The Law Commission

PART I

INTRODUCTION

Background

1.1      This Report and draft Bill conclude work which the Law Commission has been conducting on this issue. The recommendations in this Report are intended to address a problem which has been recognised for many years by judges, academics and practitioners, and which has been highlighted by the press. It can be exemplified at its most intractable in the following situation:

A child is cared for by two people (both parents, or a parent and another person). The child dies and medical evidence suggests that the death occurred as a result of ill-treatment. It is not clear which of the two carers is directly responsible for the ill-treatment which caused death. It is clear that at least one of the carers is guilty of a very serious criminal offence but it is possible that the ill-treatment occurred while one carer was asleep, or out of the room.

1.2      As the law stands, as a result of the Court of Appeal's ruling in Lane and Lane^[1] it is likely that a trial in such a case would not proceed beyond a defence submission of 'no case to answer'. As a result, neither parent can be convicted, and one or other parent, or both, might well have literally 'got away with murder'. It should be remembered that even though one parent may not have struck the fatal blow or blows, he or she may be culpable, as an accessory, either through having participated in the killing actively or by failing to protect the child. In many cases of this type it is difficult, or impossible, to prove even this beyond reasonable doubt and therefore neither parent can be convicted.
1.3      This Report is designed to be read in conjunction with the Consultative Report^[2] published earlier this year. That Report set out at some length: the nature and extent of the problem;^[3] the approach adopted to reforming the law;^[4] the options which the Law Commission was minded to reject;^[5] the recommendations it was minded to make for evidential and procedural changes;^[6] and the recommendations it was minded to make, or was provisionally proposing, for new criminal offences.^[7]
1.4      The focal point of this, final, Report is the draft Bill, contained in Appendix A, in which we set out our policy recommendations in a form in which they may be enacted. Part VI to this Report is a detailed commentary on the draft Bill. For ease of reference we have in that Part set out in order: the recommendations contained in the Consultative Report, which form the conceptual framework for the detailed provisions in the draft Bill; the terms of the particular clause which gives effect to that recommendation in statutory form; and a commentary on how that has been achieved and the changes which have occurred in the process.
1.5      The project was announced in the Law Commission's 36th Annual Report.^[8] For reasons which were explained in the Consultative Report^[9] the Commission's Criminal Law Team first produced, in December 2002, an informal consultation paper which was circulated to various members of the judiciary, academics and professional bodies. The Consultative Report was the outcome of consideration by the Commission of the issues in the light of the helpful responses to that paper.
1.6      In the Consultative Report the Commission indicated that it was minded to make certain recommendations to Government, which had been the subject of the informal consultation. It also presented, for consideration, provisional proposals on one aspect of the matter which had not been previously canvassed in the informal process undertaken by the Criminal Law Team. In this Report and draft Bill the Commission sets out its final recommendations together with the supporting reasoning.
1.7      We have been grateful to receive, and have found most helpful, the responses of those persons and bodies who are listed in Appendix B. They have been of assistance not only in enabling us to address the issues of principle but also to tease out the finer points of detail to assist drafting the Bill.
1.8      Our inspiration for undertaking this project was the work of the National Society for the Protection of Children ("NSPCC") "Which of you did it?" Working Group whose final report will be published at about the same time as this Report. We have benefited greatly from their efforts and the generosity with which they have shared their time and their thoughts. Their perspective has been different from ours, focusing less on law reform and more on steps by which, in practice, the flow of evidence may be improved. We have always recognised that there is no single solution to this intractable problem but that it will involve a multi faceted approach which will include improvements, such as those identified by the NSPCC, which can be made in the practices and procedures of front line health and social work professionals and investigating police officers. By improving the amount and quality of direct evidence, a greater number of convictions of the guilty may be achieved. There are also, as the NSPCC and others have noted, legislative proposals to change the rules of evidence concerning the admissibility of evidence of previous conduct which may better enable the courts to build a picture and to determine criminal liability accurately. These are matters which are beyond the scope of our law reform project. We remain of the view, however, that the present substantive law and rules of procedure and evidence are not beyond criticism or improvement in ways which may make it more likely that these offences may be the subject of an accurate conviction by a jury after a fair trial.

An overview of our proposals

1.9      The Consultative Report set out our approach to addressing this issue. We now propose a twofold approach. We propose changes to the rules of evidence and procedure which are applicable in trials of cases of this type. We also recommend changes in the substantive criminal law.
1.10      The evidential and procedural recommendations are threefold.

