The Law Commission

PART II

THE NATURE AND EXTENT OF THE PROBLEM

The current law

2.1      Where one person with the requisite mens rea kills or injures a child, that person will (in the absence of a valid defence) be guilty of a criminal offence, such as murder or manslaughter, or one of the various non-fatal offences against the person. Another person who assists or encourages these actions may also be guilty of one or other of these offences under the normal principles of accessory liability.
2.2      In many cases of the type under consideration it cannot be proved which of two or more defendants was directly responsible for the offence and it cannot be proved that whichever defendant was not directly responsible must have been guilty as an accomplice. In the present context this may have involved an isolated act of violence by one parent and the other parent may have been absent at the time. The present law is that there is no prima facie case against either and therefore both defendants must be acquitted at the conclusion of the prosecution case. This problem has been recognised by the judiciary for a considerable number of years, as was exemplified by Lord Goddard in Abbott:^[1]

If two people are jointly indicted for the commission of a crime and the evidence does not point to one rather than the other, and there is no evidence that they were acting in concert, the jury ought to return a verdict of not guilty against both because the prosecution have not proved the case. If, in those circumstances, it is left to the accused persons to get out of it if they can, that would put the onus upon them to prove themselves not guilty. Finnemore J remembers a case in which two sisters were indicted for murder, and there was evidence that they had both been in the room at the time when the murder was committed; but the prosecution could not show that either sister A or sister B had committed the offence. Probably one or other must have committed it, but there was not evidence which, and although it is unfortunate that a guilty party cannot be brought to justice, it is far more important that there should not be a miscarriage of justice and that the law maintained that the prosecution should prove its case.^[2]

2.3      This approach was confirmed in Bellman:^[3]

[I]f the evidence shows that one of two accused must have committed a crime but it is impossible to go further and say which of them committed it, both must be acquitted.^[4]

2.4      In Gibson and Gibson^[5] the Court of Appeal attempted to distinguish Abbott. The Court of Appeal appeared to suggest (obiter) that where two people had joint custody and control of a child they might both be convicted of manslaughter, regardless of any evidence against either of presence, on the basis of an inference that they were jointly responsible and so both guilty as charged. O'Connor LJ stated:

Is the criminal law powerless in the situation presented by this case? We think not. In law the defendants had joint custody and control of their baby. They were under a duty to care for and protect their baby… .

The evidence established that while in their joint custody and control the baby had sustained grievous bodily harm which had been inflicted by one, other or both parents. There being no explanation from either parent, and no evidence pointing to one rather than the other, the inference can properly be drawn that they were jointly responsible and so both guilty as charged. This is not reversing the burden of proof. The case is quite different from that envisaged in Abbott, in particular the two sisters charged with murder, because the deceased was not in their joint custody or control.^[6]

2.5      In Lane and Lane,^[7] however, the Court of Appeal allowed appeals by two parents who had been convicted of manslaughter of their child, finding that the trial judge had been led into error by reliance upon the quotation from Gibson and Gibson. Croom-Johnson LJ stated that there was no justification for inferring the presence of both defendants or active participation by the non-striking parent and that the jury should not have been invited to draw an inference that, in the absence of an innocent explanation, the parents were jointly responsible.
2.6      In relation to a failure by a parent to offer an explanation for a child's injuries, Croom-Johnson LJ pointed out in Lane and Lane that it may be that a defendant 'does not know the true explanation or has no means of knowing the facts which require explaining'. He stated:

... lack of explanation, to have any cogency, must happen in circumstances which point to guilt; it must point to a necessary knowledge and realisation of that person's own fault. To begin with, one can only expect an explanation from someone who is proved to have been present. Otherwise it is no more consistent with that person either not knowing what happened or not knowing the facts from which what happened can be inferred, or with a wish to cover up for someone else suspected of being the criminal. There may be other reasons.^[8]

