CHILDREN: THEIR NON-ACCIDENTAL DEATH OR SERIOUS INJURY (CRIMINAL TRIALS) PART IV [2003] EWLC 279(4) (30 April 2003)

BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just Â£1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

The Law Commission

You are here: BAILII >> Databases >> The Law Commission >> CHILDREN: THEIR NON-ACCIDENTAL DEATH OR SERIOUS INJURY (CRIMINAL TRIALS) PART IV [2003] EWLC 279(4) (30 April 2003)
URL: http://www.bailii.org/ew/other/EWLC/2003/279(4).html
Cite as: [2003] EWLC 279(4)

[New search] [Help]

PART IV

OUR APPROACH TO REFORM

In this Part, we describe our approach to reform. As was pointed out to us in the informal consultation exercise, there are two approaches to addressing the problem we have identified, each of which needs to be considered. The first concerns the question: "can the substantive law and/or the rules of evidence and/or procedure be altered so as to facilitate an accurate but fair way of convicting of an offence of homicide or of serious assault the person or persons who killed or seriously injured the child?". The other approach addresses the question: "can the substantive law and/or the law on sentencing be changed so as to attach an appropriate label and level of sanction to a person who may not be guilty of an offence of killing or seriously injuring the child but who was in some way responsible for the child?". We do not see these approaches as mutually exclusive but we recognise the importance of giving each of them separate consideration.

4.2

The former question addresses the nub of the problem. A serious offence against a child has been committed by one or more of a known group of suspects, at least one of whom has responsibility for the welfare of the child. The law has, thus far, too often proved incapable of providing a means of accurately identifying who is guilty of the homicide or assault in the event that the suspects maintain their silence and/or do not cooperate.

4.3

The latter addresses wider concerns which are worthy of consideration but the addressing of which ought not to be seen as a surrogate for dealing with the main question.

The duty to protect children from harm

4.4

Apart from the fact that children may be the victims of offences of general application, certain criminal offences specifically protect children, and some of them do so by the technique of imposing special culpability on those who are responsible for their well being.

^[1]

Children have particular vulnerabilities which not only make them likely to be victims of crime but also make it particularly difficult to prosecute these crimes effectively. The criminal justice system has been obliged to respond to some of these difficulties. Techniques have been introduced to make it easier for children to give evidence, particularly where they are victims of sexual or violent crime.

^[2]

We have, in Part III, considered the special obligations which the civil law places on witnesses in care proceedings to give evidence, even where to do so might incriminate them or their spouse. We consider in this report whether a foundation for other changes of the law and procedure might be laid by a statutory statement: that the responsibility which a person bears for the welfare of a child at or during the relevant time when he or she was killed or seriously injured includes a responsibility to provide such account as he or she can to those properly responsible for investigating, or adjudicating upon, the offence committed against the child.

The impact of the European Convention on Human Rights and other international obligations

4.7

Of central concern to us have been the ways in which, and the extent to which, our thinking ought to be informed by the ECHR.

Our initial approach - focusing on Article 6

4.8

As the matters we are considering concern the conduct of the criminal trials of those charged with the death of or serious injury to young children, our initial approach was to focus almost exclusively on the impact of Article 6.

4.9

It states:

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

…

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

…

4.10

The right to a fair trial applies to both civil and criminal proceedings but there are certain special obligations under Article 6(2) and (3) which apply only to criminal proceedings. As a result, a judge in care proceedings may be able to hear evidence which could not be admitted in criminal proceedings without causing unfairness to the defendant. These issues were considered in Part III.

4.11

Although the right to a fair trial under Article 6 is unqualified, this right attaches to the fairness of the trial overall and not to each and every manifestation of it. Thus the question is always whether, looking at the proceedings as a whole, the defendant has had a fair trial. This approach may be exemplified by the way in which the European Court of Human Rights has approached questions of evidence. It has stated that Article 6 requires that:

In principle all the evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument. …

As a rule, these rights require that an accused should be given an adequate and proper opportunity to challenge and question a witness against him, either at the time the witness was making his statement or at some later stage of the proceedings.^[3]

On this basis, the Court has held that there had been a breach of a defendant's human rights where a criminal court relied upon out of court statements by anonymous witnesses, or by family members who were not available for cross-examination. However, the Court has also recognised that it is legitimate for the interests of victims and witnesses to be taken into account when considering the defendant's right to a fair trial. In Doorson v Netherlands,

^[4]

