The Law Commission

PART V

CRIMINAL LAW, EVIDENCE AND PROCEDURE

TEAM MEMBERS^[1]

Government Legal Service

David Hughes (Team Manager)

Jayne Astley, Phil Bates, Raymond Emson,
Elizabeth Finlason, Clare Wade

Research Assistants

Ruth Armstrong, Ben Bridge, Helen Law

His Honour Judge Alan Wilkie QC

(Commissioner)

Assisting and Encouraging Crime

5.1     We had considered in the past^[2] the scope and structure of the law relating to the liability of those who assist and encourage others to commit offences. That law was, and remains, complicated, uncertain and anomalous, while the policy decisions which it raises are both important and difficult. Commissioners have agreed a policy and instructions have been delivered to Parliamentary Counsel. We hope to publish a report and draft Bill in summer 2004. 

Non-accidental Death of or Serious Injury to Children

5.2     This project, which we began in September 2002, arose from our work on criminal liability for assisting and encouraging crime. The problem it sought to address was how to establish criminal liability in cases where a child is non-accidentally killed or seriously injured and it is apparent that one or more of a limited number of defendants must have committed the crime, but there is no evidence which allows the court to identify which of the defendants so as to properly apportion liability. Following the publication in April 2003 of a consultative report, in September 2003 we published a report and draft Bill.^[3] Our recommendations are designed on the one hand to remove tactical advantages which, in these cases, operate adventitiously and illogically for the benefit of defendants and on the other to try and ensure that the simple expedient of determined silence should not be enough to render the criminal justice system powerless where it is known that one or more of a very limited number of suspects must have committed the offence. To these ends we have made recommendations for reform of procedural, evidential and substantive law. 
5.3     We recommend that there should be an aggravated form of the existing offence of child cruelty. This aggravated form of the offence would apply where the basic offence was committed and the child dies. The offence would be punishable by a maximum term of imprisonment of fourteen years. We also recommend that there should be a new offence whereby a person of 16 years or over would be criminally liable if he or she has responsibility for a child under 16 years, is aware or ought to be aware that that there is a real risk that an offence involving death or serious harm might be committed against the child and yet fails to take such steps as it would be reasonable for him or her to take to prevent the offence being committed against the child. This offence would be punishable by a maximum term of imprisonment of seven years. 
5.4     We make recommendations for procedural and evidential reforms in cases where a child under 16 has suffered non-accidental death or serious injury, the defendants form the whole of, or are within a defined group of, individuals, one or more of whom must be guilty of causing the death or serious injury and at least one of those defendants had responsibility for the welfare of the child during the time when the death or serious injury occurred. We recommend that those having responsibility for the child at the relevant time should be under a statutory responsibility to assist the police and the court by providing as much information as they can regarding whether and, if so, by whom and in what circumstances the offence was committed. Further, in such cases the decision as to whether there is a case to answer against each defendant should be postponed until the close of the defence case. Finally, we recommend that if a defendant, who is subject to the statutory responsibility, does not give evidence, the jury should, in determining the guilt of that defendant, be permitted to draw such inferences from the failure as appear proper, taking into account any explanation for the failure. 

Codification of the Criminal Law

5.5     In its July 2002 White Paper "Justice for All"^[4] the Government confirmed their intention to codify the criminal law. In 2001, after discussion with the relevant Government Departments, it was agreed that we would review and revise what was said about the general principles of the criminal law in Part I of our Draft Criminal Code of 1989.^[5] The project consists of seven tranches. The first two tranches to be considered were External Elements and Criminal Liability and Mental Disorder. In the last year we have continued our work in respect of another four tranches, namely Fault, Defences, Parties to Offences (Corporations/Children) and Preliminary Offences. We are grateful for the assistance which we have received from Professor Ian Dennis (University College, London) and Sir Roy Beldam. We hope to issue a consultation paper in the forthcoming year. 

