Domestic Violence, Crime and Victims Act 2004: A Practitioner's Guide (New Law)

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Although the loophole can result in no charges of murder/manslaughter being brought, it is sometimes possible to bring instead charges of child cruelty. In cases where the child has suffered injury, rather than death, child cruelty offences under the Children and Young Persons Act 1933 may be an appropriate charge and provide appropriate penalties. But the child cruelty offence does not reflect the seriousness of the criminal behaviour if it has resulted in the death of a child. Nor can child cruelty be used where the victim is a vulnerable adult. The new offence will help deal with the ‘which of you did it’ cases, so that offenders can be brought to justice, and charges and sentences are available which properly reflect the seriousness of the criminal behaviour involved.

The offence defines the term ‘vulnerable adult’ as any person aged 16 or over whose ability to protect himself from violence, abuse or neglect is significantly impaired through physical or mental disability or illness, through old age or otherwise. The age of 16 rather than 18 is used in this context because the term ‘child’ is defined as under 16, and the term ‘vulnerable adult’ needs to include anyone who is vulnerable but is no longer defined as a child. Legal convention means that the term ‘or otherwise’ will be read with the words which have gone before, so that it will cover those who are unable to protect themselves for reasons similar to those listed. Although there are a range of definitions of the term ‘vulnerable’ in other legislation and in guidance, it was necessary to define the term for the purposes of this offence so that it would be as inclusive as possible. It covers those who are vulnerable temporarily as well as permanently, and those who are vulnerable due to mental as well as physical incapacity. Although the term ‘vulnerable’ is clearly defined in the legislation, the extent of the term in this context will emerge as offences under this part of the Act come to court. This Circular should in particular be brought to the attention of officers working in Child Abuse Investigation Units and Major Crime Teams which deal with homicide cases involving children and vulnerable adults, and to those staff in Social Services departments who deal with children, carers, vulnerable adults and wider domestic violence issues. the person subsequently died from the unlawful act of a member of the household in circumstances that the defendant foresaw or ought to have foreseenjustice, it is far more important that there should not be a miscarriage of justice and that the law maintained that the prosecution should prove its case." thirdly, and more generally, the prospect of the adverse inference being drawn - in relation to murder/manslaughter as well as the new offence - may encourage one or more parties to give evidence explaining what happened The Law Commission's report commented that this meant one or other parent were potentially "getting away with murder". [12]

The offence may therefore be applicable in two different circumstances – the defendant may have caused or allowed the death of a child or vulnerable adult. The prosecution do not have to prove which of the two circumstances apply to the defendant. The maximum penalty is 14 years.The Parliamentary Joint Committee on Human Rights looked carefully at whether the procedural measures would be compatible with the ECHR requirements to provide a fair trial (ECHR Article 6). They concluded that the measures would be compatible with a fair trial, because they are confined to the very particular circumstances in which the new offence would apply. The Law Commission have also pointed out that there is an obligation under the ECHR for signatory states to ensure that deaths are properly investigated as part of the obligation to ensure that everybody’s right to life is protected by law. Ministers have certified that in their view the DVCV Act is compatible with the ECHR rights. Was aware of the risk (or ought to have been), didn't take reasonable steps to do anything about it, and foresaw the circumstances which led up to the unlawful act causing death

The offence also allows for the fact that, with modern lifestyles and increasingly flexible family arrangements, a person may be a member of more than one household at any one time. But if this is so, the offence will only apply to members of the household where the victim was living at the time of the act which caused their death. Increasingly children may live in one household, for example with their parents, but spend most of their time in another, for example grandparents or aunts and uncles. In the example above, the grandparents would not have responsibility for what happened in the parents’ household and vice versa.

Changes over time for: Part 4

Court procedure is amended to restrict the circumstances in which the trial can be stopped at the end of the prosecution case and before the defence case. The purpose of this circular is to provide guidance to those working in the criminal justice system on the provisions of sections 5 and 6, which introduce a new offence of causing or allowing the death of a child or vulnerable adult and new procedural measures linked to the offence. The offence will come into force in England and Wales on 21st March 2005. This Circular is for guidance only and should not be regarded as providing legal advice. Legal advice should be sought if there is any doubt as to the application or interpretation of the legislation.

Where a person is charged both with the new offence and with murder/manslaughter, section 6(4) of the DVCV Act provides that the decision on a defence submission of “no case to answer” made at the end of the prosecution case shall be postponed until the close of all the evidence, providing that the prosecution has successfully established a case to answer on the charge of the new offence. If the decision on whether there was a case to answer were not postponed, and new evidence emerged about who caused the death, the murder/manslaughter charges would already have been dropped and, despite new evidence, it would not be possible to achieve a conviction for murder/manslaughter. The purpose of section 6(3) is to prevent the normal procedures by which the defence can apply for charges to be dismissed at the pre-trial stage from undermining the impact of the other procedural changes. The Home Office consultation paper Safety and Justice: the Government's Proposals on Domestic Violence (Cm 5847), published in June 2003. The judge should take into account any ways that jury trial can be made easier, but no such measure should result in a trial where the defendant faces a lesser sentence than would be available with the new measures.b) the postponement, until the end of the defence case, of the decision on the question of whether there is a case to answer The new offence may assist in achieving this goal. But by itself the new offence might not always open the way to such a conviction. The less culpable party could still not be willing to explain what happened. Or he or she might only give their version of what happened after the close of the prosecution case, by which time the judge would already have withdrawn the murder/manslaughter charge on the basis of there being no case to answer. Both have effect in relation only to the charge of murder or manslaughter, when those charges are accompanied by charges under the new offence. These procedural changes were proposed by the Law Commission in their report, Children: Their Non-accidental Death or Serious Injury, although the Act adopts a tighter mechanism for triggering them to keep them closely targeted at the “which of you did it?” cases. Inferences from silence The Domestic Violence, Crime and Victims (DVCV) Act 2004 is the biggest overhaul of the law on domestic violence in the last 30 years. It contains a wide range of reforms in the three distinct areas; domestic violence, crime and victims. Its provisions will be commenced in stages. making sure that the child or vulnerable person is treated promptly and appropriately for any injuries or illnesses which they may suffer