It is true that Article 6 does not explicitly require the interests of witnesses in general, and those of victims called upon to testify in particular, to be taken into consideration. However, their life, liberty or security of person may be at stake, as may interests coming generally within the ambit of Article 8 of the Convention ... Contracting States should organise their criminal proceedings in such a way that those interests are not unjustifiably imperilled. Against this background, principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify.^[5]

The Court has accepted that the interest of a defendant in being present during the questioning of witnesses could be outweighed by the need to ensure the safety of the witnesses. In SN v Sweden,

^[6]

The Court has had regard to the special features of criminal proceedings concerning sexual offences. Such proceedings are often conceived of as an ordeal by the victim, in particular when the latter is unwillingly confronted with the defendant. These features are even more prominent in a case involving a minor. In the assessment of the question whether or not in such proceedings an accused received a fair trial, account must be taken of the right to respect for the private life of the perceived victim. Therefore, the Court accepts that in criminal proceedings concerning sexual abuse certain measures may be taken for the purpose of protecting the victim, provided that such measures can be reconciled with an adequate and effective exercise of the rights of the defence. ... In securing the rights of the defence, the judicial authorities may be required to take measures which counterbalance the handicaps under which the defence labours ... .^[7]

The Court accepted that the rights of the defendant had not been infringed. It stressed, however, that "evidence obtained from a witness under conditions in which the rights of the defence cannot be secured to the extent normally required by the Convention should be treated with extreme care…".

^[8]

It appears, therefore, that the particular vulnerabilities of witnesses in child abuse cases have been recognised both in domestic legislation and case law, and in the decisions of the European Court of Human Rights. Of course, arguments which are focused particularly upon the need to protect children who are vulnerable witnesses are unlikely directly to be applicable to cases in which the child has been killed, or is too young or badly injured to appear as a witness (even with the availability of 'special measures' under the Youth Justice and Criminal Evidence Act 1999).

^[9]

A more comprehensive, better-balanced approach

We are now persuaded, by virtue of some powerful contributions to our informal consultation exercise, that focusing to the extent that we did on Article 6 was an unbalanced approach and that it failed to give sufficient weight to other, even more fundamental, human rights which are in play. Indeed one eminent respondent urged upon us the submission that, in view of the lack of clarity in the jurisprudence of the European Court of Human Rights on Article 6:

if there is a respectable body of opinion which recommends that a given proposal will not be incompatible with the Convention, that should be sufficient for the Commission to recommend that proposal. The ambiguity of the ECHR law ought not to inhibit law reform, particularly where that proposal will better protect the right to life under the Convention.

4.17

Although proposed reforms to rules of evidence and procedure should be such that any conviction is the result of a fair trial complying with Article 6, the right of the defendant to a fair trial is not the only human right which is directly in play in this kind of case. The rights of the dead or seriously injured child under Articles 2 or 3 of the ECHR will have already been grossly infringed by the guilty person.

4.18

The ECHR states:

Article 2:

Everyone's right to life shall be protected by law. ...

Article 3:

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

These obligations under the ECHR are now part of domestic law, as a result of the Human Rights Act 1998.

4.19

These Articles place upon the State onerous obligations particularly where the person affected is a child or other vulnerable person. The European Court of Human Rights has made it clear in repeated judgments that Articles 2 and 3 enshrine:

the most fundamental values of democratic society. … The obligation on High Contracting parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article[s 2 or] 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to [treatment in contravention of these Articles] including such ill-treatment administered by private individuals. These measures should provide effective protection, in particular of children and other vulnerable persons… . ^[10]

[In addition] where a right with as fundamental an importance as the right to life or the prohibition against torture, inhuman and degrading treatment is at stake, [and where the State undertakes the task of investigating the matter] Article 13 requires … a thorough and effective investigation capable of leading to the identification and punishment of those responsible… .^[11]

Furthermore the European Court of Human Rights, in a case concerning ill-treatment of a child by his stepfather, has impacted on the substantive criminal law of England and Wales in holding that substantive domestic law at the time, which allowed a defence of "reasonable chastisement" which the prosecution had to disprove to the criminal standard, failed to provide adequate protection to the child against treatment which was contrary to Article 3.

^[12]

These are strong and very pointed decisions which impose obligations on contracting States to protect children from attack by, amongst other things, requiring that the legal processes provide an effective means of identifying and punishing those responsible. At the moment there must be a concern whether the rules of evidence and procedure, as currently applied in this kind of case, provide such effective protection.

