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

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The Home Office policy leaflet "A Better Deal for Victims and Witnesses", published on 21 November 2002. 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. Causing or allowing the death of a child or vulnerable adult [ edit ] Previous difficulties with the law [ edit ] The point at which a "no case to answer" submission (see definition [16]) can be made has in certain circumstances been moved to the end of the whole case, not just the prosecution. Joint charges of homicide and the new offence can only be dismissed at the end of the whole case (if the new offence has survived past that stage as well). 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.

firstly, when the judge makes his or her decision as to whether there is a case to answer at the end of the defence case -if the judge considers that the jury could properly draw an adverse inference, he or she will be able to take the inference into account in making his or her decision on case to answer. It is anticipated that this will lead to more cases being put to the jury than is currently the 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 Directors of Social Services, Chief Executives of Local Authorities, Area Child Protection CommitteesThe ability to draw an adverse inference from silence in respect of the murder/manslaughter charge, coupled with the postponement of the case to answer decision, should have a real impact in certain cases. We expect these measures to lead to convictions for murder/manslaughter that would not otherwise have been obtained. The impact should be felt in several ways: secondly, when the jury make their decision - if they consider that the safeguards in relation to drawing an adverse inference are met, they will be able to take the inference into account when making their decision The new offence will survive the "no case to answer" test as long as the fundamentals of the offence are demonstrated - the prosecution do not have to show whether the defendant caused or allowed the death to happen. The defendant will be under pressure to give evidence about what occurred - not to do so would result in the adverse inference being drawn. each count or group of counts to be tried by a jury can be regarded as a sample of counts for judge-only trial

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. Now, however, where a person is charged with the new offence and fails to give evidence, and if the jury would be able to draw adverse inferences in respect of the new offence under section 34 of the 1994 Act, section 6(2) of the DVCV Act provides that the jury may also draw an adverse inference from the silence in respect of the murder/manslaughter charge. Similar safeguards will apply to the drawing of an adverse inference under this new provision as apply to those drawn under section 35 of the 1994 Act. If the defendant stays silent and the requirements of the safeguards are met, then the inference that the jury may draw is that he or she has no reasonable explanation for his or her silence. A child or vulnerable adult dies as a result of an unlawful act of a person in the "same household" The offence will not apply for example where the death was an accident, or was the result of a cot death (sudden infant death syndrome). Nor will it apply where there was one specific known risk within a household, such as a violent or abusive person, but the child or vulnerable person died or may have died from a different cause. The offence therefore does not criminalise members of the household for allowing the death if the death was the result of an event which they could not have anticipated or avoided.We would not necessarily expect a high volume of cases where charges under the new offence would be appropriate. It is difficult to be precise. Most recent Home Office statistics show that in the year 2003/4 there were a total of 70 victims of homicide under 16. In 30 of these the suspected perpetrator was a parent. But it is likely that only a small proportion of these would fall within the category where there was insufficient evidence to justify a charge of murder or manslaughter, and the new offence would result in additional people being charged. Moreover the offence is not limited to ‘which of you did it’ cases, but can be used where, even if there is strong evidence that one individual caused the death, there is evidence that other adult members failed to act to protect the victim in the circumstances set out in the legislation. So there may be additional cases resulting from this. We also need to add to this figure the cases where the member of the household who is suspect is not the parent, and the cases involving vulnerable adults rather than children. Based on current statistics, we would expect the number of cases to be small. Nevertheless, these may be important and difficult cases. What steps a person might reasonably have taken will depend on their situation. It is an objective test and it will be for the courts to decide what was reasonable for a person in that situation. A judgement will need to be taken on a case-by-case basis as to whether a court would be likely to hold particular steps to have been reasonable in the circumstances of each particular case. As cases come before the courts, a body of caselaw will develop which will help in that judgement. Reasonable steps might include, for example: