The Law Commission

PART VI

COMMENTARY ON THE DRAFT BILL

INTRODUCTION

6.1      In this Part we provide a commentary on the detailed working out of our recommendations in the form of the draft Bill which is annexed to this Report.^[1] For each of the main operative clauses, we identify the recommendation giving rise to the clause, then we set out the clause as it appears in the draft Bill and finally we explain, where that is required, the particular way in which the clause is structured or expressed. We are aware that some of the detailed provisions of the draft Bill may have to be changed in due course to mesh with any changes in the law resulting from the passage of the Sexual Offences Bill, the Criminal Justice Bill and the Courts Bill.

Clause 1: cruelty contributing to death

The recommendation:

6.2      This derives from the interim recommendation, which we have confirmed, and which was consultation issue No. 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 (of the Consultative Report).^[2] The aggravated form of the offence will attract a maximum penalty of 14 years imprisonment.

6.3      As we have indicated in Part IV, this recommendation was widely welcomed. The only note of caution reflected a desire that the linkage between the commission of the basic offence of child cruelty and the commission of the aggravated offence be spelled out so as to make clear the distinction between the proposed new offence and that of "gross negligence" or "unlawful act" manslaughter, the use of which is often cited, but seldom tried, as a possible solution to this problem.
6.4      One academic commentator^[3] has publicly advocated a wide-ranging offence not limited to those with responsibility for the child. He advocates that it should be "an offence for any adult, aware that a child is in danger of being harmed by injury or neglect, to fail to do what he reasonably could to protect her".^[4] It appears that this is not intended to be suggested as an offence to be seriously enforced in any systematic way but rather as a tool "to change attitudes to what is, and is not, acceptable conduct"^[5] by breaking what he describes as "in certain quarters a culture of silence, of indifference, of the fate of other people's children being 'none of my business'".^[6] This is an interesting argument, with potentially far reaching consequences. It was not a proposition which, in principle, any other respondent, save one, voiced.^[7] The one who did see merit in it did not view it as a presently realistic option. We do not recommend it. In paragraphs 6.12 – 6.14 below we indicate why it is that, in this limited project, we have not thought it right to address the wide ranging and complex question of whether the criminal law should play a part in making public officials, such as teachers, social workers or the police responsible for monitoring and protecting children from violence in the home. It would, in our view, be unrealistic to go far wider and impose criminal liability for non-intervention on members of the adult population at large. Furthermore, it does not necessarily follow that if criminal liability were to attach to the negligent teacher, social worker or policeman for failure adequately to follow up evidence of misconduct towards a child, liability should also attach to adult members of the public at large. It is unlikely that such a proposal would commend itself to the general public and it would certainly require a wide and specific consultation.
6.5      Clause 1

Cruelty contributing to death

In the Children and Young Persons Act 1933 (c.12), after section 1 (cruelty to persons under sixteen), insert –

"1A Cruelty contributing to death

(1) A person is guilty of an offence if –

(a) he commits an offence under section 1 against a child or young person ("C");

(b) suffering or injury to health of a kind which was likely to be caused to C by the commission of that offence occurs; and

(c) its occurrence results in, or contributes significantly to, C's death.

(2) A person guilty of an offence under this section is liable on conviction on indictment to imprisonment for a term not exceeding 14 years or to a fine, or to both."

Commentary

6.6      The intention of this draft clause is to state accurately the mechanism by which the basic culpability of the person who commits the offence under section 1 becomes aggravated by the death of the child, including those cases where the blow is struck by a third party. We believe that the clause achieves our aim of making it clear that it is not necessary for a conviction under the proposed new section that the person who is guilty of the basic section 1 offence causes the child's death in a sense sufficient to justify a conviction for manslaughter.
6.7      It is sufficient for a conviction under section 1 that the person has, by wilful cruelty or neglect, brought about a state of affairs which is likely to cause suffering or injury to health. Cases under section 1 indicate that a person may be liable where the likelihood is that a third party will injure the child. The aggravated offence will be committed where, in addition, such suffering or injury to health as was likely to happen has in fact occurred, and has resulted in or contributed significantly to the child's death. It is the establishment, by this mechanism, of a connection between the person's breach of section 1 and the death of the child which exposes the person to a possibly higher level of sentence and ensures that the label attached to their crime reflects that fatal outcome.
6.8      We have retained the maximum sentence at 14 years. There were a small number of respondents^[8] who argued that a discretionary life sentence should be available. For the reasons we gave in the Consultative Report^[9] we are of the view that a maximum of 14 years gives the judiciary sufficient "headroom" to reflect the full range of seriousness of the offence whilst differentiating it from manslaughter.

Clauses 2 and 3 and Schedule 1: failure to protect a child and effect of intoxication

The provisional proposal

6.9      The clauses have arisen out of provisional proposals which we have confirmed and which were consultation issues Nos. 13 and 14:

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.

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.

6.10      The arguments in favour of these proposals were developed in paragraphs 7.15 – 7.30 in the Consultative Report. We were pleased to note that they met with widespread approval. Unsurprisingly a number of different views were expressed on matters of detail and we are grateful to those who drew them to our attention. They principally focused on the following issues: the range of persons who should be at risk of liability;^[10] whether the test of what was reasonably practicable should be subjective or objective;^[11] whether there should be an evidential burden placed on the defendant;^[12] what should be the ambit of the "serious harm" the occurrence of which would trigger potential liability for this offence;^[13] and the level of maximum sentence.^[14] In formulating the clauses we have considered each of these and we believe that we have accommodated as many points made to us as we could. Where there were conflicting voices, such as on level of sentence, we have indicated in the commentary our reasoning for what is in the draft Bill.
6.11      Clause 2

2 Failure to protect a child

(1) A person ("R") is guilty of an offence if –

(a) at a time when subsection (3) applies, R is aware or ought to be aware that there is a real risk that an offence specified in Schedule 1 might be committed against a child ("C");

(b) R fails to take such steps as it would be reasonable to expect R to take to prevent the commission of the offence;

(c) an offence specified in Schedule 1 is committed against C; and

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

(2) A person guilty of an offence under this section is liable –

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum, or to both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 7 years or to a fine, or to both.

(3) This subsection applies if R –

(a) is at least 16 years old;

(b) has responsibility for C; and

(c) is connected with C.

(4) R is connected with C if –

(a) they live in the same household;

(b) they are related; or

(c) R looks after C under a child care arrangement.

(5) R and C are related if they are relatives within the meaning of Part 4 of the Family Law Act 1996 (c.27).

(6) R looks after C under a child care arrangement if R –

(a) looks after C (whether alone or with other children) under arrangements made with a person who lives in the same household as, or is related to, C; and

(b) does so wholly or mainly in C's home.

(7) It does not matter whether R looks after C for reward or on a regular or occasional basis.

SCHEDULE 1

Specified offences for purposes of section 2

The following are the specified offences for the purposes of section 2 –

(a) murder,

(b) manslaughter,

(c) an offence under section 18 or 20 of the Offences against the Person Act 1861 (c.100) (wounding and causing grievous bodily harm),

(d) an offence under section 23 or 24 of that Act (administering poison),

(e) an offence under section 47 of that Act (assault occasioning actual bodily harm),

(f) an offence under section 1 of the Sexual Offences Act 1956 (c.69) (rape),

(g) an offence under section 14 or 15 of that Act (indecent assault),

(h) attempting to commit any such offence.

