The legislation sought to address a familiar and tragic problem. A child who is cared for by two people dies as a result of ill-treatment, but it is unclear which of the two carers is directly responsible for the ill-treatment that caused the death. Following R v Lane and Lane (1986) 82 Cr App R 5, it was likely that any trial against either carer would not proceed beyond the end of the prosecution evidence, because it was difficult, or impossible, to prove beyond reasonable doubt that either had participated in the killing actively or had failed to protect the child.
From conception ...
The reason why a project is started by the Commission varies. It may be following a reference from a government department. Alternatively, it may be because the project was included in the periodic “Programmes of Law Reform” approved by the Lord Chancellor. The project on non-accidental injury to children arose out of other work being done by the Commission on criminal liability for assisting and encouraging crime, and was also partly inspired by a NSPCC working group.
... To consultation
The Commission’s original intention was to produce a consultation paper in early 2003. However, due to growing pressure to find a solution, the normal consultation process was accelerated. In December 2002 the Commission produced an informal consultation paper which was circulated to various members of the judiciary, academics and professional bodies. Following an analysis of the responses, a consultative report was published in 2003. The recommendations contained in the report were firmer than would be typically put forward in a consultation paper, and represented the Commission’s final recommendations to the government.
... To creation
The recommendations encompassed the creation of two substantive offences, as well as evidential and procedural reforms. The Commission proposed an aggravated form of the offence of child cruelty (s 1 of the Children and Young Persons Act 1933) with a maximum sentence of 14 years’ imprisonment as opposed to the usual maximum of 10 years. The offence would be regarded as aggravated due to the death of the child. Such an offence would provide a way of dealing with cases where the child had been killed by one or both parents after a long period of abuse, of which both parents had been aware. There was widespread support for the new offence, with only the Criminal Bar Association opposed in principle because the offence focused too much on the happenstance of the child’s injury or death rather than on the level of culpability of the defendant.
The second substantive offence considered in the informal consultation paper would have imposed a statutory duty on those with care of a child to take action to prevent abuse. The Commission was initially unsure of this but, following consultation with His Honour Judge Jeremy Roberts QC, developed the idea of constructing an offence analogous to those under the Health and Safety at Work Act 1974. It would be an offence (attracting a maximum sentence of seven years’ imprisonment) for a person who had responsibility for a child to fail, in so far as reasonably practical, to protect the child from serious harm deriving from ill-treatment. “Serious harm” would include scheduled offences: murder, manslaughter, assault under ss 18 or 20 of the Offences Against the Person Act 1861, rape or indecent assault.
The Commission also looked at the common procedural problems in cases of this kind. Often in these cases the only persons present at the time of the crime were those accused of committing it, and the victim. Therefore the only persons available to give evidence would not be able to do so if the question of whether the jury could properly convict was determined at the end of the prosecution case. Respondents suggested that this question should be considered after the end of all the evidence. The Commission agreed, arguing that it would force people to give an account of the facts and would not undermine either the right to silence or the presumption of innocence. It further proposed that where certain requirements were satisfied the jury could draw an adverse inference from silence under s 35 of Criminal Justice and Public Order Act 1994.
Law reform work
A brief look into the history of a project reveals three important aspects of law reform work.
First, the Law Commission values and relies heavily upon outside expertise for its projects. These contributions are invaluable in developing areas in need of reform, and highlighting potential solutions.
Secondly, although some proposals are altered or not implemented by the government, they strongly influence government thinking and legislative implementation.
Thirdly, the implementation of law reform projects is ultimately in the hands of government and Parliament notwithstanding the influential nature of Law Commission reports.
After the report: what happened?
The government accepted the recommendations but altered them in various respects. Firstly, the evidential and procedural changes would apply to the murder or manslaughter charges, as well as to the new offence, and the protection was extended to vulnerable adults being ill-treated. Secondly, the government narrowed the ambit of the offence to members of the household who had frequent contact with the victim, and also to cases where death results.
The government intended the new offence to be charged in conjunction with murder or manslaughter charges. It was not intended as a substitute for those offences where they could be established, and would better reflect the culpability of the defendants. The new procedural and evidential reforms would apply to the murder or manslaughter charges so that they could be left to the jury
more frequently in difficult cases.
The scope of the offence was extended to vulnerable adults. It was considered that they often found themselves in the same position as children: they are under the care and control of others, and are less able to protect themselves.
The government considered that the second offence proposed by the Commission was too broad. It was considered undesirable to appear to impose unduly heavy burdens upon parents. During the Parliamentary debate, Baroness Scotland was concerned that the offence could potentially apply to all those connected with, and having responsibility for, the victim. Instead, she said the offence should be confined to household members who knew enough about the activities of other members that they could be aware of the risk of ill-treatment and take steps to stop it.
In addition, the government limited the ambit of the offence to cases that result in the death of the victim (and not serious injury). Although it was also concerned about those cases in which death does not occur, it was felt that such cases are adequately dealt with by current child cruelty legislation. The Minister argued that the offence was already breaking new ground by attributing responsibility to those who do not already have a duty of care to children and vulnerable adults. Offences that result in death are particularly serious and are thus a natural and appropriate boundary for extending responsibility.
James Sharpe is a Research Assistant at the Law Commission. Visit: www.lawcom.gov.uk