4.22

These obligations to protect children do not simply exist under the ECHR. The United Nations Convention on the Rights of the Child provides:

Article 19:

1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment, or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

4.23

It is significant that Article 19(2) of the UN Convention focuses, amongst other things, on obligations in respect of investigation and for judicial involvement.

Does Article 8 of the ECHR have an impact on these issues?

4.24

Article 8 of the ECHR states:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

4.25

The text of paragraph 2 of Article 8 makes it clear that the right to family life is not absolute. In Johansen v. Norway,

^[13]

[A] fair balance has to be struck between the interests of the child … and those of the parent ... In carrying out this balancing exercise, the Court will attach particular importance to the best interests of the child, which, depending on their nature and seriousness, may override those of the parent. In particular, ... the parent cannot be entitled under Article 8 of the Convention to have such measures taken as would harm the child's health and development.^[14]

Article 8 protection is not absolute. It may be interfered with but such interference with family life must be "in accordance with law" and "necessary in a democratic society". Therefore, a court may be required to consider whether interference is "proportionate". Assessments of these competing claims often take place within civil proceedings (see Part III). In the context of criminal proceedings, where a child has been the victim of a crime, Article 8 does not, in our view, present a major obstacle to the investigation and prosecution of members of the child's family.

Conclusions on the impact of the ECHR

4.27

We must always bear in mind that the European Court of Human Rights has stressed that the seriousness of the alleged criminal conduct cannot justify unfairness. In Heaney and McGuinness v Ireland,

It is clear from that case and many others, however, that where the issues are the admission of particular evidence, or the drawing of inferences from silence, or permitting a case to go beyond the end of the prosecution case, the courts, both here and in Europe, will focus on the overall fairness of the trial. In our view it is of the highest importance to bear in mind the very strong duty which the European Court of Human Rights has recognised is placed upon the State to secure an effective investigation and adjudicative process for the purpose of protecting the fundamental Convention rights of children by securing the conviction of those guilty of breaching these rights.

4.29

We are, therefore, firmly of the view that where:

(1) the fundamental rights of a child have been infringed by killing or inflicting serious injury;

(2) it is clear that one or other or all of a limited group of people must be responsible for that infringement; and

(3) at least one of that group has or had parental or care responsibilities for the child

it is legitimate to question whether overall fairness in a trial may be achieved notwithstanding some adjustments to the normal rules of procedure and evidence with a view to making it possible to convict the guilty in circumstances where the application of the present rules make a conviction of the guilty impossible.

4.30

We consider in Parts V and VI of this report how the obligations on the State, pursuant to Articles 2 and 3, might be discharged without a breach of the defendant's right to a fair trial under Article 6. We consider a raft of possible measures. We reject some and are minded to recommend others. They address a range of issues:

(1) whether there is a principled way in which a decision to withdraw the case from the jury might be postponed until all the evidence has been called;

(2) whether there is a sustainable argument, in this kind of case, for imposing on certain defendants a legal or evidential burden to rebut a presumption of guilt;

(3) whether evidence of one defendant's pre-trial statement may be adduced as evidence against a co-accused without that defendant having given evidence;

(4) whether a duty imposed on a person responsible for the child to give an account of how the child came about his or her death or injury should carry a direct criminal sanction;

(5) whether the failure of a person, who has responsibility for the welfare of the child, to give an account to the police and/or to give evidence might be permitted potentially to give rise to an inference upon which a jury might convict.

4.31

Even where we indicate that we are minded to recommend certain changes, we are aware that there are contrary arguments, which we endeavour to articulate. We believe that the recommendations we are minded to make are, whether taken singly or together, such as will assist in tackling this problem in a way which would not infringe Article 6. Of course, as these are matters affecting human rights, they cannot be finally determined by legislation but are, pursuant to the Human Rights Act 1998, susceptible to judicial scrutiny, to the outcome of which the Government and Parliament would have to be sensitive. We believe that, having consulted widely on the matter, the recommendations we are minded to make are a principled and proportionate response to a serious and intractable problem.

Our proposed approach to the substantive law

4.32

The person who is directly responsible for the child's death or injury should be convicted of the substantive offence of murder or manslaughter, whichever reflects the seriousness of his or her conduct. If another person is also responsible for the child's death or injury under the ordinary rules of accessory liability or joint enterprise, then that person should also be convicted for that offence which reflects the seriousness of his or her conduct.