2.7      In Lane and Lane, Croom-Johnson LJ stated that the result "distressing though it may be, is that a serious crime committed by someone goes unpunished".^[9] This has been the outcome in several subsequent cases involving children. For example, in Aston and Mason^[10] convictions for manslaughter were quashed by the Court of Appeal. The Lord Chief Justice stated:

We have felt forced to come to the unwelcome conclusion that there was nothing in the evidence at the close of the prosecution case which indicated that one of the appellants rather than the other was responsible for inflicting the fatal injuries. Each of them had the opportunity. ... Nor can we find any evidence upon which the jury might have concluded that the two of them were acting in concert ... .

There was, so far as we can see, no evidence upon which the jury could properly come to the conclusion that either of these two expressly or tacitly agreed that Doreen should suffer physical harm; or that either had wilfully and intentionally encouraged the other to cause injury to Doreen. Even allowing for the possibility that the minor bruising about the face and body may have happened at the same time as the fatal injuries, there was no evidence that there was any opportunity for one to intervene in an attempt to stop the activities of the other vis-à-vis the baby. Regrettably, this is one of those situations exemplified by the judgment of Lord Goddard in Abbott. The verdict cannot stand. The appeals must be allowed and the convictions of manslaughter quashed.^[11]

2.8      Similarly, in Strudwick^[12] manslaughter convictions were quashed by the Court of Appeal. The prosecution had not proved a prima facie case of manslaughter against either or both of the appellants, because it could not show who had caused the injuries which killed the child.
2.9      In S and C^[13] the child had suffered a series of assaults over a three month period and also "a number of serious and horrifying injuries during a 19-hour period (or thereabouts)". The mother and her boyfriend blamed each other. In relation to the assaults, which took place over a three month period, the Court of Appeal decided that a case could not be made against either the mother or the mother's boyfriend since the Crown could not prove in whose charge the child was when the assaults took place. On the other hand, in relation to the injuries which took place over a 19-hour period while the mother was present in the house at all times, it was a proper inference that she assaulted the child or was a party to it occurring. Nevertheless, the mother's conviction was quashed because the judge, in his summing up:

... did not make clear the four possible approaches the jury could take: that it was a joint enterprise; that C alone assaulted the child while S was asleep; that S alone assaulted the child while C was out or asleep; or that both must be acquitted because the jury could not be sure which of the two assaulted the child.^[14]

2.10      The current law is summarised by Smith & Hogan:

If all that can be proved is that the offence was committed either by D1 or by D2, both must be acquitted. Only if it can be proved that the one who did not commit the crime must have aided and abetted it can both be convicted. This is as true where parents are charged with injury to their child as it is in the case of any other defendants. The only difference is that one parent may have a duty to intervene to prevent the ill-treatment of their child by the other when a stranger would have no such duty. It is for the prosecution to prove that the parent who did not inflict the injuries must have aided and abetted the infliction by failure to fulfil that duty or otherwise.^[15]

Partial solutions available under the current law

2.11      The cases considered in the previous section demonstrate the difficulties which arise under the current law. There is, however, a group of cases in which convictions have been obtained, despite difficulties in identifying the person who inflicted injuries upon the child. These cases will be considered in this section.

Inferring joint enterprise

2.12      In Marsh and Marsh v. Hodgson^[16] both parents agreed that they had been together with the child, who was in their joint company throughout the period of two days in which the non-accidental injuries must have been caused. Both parents were convicted, and on appeal to the Divisional Court, Ashworth J. said:

... there was strong evidence which the justices accepted to show that the injuries to this child were inflicted by human agency. Secondly, there was evidence to show that in all probability those injuries were inflicted on or about June 3. Thirdly, there was evidence, accepted by the justices, to the effect that both the defendants admitted that they had been in charge, and joint charge, of this child during June 3 and 4. No doubt there would be moments when one or other of the defendants would be absent, but the substance of that answer was that: we were both responsible for this child throughout June 3 and 4.^[17]

