The Law Commission

PART IV

RECOMMENDATIONS ON PRELIMINARY ISSUES AND ON SUBSTANTIVE OFFENCES

recommendations on preliminary issues

The age of the children to whom the reforms should apply

4.1      In the Consultative Report, we were minded to recommend that the reforms should apply in cases of death of or serious injury to children who are under the age of 16.^[1] Our primary reason was to maintain consistency with section 1(1) of the Children and Young Persons Act 1933 ("the 1933 Act"). We acknowledged that the bulk of the children who were the victims of crimes in which the problem we were addressing arose would be substantially younger than that age. Furthermore, one respondent^[2] pointed out that the recent changes to procedures for the giving of evidence had made it more possible for young children, who were available and who wished to, to give evidence. Another respondent^[3] argued for the age of 18 which is consistent with section 2 of the Children Act 1989 and the UN Convention on the Rights of the Child. Other than these comments there was no opposition to our recommendation. In our view, the interests of internal consistency with section 1(1) of the 1933 Act, with which these provisions will work in tandem, should prevail. We therefore confirm this recommendation.

"Responsibility"

4.2      In the interests of consistency we indicated in the Consultative Report that we were minded to recommend that the reforms should apply to those who were responsible for the child in the same way as for the 1933 Act and, in particular, that the presumptions provided by section 17 of that Act should apply.^[4] We were asked by two respondents^[5] to confirm that it was our intention that two or more people could have responsibility for the child at one time. We are happy to do so. Other than this there was no adverse comment on this recommendation and we confirm it. For ease of reference we set out sections 1(1) and 17 of the 1933 Act in full in Appendix B.
4.3      In the Consultative Report^[6] we had also indicated that we would seek to exclude social workers from criminal liability for our proposed new offence based on negligence, merely by virtue of their being employed by a local authority in whose favour there was a care order. One respondent^[7] pointed out that other care professionals such as teachers or health workers might also be in need of protection from a wholesale extension of criminal liability based on negligence. In the course of working out how to accommodate this point, we developed the form of offence which is contained in clause 2 of the draft Bill. We explain in detail in Part VI how we envisage it working.

To which offences should the special evidential and procedural rules apply?

4.4      In the Consultative Report we set out the list of offences in respect of which our recommended evidential and procedural reforms would apply.^[8] We received very few comments upon this subject. We have, however, in response to one respondent's suggestion^[9] added to the list of offences those of administering poison under sections 23 or 24 of the Offences against the Person Act 1861. In addition we have added to the list attempts to commit any of the other listed offences. The provision in the draft Bill is Schedule 2 and we deal with it further by way of commentary in Part VI.

Substantive offences

An offence of cruelty contributing to death

4.5      We indicated in the Consultative Report that we were minded to recommend a new offence which would operate as an aggravated instance of the present offence of child cruelty under section 1 of the 1933 Act.^[10]
4.6      There was widespread support for this recommendation. There was only one respondent which was opposed in principle.^[11] It took this view on the footing that the offence focused too much on the happenstance of the child's injuries or death rather than on the level of culpability of the defendant. We accept that the new offence does have this focus. Indeed it is the raison d'etre of the recommendation that where the basic offence has resulted in the death of the child that should be expressly marked both by a specific offence and by an enhanced level of possible sentence. No other respondent expressed this as a ground for objection.
4.7      Some respondents did raise matters of detail concerning the level of maximum sentence and the precise mechanism by which the cruelty of which the defendant was guilty was to be linked to the death of the child. In particular, a number of respondents raised the extent to which this offence might cover the same ground as manslaughter and so be subject to the same difficulties which the application of that offence to this kind of case has raised. We are grateful to these respondents for encouraging us to look closely at these issues. We believe that by so doing they have enabled us to identify more clearly the mechanism of the offence adding to its robustness as expressed in clause 1 of the draft Bill. We explain in Part VI how we see this offence working.
4.8      One respondent^[12] questioned whether our approach to the creation of new offences was too timid and proposed a very wide ranging offence. Although he was supported, as a matter of theory, by one other respondent, that other respondent accepted that for the present it represented an unrealistic aspiration. We give our reasons for rejecting this suggestion in Part VI.

A new negligence based offence.

4.9      We put this before respondents as a provisional proposal. It proved to be popular and attracted widespread support. Only one respondent was against it in principle,^[13] expressing concern about the use of negligence as a fault basis in the criminal sphere.
4.10      Other respondents expressed concerns about matters of detail such as the maximum sentence, the range of offences against the child which might attract the commission of the offence, the precise configuration of the mental element, the extent to which it should be subjectively or objectively based, and the question whether there should be an evidential burden upon the defendant to raise the defence of "not reasonably practicable". One respondent^[14] questioned the need for requiring there to have been an offence committed against the child. That respondent suggested that it should be sufficient that the child had suffered serious harm whether from the commission of a crime or otherwise. We explain in Part VI why we do not accept such an extension to the reach of this offence.
4.11      As with the other new offence we are grateful to respondents for focusing our attention on these elements of the offence. We believe that, as a result, the offence which is contained in clause 2 of the draft Bill is both workable and reasonable. We deal in Part VI with each of these issues.

Note 1    Law Com No 279 para 4.34.    [Back]

Note 2    The Criminal Sub-Committee of the Council of HM Circuit Judges.    [Back]

Note 3    Allan Levy QC.    [Back]

Note 4    Law Com No 279 paras 4.40 – 4.55.    [Back]

Note 5    Professor Antony Honore, Ms B Anne Meade.    [Back]

Note 6    Law Com No 279 para 4.52.     [Back]

Note 7    The Criminal Sub-Committee of the Council of HM Circuit Judges.    [Back]

Note 8    Law Com No 279 paras 4.36 – 4.39.    [Back]

Note 9    Professor David Ormerod.    [Back]

Note 10    Law Com No 279 para 7.13.    [Back]

Note 11    The Criminal Bar Association.    [Back]

Note 12    Mr P R Glazebrook. Mr Glazebrook’s response was published in “Insufficient Child Protection” [2003] Crim LR 541.    [Back]

Note 13    Allan Levy QC.    [Back]

Note 14    The Criminal Bar Association.    [Back]