(1) We recommend that there should be a statutory statement of responsibility, applicable to those responsible for the child at the time when he or she sustained the injury or was killed, which requires that responsible person to give to the police or to the court such account as he or she can of how the death or injury came about. The statutory responsibility will not oblige the person to answer questions but the fact that he or she has this responsibility may be taken into account by a jury when considering what inference it may draw from a defendant's failure to give such account.^[10]

(2) In certain cases, we recommend that the judge must not decide whether the case should be withdrawn from the jury until the close of the defence case.^[11]

(3) If a defendant in such a case has the statutory responsibility but fails to give evidence,^[12] then the jury should be permitted to draw such inferences as may be proper from such failure without first having to conclude that they could have convicted the defendant on the evidence alone and without drawing any such inference.^[13]

In connection with the second and third recommendations we have provided that the judge must withdraw the case from the jury if he or she considers at the conclusion of the defence case that no jury properly directed could properly convict the defendant.^[14]

1.11      The recommended changes to the substantive law are twofold.
1.12      We recommend the creation of a new and aggravated form of the existing offence of child cruelty under the Children and Young Persons Act 1933. The offence, which will be in section 1A of that Act, will be the offence of "cruelty contributing to death".^[15] It will be committed where the offence under section 1 has been committed and its commission has contributed to the death of the child. This new offence would carry a maximum sentence of 14 years imprisonment.
1.13      We also recommend a new offence of "failure to protect a child".^[16] This offence would be committed if three cumulative conditions are satisfied. They are that:

(1) a person, "R", who is responsible for and has a specified connection with a child, is aware, or ought to have been aware, that there is a real risk that one of a list of specified offences might be committed against the child;

(2) R fails to take such steps as it would be reasonable to expect him or her to take to prevent the commission of the offence; and

(3) an offence in that list is committed in circumstances of the kind that R anticipated or ought to have anticipated.

1.14      In clause 2 of the draft Bill we set out the nature of the connection which it is necessary that the person responsible must have with the child. In Part VI of the Report we elaborate our reasons for requiring such a connection.

Some preliminary points

A two track approach

1.15      One academic commentator^[17] in his response to the informal consultation paper tellingly expressed the need throughout the project for us to recognise the two distinct aims which the project might have.
1.16      One would be to craft reforms in order to allow more cases to be left to the jury, with the aim of convicting more people who cause physical harm to a child (with the emphasis being placed on the causative link). This aim would have in its sights the resolution of one particular aspect of the problem which has been highlighted, namely that the present procedures have the effect that "those who might be responsible for causing the death or serious injury are not having their behaviour subjected to scrutiny by a jury".^[18] This would maintain the current focus of the law in seeking to establish who caused the physical harm to the child.
1.17      A second, alternative, or possibly additional, aim of reform would be to craft changes to the substantive law in order to "convict of some different type of offence all those adult carers who had responsibility for the welfare of the child at the time of the injury/ death".^[19] The basis for this would be that the defendant was guilty of a "wrong" underpinning the offence, that of failing adequately to ensure the safety of the child. As Professor Ormerod stated:

The fundamental difference would be that unlike in [the first alternative] the concern would not be to be convicting a greater proportion of those who caused harm, but to convict a greater proportion of those whose child suffers non-accidental injury.^[20]

1.18      It is important to recognise this distinction, as it must always be borne in mind that any new offences which are enacted for the fulfilment of Professor Ormerod's second purpose must be justifiable in and of themselves. New offences should not be proposed simply as a means to induce defendants into giving evidence, although this may be a beneficial side effect. Although, inevitably, there will be some interaction between these alternative aims of reform, the procedural dimension should remain separate and distinct from reform of the substantive law. New offences should not be used solely as a remedy to resolve the procedural problems associated with obtaining convictions for another type of offence. Therefore, although a new substantive offence may have collateral procedural advantages, in that a defendant who would previously have been unwilling to give evidence may be persuaded to do so, we emphasise that a new offence must be justifiable on its own terms before we would recommend it.

