8 March 2012
7.Section 1 amends section 5 of the 2004 Act so as to extend the offence in section 5 to cover cases of causing or allowing a child or vulnerable adult to suffer serious physical harm. For the most part it does this by inserting references to “serious physical harm” at appropriate places in section 5.
8.The same conditions which apply in the case of causing or allowing the death of a child or vulnerable adult as set out in section 5 of the 2004 Act will therefore also apply for causing or allowing serious physical harm. The extended offence will therefore:
be limited to cases where the victim has died or has suffered serious physical harm as a result of an unlawful act (section 5(1)(a) of the 2004 Act). It will not apply to a death or serious physical harm which results from an accident, or from a natural cause.
apply only to members of a victim’s household (section 5(1)(a)(i) of the 2004 Act) who had frequent contact with the victim (section 5(1)(a)(ii) of the 2004 Act), and could therefore reasonably be expected to have been aware of a risk of serious physical harm to the victim, and to have protected the victim from such harm. The household member must have either caused the victim’s death or the serious physical harm or failed to take reasonable steps to protect the victim (section 5(1)(d) of the 2004 Act).
not require the prosecution to prove whether a defendant was responsible for causing the death or serious physical harm or for allowing the death or serious physical harm (section 5(2) of the 2004 Act).
apply only where the victim was at significant risk of serious physical harm (section 5(1)(c) of the 2004 Act). The risk is likely to be demonstrated by a history of violence towards the vulnerable person, or towards others in the household. The extended offence will not apply if 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.
apply only to those who are 16 or over unless they are the mother or father of the victim (section 5(4) of the 2004 Act). Members of the household aged under 16 will not have a duty of care or be expected to take steps to prevent a victim coming to harm. In particular, a child under 16 will have no duty to prevent his parents from harming a sibling. The parents of a child will be expected to take reasonable steps to protect their child even if they themselves are under 16.
9.Subsection (5) amends section 5(7) of the 2004 Act so that the maximum penalty of 14 years applies only in the case of causing or allowing a person’s death. Subsection (6) inserts a new section 5(8), providing a maximum penalty of 10 years in the case of causing or allowing serious physical harm.
10.Subsection (8) makes transitional provision to ensure that the operation of the extended offence will not have retrospective effect.
11.Section 2 inserts a new section 6A into the 2004 Act, similar to section 6 of the 2004 Act. New section 6A provides for special rules for trials in England and Wales where a defendant is charged within the same proceedings, and in relation to the same physical harm, with an offence of causing or allowing serious physical harm under section 5 and with an offence under section 18 or 20 of the Offences Against the Person Act 1861 (grievous bodily harm etc) or an offence under section 1 of the Criminal Attempts Act 1981 of attempting to commit murder (subsection (1) and subsection (2) ). The provisions in subsections (3) to (5) apply where this is the case.
12.Subsection (3) makes provision for drawing such inferences as appear proper from a defendant’s failure to give evidence in court (or refusal, without good cause, to answer any question). Where a court or jury is permitted under section 35(3) of the Criminal Justice and Public Order Act 1994 to draw an adverse inference in respect of the offence under section 5 from the defendant’s failure to give evidence or to answer questions, an adverse inference may also be drawn in relation to the charge under section 18 or 20 of the Offences Against the Person Act 1861 or a charge under section 1 of the Criminal Attempts Act 1981 of attempting to commit murder, even if there would otherwise be no case for the defendant to answer on that charge.
13.Subsection (4) sets out how charges should be dealt with where a person is sent by a magistrates’ court to the Crown Court for trial (pursuant to section 51 of the Crime and Disorder Act 1998), and the defence makes an application for the charges to be dismissed (under paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998). This subsection prevents the charge under section 18 or 20 of the Offences Against the Person Act 1861 or a charge under section 1 of the Criminal Attempts Act 1981 of attempting to commit murder being dismissed if the judge does not dismiss the section 5 charge.