Commentary

The range of those potentially liable

6.12      In the Consultative Report we devoted a section within Part IV, which set out our overall approach, to the question: who has responsibility for the child in this context?^[15] Our intended approach was to adopt the statutory formulation which is contained in section 17 of the Children and Young Person's Act 1933. This section sets out the circumstances which create a presumption that a person has responsibility for the child. One of those situations is that a person is presumed to be responsible for the child within the meaning of the Act if he or she "has care of him".^[16] In putting forward for consultation an offence which would be based on negligence and which, prima facie, applied to all those who had care of the child, we were concerned that it might be apt to catch those who are employed by social services authorities in whose favour there was a care order concerning the child. We did not wish those who were so employed to be at risk merely because of that formal relationship. Thus we indicated that "we are minded to recommend 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".^[17]
6.13      There was no opposition to this approach.^[18] On the contrary, one significant group of respondents^[19] indicated that our concern to exclude persons from potential criminal liability merely by reason of a formal relationship of employment with a public service provider should be extended to those engaged in education and health care. We could see the good sense of this suggestion. We therefore began to try to construct a series of exemptions to protect persons performing such roles. We quickly came to the conclusion that, as an exercise in drafting, this approach was complicated and cumbersome and we abandoned it as an unsatisfactory way forward.
6.14      This difficulty forced us to consider the matter from another angle. We tried to return to what it was that we were trying to achieve by this offence. We reminded ourselves that our project was to address the specific problem of how to make appropriate provision in the criminal law to identify and punish those who are guilty of, or complicit in, violence against children within the domestic context. This important, but limited, project is neither the occasion nor the vehicle for considering the far wider question of what role, if any, the criminal law may play in making public authorities and their employees properly responsible for monitoring children and protecting them from violence inflicted upon them within the domestic context. This is a major problem which has been the subject of many in-depth studies which have arisen out of specific cases and which have sought to draw lessons from them. It would be both arrogant and futile for us to be tempted, in this limited exercise, to venture into this wider area.
6.15      Accordingly, we concluded that a more fruitful approach would be to construct an offence which identified to whom it was to apply rather than to create a wide ranging offence with an elaborate and clumsy list of exceptions. We identified those whom we wished to expose to risk of liability for this offence as falling within the following categories. First, we require that the person be responsible for the child at the relevant time. We have expressly incorporated the 1933 Act approach to who has responsibility for the child.^[20] Second, and additionally, we require the person to be connected to the child in any one of three ways: living in the same household, being a relative, or being responsible for the child under a child care arrangement.
6.16      The first possible form of connection, living in the same household, is a well known concept in other statutory contexts and, we believe, should cause no problem. We are aware that the concept of living in the same household is used in Part IV of the Family Law Act 1996^[21] for the purpose of identifying who is to be an "associated person".^[22] The phrase "living in the same household" is qualified in that statute by the proviso that it is "otherwise than merely by reason of one of them being the other's employee, tenant, lodger or boarder".^[23] We wondered whether we might limit this concept in a similar way for the purposes of this offence. We concluded, however, that as the persons who may be subject to this provision must in any event be responsible for the child as defined by the 1933 Act, there is no need further to limit it. That additional requirement will exclude the vast majority of those who live in the same household as the child by virtue merely of falling within one of these categories. If a person within one of these categories is responsible for the child at the material time, as well as living in the same household, then we can see no good reason to exclude them from potential criminal liability.
6.17      The category of being related to the child is, in the draft Bill, to be determined in accordance with Part IV of the Family Law Act 1996.^[24] This is a wide ranging definition and it applies to degrees of consanguinity based on non marital as well as on marital status. The apparent width of the category is mitigated by the requirement that the person was, at a material time, responsible for the child.
6.18      The third category of connection is designed to include those who, by arrangement with a person who falls within one of the other two categories, and whether or not for reward, care for the child, wholly or mainly in the child's own home. Children are cared for by others in a variety of settings and we considered several options before deciding on that contained in subsection (6). We have defined a child care arrangement in that subsection as one in which the defendant looks after the child, whether alone or with other children, under arrangements made with a person who lives in the same household as, or is related to, the child and does so wholly or mainly in the child's home. Our intention is that baby sitters and nannies who care for the child in the child's home should be potentially liable for the offence, but that other persons caring for children, for example, a childminder working in his or her own home or a nursery assistant should not. We did consider other possible definitions. They included drawing the dividing line, by following more closely the distinctions drawn in the Children Act 1989 between those who are and are not required to register as childminders. We also considered expanding the definition of child care arrangement so as to include childminders. Bearing in mind our wish to limit this new offence to the purely domestic context and to avoid straying into imposing criminal liability upon those who are involved in child care within the public domain we believe that subsection (6) draws the line in the correct place. It provides a test which is simple to express and to apply.

Does exposure to criminal liability cease with the cessation of responsibility or connection?

6.19      The clause fixes a person with liability for failing to protect the child even if the offence specified in Schedule 1 ("the specified offence") is committed at a time after that person's responsibility or connection has ceased, provided that the awareness of the risk that a specified offence might be committed against the child arose at a time when he or she had responsibility for the child. Thus, if a person has responsibility, is connected to the child, and is aware, or ought to be aware, that there is a real risk that a specified offence will be committed against the child after he or she ceases to have responsibility by handing over the child to others, then that person may, nonetheless, be guilty of the offence in clause 2 if he or she fails to take the steps he or she reasonably could to prevent the commission of the specified offence. Of course, the more remote in time or circumstances the commission of the specified offence from the termination of the person's responsibility the less likely the chance of a prosecution let alone a conviction. Subsection (1)(d) specifically requires the offence to be committed in circumstances of the kind that the person anticipated or ought to have anticipated and affords a further safeguard against an inappropriate prosecution or conviction. Nonetheless we see great importance in making it clear that a person who has responsibility and has a connection with the child should not be able, with impunity, to expose the child to an anticipated abusive situation simply because the arrangement or the visit has come to an end. We believe that it is proper that such a person should be under an obligation to take reasonable steps to avoid further abuse. Depending on the circumstances, this may amount to no more than alerting the social services or the police or the health services to what they have observed or been told.

The circumstances in which liability might arise

6.20      There is a fundamentally important distinction which we are acutely aware we must identify and provide for. It is between those who are careless with the safety of the child for whom they are responsible to the point that they deserve to be punished when that child is harmed by the commission of an offence and those whom, though perhaps not as careful as a counsel of perfection might require, it would be utterly wrong to make subject to criminal culpability on top of the personal catastrophe which they have suffered.
6.21      We have, therefore, sought to establish a relatively high level of risk which must arise before the person responsible is exposed to criminal liability if they fail to have due regard to the protection of the child.
6.22      First we require that there must be "a real risk". It will not be sufficient that there is a mere possibility that the child may be the victim of a serious offence. It would be grotesque were grieving parents even to be at notional risk of a criminal prosecution where their child has been abducted and killed, or raped, by a stranger (a thankfully still remote possibility) merely because they had allowed the child to play out of their sight. The requirement of "real risk" would, we believe, safeguard against that. We are fortified in this belief by the way section 31 has been interpreted. The section states that one of the conditions for the making of a care or supervision order is that the child is "likely" to suffer significant harm.^[25] In the leading case on section 31 the speech delivering the majority opinion equated "likely" with "real risk" and equated "real risk" with one "that ought not to be ignored".^[26] It is right to point out that in that case the statutory threshold was described as being "comparatively low".^[27] We have given the matter anxious consideration. Other formulations which we considered such as "serious likelihood" or "serious risk" might be thought to import a higher threshold. In our view, however, a test which reflects a possibility "that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case"^[28] meets the requirement of the case.
6.23      Second, the risk must be one of which the person is either aware or ought to be aware. This is not a purely subjective requirement. It would, in our view, be odd and wrong if a person, on the one hand, could be criminally liable where they were sufficiently concerned for the welfare of the child to be aware of a real risk but were careless about doing what they reasonably could to prevent it materialising but, on the other hand, could not be liable if they were so careless of the child's safety that they did not even think there was a risk when they ought to. On the other hand the test does not refer to that of which "a reasonable person" would be aware. It is what the person him or herself "ought to have been aware of" which will determine whether they are potentially culpable.
6.24      Third, their awareness must be of the commission of one of the offences set out in the Schedule. One respondent^[29] questioned the need for any link to a specific offence and thought it would suffice if the child would be at risk of any serious harm which occurred. In our view this would be to extend the reach of this serious criminal offence far too wide. It would impose criminal liability based on negligence on the parent whose child suffered from a serious accident due to their lack of attention whilst being distracted. At the moment this type of situation is governed by the exacting requirements of gross negligence manslaughter and of child neglect based on wilful neglect. There is, so far as we are aware, no particular perception of a problem with this required fault basis where the child has suffered an accident. The difficulty is where the child is the victim of deliberately inflicted harm. As there was no other suggestion that the offence be cast so wide we do not recommend it.
6.25      We have altered the Schedule of offences from that which we suggested in the Consultative Report by the addition of three offences. The first is assault occasioning actual bodily harm. Whilst it might be thought that this is not the most serious of offences, as two of our respondents^[30] correctly pointed out, in the context of child abuse or bullying it may often be a matter of chance whether an assault results in actual bodily harm, or grievous bodily harm, or wounding and it does not truly represent a watershed of seriousness which should be the basis for an important legal distinction. Were it to be the dividing line there would be ample opportunity for lengthy and unmeritorious legal and factual disputes reflecting no real point of difference.
6.26      The second and third additional offences we have included are the offences of poisoning. This will be useful where the domestic context is one where there is a practice of drug taking which might affect the child.
6.27      Fourth, we have added a requirement that the offence be committed in circumstances of the kind that the person responsible anticipated or ought to have anticipated. This will provide protection in cases in which the person responsible ought to have anticipated, for example, an assault by an abusive separated parent to whom the child is sent on an errand but where, in fact, the child is assaulted in the street on his way by neighbourhood bullies about whom there is no reason to suppose the responsible person should have been aware. In those circumstances the responsible person should not be exposed to the risk of a criminal prosecution. We are concerned that the person responsible should be at risk for those things of which he or she was aware, or ought to have been aware, and which have come about. We do not believe that such a person should be liable where what occurred was the commission of the same category of offence but where its commission was not, nor could have been, reasonably foreseen. The offence requires, therefore, that the circumstances are of the kind which the responsible person anticipated or ought to have done.