4.33

Where, however, a person, such as a parent, who has a duty to prevent harm to the child, fails to prevent the death or injury and yet neither directly causes it nor is guilty as an accessory, the law already reflects, to some extent, the policy that such a person should be convicted of an offence reflecting the extent of their involvement in the events leading up to the child's death or serious injury.

^[19]

The range of application of our scheme

Which children?

Before we consider the options for reform in detail, it is necessary to consider the scope of our proposals. Our current project is concerned with offences against children. This reflects the background to the project, as described in Part I. Childhood ends at 18 years of age. There are, however, various legal provisions which distinguish between children on the basis of their age. For example, the Youth Justice and Criminal Evidence Act 1999 recognises the special vulnerability of children under the age of 17. The Children Act 1989 section 31(3) provides that a care order may not be made in relation to a child once he or she has reached the age of 17.

^[20]

^[21]

We are minded to recommend that the recommendations in this report should apply in cases of death or serious injury to children under the age of 16.

Should our scheme extend to vulnerable adults?

We are aware that the abuse or neglect of vulnerable adults is perceived as a possibly widespread problem. Similar difficulties may arise in identifying the person responsible for the abuse of a vulnerable adult to those which we are considering in relation to offences against children. Indeed, as we point out above, the strictures of the European Court of Human Rights on the duties of the State to protect children are explicitly said to apply to vulnerable adults as well. Under the current law, there are specific offences relating to the ill-treatment or neglect of certain categories of adults who are particularly vulnerable.

^[22]

^[23]

To which offences should our recommendations apply?

"Death of or serious injury to a child"

Throughout this report we refer, as a matter of convenient shorthand, to being concerned with "non-accidental death of or serious injury to a child". We are, of course, aware that this is not a phrase carrying any legal precision. Our recommendations for changes in the law of evidence and procedure will apply to trials of certain defendants for certain crimes. We are minded to recommend that they would be included in a Schedule to a Bill. Those offences which are encompassed by the above shorthand description would be:

(1) cruelty or neglect under section 1 of the Children and Young Person Act 1933 (whether the existing offence or the aggravated offence which we are minded to recommend in Part VII);

(2) murder;

(3) manslaughter;

(4) assaults under sections 18 and 20 of the Offences Against the Persons Act 1861;

(5) rape;

(6) indecent assault and;

(7) the offence we are provisionally proposing under Part VII ^[24] of failing, so far as is reasonably practicable, to prevent a child for whom the defendant is responsible from suffering serious harm deriving from ill treatment.

We do not propose that offences under section 47 of the 1861 Act, of assault occasioning actual bodily harm, should be encompassed in these proposals. We wish to emphasise the seriousness of the cases with which we are dealing. We believe that section 20 provides a convenient dividing line to mark this. We believe that rape and indecent assault should be covered by our recommendations. In many cases with which we are dealing, the child is too young to make a complaint or give evidence and the facts render it obscure as to who is the culpable adult. In our view, the offences of rape and indecent assault should be dealt with in the same way as the other offences which we propose should be covered. They are offences of great seriousness and are likely to result in injuries to the child. Indeed it will be the discovery of those injuries by medical practitioners which, in cases involving very young children, will often be what triggers the prosecution and will be amongst the primary evidence available to the court.

4.38

We are also aware that there are other types of offence in which it will be difficult, or impossible, to identify the perpetrator from amongst a small group of main suspects, but which do not possess the special features of the type of case with which this report is concerned and are therefore excluded from the scope of this report. For example, there may be driving offences in which it is unclear which of two people were driving the vehicle, or drugs offences where it is unclear which of the occupants of a house are responsible for the drugs found in the house. Society has a special responsibility for the protection of children and those who have the care of children have a special responsibility for their well being. We consider that these are factors which justify making special provision for cases which involve serious child abuse.

4.39

We are minded to recommend that the changes to the rules of procedure and evidence which we recommend in this report shall apply, where the other conditions are satisfied, to trials for the following offences:

(1) cruelty or neglect under section 1 of the Children and Young Person Act 1933 (whether the existing offence or the aggravated offence which we are minded to recommend in Part VII);

(2) murder;

(3) manslaughter;

(4) assaults under sections 18 and 20 of the Offences Against the Persons Act 1861;

(5) rape;

(6) indecent assault and;

(7) the offence we are provisionally proposing under Part VII^[25] of failing, so far as is reasonably practicable, to prevent a child for whom the defendant is responsible from suffering serious harm deriving from ill treatment.

To which categories of person should our proposals apply?

Who has "responsibility" in this context?

