CHILDREN: THEIR NON-ACCIDENTAL DEATH OR SERIOUS INJURY (CRIMINAL TRIALS) PART VII [2003] EWLC 279(7) (30 April 2003)

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You are here: BAILII >> Databases >> The Law Commission >> CHILDREN: THEIR NON-ACCIDENTAL DEATH OR SERIOUS INJURY (CRIMINAL TRIALS) PART VII [2003] EWLC 279(7) (30 April 2003)
URL: http://www.bailii.org/ew/other/EWLC/2003/279(7).html
Cite as: [2003] EWLC 279(7)

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PART VII

NEW CRIMINAL OFFENCES?

In this Part we consider whether a change in the substantive law might provide a partial solution to the problem where a child is killed or seriously injured by one of the people responsible for the child's care but it is not possible to prove which person was responsible, or the existence of a joint enterprise. The purpose of this exercise is to respond to what we described earlier as the second approach to addressing this problem,

In the informal consultation paper, the Criminal Law Team considered three possible approaches: constructing an aggravated version of the offence of cruelty to children under 16 under section 1 of the Children and Young Persons Act 1933; extending the offence of manslaughter beyond its current scope; and creating a new offence of failing to take reasonable steps to prevent physical or mental cruelty. The Team's conclusion at that stage was to reject the latter two options and to propose the former. In this consultative report we have already rejected a legislative extension of the offence of manslaughter.

An aggravated form of child cruelty or neglect

The position of the informal consultation paper

In essence, the proposal in the informal consultation paper was that the offence of aggravated child cruelty would be committed when:

(1) the defendant is guilty of cruelty or neglect to a child pursuant to section 1 of the Children and Young Persons Act 1933;

(2) the child has died from cruelty or neglect being part of the cruelty or neglect alleged against the defendant under (1);

(3) at the time of death and at the time of the events comprising the section 1 offence, the defendant was responsible for the child; but

(4) it would be a defence to the charge of aggravated cruelty that the abuse of the child from which he or she died was unconnected to the offence of cruelty of which the defendant was guilty; and

(5) it would be for the defendant to bear an evidential burden of raising that defence but, if he or she did, the prosecution would bear the burden of disproving it to the criminal standard.

It was proposed that the maximum sentence for this offence would be 14 years imprisonment as opposed to the present maximum for the section 1 offence of 10 years.

The reasoning of the team was dependant on the terms of Section 1(1) of the Children and Young Persons Act 1933 which provides that:

If any person who has attained the age of sixteen years and has responsibility for any child or young person under that age, wilfully assaults, ill-treats, neglects, abandons, or exposes him, or causes or procures him to be assaulted, ill-treated, neglected, abandoned or exposed, in a manner likely to cause him unnecessary suffering or injury to health (including injury to or loss of sight, or hearing, or limb, or organ of the body, and any mental derangement), that person shall be guilty of a misdemeanour…

The Team's reasoning was that the section 1 offence is wide enough to inculpate both the person who abuses the child and the person who is aware of the risk of abuse but fails to prevent it. For the aggravated form of the offence it would not be necessary to prove that the defendant was directly responsible for causing the death. The actual cause of death may have been an assault committed by another person. It would be sufficient to show: (i) that the defendant was 'wilful' in relation to the conduct or omission constituting the section 1 offence of which she was guilty; and (ii) that the defendant remained responsible for the child at the time of the child's death. The offence is aggravated due to the death of the child. It was stressed that the conduct or omission comprising the section 1 offence might amount to no more than neglect, abandonment, or exposure of the child in a manner likely to cause the child unnecessary suffering or injury. The informal consultation paper stressed that what was being proposed was not a new offence but an aggravated form of an existing offence which would carry a more serious label and a sentencing premium because of the fact of the child's death.

The Team foresaw that it might be thought unjust for the defendant to receive a greater sentence for aggravated neglect or cruelty where the abuse which killed the child was unconnected to the conduct or omission which made her guilty of child cruelty or neglect. For example, there might be a case where, although the mother remained nominally responsible, the child was killed when with his or her father on a prearranged visit and where the mother's neglect, comprising the section 1 offence of which she was guilty, had nothing to do with the visit to the father. The view was expressed that, whilst such a case might be exceptional it should, nonetheless, be catered for by, it was suggested, providing a defence to the aggravated form of the offence that the abuse from which the child died was unconnected to the cruelty or neglect which comprised the section 1 offence. It was proposed that the defendant should bear an evidential burden of raising that defence but that, once it was raised, the prosecution should have to disprove it to the criminal standard.

