Children: Their Non-Accidental Death or Serious Injury (Criminal Trials) (Report) [2003] EWLC 282(APPENDIX

Offences Against Children

CONTENTS

PART 1

OFFENCES

1 Cruelty contributing to death
2 Failure to protect a child

3 Effect of intoxication

PART 2

INVESTIGTION AND TRIAL

Responsibility to provide information
4 The statutory responsibility

5 Investigations by the police

6 Responsibility of witness in criminal proceedings

Special procedure
7 Special procedure during trial

Inferences from silence
8 Inferences from accused's silence

Supplemental

9 Savings and interpretation

PART 3

GENERAL

10 Interpretation: general

11 Minor and consequential amendments

12 Commencement and transitional provisions
13 Short title and extent

Offences Against Children
Part 1 - Offences

DRAFT

OFA

BILL

Create new offences against children; and to make Provision about the
investigation and trial of certain offences against children.

BE IT ENACTED by the Queen's most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:-

PART 1

OFFENCES

1	Cruelty contributing to death

In the Children and Young Persons Act 1933 (c. 12), after section 1 (cruelty to
persons under sixteen), insert-

"1A Cruelty contributing to death

(1) A person is guilty of an offence if-

(a) he commits an offence under section 1 against a child or young
person ("C");

(b) suffering or injury to health of a kind which was likely to be
caused to C by the commission of that offence occurs; and

(2) A person guilty of an offence under this section is liable on conviction
on indictment to imprisonment for a term not exceeding 14 years or to
a fine, or to both."

2	Failure to protect a child

(1) A person ("R") is guilty of an offence if-

2	Offences Against Children

Part 1 - Offences

(a) at a time when subsection (3) applies, R is aware or ought to be aware
that there is a real risk that an offence specified in Schedule 1 might be
committed against a child ("C");

(b) R fails to take such steps as it would be reasonable to expect R to take
to prevent the commission of the offence;

(d) the offence is committed in circumstances of the kind that R anticipated
or ought to have anticipated.

(2) A person guilty of an offence under this section is liable-

(a) on summary conviction, to imprisonment for a term not exceeding 6
months or to a fine not exceeding the statutory maximum, or to both;

(b) on conviction on indictment, to imprisonment for a term not exceeding
7 years or to a fine, or to both.

(3) This subsection applies if R
(a) is at least 16 years old;

(b) has responsibility for C; and
(c) is connected with C.

(4) R is connected with C if-

(a) they live in the same household;
(b) they are related; or

(5) Rand C are related if they are relatives within the meaning of Part 4 of the
Family Law Act 1996 (c. 27).

(6) R looks after C under a child care arrangement if R-

(a) looks after C (whether alone or with other children) under
arrangements made with a person who lives in the same household as,
or is related to, C; and

(b) does so wholly or mainly in C's home.

(7) It does not matter whether R looks after C for reward or on a regular or
occasional basis.

3	Effect of intoxication

(1) A person's voluntary intoxication is to be disregarded in determining-

(a) for the purposes of section 2(1)(a), whether he ought to be aware of a
risk; and

(b) for the purposes of section 2(1)(b), what steps it would be reasonable to
expect him to take.

(2) A person's intoxication is voluntary if he takes an intoxicant, or allows an
intoxicant to be administered to him-

(a) knowing that it is or may be an intoxicant; and

(b) otherwise than in accordance with medical advice.

(3) "Intoxicant" means alcohol, drugs or anything else which may ImpaIr
awareness.

(4) A person's intoxication is to be taken to be voluntary unless sufficient evidence
is adduced to raise an issue with respect to whether it was voluntary.

Offences Against Children
Part 1 - Offences

(5) Where sufficient evidence is so adduced, the court is to assume that his
intoxication was not voluntary unless the prosecution proves beyond
reasonable doubt that it was.

PART 2

INVESTIGATION AND TRIAL

Responsibility to provide information

4	The statutory responsibility

(1) This section applies if a serious offence has been committed against a child or
there are reasonable grounds for suspecting that such an offence has been
committed.

(2) Any person who had responsibility for the child at the relevant time also has
the responsibility imposed by this section ("the statutory responsibility").

(3) "The relevant time" means-

(a) the time when the offence was committed (if known); or

(b) any time during the period within which the offence could have been
committed.

(4) The statutory responsibility is responsibility for assisting
(a) the police in any investigation of the offence, and

(b) the court in any proceedings in respect of the offence,

by providing as much information as the person is able to give about whether
and, if so, by whom and in what circumstances the offence was committed.