The duty of care and the burden of proof

6.28      Although we have taken as a model for the principles underlying this offence the offences created under the Health and Safety at Work etc. Act 1974, we have not copied it slavishly. The first difference is that we have drafted in such a way that, though the duty is an objective one measuring the responsible person's conduct or omission against a standard of reasonableness, the test is what would have been reasonable for that person. We have not incorporated the standard to be expected of a reasonable person. This is in accordance with the views of those respondents who expressed a view on this issue. We address the separate question of intoxication below.
6.29      The second way in which the offence differs from the Health and Safety at Work etc. Act offences is that it does not impose any burden on the defendant to raise, in evidence, the issue of reasonable practicability. On the contrary it remains for the prosecution to prove to the criminal standard that the defendant failed to take the steps it would have been reasonable to expect him or her to take. One respondent^[31] argued forcefully that placing an evidential burden on the defendant was necessary for the offence to work as he felt that it would be a difficult matter for the prosecution to establish, to the requisite standard, what were the reasonably practicable steps available to the defendant which were not taken. It may be a difficult task for the prosecution, but a balance has to be struck. It must be remembered that such a prosecution will be brought only when, as the jury will know, the child will have suffered harm. It is easy to judge with hindsight and we think that the risk of a jury doing so (against which a judge would no doubt warn them) would be enhanced if an evidential burden were placed on the defendant. A defendant ought to be convicted only where the jury is sure that any reasonable person in the defendant's position would have taken action and that should be for the prosecution to prove. Whilst we can see that it might not always be straightforward for the prosecution, we believe that for the most part in the commonplace situations in which offences are committed against children it will be a matter of obvious common sense to identify what it was reasonable to expect the responsible person to do.
6.30      In any event, there are a number of important differences between this kind of case and offences under the health and safety at work legislation, each of which militates against imposing an evidential burden on the defendant. First, this offence will carry a significant term of imprisonment, not merely a financial penalty. Second the defendant will be an, often inadequate, individual with few material or mental resources. The defendant in the health and safety at work regime will be a business carrying on an undertaking. It is reasonable to expect a business to bring resources to bear in order to demonstrate what was and was not reasonable to expect of them. Third, in the health and safety context, the social policy underlying the offence requires that the offence should be regarded as proved by the prosecution establishing that a person sustained harm in the context of the defendant's undertaking. In those circumstances it is not unfair to impose a legal, let alone an evidential, burden on a defendant to show that what has been proved was not avoidable by the taking of reasonably practicable precautions.^[32] In our case the social policy underlying the offence is that the offence is only complete once the prosecution has shown the requisite degree of fault on the part of the defendant. It is, therefore, by no means obvious that the defendant should bear even an evidential burden and we do not think that he or she should.

Sentence

6.31      There were a number of different views on this, ranging from support for a maximum sentence of 2 years, through 5 years, to support for the maximum of 7 years upon which we were consulting. We remain of the view that 7 years is appropriate. It must be remembered that although the offence will potentially be committed in the context of an offence of actual bodily harm being committed, which has a statutory maximum sentence of 5 years, it may also be committed where the offence which is committed is murder. Thus the maximum has to be appropriate to a wide range of offending up to the most serious. In our view a maximum sentence of 7 years enables the court to reflect this full range of offences. We are in little doubt that, as a matter of correct sentencing principles, sentencers will have to have regard to the maximum sentence for the substantive offence which has been committed when sentencing for this offence.
6.32      Clause 3

Effect of intoxication

(1) A person's voluntary intoxication is to be disregarded in determining –

(a) for the purposes of section 2(1)(a), whether he ought to be aware of a risk; and

(b) for the purposes of section 2(1)(b), what steps it would be reasonable to expect him to take.

(2) A person's intoxication is voluntary if he takes an intoxicant, or allows an intoxicant to be administered to him –

(a) knowing that it is or may be an intoxicant; and

(b) otherwise than in accordance with medical advice.

(3) "Intoxicant" means alcohol, drugs or anything else which may impair awareness.

(4) A person's intoxication is to be taken to be voluntary unless sufficient evidence is adduced to raise an issue with respect to whether it was voluntary.

(5) Where sufficient evidence is so adduced, the court is to assume that his intoxication was not voluntary unless the prosecution prove beyond reasonable doubt that it was.

Commentary

6.33      Clause 3 specifically excludes voluntary intoxication from consideration when the questions of the defendant's awareness of risk, or the reasonableness of steps he or she could be expected to take, are being considered. Thus, whilst these tests have elements of both objectivity and subjectivity, this provision prevents the defendant from taking advantage of his or her own voluntary intoxication (whether through drink, drugs or anything else) in the jury's assessment of what it was reasonable for him or her to be aware of, or to do.
6.34      On this issue there is an evidential burden on the defendant to displace the presumption of voluntariness. Once displaced, the burden on the prosecution of disproving involuntariness is to do so beyond reasonable doubt.

Clauses 4 to 6: the statutory responsibility, investigations by police and responsibility of witness in criminal proceedings

The recommendations

6.35      These clauses derive from the interim recommendations, which we confirm, and which were consultation issues Nos. 7 and 8:

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) 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.

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.

6.36      There was little opposition to this recommendation. A number of respondents questioned whether a statutory statement would have any real effect.^[33] Even on its own, however, it was said by one academic commentator to have "valuable symbolic significance".^[34] Only one of our respondents suggested that this recommendation would flout the requirements of the European Convention on Human Rights being, it was said, akin to a reversal of the burden of proof in cases where the person responsible was not present and so could not give an account of what happened.^[35] In our view this concern fails to give any, or any due, weight to the fact that the responsibility is to give such account as they can. Thus, if they were not present and are unaware of what occurred then they can discharge their responsibility by giving an account of where they were and why it is that they do not know what happened. It is the failure to do even that, particularly at trial, which may have adverse consequences for that person.
6.37      Clause 4

4 The statutory responsibility

(1) This section applies if a serious offence has been committed against a child or there are reasonable grounds for suspecting that such an offence has been committed.

(2) Any person who had responsibility for the child at the relevant time also has the responsibility imposed by this section ("the statutory responsibility").

(3) "The relevant time" means –

(a) the time when the offence was committed (if known); or

(b) any time during the period within which the offence could have been committed.

(4) The statutory responsibility is responsibility for assisting –

(a) the police in any investigation of the offence, and

(b) the court in any proceedings in respect of the offence,

by providing as much information as the person is able to give about whether and, if so, by whom and in what circumstances the offence was committed.

6.38      Clause 5

5 Investigations by the police

(1) This section applies if a constable –

(a) is investigating a serious offence against a child; and

(b) reasonably suspects that a person whom he is questioning in connection with the offence ("A") is subject to the statutory responsibility in relation to the offence.

(2) If A is being questioned under caution, the constable must inform A of his suspicion –

(a) when he cautions A; or

(b) as soon as he forms that suspicion (if later).