The Team expressed the view in the informal consultation paper that an aggravated section 1 offence would be useful in those cases in which the child had been killed by one or both parents or carers after a long period of abuse of which both parents must have been aware. Under the present law it might not be possible to prosecute either parent for murder or manslaughter if it could not be proved which parent was directly responsible for the death, or the existence of a joint enterprise. It would be possible to convict both parents of the section 1 cruelty or neglect offence in these circumstances. Such a conviction would reflect the fact that both parents had failed in their duty towards the child by abusing the child or by permitting or failing to prevent abuse. A conviction for the section 1 offence, as presently framed, would not overtly reflect the seriousness of the consequences of the parental failure. An offence of aggravated cruelty would reflect the fact that the parent had either caused the death of the child or had exposed the child to the risk of abuse and that the child had died from that abuse. In these circumstances a maximum sentence greater than the 10 years available for the section 1 offence would be justifiable. It was suggested that a maximum sentence of 14 years would reflect the defendant's culpability for the death, being a consequence of abuse for which the defendant bore responsibility and yet would stop short of a sentence of life which should, in this context, be reserved for cases where the defendant has caused the child's death.

The response leading to a development of the recommendation

This proposal attracted a very large and wide measure of support. Such respondents who did express concern, or reservations, focused on our proposal that there should be a separate defence to the aggravated form of the offence, which the defendant had to raise, that the death was unconnected to the cruelty of which the defendant was found guilty. Concerns were expressed both as to the burden which it was proposed be placed upon the defendant and the doubts which the existence of such a defence raised about the nature of the connection between the cruelty, of which the defendant was guilty, and the conduct which was the cause of the death of the child.

These expressions of concern have caused us to focus more clearly upon the structure of the existing offence and what we have in mind as an aggravated version of it. We are not proposing a new offence. We are taking as read the structure of the present section 1 offence. That offence contains a number of elements each of which must be satisfied before there can be a conviction. These are:

(1) the defendant is at least 16 and had responsibility for a child under 16;

(2) the defendant, with a wilful state of mind, was guilty of any of a wide range of acts or omissions;

(3) that wide range of acts or omissions encompasses: assault, ill treatment, neglect, abandonment, or exposure; or causing or procuring the child to be: assaulted, ill treated, neglected, abandoned or exposed;

(4) that any of the wide range of acts or omissions contained in (3) occurred in a manner likely to cause any one of a series of unnecessary consequences;

(5) those consequences are: suffering, or injury to health, which latter expression includes injury to or loss of sight, or hearing, or limb, or organ of the body, or any mental derangement.

We are minded to recommend that where a person is guilty of the basic section 1 offence by reason of the prosecution proving each of the matters set out in (1) to (5), he or she will also be guilty of the aggravated form of the offence where,

in addition the prosecution can prove that the child has died as result of the occurrence of any of the consequences which they have proved under (5) above.

In this way, proving the aggravated section 1 offence is a matter simply of proving this sixth element in addition to proving the other five elements of the offence which will already have been proved. Because it will remain for the prosecution to prove each of the elements of the offence, in both its basic and aggravated form, there is no need, as the Team had initially proposed, for the complication of having a special defence which has to be raised by the defendant. Furthermore, the connection between the basic and the aggravated form of the offence is simple, easy to understand and grows naturally out of the basic offence. Once established it attaches the label of responsibility for the death of the child and attracts the enhanced potential sentence.

We are minded to recommend that there be an aggravated form of the offence of cruelty under section 1 of the Children and Young Persons Act 1933 which will be committed by a person who is guilty of the offence of child cruelty where the child has died as a result of the occurrence of any suffering or injury to health which the cruelty of the defendant has made it likely would be caused. The offence will be established by the prosecution proving to the criminal standard each of the 6 elements set out in paragraphs 7.10 and 7.11 above. The aggravated form of the offence will attract a maximum penalty of 14 years imprisonment.