5	Investigations by the police

(1) This section applies if a constable-

(a) is investigating a serious offence against a child; and

(b) reasonably suspects that a person whom he is questioning in
connection with the offence ("A") is subject to the statutory
responsibility in relation to the offence.

(2) If A is being questioned under caution, the constable must inform A of his
suspicion -

(a) when he cautions A; or

(b) as soon as he forms that suspicion (if later).

(3) When giving that information, the constable must explain
(a) the nature of the statutory responsibility; and

(b) the effect of subsections (5) and (6).

(4) If A is not being questioned under caution, the constable may nevertheless give
A-

(a) the information mentioned in subsection (2); and

(b) an explanation of the nature of the statutory responsibility and the
effect of subsection (5).

Offences Against Children
Part 2 - Investigation and trial

(5) A is not obliged to answer a question put to him by a constable investigating
an offence merely because he is, or may be, subject to the statutory
responsibility in relation to the offence.

(6) But if section 34(2) of the Criminal Justice and Public Order Act 1994 (c. 33)
(circumstances in which inferences may be drawn from failure to mention
facts) applies in relation to a failure by A to mention any fact, a court, judge or
jury may, in deciding whether it is proper to draw an inference under that
provision, take into account any evidence that A was given the information
and explanations mentioned in subsections (2) and (3).

6	Responsibility of witness in criminal proceedings

(1) This section applies if a person ("W")-

(a) is a witness in criminal proceedings for a serious offence against a child;
but

(b) is not a person charged with an offence in those proceedings.

(2) If the court is of the opinion that W is subject to the statutory responsibility in
relation to the offence, it may-

(a) inform W of its opinion; and

(b) explain to W the nature of that responsibility and the effect of this
section.

(3) If the court acts under subsection (2), it may take into account that W was given
that information and explanation in determining-

(a) whether W's behaviour as a witness has amounted to contempt of
court; and

(b) if it has, what punishment to impose.

(4) This section does not--

(a) oblige W to answer any question which W is entitled to refuse to
answer as a result of any enactment or on the ground of privilege; or
(b) affect the court's power, in the exercise of its general discretion, to
excuse a witness from answering a question.

Special procedure

7	Special procedure during trial

(1) This section applies if-

(a) a person is, or two or more persons are, charged with a serious offence
against a child; and

(b) at the conclusion of the evidence for the prosecution, it has been proved
to the court that three conditions are met.

(2) The first condition is that the offence charged or any alternative offence has
been committed (but it is not necessary for it to have been proved which of
those offences was committed).

(3) The second is that--

(a) the number of persons who could have committed the offence charged
or any alternative offence is known; and

Offences Against Children

Part 2 - Investigation and trial

(b) those persons can be described, whether by reference to their names,
their personal characteristics or their relationship to one another or to
other persons.

(4) The third is that--

(a) if there is only one accused, he is subject to the statutory responsibility
in relation to the offence charged; or

(b) if there are two or more accused, at least one of them is subject to that
responsibility in relation to the offence charged.

(5) If the court is satisfied, in respect of the accused, or an accused, that he could
not have committed the offence charged or any alternative offence---

(a) the court must acquit him of the offence charged or direct his acquittal;
and

(b) he may not be convicted of any alternative offence.

(6) Subsection (7) applies if, after the court has acted under subsection (5)
(a) one or more persons remain accused of the offence charged; and
(b) the third condition continues to be met.

(7) A submission that the accused, or an accused, does not have a case to answer
in relation to the offence charged or an alternative offence may not be made at
any time before the conclusion of the evidence for the accused or all of the
accused.

(8) If the court considers at the conclusion of the evidence for the accused, or all of
the accused, that no court or no jury properly directed could properly convict
the accused, or an accused, of the offence charged-

(a) the court must acquit him of that offence or direct his acquittal; and
(b) if the court is of the same opinion in relation to an alternative offence,
he may not be convicted of that offence.

(9) This section does not affect--

(a) any power a court may have to acquit or direct the acquittal of an
accused otherwise than on a submission made on his behalf; or

(b) any power a court may have to discharge a jury or otherwise prevent a
trial continuing.

(10) "Alternative offence", in relation to an offence charged, means any other
offence of which the accused could lawfully be convicted on that charge.

Inferences from silence

8	Inferences from accused's silence

(1) The Criminal Justice and Public Order Act 1994 (c. 33) is amended as follows.
(2) In section 35 (effect of accused's silence at trial), after subsection (7), insert-
"(8) This section does not apply if section 35A applies."