2.13      It was held that the prosecution had presented ample evidence calling for an answer from the defendants, as the evidence demonstrated that "the child's injuries had been caused by human agency and that the defendants were jointly in charge of the child at the material time". As the defence put forward was "untenable", the defendants' appeal was rejected.
2.14      In Lane and Lane^[18] Croom-Johnson LJ emphasised that the point of that case was that "in effect both parents were there all the time".^[19] He described the case as "a straightforward application of the ordinary principles of proof in criminal law".^[20]
2.15      In Russell and Russell^[21] Lord Lane CJ stated:

Generally speaking, parents of a child are in no different position from any other defendants jointly charged with a crime. To establish guilt against either, the Crown must prove at the least that that defendant aided, abetted, counselled or procured the commission of the crime by the other. The only difference in the position of parents, as opposed to others jointly indicted, is that one parent may have a duty to intervene in the ill-treatment of their child by the other where a stranger would have no such duty.^[22]

In this case, the child had died as a result of an overdose of methadone. The Court of Appeal upheld the parents' convictions for manslaughter because the parents admitted that they had jointly administered methadone to the child on previous occasions. Lord Lane CJ stated that this was a fact from which, in the absence of any explanation, the jury could infer that the administering of the drug on a later occasion was also a joint enterprise.

2.16      This approach may be useful where both of the defendants have admitted to conduct which is similar to the conduct which eventually causes the child's death. Professor Glanville Williams, however, criticised the decision in his article 'Which of you did it?'.^[23] He described the decision as a miscarriage of justice to all concerned^[24] and considered the Court of Appeal's conclusions that both parents were present at the time to be "unconvincing".^[25] In his view it constituted a "mighty leap in reasoning"^[26] to infer from an admitted involvement in earlier administration of small quantities of a drug that there was a joint enterprise in the administration of the massive fatal dose. He considered that it was "extraordinary"^[27] to uphold the conviction where both defendants had given all the evidence that might be expected of an innocent person.

Prosecutions for cruelty or neglect

2.17      In Lane and Lane,^[28] Croom-Johnson LJ suggested that the maximum penalty for the offence under section 1 of the Children and Young Persons Act 1933 should be increased. This was done by section 45 of the Criminal Justice Act 1988. As a result, the maximum sentence for this offence is now 10 years imprisonment. There are a number of cases in which convictions for child cruelty or neglect under this provision have been obtained, even though convictions for other offences have not been possible. For example, in Strudwick,^[29] although the manslaughter convictions were quashed,^[30] convictions for cruelty were upheld on appeal. The mother's boyfriend had admitted using some violence towards the child, and the mother had seen this violence. The sentences for manslaughter had been 15 years for the mother's boyfriend and 10 years for the mother. The convictions for two counts of child cruelty were punished by sentences of ten years and seven years concurrently for the mother's boyfriend, and seven years and five years concurrently for the mother.
2.18      In S and M^[31] the child's father found bruising on the child. The medical evidence indicated that the bruising had been sustained between 12 hours and three days before. The child's mother, and the mother's boyfriend, blamed the father for the child's injuries. There was no evidence as to which adult had assaulted the child and the prosecution did not argue that there was a joint enterprise between them. The Crown case was that one had assaulted the child and the other had been guilty of wilful neglect by failing to seek medical attention for the child after the injuries had been inflicted. They were both convicted of cruelty contrary to the Act and their appeals were dismissed. The Court of Appeal stated that there was evidence of neglect for the jury to consider, in the sense that the appellant or appellants had refrained from seeking medical aid, because of recklessness as to whether the child might be in need of medical treatment or not.
2.19      As part of his contribution to the report of the NSPCC Working Group, Christopher Kinch QC analysed sentences for child cruelty imposed since 1988, when the maximum sentence was increased to 10 years. He commented:

A review of the sentences in cases reported in the sentencing encyclopaedia and elsewhere suggests that after 1988, the courts began to impose sentences well in excess of the previous maximum in serious cases of cruelty. More recently the courts have been prepared to impose sentences in the region of eight years imprisonment for the worst cases.^[32]

Using one suspect as a prosecution witness

2.20      Where the child's injury must have been committed by one of two people, the prosecution may have to decide whether to bring charges against both, or to prosecute one person and to use the other person as a witness for the prosecution. This happened in Lewis.^[33] The child was 14 months old, was taken to the hospital by the mother and was found to have suffered a spiral fracture to his right arm. The mother's boyfriend denied causing the injury. He was prosecuted for causing grievous bodily harm to a child. The child's mother gave evidence for the prosecution. She gave evidence that, on the day before the child's injury was discovered, she had left the house to go shopping for 40 minutes while the child was asleep. She said that the defendant had agreed to "listen out for" the child during this time. She denied injuring the child herself and said that she did not know how the child was injured. At the end of the prosecution case a submission of no case to answer was made but the judge ruled that there was evidence for consideration by the jury. The defendant gave evidence on his own behalf and denied that he had injured the child. He also denied that he had agreed to listen out for the child. He was convicted of causing grievous bodily harm with intent to do grievous bodily harm. He appealed against conviction. One of his grounds for appeal was that the judge should have upheld the submission of no case to answer. In relation to this argument, having taken into account both the defendant's argument that there was no reasonable basis for the Crown to prefer the mother's account of events and the line of authority starting with Abbott^[34] and including Aston and Mason,^[35] Otton LJ stated:

We have considered that submission with considerable care. Cases of child abuse are always anxious and this is no exception. However, we have come to the conclusion that the learned recorder was right to let the case go to the jury. [The mother] had given evidence which clearly implicated the appellant. Her evidence on the substantial issue in the case was neither inherently weak nor tenuous: she described how she had left the baby in the appellant's care; the behaviour and demeanour of the child in the period after her return and the hours thereafter. This was consistent with the evidence of Dr Matthew. In our view this was a case where the jury were called upon to decide whether they accepted her evidence and to draw the inference that the injury was inflicted by the appellant. In our view the learned recorder's exercise of discretion cannot be faulted.

Moreover, there was no error in principle in the prosecution proceeding on the basis of the mother's evidence against the appellant or in calling her as the principal Crown witness in the trial rather than charging her. The line of authority from Abbott ... is not authority, in our view, for the proposition that both should be charged and stand trial in a situation where a child within their joint care suffers physical abuse. In our view the prosecution had a discretion, depending upon how they viewed the case and the evidence at its disposal, to proceed against one, or both, or neither. We cannot say that that discretion was in any way exercised capriciously or other than fairly. We therefore find no substance in that first ground of appeal.^[36]

2.21      We recognise that prosecutors may face difficulties in deciding how to exercise this discretion in cases where two people are blaming each other for the child's death or injury. We do not believe, however, that these difficulties can be usefully addressed through legal reforms. This is, in truth, an area where the CPS will have to continue conscientiously to apply its own well established policies in the light of the particular facts of individual cases. There is no evidence, nor would we expect there to be any, that the CPS or anyone would consider that this problem can be addressed successfully by a practice of invariably charging one of those who must have committed the offence and relying on the other to give evidence.

Previous discussions of the need for reform

2.22      The problems considered in this paper were discussed by Professor Griew in his article 'It must have been one of them',^[37] and by Professor Glanville Williams in his article 'Which of you did it?'.^[38] Both articles were very critical of the decision in Gibson and Gibson,^[39] and supportive of the decision in Lane and Lane.^[40] Professor Griew said:

Cases of child abuse have given particular difficulty. Recent case law got briefly onto a wrong footing because of a dictum in Gibson and Gibson... .

This was fairly plainly erroneous and was soon effectively discredited in Lane and Lane. ...

