The Law Commission

You are here: BAILII >> Databases >> The Law Commission >> CHILDREN: THEIR NON-ACCIDENTAL DEATH OR SERIOUS INJURY (CRIMINAL TRIALS) PART VIII [2003] EWLC 279(8) (30 April 2003)
URL: http://www.bailii.org/ew/other/EWLC/2003/279(8).html
Cite as: [2003] EWLC 279(8)

[New search] [Help]

PART VIII

CONSULTATION ISSUES

In this Part we summarise our the recommendations we are minded to make to Government, and our provisional proposal. We invite comments on the recommendations we are minded to make, set out in paragraphs 1–12 below. We also invite comments on the new offence which we provisionally propose and which is set out in paragraphs 13 and 14 below. We are not inviting comments on the possible reforms which, for the reasons set out in Part V, we have decided not to recommend.

General issues

That the recommendations in this report should apply in cases of death or serious injury to children under the age of 16. (see paragraph 4.34)

That the changes to the rules of procedure and evidence which we recommend in this report shall apply, where the other conditions are satisfied, to trials for the following offences:

(1) cruelty or neglect under section 1 of the Children and Young Person Act 1933 (whether the existing offence or the aggravated offence which we are minded to recommend in Part VII);

(2) murder;

(3) manslaughter;

(4) assaults under sections 18 and 20 of the Offences Against the Persons Act 1861;

(5) rape;

(6) indecent assault and;

(7) the offence we are provisionally proposing under Part VII^[1] of failing, so far as is reasonably practicable, to prevent a child for whom the defendant is responsible from suffering serious harm deriving from ill treatment. (see paragraph 4.39)

That there should be a single concept of 'responsibility' for the purpose of our recommendations. 'Responsibility' should have the same meaning as for the offence of child cruelty or neglect under section 1 of the Children and Young Persons Act 1933. (see paragraph 4.53)

That the categories of those presumed to have assumed responsibility for a child should be the same as currently encompassed within section 17 of the Children and Young Persons Act 1933.(see paragraph 4.54)

That it be made clear that a person is not to be presumed to have care for a child for the purposes of section 17 of the 1933 Act merely by reason of being engaged by a social services authority to deal with the child who is the subject of a care order made in favour of that authority. (see paragraph 4.55)

That the scheme set out in this report should apply in cases in which the offence must have been committed by one of a small group of individuals, at least one of whom has responsibility for the child's care. (see paragraph 4.58)

Rules of evidence and procedure

That:

(1) there should be a statutory statement that the State is entitled to call for a person, who has responsibility for a child during a time when the child suffers non-accidental death or serious injury, to give such account as they can for the death or injury, to a police officer or court investigating or adjudicating upon criminal liability;

(2) the responsibility of a person for the welfare of a child shall include the responsibility to give such account as they can when properly called upon to do so pursuant to (1);

(3) that the responsibility of a person pursuant to (2) does not require that he or she answer any question if to do so would expose him or her to proceedings for an offence; ( see paragraph 6.13)

The Codes which currently regulate the conduct of interviews by the police shall be amended to include such further provisions as may be necessary to give effect fairly to the above. (see paragraph 6.14)

That in a trial where, at the end of the prosecution case, the court is satisfied beyond reasonable doubt that:

(i) a child has suffered non-accidental death or serious injury;

(ii) the defendants form the whole of, or are within, a defined group of individuals, one or other or all of whom must have caused the death or the serious injury; and

(iii) at least one defendant had responsibility for the child during the time within which the death or serious injury occurred;

the judge must not rule upon whether there is a case to go to the jury until the close of the defence case. (see paragraph 6.22)

10.

That where:

(1) a child has suffered non-accidental death or serious injury;

(2) the defendants are (or are within) a defined number of individuals one or more of whom must be guilty of causing the death or serious injury; and

(3) a defendant who has responsibility for the welfare of the child does not give evidence;

(4) the jury should, in the case of that defendant, be permitted to draw such inferences from this failure as they see fit, but must be directed to convict the defendant only if, having had regard to all the evidence and to any inference to which they are permitted to draw having had regard to any explanation given for his or her silence, they are sure of the defendant's guilt. (see paragraph 6.53)

11.

That a trial judge should be under a duty to withdraw the case from the jury at the conclusion of the defence case, where he considers that any conviction would be unsafe or the trial would otherwise be unfair. (see paragraph 6.56)

New offences

12.

That there be an aggravated form of the offence of cruelty under section 1 of the Children and Young Persons Act 1933 which will be committed by a person who is guilty of the offence of child cruelty where the child has died as a result of the occurrence of any suffering or injury to health which the cruelty of the defendant has made it likely would be caused. The offence will be established by the prosecution proving to the criminal standard each of the 6 elements set out in paragraphs 7.10 and 7.11 above. The aggravated form of the offence will attract a maximum penalty of 14 years imprisonment. (see paragraph 7.13)

13.

That a new offence should be created by which it would be an offence, punishable by a maximum of seven years imprisonment, for a person who has responsibility for a child to fail, so far as is reasonably practicable for him or her to do so, to prevent the child suffering serious harm deriving from ill treatment. (see paragraph 7.28)

14.

That the offence will only have been committed if the child has suffered serious harm deriving from ill treatment which will only be the case where the child has been the victim of one or more of the following offences: murder; manslaughter; an assault under section 18 or 20 of the Offences Against the Person Act 1861; rape; or indecent assault. (see paragraph 7.29)

Responses

15.

We would be grateful to receive responses to this consultative report by the end of May 2003.

Please send responses to Judge Alan Wilkie QC or David Hughes, each at:

The Law Commission, Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ.

Responses may also be sent by email to:

alan.wilkie@lawcommission.gsi.gov.uk

or to

david.hughes@lawcommission.gsi.gov.uk

Law Commission

April 2003

Note 1 See paragraphs 7.28 – 9. [Back]