(3) After section 35, insert--

"35A Effect of accused's silence at trial in special cases

(1) This section applies if a person is on trial for a serious offence against a
child and, at the conclusion of the evidence for the prosecution-

6	Offences Against Children

Part 2 - Investigation and trial

(a) it has been proved to the court that the conditions in section 7(2)
to (4) of the Act of 2004 (conditions for application of special
procedure) apply in relation to the offence;

(b) section 7(7) of that Act (restriction on submissions of no case)
applies in relation to the offence; and

(2) But this section does not apply if-

(a) the accused's guilt is not in issue, or

(b) it appears to the court that the physical or mental condition of
the accused makes it undesirable for him to give evidence.

(3) The court shall, at the conclusion of the evidence for the prosecution,
satisfy itself that the accused is aware-

(a) that the court is of the opinion that he is subject to the statutory
responsibility in relation to the offence;

(b) of the nature of that responsibility;

(c) that the stage has been reached at which evidence can be given
for the defence and that he can, if he wishes, give evidence;

(d) that, if he chooses not to give evidence or, having been sworn,
refuses, without good cause, to answer any question, it will be
permissible for the court or jury to draw such inferences as
appear proper from that failure or refusal; and

(e) that, in deciding whether it is proper to draw an inference, the
court or jury may, if it is of the opinion that he is subject to the
statutory responsibility in relation to the offence, take that into
account.

(4) If the accused-

(a) fails to give evidence, or

(b) refuses, without good cause, to answer any question,

the court or jury may, in determining whether the accused is guilty of
the offence charged or any other offence of which he could lawfully be
convicted on that charge, draw such inferences as appear proper from
the failure or refusal.

(5) If the court or jury is of the opinion that the accused is subject to the
statutory responsibility in relation to the offence charged-

(a) it must consider any explanation which has been given in
evidence for the failure or refusal; but

(b) it is not necessary for it to be satisfied, before drawing an
inference (whether in relation to that offence or any other
offence of which he could lawfully be convicted on that charge),
that he could be properly convicted, on the basis of the other
evidence against him, if no such inference were drawn.

(6) Subsections (4) and (5) of section 35 apply for the purposes of this
section as they apply for the purposes of section 35.

(7) In this section-

(a) "the Act of 2004" means the Offences Against Children Act
2004; and

Offences Against Children

Part 2 - Investigation and trial

(b) "serious offence against a child" and "statutory responsibility"
(in relation to such an offence) have the same meaning as in Part
2 of that Act."

Supplemental

9	Savings and interpretation

(1) Nothing in this Part affects any provision which has the result that an answer
or evidence given by a person in specified circumstances is not admissible in
evidence against him, or some other person, in any proceedings or class of
proceedings.

(2) Nothing in this Part restricts any power of a court to exclude evidence (whether
by preventing questions being put or otherwise).

(3) In subsection (1), the reference to giving evidence is a reference to giving
evidence in any manner, whether by providing information, making
discovery, producing documents or otherwise.

(4) In this Part, "serious offence" means an offence specified in Schedule 2.

PART 3

GENERAL

10	Interpretation:general

(1) "Child" means a person under the age of 16.

(2) "The 1933 Act" means the Children and Young Persons Act 1933 (c. 12).

(3) Section 17 of the 1933 Act (persons presumed to have responsibility for a child)
applies for the purposes of this Act as it applies for the purposes of Part 1 of
that Act.

11	Minor and consequential amendments

Schedule 3 contains minor and consequential amendments.

12	Commencement and transitional provisions

(1) This Act, except this section and section 13, comes into force on such day as the
Secretary of State may by order appoint.

(2) An order under subsection (1) may-

(a) make different provision for different purposes;

(b) include supplementary, incidental, saving or transitional provisions.

(3) Any provision of sections 6 to 8 and Part 2 of Schedule 3 has effect only in
relation to criminal proceedings begun on or after the commencement of that
provIsIon.

13	Short title and extent

(1) This Act may be cited as the Offences Against Children Act 2004.

Offences Against Children

Schedule 1 - Specified offences for purposes of section 2

SCHEDULES

SCHEDULE 1

Section 2

SPECIFIED OFFENCES FUR PURPOSES OF SECTION 2

The following are the specified offences for the purposes of section 2
(a) murder,

(b) manslaughter,

(c) an offence under section 18 or 20 of the Offences against the Person
Act 1861 (c. 100) (wounding and causing grievous bodily harm),

(d) an offence under section 23 or 24 of that Act (administering poison),
(e) an offence under section 47 of that Act (assault occasioning actual
bodily harm),

<D an offence under section 1 of the Sexual Offences Act 1956 (c. 69)
(rape),

(g) an offence under section 14 or 15 of that Act (indecent assault),
(h) attempting to commit any such offence.