The true view appears to be that, to establish the complicity of one parent in the other's act of injuring the child, there must be evidence to justify a finding either of 'joint enterprise' – which requires active assistance or encouragement – or of encouragement passively given by failing to take steps that he or she might have taken in discharge of his or her duty to protect the child. It simply cannot be assumed – in the absence of any other evidence – that a parent present when his or her child was injured actively assisted or encouraged the act. And there may have been no time to protect the child or, if one parent was in terror of the other, no breach of duty in failing to do so.^[41]

2.23      Professor Griew did not suggest that the rule in Lane and Lane^[42] should be reversed. Professor Williams' conclusions were even less supportive of changes to increase the effectiveness of the criminal law in such cases:

Public money would be far better spent on providing refuges for battered wives, and the mothers of battered children, than on prosecutions of parents and sentences of imprisonment the social advantage of which is highly doubtful.^[43]

2.24      On the other hand, the Report of the Royal Commission on Criminal Justice^[44] recognised the difficulties which arise where a crime may have been committed, more than one person is present and it is impossible to say who has committed the offence. The Report stated that this "typically happens when one of two parents is suspected of injuring or murdering a child but it is impossible to say which one".
2.25      The Royal Commission stated that it had "every sympathy with the public concern over such cases"^[45] but rejected the possibility of evidential changes to allow adverse inferences to be drawn from a parent's failure to provide an explanation for the child's injuries. This is one of the issues which was considered by the NSPCC Working Group and upon which we make certain recommendations.
2.26      There are certain other issues which are relevant to this problem but upon which we express no opinion in this Report. First, the admissibility of evidence of a defendant's previous misconduct has been considered by the Law Commission and is the subject of a recent report.^[46] The Criminal Justice Bill, which is currently before Parliament, includes provisions to reform the law in this area. Issues relating to expert evidence were considered in the Auld Report.^[47] These issues are relevant to a wide range of criminal proceedings and it would not be sensible, in our view, to attempt to address them in the context of this Report.

The extent of the problem

2.27      It was abundantly clear from the responses which we received to the informal consultation paper and to the Consultative Report 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 to the informal consultation paper 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.

The Criminal Bar Association, in its detailed response to the Consultative Report, began explicitly with the statement that "doing nothing is not an option".

2.28      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?".^[48] The findings of the Working Group were summarised by the Chair of the Group, Her Honour Judge Isobel Plumstead.
2.29      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".^[49] 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.
2.30      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.
2.31      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".^[50] 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%).^[51]

2.32      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.^[52] 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.^[53]

2.33      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.^[54]

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.^[55]

2.34      Research has also been undertaken by a multidisciplinary team from the Cardiff Family Studies Research Centre^[56] 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".^[57]
2.35      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^[58] 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".^[59] 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".^[60] We have, of course, acknowledged^[61] that in some cases of shaken baby syndrome there is disagreement amongst the medical witnesses as to whether or not the child suffered non-accidental death or serious injury. However, the research found that the problem posed by Lane and Lane^[62] is not uniquely associated with SBS.^[63]
2.36      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.

Conclusion

2.37      We conclude 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 labelling of the offence which attaches to the conduct or in the severity of the penalties available.
2.38      This is not a situation about which there can be any complacency. In the Consultative Report^[64] we considered in detail 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 so that, whilst continuing to secure the right of a defendant to a fair trial, the State may better discharge its obligation 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    [1955] 2 QB 497.    [Back]

Note 2    Ibid, at p 503–4.    [Back]

Note 3    [1989] AC 836.    [Back]

Note 4    Ibid, at p 849.    [Back]

Note 5    (1985) 80 Cr App R 24.    [Back]

Note 6    Ibid, at p 30.    [Back]

Note 7    (1986) 82 Cr App R 5.    [Back]

Note 8    Ibid, at p 14.    [Back]

Note 9    Ibid, at p 18.    [Back]

