim to, at least, the risk of some harm resulting therefrom, albeit not serious harm;

(3) it is immaterial whether the accused knew the act to be unlawful and dangerous, and whether he intended harm; the mens rea required is that appropriate to the unlawful act in question;

(4) 'harm' means physical harm.

The commission of an offence of child cruelty or neglect under section 1 of the Children and Young Persons Act 1933 does not necessarily constitute an unlawful act for these purposes, since the offence may be committed by omission. There is Court of Appeal authority on this basis that unlawful act manslaughter may not be available to convert an offence of child cruelty under section 1 into an offence of manslaughter.

^[60]

The elements of 'gross negligence' manslaughter are:

(1) a breach of a duty of care;

(2) that the breach caused the death of the victim;

(3) that the breach amounts to 'gross negligence'.

5.60

Whether the breach should be characterised as gross negligence and therefore a crime, is a question for the jury to determine. The test is whether, having regard to the risk of death involved, the defendant's conduct was so bad in all the circumstances as to amount to a criminal act or omission.

^[61]

caused

novus actus interveniens'

The informal consultation paper noted that this issue had been the subject of an apparent disagreement between Professor J.C. Smith and Professor Glanville Williams. Professor J.C. Smith

^[62]

^[63]

^[64]

Professor J.C. Smith seems to be of opinion that a person's failure to protect his child against attack can be taken as an encouragement of the attacker, but I know of no judicial authority for this, and there are strong arguments against it. Three stand out.

(1) The mere fact that the defendant knew what was happening, and was under a duty to stop it and culpably failed to do so, should not make him liable on the basis of encouragement unless he committed an act of encouragement and directly intended to encourage the offence. Mere knowledge that he was encouraging (oblique intention) should not suffice.

(2) It would be altogether too severe to hold the spouse or parent guilty as accessory to the very serious offence of inflicting grievous bodily harm on the child, or rape, or murder, merely because he/she did not try to prevent attack. He or she can perhaps be convicted of manslaughter if the child dies, but, if so, this will be as perpetrator of a crime of omission, in failing to perform his or her own duty of preventing the attack upon the victim to whom the duty of protection is owed, not as a party to the act of aggression. In fact there is no English authority for saying that a parent's failure to ward off an attack on his child can amount to manslaughter. A parent is under an undoubted legal duty to protect his child against starvation, disease and ill-health generally; but I know of no English authority for saying that the duty extends to protecting the child against human attack. The general doctrine of the criminal law is that responsibility for an attack lies with the attacker and his confederates, not with other people like failed defenders. This is the essence of the doctrine of novus actus interveniens.

(3) If failure to prevent a crime makes one a constructive accomplice of the criminal, how far is this to go? It is supposed to be the duty of the police to do what is reasonably possible to protect members of the public from attack, but would this make an inactive police officer an accomplice in, say, assault, riot, criminal damage or murder? The idea is absurd.

…

There is a well-known Australian authority^[65] for convicting a father of manslaughter on the ground that he failed to save his children from being murdered by his wife; but, once more, where is such a kind of liability to stop? Would a policeman be guilty of manslaughter because he culpably fails to prevent a criminal homicide?^[66]

Having considered these issues in the informal consultation paper, the Criminal Law Team provisionally concluded that extending the offence of manslaughter beyond its current scope would not be an appropriate way to meet the specific problems under consideration. The majority of respondents to the informal consultation paper agreed. There were, however, several respondents who argued that the paper had over-stated the difficulties in establishing causation in these circumstances. In particular, the Crown Prosecution Service argued that, although there was no legal authority which supported the use of gross negligence manslaughter in these circumstances, there was also no authority which was inconsistent with this approach. We are aware, as was pointed out by the CPS, that there is some authority that, in connection with certain statutory offences which are aimed at controlling certain commercial activities, a defendant may be guilty of causing a result where the defendant produced the situation in which there was the potential for the prohibited result to occur but its actual occurrence depended on the act of a third party.

^[67]

Having said that, we certainly have no wish to stand in the way of the judicial development in an appropriate case of manslaughter based upon gross negligence. Nor do we intend to cast any doubt on the appropriateness of manslaughter charges in which a defendant has caused the death of the child by his or her own act or omission, such as a failure to seek medical assistance after a child has been injured (whether accidentally or by some other person), or where the defendant is guilty of manslaughter as an accomplice under the existing law. We do not, however, consider that it is appropriate in the context of this project to recommend any legislative reform to the offence of manslaughter. Any legislative reform of the scope of the offence, or the principles of legal causation, would have far-reaching consequences which are outwith the scope of this project.

5.64

We do not recommend that the offence of manslaughter should be extended by legislation beyond its current scope.