As we have already indicated, the offence of child cruelty under section 1 of the Children and Young Persons Act 1933 is of central importance to our recommendations. One of the requirements for that offence is that the defendant has responsibility for a child. One of the changes in the substantive law which we are minded to recommend is the creation of an aggravated version of that offence. The offence under section 1 is often included as a count on the indictment in trials where the other counts are for the murder or manslaughter of, or serious assault upon, a child and where the problems which we are addressing arise. We are minded to recommend changes in the rules of evidence and procedure in those cases and some of the changes will apply only to a defendant who has responsibility for the welfare of a child.

4.41

For these reasons, we are of the view that there should be a single requirement that each of our recommendations should apply to those who have responsibility for a child and that the definition of who has responsibility should be the same for each of these purposes.

4.42

The starting point must be the existing law. The approach adopted under section 1 of the 1933 Act

^[26]

^[27]

The 1933 Act does not contain an exclusive definition of "responsibility". Instead, section 17 provides as follows:

(1) For the purposes of this Act, the following shall be presumed to have responsibility for a child or young person-

(a) any person who-

(i) has parental responsibility for him (within the meaning of the Children Act 1989), or

(ii) is otherwise legally liable to maintain him; and

(b) any person who has care of him.

(2) A person who is presumed to be responsible for a child or young person by virtue of section (1)(a) shall not be taken to have ceased to be responsible for him by reason only that he does not have care of him.

4.44

'Parental responsibility' under section 3 of the Children Act 1989, depends upon issues such as the marital status of the parents. For our current purposes, this would be unduly narrow. In many of the cases in which a child is injured, or killed, the only suspects may be the two parents of the child. Under section 3 of the 1989 Act, a father who is not married to the child's mother will not necessarily have 'parental responsibility'. Our view is that for the purposes of criminal law, the responsibility of a father for the welfare of the child should be the same whether or not he is married to the child's mother.

4.45

Modern family life is, of course, complex and varied and there is a range of situations in which someone other than a parent may have the opportunity of seriously injuring or killing the child. The mother may be living in the same household as someone who is not the child's father. He may be a boyfriend, or a platonic friend, or a member of the extended family. We do not believe that the nature of the relationship a person has with the mother of the child should automatically determine whether that person should bear responsibility for the child for the purpose of any special procedural or other rules.

4.46

These examples demonstrate the complicated permutations which can arise when attempting to define the members of a modern family household. One senior family court judge expressed the view during consultation that the criteria for responsibility should extend to those living as part of the same household. Concern was expressed that if, for example, the mother of the child was living with a series of partners, the partner should not be able to claim that he did not have responsibility for the child since he was not actively involved in the care of the child. Although we share these concerns and we recognise that it can be extremely difficult to ascertain who should be considered to be a member of the family in the circumstances which we are considering, we do not consider that it is necessary or would be advisable to extend the definition of responsibility beyond that expressed in section 17 of the 1933 Act.

4.47

There are a number of reasons for this. First, we are unaware of problems arising in the operation of section 1 of the 1933 Act due to the presumptions of responsibility in section 17 being insufficiently wide in encompassing those who might have been deemed to have responsibility for the child.

4.48

Second, we do not wish to introduce inconsistencies within the statutory framework, whereby different definitions of responsibility would operate in relation to different offences. Nor do we wish to interfere with what is, apparently, a successful piece of legislation.

4.49

Third, we are concerned that there are a significant number of potential situations which would fall on the margins of the definition of "member of the same household" for example: boarders; lodgers; employees; or tenants. It is highly questionable whether such individuals should be presumed to have responsibility for the child, solely by virtue of the fact that they may be living as part of the same household, having regard to the way in which the household operates and the extent to which they contribute in practical ways. Such a provision has the potential for diverting the course of the trial on to unnecessary and time consuming side issues.

4.50

Fourth, section 17(1)(b) provides a "sweep up" mechanism which enables the court to focus on the issue which is directly relevant, namely: whether, in fact, the defendant had care of the child. As we have indicated we have not been made aware of any problem of over, or under, inclusiveness arising from the application of this provision and we are reluctant to interfere with its successful operation.

4.51

Finally, although society may accept that some people, such as neighbours or lodgers, have some moral or social obligation to assist the police in their investigations, that is a very different matter from imposing on them a positive duty of responsibility for the child.