Note 10    (1992) 94 Cr App R 180.    [Back]

Note 11    Ibid, at p 185.    [Back]

Note 12    (1994) 99 Cr App R 326.    [Back]

Note 13    [1996] Crim LR 346.    [Back]

Note 14    Ibid, at p 346.    [Back]

Note 15    Smith & Hogan, Criminal Law (10th ed, 2002) p 151 (footnotes omitted).    [Back]

Note 16    [1974] Crim LR 35.    [Back]

Note 17    Cited in Lane and Lane (1986) Cr App R 5 at pp 11–12 (page 5 of the original transcript of Marsh and Marsh v Hodgson [1974] Crim LR 35).    [Back]

Note 18    (1986) 82 Cr App R 5.    [Back]

Note 19    Ibid, at p 12.    [Back]

Note 20    Ibid.    [Back]

Note 21    (1987) 85 Cr App R 388.    [Back]

Note 22    Ibid, at p 393.    [Back]

Note 23    (1989) 52 MLR 179.    [Back]

Note 24    Ibid, at p 191.    [Back]

Note 25    Ibid, at p 192.    [Back]

Note 26    Ibid, at p 193.    [Back]

Note 27    Ibid.    [Back]

Note 28    (1986) 82 Cr App R 5.    [Back]

Note 29    (1994) 99 Cr App R 326.    [Back]

Note 30    See Law Com No 279 para 1.23.    [Back]

Note 31    [1995] Crim LR 486.    [Back]

Note 32    Christopher Kinch QC, Papers for the NSPCC “Which of you did it?” Conference in Cambridge, 2 November 2002, Defence Perspective, para 7.2.    [Back]

Note 33    Court of Appeal, Criminal Division, unreported, 5 September 1997, case no 96/8306/X5.    [Back]

Note 34    [1955] 2 QB 497.    [Back]

Note 35    (1992) 94 Cr App R 180.    [Back]

Note 36    Court of Appeal, Criminal Division, unreported, 5 September 1997, case no 96/8306/X5.    [Back]

Note 37    [1989] Crim LR 129.    [Back]

Note 38    (1989) 52 MLR 179.    [Back]

Note 39    (1985) 80 Cr App R 24.    [Back]

Note 40    (1986) 82 Cr App R 5.    [Back]

Note 41    [1989] Crim LR 129 at p 132–3 (footnotes omitted).    [Back]

Note 42    (1986) 82 Cr App R 5.    [Back]

Note 43    (1989) 52 MLR 179 at p 199.    [Back]

Note 44    (1993) Cm 2263, chapter 4, para 25.    [Back]

Note 45    Ibid.    [Back]

Note 46    Evidence of Bad Character in Criminal Proceedings (2001) Law Com No 273.    [Back]

Note 47    A Review of the Criminal Courts of England and Wales, October 2001, Chapter 11 paras 129-151.    [Back]

Note 48    Judge Isobel Plumstead, Papers for the NSPCC “Which of you did it?” Conference in Cambridge, 2 November 2002, Introduction and Background, para 8. 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 49    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 50    Ibid, para 13.    [Back]

Note 51    Ibid, para 14.    [Back]

Note 52    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 53    Ibid, at p 43.    [Back]

Note 54    Ibid, at p 44.    [Back]

Note 55    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 56    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 57    Ibid, at p 97.    [Back]

Note 58    (1986) 82 Cr App R 5.    [Back]

Note 59    [2003] Crim LR 93 at p 98.    [Back]

Note 60    Ibid.    [Back]

Note 61    Para 1.20 above.    [Back]

Note 62    (1986) 82 Cr App R 5.    [Back]

Note 63    The study referred to the Guardian, “Killing with impunity”, September 24 2000, which made reference to the NSPCC research referred to earlier at paras 2.28 and 2.29.    [Back]

Note 64    Law Com No 279 Part IV.    [Back]