Subsection (3) establishes that only those who are 16 or over may be guilty of the offence, unless they are the mother or father of the victim. This is intended to reflect the special responsibility which parents have towards their children. It is also intended to reflect that the parent under 16 will normally have support and advice available to them from social services, health visitors and their GP amongst others. Other members of the household who are under 16 may not have this sort of support available, and are not under the same duty of care as the parents of the child.

If there was no obvious history of violence, or any reason to suspect it, then the other members of the household would not be guilty of this offence, even in clear cases of homicide. Where there is no reason to suspect the victim is at risk, other members of the household cannot reasonably be expected to have taken steps to prevent the abuse. A submission that the prosecution have shown no, or fundamentally inadequate, evidence of the defendant's guilt on all elements of the offence; thus securing a judge-directed acquittal. This can occur at the end of the prosecution case before the defendant is under pressure to give evidence 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 Law Commission report: Children: their non-accidental death or serious injury (criminal trials) (LC282), published on 16 September 2003. 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 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. Probably one or other must have committed it, but there was not evidence which, and although it is unfortunate that a guilty party cannot be brought to 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. justice, 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." The DVCV Act stipulates that a person may be regarded as a member of the household for the purpose of this offence if they visit so often and for such periods of time that it is reasonable to regard that person as a member of the household. Whilst the mere fact of frequent and long visits can in itself be sufficient to show that a person can be regarded as a member of the household, other relevant factors may include taking meals in the household or routinely being included in outings and other household social activities and routines. Membership of the household will be for the courts to determine on a case-by-case basis, taking all the circumstances into account.

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. making sure that the child or vulnerable person is treated promptly and appropriately for any injuries or illnesses which they may suffer The Home Office consultation paper Safety and Justice: the Government's Proposals on Domestic Violence (Cm 5847), published in June 2003. National Society for the Protection of Children ("NSPCC") "Which of you did it?" Working Group Report, published in Autumn 2003.This list is not exhaustive, but gives examples of the steps which might be considered reasonable. Some of these steps could be taken anonymously, if the defendant were afraid of being identified. This may particularly be the case if the defendant has been a victim of domestic violence. If the defendant has chosen to do any of these things anonymously, it may be more difficult to prove conclusively at a later stage that they did take the appropriate steps. If there are no records, for example, of an anonymous report having been received by social services, then the court will have to make a judgement on the evidence available about whether they believe reasonable steps were taken. 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. The victim must have been at significant risk of serious physical harm from a member of the household. The risk is likely to be demonstrated by a history of violence towards the vulnerable person, or towards others in the household. For example, a person cannot be guilty of allowing the death of a child or vulnerable person if the victim died from a blow when there was no previous history of abuse, nor any reason to suspect a risk. Where there is no reason to suspect the victim is at risk, other members of the household cannot reasonably be expected to have taken steps to prevent the abuse and eventual death. They would therefore not be guilty of allowing the death if the death could not have been foreseen, even where it is clear that one of the household is guilty of a homicide offence. In that case every effort should be made by the investigating officer to obtain as much evidence as possible so that other appropriate charges can be considered. Appropriate charges might include murder/ manslaughter, or child cruelty or neglect under the Children and Young Person’s Act 1933.

Trials with a substantial number of charges can now be split into two phases: trial by jury of "specimen counts" and judge-only trial of the remaining counts. [9] This further expands the circumstances in which trials can be heard without a jury (see the Criminal Justice Act 2003). The Law Commission consultative report Children: their non-accidental death or serious injury (criminal trials) - a consultative report (LC279), published on 15 April 2003.

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Causing or allowing the death of a child or vulnerable adult [ edit ] Previous difficulties with the law [ edit ] The Home Office White Paper Justice for All (Cm 5563) - many of whose recommendations were implemented in the Criminal Justice Act 2003. Although the new offence will enable charges to be brought against all those in the household who had a responsibility for the death of a child or vulnerable adult, even where no charges were previously possible, the policy goal remains that the person who has caused the child’s or vulnerable adult’s death should be identified and convicted of murder or manslaughter if appropriate. 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 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.

Judges, not a specially empanelled jury, now decide if a defendant is fit to plead.". [8] The regime for dealing with defendants who are unfit to plead or not guilty by reason of insanity (that is, committed the physical acts constituting the offence but without the sane intent) has also been modified. The court, not the Home Secretary, makes the assessment (requiring medical evidence to do so) whether the defendant should be committed to a psychiatric hospital. 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. 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: The text of the Act including the new offence and procedural measures can be found on http://www.hmso.gov.uk/acts/acts2004.htm. 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 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. 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 Home Office policy leaflet "A Better Deal for Victims and Witnesses", published on 21 November 2002.