Cruelty or neglect leading to serious injury

A few respondents argued that the approach described in the previous section should be extended to cases in which the child suffers serious injury. This was considered in the informal consultation document. The case was cited, by way of example, of the child who suffers serious permanent brain damage as a result of abuse. The Team was concerned, however, that if the consequence of the defendant's failure of duty were not death but serious injury, it would be necessary to consider the relationship between a proposed aggravated section 1 offence and the offences under sections 18 and 20 of the Offences Against the Person Act 1861. Under section 20, a person who unlawfully and maliciously inflicts grievous bodily harm is subject to a maximum sentence of five years. If the aggravated offence under section 1 of the Children and Young Persons Act 1933 were to apply to cases where the child suffered serious injury, it might appear odd for a person who inflicts grievous bodily harm 'maliciously' (i.e. with intent or recklessness as to causing some harm) to be subject to a lesser maximum penalty than the person who fails to prevent the abuse which causes serious harm. The section 18 offence allows for a penalty of life imprisonment, but requires a specific intention to do grievous bodily harm, or prevent lawful apprehension. This is a level of blameworthiness on a higher plane than that which is required for the section 1 offence. The existing section 1 offence only requires there to be a likelihood of "unnecessary suffering or injury to health (including injury to or loss of sight, or hearing, or limb or organ of the body, and any mental derangement)". It is intended to apply to cases in which serious injury is likely, a level of blameworthiness which is commensurate with that which is required under section 20. In our view, therefore, it would be appropriate to retain the use of the unaggravated section 1 offence to deal with those cases in which abuse of the child causes serious injury, and to reserve the proposed new offence to those cases in which the child is killed.

An offence of failing to take reasonable steps to prevent abuse

The approach in the informal consultation paper

In the informal consultation paper the Team considered the possibility of constructing an offence to place people who have a child in their care under an explicit statutory duty to take action to prevent the abuse of the child. There would be a criminal penalty for breach of that duty. One possible formulation of the duty was put forward:

It is the duty of a person who has a child in his or her care to take reasonable steps to prevent that child from physical or mental cruelty. This duty includes, for example, removal of a child from an abusive household, prevention of a child being alone with a person who has previously injured that or any child, including a duty to know that a child is suffering repeated injury or serious injury. Reasonable steps will include seeking medical/social service advice about preventing future abuse.

The paper expressed a number of reservations about such an approach. First, it was doubted whether it would be practical to specify in detail the types of action which would be required to fulfil the duty. Second, reservations were expressed about the scope of the proposed duty which would, in order to extend the scope of the criminal law, be broader than that imposed by section 1 of the Children and Young Persons Act 1933. If, as it appeared, the fault element of such an offence would be based upon negligence, the penalties available would, as a matter of principle, have to be considerably lower than the present 10 year maximum for the existing section 1 offence. The Team concluded that the criticism of the current law, that it fails to hold the culpable parent responsible for the death of the child by punishing them commensurately with that action, would not be addressed by the introduction of such an offence. The Team thought it better to give consideration to introducing the aggravated section 1 offence with a higher maximum penalty, rather than introducing a weaker offence based upon negligence.

A different approach

This approach did not attract much criticism. One of the most fully developed of the responses, that of Judge Jeremy Roberts QC, however, took up a new strand of the argument. He suggested that an offence might be constructed along the lines of certain of the offences under the Health and Safety at Work Act 1974. He suggested that it should be an offence for a person, who has responsibility for a child, to fail, insofar as was reasonably practicable, to protect the child from serious harm deriving from ill-treatment. The main advantage of such an offence would be to give statutory expression to a duty to be imposed on those who are responsible for a child, to protect that child from serious harm which derives from ill treatment. We can see the force of this as a pointed and effective discharge of one element of the State's obligations under Articles 2 and 3 of the ECHR. We are at this stage provisionally proposing such an offence.

In arguing for the introduction of such an offence it was pointed out that there might well be two collateral benefits. The first was that such an offence might be the basis for an extension of the law of manslaughter to embrace crimes of omission. We are not persuaded that this would be desirable. It would potentially impose liability for manslaughter on the basis of mere negligence and so would represent a significant widening of the reach of manslaughter. In our view the aggravated offence of child cruelty which we are minded to recommend, based as it is on 'wilfulness', better reflects the legitimate reach of offences where the death of a child is involved and sits more comfortably with the generality of the law.

The second collateral benefit was posited on the basis of a secondary suggestion that, just as with offences under the Health and Safety at Work Act 1974, there should be an evidential burden on a defendant to raise the issue that it was not reasonably practicable for her to have protected the child from serious harm. It was argued that such a provision would have the advantage of encouraging the person who was responsible for the child to give her account of how the child died and would, thereby, serve to ensure that there was more evidence for the jury to consider. This evidence would be available for the jury to consider on any count of murder or manslaughter which the defendant and any co-defendant also faced.

We can understand the force of this argument. It accords with the pattern established by the Health and Safety at Work legislation. It would have the side effect of increasing the amount of evidence which is placed before the jury for consideration on counts of murder or manslaughter. On balance, however, we do not intend to recommend that there should be an evidential burden placed upon the defendant.