(3) When giving that information, the constable must explain –

(a) the nature of the statutory responsibility; and

(b) the effect of subsections (5) and (6).

(4) If A is not being questioned under caution, the constable may nevertheless give A –

(a) the information mentioned in subsection (2); and

(b) an explanation of the nature of the statutory responsibility and the effect of subsection (5).

(5) A is not obliged to answer a question put to him by a constable investigating an offence merely because he is, or may be, subject to the statutory responsibility in relation to the offence.

(6) But if section 34(2) of the Criminal Justice and Public Order Act 1994 (c.33) (circumstances in which inferences may be drawn from failure to mention facts) applies in relation to a failure by A to mention any fact, a court, judge or jury may, in deciding whether it is proper to draw an inference under that provision, take into account any evidence that A was given the information and explanations mentioned in subsections (2) and (3).

6.39      Clause 6

6 Responsibility of witness in criminal proceedings

(1) This section applies if a person ("W") –

(a) is a witness in criminal proceedings for a serious offence against a child; but

(b) is not a person charged with an offence in those proceedings.

(2) If the court is of the opinion that W is subject to the statutory responsibility in relation to the offence, it may –

(a) inform W of its opinion; and

(b) explain to W the nature of that responsibility and the effect of this section.

(3) If the court acts under subsection (2), it may take into account that W was given that information and explanation in determining –

(a) whether W's behaviour as a witness has amounted to contempt of court; and

(b) if it has, what punishment to impose.

(4) This section does not –

(a) oblige W to answer any question which W is entitled to refuse to answer as a result of any enactment or on the ground of privilege; or

(b) affect the court's power, in the exercise of its general discretion, to excuse a witness from answering a question.

Commentary

6.40      These three clauses describe respectively (i) the nature of the statutory responsibility placed upon a person who is responsible for the child to give such account as they can concerning the commission of a serious offence against the child at a time when they were responsible for her, (ii) the obligations upon the police when investigating such an offence to draw this responsibility to the attention of such a person and the way in which that responsibility impacts on section 34 of the Criminal Justice and Public Order Act 1994 and (iii) the ways in which that responsibility operates in respect of a person who is a witness but not accused in criminal proceedings in respect of such an offence.
6.41      Clause 4(1) has the effect that the statutory responsibility arises both where a serious offence is committed and where it is reasonably suspected that it has been committed. This is appropriate as we are concerned with the investigative stage before matters may have become clear.
6.42      Subsection (2) provides that the statutory responsibility to give an account is co-extensive with responsibility for the child at the relevant time.
6.43      Subsection (3) defines the relevant time by reference to when the offence was, or could have been, committed. The latter caters for the position where the exact time at which the offence was committed is not known but the time frame within which it could have been committed is.
6.44      Subsection (4) states the nature of the statutory responsibility. It is a responsibility which is owed both to the police who are investigating the offence and to the court in any proceedings in respect of the offence. The responsibility is to provide whatever information the person is able to give on the questions whether any offence was committed and, if so, by whom and in what circumstances. Thus, if the person was not present and has no knowledge of what happened he or she has a responsibility to provide that information. If the person does so then he or she has discharged her responsibility. If he or she says nothing then the responsibility has not been discharged.
6.45      Clause 5 sets out the obligations placed upon a constable when he or she is investigating such an offence and reasonably suspects that the person whom he or she wishes to question in connection with the offence is subject to the statutory responsibility.
6.46      Subsection (2) imposes an obligation upon the constable to warn the person being questioned when he or she is cautioned of his or her suspicion that he or she is a person with the statutory responsibility. It also provides for the constable to warn the person as soon as the suspicion is formed, if that only arises in the course of the questioning.
6.47      Subsections (3), (5) and (6) require the constable, when giving the warning, to explain the nature of the statutory responsibility, to emphasise that the person is under no obligation to answer any question but to warn him or her that a jury may take into account that he or she was given this information when deciding whether to draw any adverse inference in the event of a failure to mention facts which are subsequently relied upon by that person.
6.48      Subsection (4) applies where the constable intends to question a person but not under caution. It gives the constable the power but does not impose a duty to give the warning and the explanation.
6.49      Clause 6 concerns the responsibility of a person who is a witness, but not a defendant, in relevant criminal proceedings.
6.50      Subsection (2) is designed to apply in circumstances where a person who is subject to the statutory responsibility is a witness and is proving to be recalcitrant or otherwise reluctant to give evidence. It gives the court certain additional powers to enable it to deal with such a person. Where the court is of the opinion that the witness has such a responsibility, subsection (2) gives the court the option of explaining to the witness the nature of the responsibility and the powers given to the court under the clause.
6.51      Those powers are set out in subsection (3) and enable the court to take the statutory responsibility into account in determining whether the witness is in contempt of court and if so what punishment to impose.
6.52      Subsection (4) makes it clear that the statutory responsibility does not impose any new obligation to answer questions nor does it remove the power of the court to excuse a witness from answering any question.
6.53      As we anticipated in the Consultative Report,^[36] the Codes of Practice regulating the conduct of interviews will have to be amended to cater for these changes. In particular, the form of the caution in these cases will have to change. The impact of this part of the Bill on the operation of section 34 of the 1994 Act will be to provide that the jury may take into account the fact that the person was given the information and explanation about the statutory responsibility when determining whether it would be proper to draw any inference from the failure to mention a fact which is relied on at trial. In the light of this limited impact upon the operation of section 34, it may be that the changes to the Codes of Practice will be less extensive than might otherwise be the case.
6.54      One of our practitioner respondents^[37] pointed out that in this kind of case it will be even more important that each of the persons who may be interviewed as a suspect, and who has responsibility for the child, should have independent legal advice as the potential for the legal adviser to have a conflict of interest if asked to act for more than one suspect is clear and potentially damaging. We agree. This is a matter which it may be useful to consider putting into the Codes as something for the police to ask a suspect to consider if another suspect already has legal representation and he or she asks for the same solicitor.

Clause 7: special procedure during trial

The recommendation:

6.55      This clause derives from our interim recommendation, which we have decided to confirm, and which was consultation issue No. 9:

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.

6.56      This is one of the two central recommendations in our procedural and evidential scheme and was the subject of both support and opposition. In Part V we explain why we have decided to confirm them. In this Part we explain how they will operate in practice so as to take into account certain of the concerns which have been expressed.
6.57      Clause 7

7 Special procedure during trial

(1) This section applies if –

(a) a person is, or two or more persons are, charged with a serious offence against a child; and

(b) at the conclusion of the evidence for the prosecution, it has been proved to the court that three conditions are met.

(2) The first condition is that the offence charged or any alternative offence has been committed (but it is not necessary for it to have been proved which of those offences was committed).

(3) The second is that –

(a) the number of persons who could have committed the offence charged or any alternative offence is known; and

(b) those persons can be described, whether by reference to their names, their personal characteristics or their relationship to one another or to other persons.

(4) The third is that –

(a) if there is only one accused, he is subject to the statutory responsibility in relation to the offence charged; or

(b) if there are two or more accused, at least one of them is subject to that responsibility in relation to the offence charged.

(5) If the court is satisfied, in respect of the accused, or an accused, that he could not have committed the offence charged or any alternative offence –

(a) the court must acquit him of the offence charged or direct his acquittal; and

(b) he may not be convicted of any alternative offence.

(6) Subsection (7) applies if, after the court has acted under subsection (5) –

(a) one or more persons remain accused of the offence charged; and

(b) the third condition continues to be met.

(7) A submission that the accused, or an accused, does not have a case to answer in relation to the offence charged or an alternative offence may not be made at any time before the conclusion of the evidence for the accused or all of the accused.

(8) If the court considers at the conclusion of the evidence for the accused, or all the accused, that no court or no jury properly directed could properly convict the accused, or an accused, of the offence charged –

(a) the court must acquit him of that offence or direct his acquittal; and

(b) if the court is of the same opinion in relation to an alternative offence, he may not be convicted of that offence.

(9) This section does not affect –

(a) any power a court may have to acquit or direct the acquittal of an accused otherwise than on a submission made on his behalf; or

(b) any power a court may have to discharge a jury or otherwise prevent a trial continuing.