SCHEDULE 2

Section 9

SERIous OFFENCES FUR PURPOSES OF PART 2

The following are serious offences for the purposes of Part 2
(a) murder,

(b) manslaughter,

(c) an offence under section 18 or 20 of the Offences against the Person
Act 1861 (wounding and causing grievous bodily harm),

(d) an offence under section 23 or 24 of that Act (administering poison),
(e) an offence under section 1 or 1A of the 1933 Act (cruelty to persons

under sixteen and cruelty contributing to death),

<D an offence under section 1 of the Sexual Offences Act 1956 (rape),
(g) an offence under section 14 or 15 of that Act (indecent assault),
(h) an offence under section 2 (failure to protect a child),

(i) attempting to commit any such offence.

Offences Against Children
Schedule 3 - Consequential amendments
Part 1 - Amendments relating to Part 1

SCHEDULE 3

Section 11

CONSEQUENTIAL AMENDMENTS

PART 1

AMENDMENTS REIATING TO PART 1

ThE 1933 Act

1	(1)Schedule1tothe1933Act(offences to which special provisions apply)is

amended as follows.

(2) In the entry relating to offences under the 1933 Act, for "sections one"
substitute "sections 1, lA".

(3) After the entry relating to the Sexual Offences Act 1956 (c. 69), insert--

"An offence under section 2 of the Offences Against Children Act
2004.".

Magistrates' Courts Act 1980 (c. 43)

2	(1)Section103of the Magistrates' Courts Act 1980 (evidence of persons under

14 in committal proceedings) is amended as follows.

(2) In subsection (2)(b), for "section 1" substitute "section 1 or lA".
(3) In subsection (2)(c), after "1978;" insert--

"(ca) to an offence under section 2 of the Offences Against
Children Act 2004 (failure to protect a child);" .

Youth Justice and Criminal Evidence Act 1999 (c. 23)

3	(1) Section 35 of the Youth Justice and Criminal Evidence Act 1999 (child

complainants and other child witnesses) is amended as follows.

(2) In paragraph (c) of subsection (3), for "section 1" substitute "section 1 or lA".
(3) At the end of that paragraph, insert--

"(ca) an offence under section 2 of the Offences Against Children
Act 2004;" .

Criminal Justice and Court Services Act 2000 (c. 43)

4	InSchedule4to the Criminal Justice and Court Services Act 2000 (meaning

of "offence against a child"), in paragraph l(a), for "section 1" substitute
"section 1 or lA".

PART 2

AMENDMENTS REIATING TO PART 2

Magistrates' Courts Act 1980 (c. 43)

5	In section 6 of the Magistrates' Courts Act 1980 (discharge or committal for

Offences Against Children

Schedule 3 - Consequential amendments
Part 2 - Amendments relating to Part 2

trial), after subsection (1), insert-

"(lA) Subsection (ill) applies if the offence into which the magistrates'
court is inquiring is a serious offence against a child within the
meaning of Part 2 of the Offences Against Children Act 2004.

(ill) If the court considers that the conditions in section 7(2) and (4) of that
Act might be proved at a trial of the accused for the offence,
subsection (1) applies as if-

(a) paragraph (a) required it to commit the accused for trial
unless it is of the opinion that he could not have committed
the offence; and

(b) paragraph (b) required it to discharge the accused only if it is
of that opinion and he is in custody for no other cause than
the offence under inquiry."

Criminal Justice Act 1991 (c. 53)

6	In Schedule 6 to the Criminal Justice Act 1991 (notices of transfer: procedure

in lieu of committal), after paragraph 5(2), insert-

"(2A) But if a charge is of a serious offence against a child within the
meaning of Part 2 of the Offences Against Children Act 2004, and
the judge considers that the conditions in section 7(2) and (4) of
that Act might be proved at a trial of the applicant for the offence,
he shall dismiss the charge only if it appears to him that the
applicant could not have committed the offence."

Criminal Justice and Public Order Act 1994 (c. 33)

7 (1) Section 38 of the Criminal Justice and Public Order Act 1994 (interpretation
and savings) is amended as follows.

(2) In subsection (3), after "35(3)," insert "35A(4),".

(3) In subsections (5) and (6), after "35," insert "35A,".

Crime and DisordEr Act 1998 (c. 37)

8	In Schedule 3 to the Crime and Disorder Act 1998 (procedure where persons

are sent for trial under section 51), after paragraph 2(2), insert-

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