The Law Commission

The Law Commission

(LAW COM No 282)

CHILDREN: THEIR NON-ACCIDENTAL DEATH OR SERIOUS INJURY

(CRIMINAL TRIALS)

Item 5 of the Eighth Programme of Law Reform: Criminal Law

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

Law Commissions Act 1965

Ordered by The House of Commons to be printed

15 September 2003

London: TSO

HC 1054

The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law.

The Law Commissioners are:

The Honourable Mr Justice Toulson, Chairman
Professor Hugh Beale QC
Mr Stuart Bridge
Professor Martin Partington CBE
Judge Alan Wilkie QC

The Secretary/Chief Executive of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ.

The terms of this report were agreed on 6 August 2003.

The text of this report is available on the Internet at:

http://www.lawcom.gov.uk

CONTENTS

	Paragraph
SUMMARY	Summary
PART I: INTRODUCTION
Background	1.1
An overview of our proposals	1.9
Some preliminary points
A two track approach	1.15
The need for the prosecution to prove that a crime has been committed	1.19
The format of this Report	1.21
PART II: THE NATURE AND EXTENT OF THE PROBLEM
The current law	2.1
Partial solutions available under the current law	2.11
Inferring joint enterprise	2.12
Prosecutions for cruelty or neglect	2.17
Using one suspect as a prosecution witness	2.20
Previous discussions of the need for reform	2.22
The extent of the problem	2.27
Conclusion	2.37
PART III: OPTIONS FOR REFORM WHICH WE REJECT
Introduction	3.1
Imposing a legal burden on the defendant	3.2
Imposing an evidential burden on the defendant	3.4
Compulsion to give an account	3.5
Admitting pre-trial incriminating statements made by one defendant against another	3.7
Reforming the law of manslaughter	3.11
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
"Responsibility"	4.2
To which offences should the special evidential and procedural rules apply?	4.4
Substantive offences
An offence of cruelty contributing to death	4.5
A new negligence based offence	4.9
PART V: PROCEDURAL AND EVIDENTIAL REFORMS
Introduction	5.1
The use of the European Convention on Human Rights	5.6
The dilemma	5.16
The statutory responsibility to assist the police and courts	5.22
Postponing the 'half time' submission until after the close of the defence case	5.24
Drawing an adverse inference from a failure to give evidence at trial	5.38
Article 6	5.46
Conclusion	5.60
PART VI: COMMENTARY ON THE DRAFT BILL
Introduction	6.1
Clause 1: Cruelty contributing to death
The recommendation	6.2
Clause 1	6.5
Commentary	6.6
Clauses 2 and 3 and Schedule 1: Failure to protect a child and effect of intoxication
The provisional proposal	6.9
Clause 2	6.11
Commentary
The range of those potentially liable	6.12
Does exposure to criminal liability cease with the cessation of responsibility or connection?	6.19
The circumstances in which liability might arise	6.20
The duty of care and the burden of proof	6.28
Sentence	6.31
Clause 3	6.32
Commentary	6.33
Clauses 4 to 6: The statutory responsibility, investigations by police and responsibility of witness in criminal proceedings
The recommendations	6.35
Clause 4	6.37
Clause 5	6.38
Clause 6	6.39
Commentary	6.40
Clause 7: Special procedure during trial
The recommendation	6.55
Clause 7	6.57
Commentary	6.58
Clause 8: Inferences from accused's silence
The recommendation	6.75
Clause 8	6.77
Commentary	6.78
Clause 9: Savings and interpretation	6.100
Clause 9	6.101
Commentary	6.102
Clauses 10-12: Interpretation, Minor and consequential amendments and commencement and transitional provisions	6.103
Clause 10	6.104
Clause 11	6.105
Clause 12	6.106
Commentary	6.107
APPENDIX A: OFFENCES AGAINST CHILDREN DRAFT BILL	APPENDIX A
APPENDIX B: SECTIONS 1(1) AND 17 OF THE
CHILDREN AND YOUNG PERSONS ACT 1933	APPENDIX B
APPENDIX C: LIST OF RESPONDENTS TO THE CONSULTATIVE REPORT	APPENDIX C