(10) "Alternative offence", in relation to an offence charged, means any other offence of which the accused could lawfully be convicted on that charge.

Commentary

6.58      This clause sets out the mechanism by which we intend that the effects of Lane v Lane^[38] may be avoided. Subsection (1) provides that the clause applies to cases where a serious offence against a child is charged and at the conclusion of the prosecution case three conditions have been met. The test we have adopted for meeting these conditions is that these matters have been proved to the court. One respondent in particular^[39] focused on this issue and thought that the test ought to be the same as where the question is whether a case proceeds beyond "half time" i.e. that a jury could, upon being properly directed, find that the conditions had been met. We are of the view this misstates the nature of the exercise. These conditions are the trigger to the operation of a special procedure which will, amongst other things, deny the defendant the facility of seeking to have the case dismissed at the close of the prosecution case. Of the matters which have to be proved, only the first constitutes something which has to be proved by the prosecution in order for the jury to convict. The other two are matters which may or may not be relevant to that consideration but are not elements in the offence. Thus it would, in our view, be artificial to require the judge to consider the propriety of a prospective decision of the jury which the jury will never have to make. The issue whether the conditions are fulfilled is for the judge to determine and so it is his state of mind which is paramount.
6.59      We have used the expression "proved to the court" to mark that the matter has to be proved to the criminal standard on the evidence available at the close of the prosecution case. The fact that at the conclusion of the prosecution case the judge is sure that the conditions have been met, does not preclude the issues being raised subsequently, on the basis of the then state of the evidence, for the different purposes which are relevant at that stage. It does not preclude the defence, in the course of its own case, calling evidence or arguing subsequently on the basis of the then evidence that the child was not killed, but died accidentally, or that the defendant did not have responsibility for the child. Those arguments may be deployed by the defence for the purpose of making a submission at the conclusion of the defence case that the case ought not to be left to the jury and/or for the purpose of arguing that it would not be proper for the jury to be permitted to draw an adverse inference from a failure to give evidence at trial. If the case were left to the jury, these issues would be left to be determined by them on the whole of the evidence.
6.60      Subsection (2) sets out the first condition. It has to be proved so that the judge is sure that the offence charged, or any alternative offence, has been committed.
6.61      Subsection (3) sets out the second condition. It requires the prosecution to prove that the case is one in which there is a closed group of persons one, or some, or all of whom must have committed the offence. This is a crucial provision for the operation of the scheme. It imposes the obligation on the prosecution to narrow the field of suspects so that they can all be described either by name, or by personal characteristics, or by their relationships. It is a substantial additional hurdle. The special procedure will not apply where the question for the court is "are we sure it was the defendant, chosen from the whole world, who did it". The procedure only applies where the question is "are we sure that the defendant was the perpetrator from a field which has first been narrowed to a group of known persons". In many cases, typical in this kind of case, the field will be very narrow indeed.
6.62      The process of adducing evidence which satisfies this condition will be a substantial undertaking for the prosecution and will take them a long way down the road of establishing the guilt of a defendant. It will often involve adducing evidence from which the court can be sure that it must have been one or other or both of two people. It may also apply where the prosecution can adduce evidence which narrows it down to more than two if each is capable of description in the ways set out in the Bill. In the light of this onerous requirement, any subsequent conviction of a defendant who has the statutory responsibility and in which an inference from their silence at trial plays a part cannot, in our view, be said to be one which is based "solely or mainly" on that inference. Such a case is a long way from one where the thought process is, "a crime has been committed, the defendant has the statutory responsibility, he or she has said nothing and so on that basis we can be sure of his or her guilt". Whilst the inference may be said to be decisive, it will only be so on the back of a great deal of other material which the prosecution has had to call to prove that they can narrow the field to the extent required by this condition.
6.63      The third condition set out in subsection (4) is that at least one of the defendants is subject to the statutory responsibility. As long as there is at least one then the special procedure applies to the trial of each defendant. Thus, the non responsible boyfriend who is one of the known group of suspects and is a defendant will not be able to have the case against him discharged before he or his co-accused have had the opportunity to give evidence.
6.64      It is not our intention that each member of the known group must be a defendant. The important point is that there is such a group. The Crown Prosecution Service (CPS) will have to consider how their guidelines on whom to prosecute will be affected by the availability of these special procedures. We do not envisage that the basic principles will have to be entirely overturned but the CPS will have to factor into their assessments a consideration of how the evidence (or failure to give evidence) may pan out in the light of the operation of the scheme. In particular they will have to have regard to the fact that the decision of the judge whether or not to permit the case to be left to the jury will be made in the light of the evidence and any inferences from silence which may properly be drawn at the close of the defence case. Thus, the CPS will have to make that judgement without complete knowledge of what the state of the evidence is likely to be when the judge makes his decision. A judgement on bringing prosecutions will have to be made not only on the basis of evidence which the CPS anticipate calling but also on an assessment of what evidence might be given by the defendants, or the fact that one or other of them may not give evidence. Whilst we accept that this will make the task less straightforward, we do not think that this change of approach need be either unduly problematic or conducive to inappropriate prosecutions.
6.65      Subsection (5) imposes a duty on the court at the conclusion of the prosecution case to acquit any defendant whom it is satisfied could not have committed the offence charged or any alternative offence. It also imposes a duty on the court to withdraw from the jury any alternative offence to that charged. This is a safeguard to prevent a case against a defendant proceeding to the end of the defence case where it would be wholly inappropriate for it to do so. Its effect will be that the only defendants whose case will continue to the conclusion of the defence case will be those who remain within the known group of potential perpetrators. A defendant will be able to make a submission that his or her case falls within this subsection and the court will have to determine it.
6.66      After the court has acted under subsection (5), subsection (6) requires it to consider whether there remain one or more defendants of whom at least one is subject to the statutory responsibility. If so, subsection (7) applies.
6.67      Subsection (7) provides that in such a case a submission of no case to answer may not be made until the conclusion of the defence case. This is the nub of this clause. It prevents the case being dismissed on the basis only of the prosecution case. It requires that the case continues until the close of the defence case and it forces the defendants to decide whether to give evidence. If the defendant(s) do give evidence the judge will decide whether the case may be left to the jury on the basis of all the evidence which is before the court. If they remain silent the judge will determine that question on the basis of all the evidence which is before the court and any inference from the defendant's silence at trial which the judge concludes it would be proper to permit the jury to draw.
6.68      Subsection (8) sets out the approach the judge must take at this stage. It requires the court to apply a test which is familiar to courts and practitioners as applicable at the conclusion of the prosecution case. That test is whether a properly directed jury could convict the defendant. If it could then the case may go to the jury. If not, the judge is under a duty to acquit the defendant of the offence charged and withdraw any alternative offence from the consideration of the jury.
6.69      This subsection contains a fundamental safeguard for the defendant. It means that the case cannot go to the jury unless the judge is satisfied that it may properly be considered by the jury.
6.70      It was suggested by one respondent^[40] that there would be substantial pressure on the judge to allow the case to go to the jury, the implication being that the judge would seldom decline that course of action. We agree that where a defendant or defendants have given or called evidence which, directly or by implication, inculpates or exculpates a co-defendant, it will be rare that the judge would withdraw the case from the jury, the assessment of evidence being a jury function. That would not, in our view, mean that cases were going to the jury which should not. On the contrary it would be a mark of the success of the scheme that cases were properly being left to the jury to decide on evidence, which includes evidence given by one or more defendant, whereas previously the case would have fallen for procedural reasons.
6.71      On the other hand, where a defendant with the statutory responsibility does not give evidence the judge, in determining whether the case should be left to the jury, may first have received and considered argument on whether it would be proper for the jury to draw an adverse inference from that silence. We consider this issue when we deal with clause 8. Suffice it to say that this will be a further substantial hurdle for the prosecution to surmount and by no means a formality. Only when the issue of inferences has been determined will the judge turn his or her attention to this submission which will be considered in the light of all the evidence and any inference which the judge has decided it would be proper to permit the jury to consider drawing. There is no reason to suppose that courts will be any less rigorous in applying this familiar test in this kind of case than where it is presently applied at the conclusion of the prosecution case.
6.72      Thus the scheme has at its core a series of decisions to be made by the trial judge on the basis of clear, and often familiar, tests. We are confident that they will enable judges to deliver trials which are fair.
6.73      Subsection (9) preserves any other power which the judge has to terminate the case in the various ways set out.
6.74      Subsection (10) defines what is meant by an alternative offence in familiar terms.

