The Law Commission

The Law Commission

(LAW COM No 279)

CHILDREN: THEIR

NON-ACCIDENTAL DEATH OR

SERIOUS INJURY

(CRIMINAL TRIALS)

Item 5 of the Eighth Programme of Law Reform:

Criminal Law

Laid before Parliament by the Lord High Chancellor pursuant to section 3(2) of the

Law Commissions Act 1965

Ordered by The House of Commons to be printed

30 April 2003

London: TSO

HC 650

CONTENTS

	Paragraph
Executive Summary	Summary
Proposals rejected	2
Recommendations we are minded to make
Evidence and procedure
Scope of the recommendations	8
A statutory statement of principle	12
Evidential and procedural recommendations	13
Substantive law	16
Part I: Introduction	Part I
Background to the Consultative Report	1.3
Some preliminary points
A two track approach	1.10
The need for the prosecution to prove that a crime has been committed	1.14
The current law	1.16
Partial solutions under the current law	1.26
Inferring joint enterprise	1.27
Prosecutions for cruelty or neglect	1.32
Using one suspect as a prosecution witness	1.35
Previous discussions of the need for reform	1.37
The format of this report	1.42
Part II: The extent of the Problem	Part II
Part III: The civil law of child protection	Part III
Views of respondents to the informal consultation paper	3.2
The legal framework for civil proceedings	3.14
The standard of proof	3.17
Cases involving unexplained injuries	3.23
Admissibility of evidence in civil proceedings	3.38
Use of evidence obtained in civil proceedings	3.44
Confidentiality of evidence in civil proceedings	3.46
Conclusion	3.52
Part IV: Our approach to reform	Part IV
The duty to protect children from harm	4.4
The impact of the European Convention on Human Rights and other international obligations	4.7
Our initial approach – focussing on Article 6	4.8
A more comprehensive, better-balanced approach	4.16
Does Article 8 of the ECHR have an impact on these issues?	4.24
Conclusions on the impact of the ECHR	4.27
Our proposed approach to the substantive law	4.32
The range of application of our scheme
Which children?	4.34
Should our scheme extend to vulnerable adults?	4.35
To which offences should our recommendations apply?
"Death of or serious injury to a child"	4.36
To which categories of person should our proposals apply?
Who has "responsibility" in this context?	4.40
To which categories of defendant should special rules apply?	4.56
Part V: Options which we reject	Part V
Introduction	5.1
Reverse burdens of proof
Placing a legal burden on the defendant	5.3
Imposing an evidential burden	5.20
Compulsory questioning	5.28
Admitting incriminating statements made by one defendant against the other	5.41
Reforming the substantive offence of manslaughter	5.55
Part VI: Evidential and procedural changes	Part VI
Introduction	6.1
Recognising a responsibility to give an account	6.4
Safeguards	6.10
Establishing a case to answer	6.15
The drawing of inferences from silence
The historical context	6.24
The Criminal Justice and Public Order Act 1994	6.27
Consequences of our recommendations for the operation of the
Criminal Justice and Public Order Act 1994	6.34
Compliance with Article 6 of the ECHR	6.44
A full circle	6.50
The trial judge's duty to ensure fairness	6.54
Part VII: New criminal offences?	Part VII
An aggravated form of child cruelty or neglect
The position of the informal consultation paper	7.3
The response leading to a development of the recommendation	7.9
Cruelty or neglect leading to serious injury	7.14
An offence of failing to take reasonable steps to prevent abuse
The approach in the informal consultation paper	7.15
A different approach	7.17
What would be "serious harm deriving from ill-treatment"?	7.24
An illuminating example	7.25
Conclusion	7.26
Part VIII: Consultation issues	Part VIII
General issues	1
Rules of evidence and procedure	7
New offences	12
Responses	15
Appendix: List of respondents to the informal consultation paper	Appendix