The need for the prosecution to prove that a crime has been committed

1.19      A further issue upon which we should make our position clear at the start of this Report concerns the type of case with which our recommendations are concerned. We are only concerned with those cases in which the prosecution is able to establish to the criminal standard of proof that the child died a non-accidental death, or suffered non-accidental serious injury and where, as a result of the present law of procedure and evidence, no one can be convicted of a crime which has undoubtedly been committed but where the perpetrator(s) are within a known group of individuals.
1.20      We are well aware that there is another, very troubling, set of cases where there is a converse problem. These are where there have been wrongful convictions of parents for offences of homicide where there is real doubt whether there has been any crime committed at all. This is because of a serious disagreement within the medical profession as to whether, in certain types of case, a child has died accidentally or non-accidentally.^[21] We particularly have in mind cases of cot death and shaken baby syndrome. We are not addressing these cases at all. We wish to make it abundantly clear that our recommendations would only ever apply where the Crown can prove beyond reasonable doubt that a child has suffered non-accidental injury or death.

The format of this Report

1.21      As is apparent from paragraphs 1.9 – 1.11 above, we have decided to confirm the broad thrust of policy and the recommendations which, in the Consultative Report, it was stated we were minded to make. We have also decided to make recommendations which give effect to the type of new offence upon which we consulted as a provisional proposal. For the most part, save for the recommendations for changes to the rules of procedure and evidence, there was widespread support for the policies which we stated we were minded to adopt. Apart from that area of controversy, such reservations as were expressed were either few in number or concerned points of detail.
1.22      In this Report we deal, relatively shortly, with: the nature and extent of the problem;^[22] those options for reform which we rejected;^[23] and certain matters, including our recommendations for changes to the substantive law, which were widely supported and which seem to be uncontroversial.^[24]
1.23      The most contentious of our recommendations concerned matters of evidence and procedure. We were gratified to note that, in addition to the significant level of support which had been expressed for such an approach upon the informal consultation and in response to the Consultative Report, there were those who had previously expressed reservations who now responded that these had been sufficiently addressed so as to enable them to give their support.^[25] It remains the case, however, that there is a significant body of opinion which remains unconvinced by these recommendations. In Part V of this Report we record their concerns and respond to them.
1.24      The most important part of this Report is the draft Bill in which the Commission's policy is expressed in a form which can be given speedy statutory effect if the Government is so minded. As we have stated above, in order to enable readers to see how these draft provisions operate we have thought it wise, in Part VI, to provide a detailed, clause by clause, commentary on the draft Bill. In this commentary we explain how the responses to the Consultative Report have influenced the final form of the policy as expressed in the Bill.

Note 1    (1986) 82 Cr App R 5.    [Back]

Note 2    Children: Their Non-accidental Death or Serious Injury (Criminal Trials) (2003) Law Com No 279: hereinafter referred to as Law Com No 279.    [Back]

Note 3    Ibid, Parts I and II.    [Back]

Note 4    Ibid, Part IV.    [Back]

Note 5    Ibid, Part V.    [Back]

Note 6    Ibid, Part VI.    [Back]

Note 7    Ibid, Part VII.    [Back]

Note 8    Paras 5.13 – 5.15 of Law Com No 275, published 26 March 2002.    [Back]

Note 9    Law Com No 279 at para 1.4.    [Back]

Note 10    Clauses 4, 5 and 6 of the draft Bill.    [Back]

Note 11    Clause 7 of the draft Bill.    [Back]

Note 12    Or refuses without good cause to answer any question.    [Back]

Note 13    Clause 8 of the draft Bill.    [Back]

Note 14    Clause 7(8) of the draft Bill.    [Back]

Note 15    Clause 1 of the draft Bill.    [Back]

Note 16    Clause 2 of the draft Bill.    [Back]

Note 17    Professor David Ormerod, in his response to the informal consultation paper, 29 January 2003.    [Back]

Note 18    Ibid.    [Back]

Note 19    Ibid.    [Back]

Note 20    Ibid.    [Back]

Note 21    There are, however, also cases in which disagreement between medical experts has led to wrongful acquittals. Expert evidence relating to the controversial condition of “temporary brittle bone disease” has been discredited by members of the judiciary in several cases for this reason: Re X (Non- Accidental Injury: Expert Evidence), [2001] 2 FLR 90; Re AB (A Minor) (Medical Issues: Expert Evidence), [1995] 1 FLR 181.    [Back]

Note 22    We reproduce, for ease of reference, in Part II of this Report a substantial portion of Parts I and II of Law Com No 279.    [Back]

Note 23    Part III.    [Back]

Note 24    Part IV.    [Back]

Note 25    The Crown Prosecution Service and Judge David Radford.    [Back]