Clause 8: inferences from accused's silence

The recommendation

6.75      This derives from the interim recommendations, which we confirm, and which were consultation issues Nos. 10 and 11:

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 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.

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.

6.76      This pair of recommendations was at the heart of our scheme and attracted support and opposition. In Part V of this Report we set out our arguments for confirming them. In this part we focus on how the draft Bill gives effect to our recommendations and highlights the ways in which we are satisfied that the Bill, if properly applied, will result in a fair trial for the defendants.
6.77      Clause 8

8 Inferences from accused's silence

(1) The Criminal Justice and Public Order Act 1994 (c.33) is amended as follows.

(2) In section 35 (effect of accused's silence at trial), after subsection (7), insert –

"(8) This section does not apply if section 35A applies."

(3) After section 35, insert –

"35A Effect of accused's silence at trial in special cases

(1) This section applies if a person is on trial for a serious offence against a child and, at the conclusion of the evidence for the prosecution –

(a) it has been proved to the court that the conditions in section 7(2) to (4) of the Act of 2004 (conditions for application of special procedure) apply in relation to the offence;

(b) section 7(7) of that Act (restriction on submissions of no case) applies in relation to the offence; and

(c) the court is of the opinion that the accused is subject to the statutory responsibility in relation to the offence.

(2) But this section does not apply if –

(a) the accused's guilt is not in issue, or

(b) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence.

(3) The court shall, at the conclusion of the evidence for the prosecution, satisfy itself that the accused is aware –

(a) that the court is of the opinion that he is subject to the statutory responsibility in relation to the offence;

(b) of the nature of that responsibility;

(c) that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence;

(d) that, if he chooses not to give evidence or, having been sworn, refuses, without good cause, to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from that failure or refusal; and

(e) that, in deciding whether it is proper to draw an inference, the court or jury may, if it is of the opinion that he is subject to the statutory responsibility in relation to the offence, take that into account.

(4) If the accused –

(a) fails to give evidence, or

(b) refuses, without good cause, to answer any question,

the court or jury may, in determining whether the accused is guilty of the offence charged or any other offence of which he could lawfully be convicted on that charge, draw such inferences as appear proper from the failure or refusal.

(5) If the court or jury is of the opinion that the accused is subject to the statutory responsibility in relation to the offence charged –

(a) it must consider any explanation which has been given in evidence for the failure or refusal; but

(b) it is not necessary for it to be satisfied, before drawing an inference (whether in relation to that offence or any other offence of which he could lawfully be convicted on that charge), that he could be properly convicted, on the basis of the other evidence against him, if no such inference were drawn.

(6) Subsections (4) and (5) of section 35 apply for the purposes of this section as they apply for the purposes of section 35.

(7) In this section –

(a) "the Act of 2004" means the Offences Against Children Act 2004; and

(b) "serious offence against a child" and "statutory responsibility" (in relation to such an offence) have the same meaning as in Part 2 of that Act."