14.Subsection (5) defers the decision on a question of whether there is a “case to answer” on a charge under section 18 or 20 of the Offences Against the Person Act 1861 or a charge under section 1 of the Criminal Attempts Act 1981 of attempting to commit murder until the close of the defence case, unless the prosecution fails to establish a case to answer on a charge under the section 5 offence by the conclusion of its case. This means that the court will hear all the evidence that is to be presented in the case before deciding whether the charges can safely be left to the jury.
15.Section 3 gives effect to the Schedule which contains consequential amendments to other legislation.
16.Section 4(2) establishes a power for the Secretary of State to make a statutory instrument setting out when the Act will come into force.
17.Section 4(3) provides that the extent of the Act - England and Wales - is subject to section 4(4) .
18.Section 4(4) provides that the consequential amendments made to other legislation by paragraphs 9 to 11 of the Schedule have the same extent as the provisions to which they relate.
19.The Schedule contains amendments to other legislation. These are as follows.
20.Part 2 of Schedule 1 to that Act (offences excluded from early release provisions) refers to “Section 5 (causing or allowing the death of a child or vulnerable adult).” Paragraph 1 of the Schedule amends the reference to the section 5 offence to include reference to causing or allowing serious physical harm.
21.Paragraph 2(2) and 2(3) of the Schedule amend the Coroners Act 1988 to make clear that references in that Act to an offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 should only be to the offence as it applies to causing or allowing death and not to causing or allowing serious physical harm. Paragraph 2(4) of the Schedule provides that the amendments made to the Coroners Act 1988 will cease to have effect when the repeal of that Act by Schedule 23 to the Coroners and Justice Act 2009 takes effect.
22.Section 2(3)(c) of that Act (restriction on institution of proceedings for fatal offence) refers to “an offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing the death of a child or vulnerable adult)”. Paragraph 3 of the Schedule amends section 2 to make clear that references in that Act to an offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 should only be to the offence as it applies to causing or allowing death and not to causing or allowing serious physical harm.
23.Paragraph 3 of Schedule 4 to that Act (offences against children for the purposes of disqualification orders) refers to “an offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing the death of a child or vulnerable adult) in respect of a child.” Paragraph 4 of the Schedule amends the reference to the section 5 offence to include reference to causing or allowing serious physical harm.
24.Paragraph 63A of Schedule 5 to that Act (other offences for the purposes of making sexual offences prevention orders) refers to “An offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing the death of a child or vulnerable adult).” Paragraph 5 of the Schedule amends the reference to the section 5 offence to include causing or allowing serious physical harm.
25.Part 1 of Schedule 15 to the Criminal Justice Act 2003 (specified violent offences for purposes of Chapter 5 of Part 12 of that Act) refers to “An offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing the death of a child or vulnerable adult)”. Paragraph 6 of the Schedule amends the reference to the section 5 offence to include causing or allowing serious physical harm.
26.Paragraph 8 of the Schedule amends the heading and subsection (5) of section 6 of the Domestic Violence, Crime and Victims Act 2004 (evidence and procedure: England and Wales) to make clear that section 6 applies only to evidence and procedure in cases of death.
27.Paragraph 9 of the Schedule inserts new subsections (4), (5) and (6) in section 8 of the 2004 Act to enable the special rules provided in new section 6A (evidence and procedure in cases of serious physical harm: England and Wales) to apply to proceedings before the Court Martial where the defendant is charged within the same proceedings, and in relation to the same serious physical harm, with the military offences which correspond to those referred to in section 6A.
28.Paragraph 10 of the Schedule amends section 62(4) of the 2004 Act (extent of section 8) to include reference to new section 6A as well as to section 6.
29.Section 51(5)(a) of the Armed Forces Act 2006 (jurisdiction of Service Civilian Court) refers to “an offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing death of child etc)”. Paragraph 11 of the Schedule amends the reference to the section 5 offence to make clear that it should only be to the offence as it applies to causing or allowing death and not to causing or allowing serious physical harm.
30.Paragraph 1(6)(d) of Schedule 1 to the Coroners and Justice Act 2009 includes an offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 in the definition of “homicide offence”. Paragraph 12 of the Schedule amends the reference to the section 5 offence to make clear that it should only be to the offence as it applies to causing or allowing death and not to causing or allowing serious physical harm.