4.52

We also wish to make clear that we understand, and agree, that the concept of "care" in section 17 is not apt, without more, to include employees of a social services authority with whom the child is "in care", who may have contact with the child for that purpose. This does not seem to have been a problem to date. We are, however, proposing the creation of an offence which will be based on negligence and we are concerned that such an offence should not apply to social workers merely on that basis.

4.53

We are minded to recommend that there should be a single concept of 'responsibility' for the purpose of our recommendations. 'Responsibility' should have the same meaning as for the offence of child cruelty or neglect under section 1 of the Children and Young Persons Act 1933.

4.54

We are also minded to recommend that the categories of those presumed to have assumed responsibility for a child should be the same as currently encompassed within section 17 of the Children and Young Persons Act 1933.

4.55

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.

To which categories of defendant should special rules apply?

4.56

We are concerned with cases where the offence against the child may have been committed by a person who has responsibility for the child and/ or a person who has no responsibility for the child. For example, a person with responsibility for the child might allege that the injury to the child has been inflicted by a visitor to the home, or by another child in the household. A babysitter, who has responsibility, might be "in the frame" together with her boyfriend who does not have responsibility. In none of these cases would the other party have any responsibility for the child. We believe that the effectiveness of our scheme would be undermined if it were not to apply in cases where one, though not all, of the defendants is a person who is not responsible for the child's care. We believe that our scheme should apply to cases in which the offence must have been committed by one of a small group of individuals, at least one of whom has responsibility for the child's care.

4.57

That does not mean that each and every element in the scheme should apply equally to those who have and those who do not have "responsibility" for the welfare of the child. There may be certain elements of the scheme which are founded on the fact that a person who has "responsibility" for the child has a particular responsibility, for example to provide an account for the events. When, in Part VI, we consider the detailed provisions of our scheme we address the question of precisely to which type of defendant each element should apply.

4.58

We are minded to recommend that the scheme set out in this report should apply in cases in which the offence must have been committed by one of a small group of individuals, at least one of whom has responsibility for the child's care.

Note 1    For example section 1 of the Children and Young Persons Act 1933.    [Back]

Note 2    In particular the provisions of the Youth Justice and Criminal Evidence Act 1999.    [Back]

Note 3    Kostovski v Netherlands, (1990) 12 EHRR 434, para 41.    [Back]

Note 4    (1996) 22 EHRR 330.    [Back]

Note 5    Ibid, at para 70.    [Back]

Note 6    Application number 00034209/96, ECtHR, 2 July 2002.    [Back]

Note 7    Ibid, at para 47.    [Back]

Note 8    Ibid, at para 53.    [Back]

Note 9    Youth Justice and Criminal Evidence Act 1999, Part II, Chapter I.    [Back]

Note 10    Z v UK (2002) 34 EHRR 3, at para 73.    [Back]

Note 11    Ibid, at para 109. See also DP & JC v UK (2003) 36 EHRR 14 at paras 109 and 135, and E v UK (2003) 36 EHRR 31.    [Back]

Note 12    A v UK (1999) 27 EHRR 611.    [Back]

Note 13    (1997) 23 EHRR 33.    [Back]

Note 14    Ibid, at para 78.    [Back]

Note 15    (2001) 33 EHRR 12; [2001] Crim LR 481.    [Back]

Note 16    Ibid, at para 86.    [Back]

Note 17    Ibid, at para 57.    [Back]

Note 18    Ibid, at para 58.    [Back]

Note 19    The offence of wilful neglect or cruelty under section 1 of the Children and Young Persons Act 1933.    [Back]

Note 20    Or sixteen in the case of a child who is married.    [Back]

Note 21    For example section 5 of the Sexual Offences Act 1956.    [Back]

Note 22    For example, section 127 of the Mental Health Act 1983.    [Back]

Note 23    For example, Stone and Dobinson [1977] QB 354.    [Back]

Note 24    See paragraphs 7.28–9.    [Back]

Note 25    See paragraphs 7.28–9.    [Back]

Note 26    See paras 1.32 – 1.34 above.    [Back]

Note 27    Eg, S and M [1995] Crim LR 486, considered at para 1.33 above.    [Back]

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ew/other/EWLC/2003/279(4).html

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	The Law Commission
You are here: BAILII >> Databases >> The Law Commission >> CHILDREN: THEIR NON-ACCIDENTAL DEATH OR SERIOUS INJURY (CRIMINAL TRIALS) PART IV [2003] EWLC 279(4) (30 April 2003) URL: http://www.bailii.org/ew/other/EWLC/2003/279(4).html Cite as: [2003] EWLC 279(4)