Commentary

6.78      This clause takes effect by providing for an amendment of the Criminal Justice and Public Order Act 1994 by adding a new section 35A which will operate in place of the present section 35 in those cases to which section 35A applies. The additional section 35A is contained in subsection (3) of this clause.
6.79      Section 35A(1) defines the cases in which the section applies. The section applies where a person is on trial for a serious offence against a child and at the conclusion of the prosecution case two things are established. The first is that the case is one in which, pursuant to the clause 7 scheme, no submission may be made of no case to answer at the conclusion of the prosecution case. The second is that the court is "of the opinion" that the defendant is subject to the statutory responsibility. All that is required is that the court be of that opinion because that question is a matter upon which the jury will have to make a finding before deciding whether or not to draw an adverse inference under this section. The opinion that the judge forms is what triggers the obligation on the court at the start of the defence case to give certain warnings and explanations.
6.80      It is important to note that section 35A applies only to a defendant who, in the opinion of the court, bears the statutory responsibility. Thus, if there is a co-defendant who does not, this framework does not apply to him or her. This is because we regard the fact that the defendant bears the statutory responsibility as an important element in enabling a jury to say that the circumstances disclosed by the evidence "call for an explanation from that defendant". Of course, more than one defendant may bear that responsibility. It can arise quite easily. We anticipate there will be relatively few cases of this type where there will be a defendant who is not subject to it. Where there is, it necessarily follows that, for as long as the strict requirement of Cowan^[41] applies in the generality of cases, the non responsible defendant may feel easier about not giving evidence than one who is subject to this regime. This may, conversely, serve to make the responsible defendant more inclined to give evidence. If neither that defendant nor the co-defendant gives evidence the judge may be forced to decline to let the case of the non responsible defendant go to the jury but to leave to the jury that of the responsible defendant. That may appear odd to the jury but it would have to be explained. We also appreciate that juries may in some circumstances feel sympathetic to a responsible defendant who is left "in the frame" whilst the non responsible defendant has been released from the case. Short of changing section 35 in parallel with what we recommend for clause 35A, so as to remove the strictness of the rule in Cowan^[42] for all cases, this apparent anomaly will remain.
6.81      Section 35A(2) is modelled on section 35(1) of the 1994 Act. It excludes the operation of the section in those cases where, in similar circumstances, section 35 does not apply. One of those circumstances is that it appears to the court that the defendant's physical or mental condition makes it undesirable for him or her to give evidence. This is an important safeguard for the defendant which we retain for this scheme.
6.82      We do not expressly exclude the operation of the section where the court is informed by the defendant's legal representative, or by the defendant if unrepresented, that the defendant will give evidence. One member of the judiciary^[43] in his response to the Consultative Report pointed out that under the present regime a defendant who has not received the warning but who has failed to give evidence properly will present the court with a difficulty because he or she will not have received the public warning of the consequence. We agree that this is at least a theoretical flaw with section 35 as it applies in the generality of cases. We are unaware of any concern that it impacts in a particularly damaging way in the type of case with which we are concerned. It is, therefore, a wider question which it would not be wise to consider only within the scope of this project.
6.83      Nonetheless we have not made identical provision to that which is made in section 35(1). The effect of our change is that the judge has to be satisfied that the defendant is aware of the risks of not giving evidence or failing without good cause to answer any questions. He or she is not, however, required to do so in the presence of the jury. We anticipate that in the first instance this will be done in the absence of the jury and it would only be done in the presence of the jury if the judge was informed that the defendant was not going to give evidence, or if the defendant gave evidence but decided to refuse to answer questions. In such cases, which will be rare, the impact of a defendant refusing in the course of evidence to answer pertinent questions is likely to be extremely damaging to his or her case. In practice, therefore, we believe that, even in these cases, the question of an adverse inference direction being given would only be raised as a possibility in the rarest of cases.
6.84      Section 35A(3) contains the obligation of the court to satisfy itself that the defendant is aware of a number of things. These include the essence of the present warning contained in section 35(2). In addition, however, the court must satisfy itself that the defendant is aware that the court is of the opinion that he or she is subject to the statutory responsibility, the nature of that responsibility and that, in deciding what inferences, if any, it is proper to draw, the jury may, if it is of that opinion, take into account the fact that he or she is subject to that responsibility. This provision ensures that the defendant, in deciding finally whether or not to give evidence, is given fair warning of the possible consequences of not doing so.
6.85      Section 35A(4) replicates the essence of the present section 35(3). It is important to note that in doing so it places emphasis on the court or jury only drawing such inferences as appear "proper". Some disquiet was expressed^[44] in the consultation that the terms of the recommendation foreshadowed a derogation from the requirement that any inference drawn had to be one which it was proper to draw. We are happy to confirm that this was not our intention and subsection (4) gives effect to that intention.
6.86      We are, however, grateful to respondents for emphasising the point which is of importance. It means that the judge will have to consider, where asked, whether in the circumstances of the case it would be "proper" for the jury to be permitted to draw such an inference. We anticipate that it will be at this stage that arguments may be raised whether, in the circumstances of the particular case, it would be consistent with a fair trial to permit the jury to draw an inference from silence. For example, we are aware that the Judicial Studies Board model direction now provides that it would not be proper for the jury to draw an adverse inference unless they were of the view that the only sensible reason for the defendant not giving evidence was that he or she had no explanation to give or none that would withstand cross examination. Similarly, it would not be proper to permit the jury to draw such an inference where the linkage between the defendant and the offence was so tenuous that any conviction which followed would be solely or mainly based on that failure to give evidence. On the other hand, where the evidence was such that the defendant was so close to the events that he or she must either have been the perpetrator, or been complicit in it, or be able, even if only by exculpatory evidence, to cast light on which other person was responsible for the child's death or injury, then the court may well conclude that the circumstances so called for an explanation from him or her, as a person with the statutory responsibility, that it would be proper to permit the jury to draw an adverse inference from the defendant's silence.
6.87      In such a case the "eloquent silence" of the defendant might be said to be the "decisive" element in a decision to convict but it would not mean that the defendant was convicted "solely or mainly" on an inference from silence any more than the "decisive" straw is the "sole or main" cause of the camel's broken back. It is for this reason that we see no inconsistency between our scheme and the provisions of section 38(3) of the 1994 Act which prohibits, amongst other things a person's being convicted solely on an inference from silence. ^[45]
6.88      Subsection (5) contains two crucial provisions. The first (in paragraph (a)) is that the court or jury, in considering whether or not it would be proper to draw an inference, must consider any explanation which has been given in evidence for the failure or refusal. This is important in two respects. First it imposes a duty on the fact finder to consider any explanation which has been given for the defendant's not having given evidence. This represents a further strengthening of the effectiveness of the safeguards for the defendant by, implicitly, requiring the judge to direct the jury to this effect. Second, before this duty is triggered, evidence of the explanation must have been given. It may come in as part of the prosecution case, in chief or in cross examination, it may be apparent from the terms of the interview given by the defendant, or it may be in the form of evidence, whether lay or expert, called on behalf of the defendant.
6.89      The second provision (in paragraph (b)) disapplies, for the purposes of section 35A, what appears to be the technical effect of the fourth condition enunciated in Cowan^[46] for the drawing of an adverse inference pursuant to section 35.^[47] Since this provision is at the heart of our scheme we now take a few paragraphs to explain our reasoning.
6.90      It is our view that the technical approach to the principle which underlies Cowan is flawed in two respects. First, it ignores the way in which any adverse inference operates in order to have any effect on the outcome. Second, it envisages, unrealistically, the jury undertaking a convoluted and artificial process of reasoning. In our view, it is simpler and more consistent both with practice and with principle to make it clear that the technical approach which appears to have found favour in Cowan^[48] does not apply to this kind of case. The underlying, non controversial, principle will remain intact.
6.91      That commonly adhered to principle is that the drawing of an inference from silence is a matter which has to be regarded as separate from consideration of the evidence in the case. Before any inference may be drawn, the fact finders must first consider the evidence and be satisfied that the circumstances revealed by the evidence call for an explanation from the defendant. If no explanation is forthcoming the fact finders are obliged to consider why that might be. Then, having done so, the fact finders must consider whether they are sure of the defendant's guilt on the basis of all the evidence and any adverse inference which it appears to them proper to draw.
6.92      The case of Cowan^[49] appears to give a narrow and technical meaning to what is required in order for it to be said that the evidence presented calls for an explanation from the defendant. The requirement imposed by Cowan^[50] is the same as the legal test applied by the judge at the conclusion of the prosecution case namely: whether the prosecution have adduced sufficient evidence such that a jury properly directed could find the defendant guilty without any adverse inference being involved.
6.93      It follows from the course of deliberations required of the jury that if the fact finders were sure of the defendant's guilt upon considering the evidence, there would be no need for them to consider whether to draw any inference. They would proceed to convict without any consideration of adverse inference. It follows, therefore, that an inference from silence can only have an impact on the verdict in a case where, without it, there would not be a conviction, i.e. where the evidence alone is not such as to make the fact finders sure of guilt.
6.94      What, therefore, does the test in Cowan^[51] require of the jury? It seems to envisage that the jury will first consider the evidence and conclude that they are not sure of the defendant's guilt. On the footing, therefore, that they are not sure of the defendant's guilt, the test then envisages that the jury ask itself whether "there is a case to answer", not in a colloquial sense of "would we expect an innocent person in these circumstances to provide an answer or explanation?" but in a strict legal sense. That requires the jury to pose the legal question "though we have just now concluded, on the evidence alone, that we are not sure of guilt, do we now think, on that same evidence, that another jury, properly directed, could be sure of the defendant's guilt?" Only if the answer is yes may the jury consider whether to draw an adverse inference from silence.
6.95      We do not think it unduly discourteous to juries, nor unduly cynical, to characterise as pure fantasy the expectation that they will have either the ability, or the inclination, to follow such a tortuous path of reasoning. We doubt that the underlying principle is so rigid that it requires such an approach.
6.96      The intent of section 35A(5)(b) is explicitly to remove this artificial requirement. It will leave intact the principle that an inference may only be drawn where it is proper to do so. It will also leave intact the approach to what is proper which requires the evidence to be such that it calls for an explanation from the defendant. By our scheme, the evidence will have to be such as to establish (i) that the offence has been committed, (ii) that the defendant is within those known persons who must, from within their number, have committed the offence and, (iii) by reason of the defendant's responsibility for the child, he or she is subject to the statutory responsibility to give such account as he or she can. It is our firm view that it may, in appropriate cases, be proper to characterise such circumstances, in a non technical sense, as "calling for an explanation" or as establishing "a case to answer" so as to render fair a conviction in which such an inference has played a part.
6.97      Section 35A(6) expressly applies subsections (4) and (5) of section 35. They provide that nothing in section 35 makes the defendant a compellable witness [(4)] and make detailed provision for when a defendant once sworn may and may not have good cause to refuse to answer any question [(5)].
6.98      Section 35A(7) provides for certain definitions and references to other statutes. This subsection is the last in the new section 35A.
6.99      Although this commentary concentrates on trials on indictment, the relevant provisions in the Bill are drafted so as to be capable of encompassing proceedings in magistrates' courts.

Clause 9: savings and interpretation

6.100      This provides for certain savings and interpretation. The only provision which calls for any further comment is subsection (4) which defines "serious offence" by reference to Schedule 2.
6.101      Clause 9

9 Savings and interpretation

(1) Nothing in this Part affects any provision which has the result that an answer or evidence given by a person in specified circumstances is not admissible in evidence against him, or some other person, in any proceedings or class of proceedings.

(2) Nothing in this Part restricts any power of a court to exclude evidence (whether by preventing questions being put or otherwise).

(3) In subsection (1), the reference to giving evidence is a reference to giving evidence in any manner, whether by providing information, making discovery, producing documents or otherwise.

(4) In this Part, "serious offence" means an offence specified in Schedule 2.

SCHEDULE 2

1 Serious offences for purposes of Part 2

The following are serious offences for the purposes of Part 2 –

(a) murder,

(b) manslaughter,

(c) an offence under section 18 or 20 of the Offences against the Person Act 1861 (wounding and causing grievous bodily harm),

(d) an offence under section 23 or 24 of that Act (administering poison),

(e) an offence under section 1 or 1A of the 1933 Act (cruelty to persons under sixteen and cruelty contributing to death),

(f) an offence under section 1 of the Sexual Offences Act 1956 (rape),

(g) an offence under section 14 or 15 of that Act (indecent assault),

(h) an offence under section 2 (failure to protect a child),

(i) attempting to commit any such offence.

Commentary

6.102      The offences in this Schedule are to some extent different to those which are scheduled for the purpose of the new offence under clause 2. It excludes assault occasioning actual bodily harm. In our judgement this is not a sufficiently serious offence to justify this special procedure. On the other hand it is an alternative offence of which a defendant may be convicted upon a charge of either a section 18 or a section 20 offence and so a jury would, in the case of such charges, still be able to convict of actual bodily harm after the special procedure had been applied. The Schedule also includes the offence of child cruelty under the 1933 Act and the two new offences provided for by clauses 1 and 2. It also includes attempts to commit any of these offences. These are, in our judgement, sufficiently serious offences so as to attract the new procedure and may often be found in the same indictment as another offence in the Schedule.