First, by entering a not guilty plea, the defendant would be saying that he or she was not in breach of the duty. In this kind of case there should be little problem for the prosecution in establishing that the child suffered 'serious harm deriving from ill treatment' which, we assume, would be treated as a matter of fact for the jury to determine. We consider in paragraph 7.24 below what 'serious harm deriving from ill treatment' would encompass. On that basis, the issue upon which a not guilty plea would in most cases be entered would be that it was not reasonably practicable for the defendant to have protected the child from the serious harm which befell him. Establishing that it would have been reasonably practicable for the defendant would not, in our view, be likely to cause the prosecution any great difficulty. The evidence of circumstances surrounding the infliction of the serious harm and its discovery would lend itself easily to an invitation to the jury to draw appropriate inferences that reasonably practicable steps could have been taken by the defendant. Thus it would be by no means inappropriate for the prosecution to be required to prove each and every element of the offence.

Second, as we have indicated in Part I above, it is better if we consider substantive reform of the law free from considerations which go to easing the way to obtain convictions for other offences. Thus, the fact that imposing an evidential burden on a defendant on this offence might encourage her to give evidence where she and a co-defendant are also being tried for murder or manslaughter of the child, ought not to be a factor of any significance in constructing such an offence. Although the defendant being more willing to give evidence may be one beneficial effect of the new offence, such encouragement has not weighed greatly in our deliberation, and nor, we believe, should it have.

Third, we are minded to recommend that a person who is responsible for the welfare of a child should, as an incident of that responsibility and if called upon, give an account of how the child came to be killed or seriously injured, failing which an adverse inference may be drawn by the jury where they are considering the defendant's guilt for the child's murder or manslaughter, or serious assault. In such a case, having a differently expressed provision apply in an offence which is likely to be contained in the same indictment might prove distracting and confusing for all concerned, not least the jury. It is vitally important that the judge be able to make his summing up as clear and simple as possible. To have to explain to the jury that on the counts of murder or manslaughter they are entitled to draw an adverse inference from the defendant's failure to give evidence but that, in relation to this offence an evidential burden applies, would lead to highly complicated and potentially confusing directions being given to the jury.

What would be "serious harm deriving from ill treatment"?

An illuminating example

It is worth noting that a similar offence to the one we are provisionally proposing has existed for over 90 years with respect to the protection of animals. The Protection of Animals Act 1911, section 1(1)(a) states:

If any person … shall, by wantonly or unreasonably doing or omitting to do any act, or causing or procuring the commission or omission of any act, cause any unnecessary suffering, or, being the owner, permit any unnecessary suffering to be so caused to any animal

he shall be guilty of an offence of cruelty and liable on summary conviction to imprisonment not exceeding six months. In provisionally proposing this new offence we are proposing that similar protection be made available to children.

Conclusion

We are persuaded that the creation of such an offence would have utility in marking the duty to protect the child from serious harm which derives from ill-treatment by imposing criminal liability on those who fail negligently to comply with that duty even though their conduct cannot be described as 'wilful'. It would be an offence of lesser seriousness than the present section 1 offence. At the moment we are of the view that it should attract a maximum sentence of 7 years.

Because this offence was not put forward for consideration in the Team's informal consultation paper, we are less firm in our view on it than we are on the other issues with which we deal in this consultative report.

We provisionally propose that a new offence should be created by which it would be an offence, punishable by a maximum of seven years imprisonment, for a person who has responsibility for a child to fail, so far as is reasonably practicable for him or her to do so, to prevent the child suffering serious harm deriving from ill treatment.

The offence will only have been committed if the child has suffered serious harm deriving from ill treatment which will only be the case where he child has been the victim of one or more of the following offences: murder; manslaughter; an assault under section 18 or 20 of the Offences Against the Person Act 1861; rape; or indecent assault.

We have formulated this proposal in terms of what is reasonable for the particular defendant. We recognise that this might create difficulties in determining which of the defendant's characteristics should be taken into account for this purpose. For example, it would be unfortunate if the defendant were able to claim that it was not reasonably practicable for him or her to take steps to prevent the ill-treatment on the grounds of voluntary drug addiction.

Note 1    See para 1.12 above.    [Back]

Note 2    See paras 5.55 – 5.64 above.    [Back]

Note 3    See Paragraph 4.36.    [Back]

Note 4    Compare the difficulties which have arisen in relation to ‘reasonableness’ under the defence of provocation. See, for example, R. v. Smith(Morgan)[2001] 1 AC 146.    [Back]

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URL: http://www.bailii.org/ew/other/EWLC/2003/279(7).html