Partial Defences to Murder

5.6     In June 2003 we were asked by the Home Office to review the operation of two of the partial defences to murder, namely diminished responsibility and provocation. We were asked to do this in the overall context of murder but with particular reference to murders committed in the context of domestic violence. In addition, we were asked to consider whether there should be a new partial defence to murder where a person kills in circumstances in which the current complete defence of self-defence is not available because the force used was excessive. 
5.7     In order to assist our project we commissioned comparative law papers from distinguished jurists on the law of Australia, Canada, India, Ireland, New Zealand, Scotland and South Africa. We are deeply indebted to the authors of those papers, namely Professor Stanley Yeo of Southern Cross University (New South Wales, Australia); Professor Warren Brookbanks, University of Auckland (New Zealand); Professor Jonathan Burchell, University of Cape Town (South Africa); James Chalmers, Dr Fiona Leverick and Professor Christopher Gane, University of Aberdeen (Scotland); Assistant Professor Dale Ives, University of Western Ontario (Canada); and Professor Sanford H Kadish, University of California. A paper was also sent to us by the Law Reform Commission of Ireland (the Commissioner with responsibility for criminal law being Professor Finbarr McAuley). 
5.8     In addition to our own empirical research, the project has benefited from a variety of socio-legal research conducted by individuals and organisations. For details see paragraph 9.6. We are grateful to all of those who have assisted us. 
5.9     At the end of October 2003 we published a consultation paper^[6] in which, contrary to our usual practice of setting out provisional proposals, we identified and considered various options for reform.^[7] Responses were invited on those options. This departure from our usual practice was because we were aware that the Government intended to introduce legislation to address the issue of domestic violence as early as Parliamentary session 2003-4. The purpose of our project is both to assist the Government in considering its proposals and to inform public debate. In the circumstances we were keen to begin the public debate as soon as we could. In order to enhance the quality of the consultation process we have participated in a number of different meetings held in different parts of England and Wales arranged under the auspices of professional, academic and other interested bodies. 
5.10     Following publication of the consultation paper, the Criminal Law Team, in the course of their project on Partial Defences to Murder, conducted a number of "roadshows" throughout the country. Our Chairman spoke at events organised by the Bar of the Western Circuit, the Bar of the Wales and Chester Circuit, the Bar of the Midlands Circuit and the Bar of the North-Eastern Circuit. In addition he spoke at a meeting organised by the Society of Legal Scholars in Leeds. A number of seminars and meetings were also held in connection with this project. They were attended by the Chairman and/or Judge Wilkie and members of the team and involved the Law Society, Criminal Bar Association, LIBERTY, Legal Action Group, The Old Bailey Judges, the Rose Committee, Judicial Studies Board, Rights of Women, Justice for Women, JUSTICE, Victim Support and Support after Murder and Manslaughter. In addition, the Chairman delivered a lecture at the Institute of Advanced Legal Studies. 
5.11     We have completed the process of analysing the responses which we have received to the consultation paper. We published our provisional conclusions in April 2004 and hope to publish our report in the summer of 2004. 
5.12     We are grateful to our academic consultant Professor David Ormerod (Leeds University) for his invaluable criticism of draft papers produced in connection with the project. We are also grateful to Tamsin Stubbing, a former Research Assistant, who subsequently helped to analyse data in connection with the Partial Defences to Murder project. 
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Note 1    Including lawyers who were at the Commission for part of the period.     [Back]

Note 2    Assisting and Encouraging Crime (1993) Consultation Paper No 131.    [Back]

Note 3    Children: Their Non-accidental Death or Serious Injury (Criminal Trials), Law Com No 282.    [Back]

Note 4    Cm 5563.    [Back]

Note 5    Criminal Law: A Criminal Code for England and Wales, Law Com No 177.    [Back]

Note 6    Partial Defences to Murder (2003) Consultation Paper No 173.    [Back]

Note 7    We also published a much shorter summary paper.    [Back]