Clauses 10-12: interpretation, minor and consequential amendments, and commencement and transitional provisions

6.103      These concern general interpretation, minor and consequential amendments and the short title, commencement and extent. Other than appears below, none of these call for any particular comment.
6.104      Clause 10

10 Interpretation: general

(1) "Child" means a person under the age of 16.

(2) "The 1933 Act" means the Children and Young Persons Act 1933 (c.12).

(3) Section 17 of the 1933 Act (persons presumed to have responsibility for a child) applies for the purposes of this Act as it applies for the purposes of Part 1 of that Act.

6.105      Clause 11

11 Minor and consequential amendments

Schedule 3 contains minor and consequential amendments.

6.106      Clause 12

Commencement and transitional provisions

(1) This Act, except this section and section 13, comes into force on such day as the Secretary of State may by order appoint.

(2) An order under subsection (1) may –

(a) make different provision for different purposes;

(b) include supplementary, incidental, saving or transitional provisions.

(3) Any provision of sections 6 to 8, and Part 2 of Schedule 3, has effect only in relation to criminal proceedings begun on or after the commencement of that provision.

Commentary

6.107      Clause 12(3) makes transitional provision for the new procedure. There are two possible approaches to this issue. On the one hand the new procedure could be applied to criminal proceedings begun on or after commencement of the Act. Alternatively, it could apply in relation to offences committed wholly or partly on or after commencement. We decided that the former would be the better approach as there may be uncertainty about when an offence was committed. This may be a particular problem in cases of this type, where the victim is, for any of a variety of reasons, unable to give details of when abuse was perpetrated. The changes made by clause 5 will apply in relation to any interview conducted on or after the commencement date.
6.108      In Schedule 3, which deals with consequential amendments, paragraphs 5, 6, and 8 make amendments, respectively, to the arrangements in magistrates' courts for committal for trial or transfer for trial or sending cases for trial so as to ensure that in the case of a serious offence against a child provision is made for the dismissal of the charge upon lines which are parallel to those which will apply at the Crown Court during the trial.
6.109      In addition, the following provisions are amended to include the new section 1A of the 1933 Act as inserted by clause 1 of the Bill: Schedule 1 to the 1933 Act; section 103 of the Magistrates' Courts Act 1980; section 35 of the Youth Justice and Criminal Evidence Act 1999 and Schedule 4 to the Criminal Justice and Court Services Act 2000. The above provisions, excluding Schedule 4 to the Criminal Justice and Court Services Act 2000, are also amended to include the new offence under clause 2 of the Bill. We have excluded that offence from Schedule 4 to the 2000 Act although we acknowledge that the new offence is an offence "against a child" for the purposes of our procedural and evidential reforms contained in Part II of the draft Bill. We do not believe, however, that it is in keeping with the policy of the 2000 Act to include within it an offence which is designed essentially to ensure that persons, with a responsibility for and connection with the child, take reasonable steps to prevent an offence being committed against the child.

(Signed) ROGER TOULSON, Chairman
HUGH BEALE
STUART BRIDGE
MARTIN PARTINGTON
ALAN WILKIE

MICHAEL SAYERS, Secretary/Chief Executive
6 August 2003

Note 1    Appendix A.    [Back]

Note 2    Law Com No 279.     [Back]

Note 3    Mr P R Glazebrook “Insufficient Child Protection” [2003] Crim LR 541.    [Back]

Note 4    Ibid, at p 543.    [Back]

Note 5    Ibid.    [Back]

Note 6    Ibid, at p 542.    [Back]

Note 7    Professor John Spencer.    [Back]

Note 8    Judge Gareth Hawkesworth. Ms B Anne Meade expressed the view that the maximum sentence should be at least comparable to manslaughter.    [Back]

Note 9    Law Com No 279 para 7.8.    [Back]

Note 10    Professor David Ormerod.    [Back]

Note 11    Professor David Ormerod; Allan Levy QC; Office of the Judge Advocate General.    [Back]

Note 12    Judge Jeremy Roberts QC.    [Back]

Note 13    Criminal Bar Association.    [Back]

Note 14    Professor D W Elliott; Thames Valley University Faculty of Health; Mr Anthony Edwards of TV Edwards Solicitors; Criminal Bar Association; Ms B Anne Meade.    [Back]

Note 15    Law Com No 279 paras 4.40 – 4.55.    [Back]

Note 16    Children and Young Person’s Act 1933 s 17(1)(b).    [Back]

Note 17    Law Com No 279 para 4.55.    [Back]

Note 18    Save insofar as it was implicit in the views of Mr P R Glazebrook, see para 6.4 above.    [Back]

Note 19    The Criminal Sub-Committee of the Council of HM Circuit Judges.    [Back]

Note 20    In clause 10 (Interpretation), subsection (3) provides that section 17 of the 1933 Act (persons presumed to have responsibility for a child) applies for the purposes of this Act as it applies for the purposes of that Act and subsection (2) provides that “The 1933 Act” means the Children and Young Persons Act 1933.    [Back]

Note 21    Based on Family Law: Domestic Violence and Occupation of the Family Home (1992) Law Com No 207.    [Back]

Note 22    The Government proposes to amend the “associated person” criterion in the Family Law Act 1996 to provide same sex couples who are cohabiting with the same level of protection as cohabiting heterosexual couples and has indicated that it welcomes views on amending that concept to include relationships where the parties have never lived together. (Safety and Justice Cm 5847, June 2003 para 45). In our view it is unlikely that any such amendments would adversely affect our approach to defining who is “connected to” the child for the purpose of this offence.     [Back]

Note 23    Family Law Act 1996 s 62(3)(c).    [Back]

Note 24    Section 63 of the Family Law Act provides that ‘relative’ in relation to a person, means - (a) the father, mother, stepfather, stepmother, son, daughter, stepson, stepdaughter, grandmother, grandfather, grandson or granddaughter of that person or of that person’s spouse or former spouse, or (b) the brother, sister, uncle, aunt, niece, or nephew (whether of the full blood or the half blood or affinity) of that person or of that person’s spouse or former spouse, and includes, in relation to a person who is living or has lived with another person as husband and wife, any person who would fall within paragraph (a) or (b) if the parties were married to each other.    [Back]

Note 25    Children Act 1989 s 31(2)(a).    [Back]

Note 26    Re H and Others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 Lord Nicholls at p 584 G.     [Back]

Note 27    Ibid, at p 592 G.    [Back]

Note 28    Ibid, at p 585 F.    [Back]

Note 29    The Criminal Bar Association.    [Back]

Note 30    Professor D W Elliott and Professor David Ormerod.    [Back]

Note 31    Judge Jeremy Roberts QC.    [Back]

Note 32    See Davies v HSE [2003] IRLR 170.    [Back]

Note 33    Judge Jeremy Roberts QC, the Association of Chief Police Officers, the Criminal Bar Association.    [Back]

Note 34    Professor David Ormerod.    [Back]

Note 35    JUSTICE.    [Back]

Note 36    Law Com No 279 para 6.11.    [Back]

Note 37    Mr Anthony Edwards of TV Edwards Solicitors.    [Back]

Note 38    (1986) 82 Cr App R 5. Where the prosecution cannot establish a prima facie case against a defendant the court is obliged to dismiss the case at that stage even though it must have been one of the two defendants and neither has given any explanation.    [Back]

Note 39    Ms Laura Hoyano.    [Back]

Note 40    Professor David Ormerod.    [Back]

Note 41    [1996] QB 373. Before the jury may draw an adverse inference from silence at trial, they must first find that there is a case to answer on the prosecution evidence.    [Back]

Note 42    [1996] QB 373.    [Back]

Note 43    Buxton LJ.    [Back]

Note 44    Notably in the response of Liberty.    [Back]

Note 45    Paragraph 7 of Schedule 3 of the draft Bill amends section 38(3) of the 1994 Act so as to incorporate a reference to the new section 35A.     [Back]

Note 46    [1996] QB 373.    [Back]

Note 47    See Law Com No 279 para 6.36.    [Back]

Note 48    [1996] QB 373.    [Back]

Note 49    Ibid.    [Back]

Note 50    Ibid.    [Back]

Note 51    Ibid.    [Back]