Note 1    (1991) 13 EHRR 379.    [Back]

Note 2    Ibid, at para 28.    [Back]

Note 3    [2000] 2 AC 326. These questions (originally proposed by David Pannick QC inKebilene), were also referred to as a ‘useful starting point’ by Auld LJ in the Court of Appeal in Daniel (Anthony Lala) [2003] Cr App R 6, at para 29.    [Back]

Note 4    [2000] 2 AC 326, at p 384.    [Back]

Note 5    Ibid, at p 386.    [Back]

Note 6    [2001] UKHL 37; [2001] 3 All ER 577.    [Back]

Note 7    Ibid, at para 38.    [Back]

Note 8    Ibid.    [Back]

Note 9    Ibid.    [Back]

Note 10    [2002] Crim LR 316.    [Back]

Note 11    Recently in Daniel (Anthony Lala) [2003] 1 Cr App R 6, Auld LJ expressed concern about the use of the ‘reading down’ technique. He stated that “where there is plain incompatibility between the ordinary and natural meaning of statutory wordswhatever the context, and Article 6(2), the courts should take care not to strive for compatibility by so changing the meaning of those words as to give them a sense that they cannot, in the sense intended by section 3(1), possibly bear”.    [Back]

Note 12    [2001] UKHL 37; [2001] 3 All ER 577.    [Back]

Note 13    Ibid, at para 154.    [Back]

Note 14    [2003] QB 137.    [Back]

Note 15    Ibid, at p 148, para 27.    [Back]

Note 16    Ibid, at p 149, para 30.    [Back]

Note 17    [2001] 1 All ER 1014.    [Back]

Note 18    [2002] 2 Cr App R 25.    [Back]

Note 19    [2001] 1 All ER 1014.     [Back]

Note 20    [2002] 2 Cr App R 25 at paras 31–34.    [Back]

Note 21    To which we have referred in Part IV and for which we are grateful to him for emphasising.    [Back]

Note 22    [2000] 2 AC 326.    [Back]

Note 23    [2001] UKHL 37; [2001] 3 All ER 577.    [Back]

Note 24    C. Tapper, Cross and Tapper on Evidence (10th ed. 1999), at pages 109 – 110.    [Back]

Note 25    [2003] QB 137.    [Back]

Note 26    Ibid, at para 23.    [Back]

Note 27    (1997) 23 EHRR 313.    [Back]

Note 28    Ibid, para 74.    [Back]

Note 29    See paragraph 3.40 above.    [Back]

Note 30    See Part III above.    [Back]

Note 31    [2001] 2 WLR 817.    [Back]

Note 32    Ibid, at p 836.    [Back]

Note 33    Ibid, at p 836-837.    [Back]

Note 34    Ibid, at p 836.    [Back]

Note 35    Ibid, at p 837.    [Back]

Note 36    Section 172 provides that it is an offence for the keeper of a motor vehicle to fail to give information to the police when required to do so under subsection (2) as to the identity of the driver of a motor vehicle when that driver is alleged to have committed an offence which section 172 applies.    [Back]

Note 37    [2001] 2 WLR 817, at p 837.    [Back]

Note 38    Ibid.    [Back]

Note 39    [2001] 33 EHRR 12.    [Back]

Note 40    Ibid, at para 55.    [Back]

Note 41    Ibid at para 37.    [Back]

Note 42    See para 1.23 above.    [Back]

Note 43    (1994) 99 Cr App R 326.    [Back]

Note 44    Ibid, at p 331.    [Back]

Note 45    See paras 1.35-1.36 above.    [Back]

Note 46    Eleventh Report (1972) Cmnd 4991; see also clause 31(2) of their draft Bill.    [Back]

Note 47    Ibid, at para 251.    [Back]

Note 48    (1997) Law Com No 245.    [Back]

Note 49    Ibid, at para 8.96 (footnotes omitted).    [Back]

Note 50    Application No. 00033354/96, ECtHR, 27 February 2001    [Back]

Note 51    Ibid, at para 13.    [Back]

Note 52    Ibid, at para 34.    [Back]

Note 53    Ibid, at paras 40–45.    [Back]

Note 54    Ibid, at para 40.    [Back]

Note 55    At least one respondent suggested that the reforms of the hearsay rule which are contained in the Criminal Justice Bill currently before Parliament might introduce a judicial discretion to admit such statements. We have some doubts about this, but even if such a discretion existed, we do not believe that judges would consider that such statements should be admitted except in exceptional circumstances.    [Back]

Note 56    (1997) Law Com No. 245.    [Back]

Note 57    See Part VII below.    [Back]

Note 58    See paras 1.32 – 1.34 above.    [Back]

Note 59    Archbold, 2003 para 19-99.    [Back]

Note 60    R v. Lowe [1973] QB 702.    [Back]

Note 61    Adomako (1995) 1 AC 171.    [Back]

Note 62    Comment on Gibson [1984] Crim LR 615.    [Back]

Note 63    Ibid.    [Back]

Note 64    “Which of you did it?” (1989) 52 MLR 179.    [Back]

Note 65    Russell [1933] VLR 59.    [Back]

Note 66    Ibid, at p 197–198 (some footnotes omitted).    [Back]

Note 67    Environment Agency v. Empress Car Company (Abertillery) Ltd. [1999] 2 AC 22 HL. In that case the appellant had been convicted of causing polluting matter to enter controlled waters contrary to section 85(1) of the Water Resources Act 1991. The appellant had been storing diesel in a tank, in a yard which drained into a river. The appellant had overridden the protection from spillage by fitting a tap, which did not have a lock. The tap was opened by an unknown third party, and the diesel drained into the river. With regard to the fact that the harm was caused by a third party the House of Lords held that the justices should consider whether the act or event done or caused by the third party should be regarded as a matter of ordinary occurrence, or whether it should be regarded as something extraordinary, which would allow for a finding that the defendant did not cause the pollution. The distinction between what is ordinary and extraordinary is a question of fact and degree for the justices to decide on the basis of common sense and their knowledge of the locality.    [Back]

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The Law Commission

PART V OPTIONS WHICH WE REJECT

PART V
OPTIONS WHICH WE REJECT