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

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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.

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 DVCV Act has therefore provided for two procedural changes to be made to usual court procedures in trials involving the section 5 offence. Their aim is to enable more charges of murder/manslaughter in “which of you did it?” cases to get past a “case to answer” submission made at half-time and be safely left to the jury. The changes relate to: The new offence may assist in achieving this goal. But by itself the new offence might not always open the way to such a conviction. The less culpable party could still not be willing to explain what happened. Or he or she might only give their version of what happened after the close of the prosecution case, by which time the judge would already have withdrawn the murder/manslaughter charge on the basis of there being no case to answer. 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.Court procedure is amended to restrict the circumstances in which the trial can be stopped at the end of the prosecution case and before the defence case. The offence defines the term ‘vulnerable adult’ as any person aged 16 or over whose ability to protect himself from violence, abuse or neglect is significantly impaired through physical or mental disability or illness, through old age or otherwise. The age of 16 rather than 18 is used in this context because the term ‘child’ is defined as under 16, and the term ‘vulnerable adult’ needs to include anyone who is vulnerable but is no longer defined as a child. Legal convention means that the term ‘or otherwise’ will be read with the words which have gone before, so that it will cover those who are unable to protect themselves for reasons similar to those listed. Although there are a range of definitions of the term ‘vulnerable’ in other legislation and in guidance, it was necessary to define the term for the purposes of this offence so that it would be as inclusive as possible. It covers those who are vulnerable temporarily as well as permanently, and those who are vulnerable due to mental as well as physical incapacity. Although the term ‘vulnerable’ is clearly defined in the legislation, the extent of the term in this context will emerge as offences under this part of the Act come to court. The Law Commission consultative report Children: their non-accidental death or serious injury (criminal trials) - a consultative report (LC279), published on 15 April 2003. The 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:

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.

Changes over time for: Section 24

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 ambit of the " adverse inference" (right of the jury to make assumptions about any part of the case, including the guilt of the defendant, based upon his or her failure to answer any question put in court) [14] is extended to include an inference on a joint charge of homicide (murder and manslaughter) and the new offence; this means that if a person is charged with either (or both) homicide offences and this new offence, then silence in the witness box can imply guilt of homicide as well as the new offence. This is subject to the usual safeguard [15] that a person cannot be convicted solely upon the basis of their silence. The Act specified common assault as an alternative verdict to a count on an aggravated assault in the Crown Court, though it is not itself an indictable offence. [7] Fitness to plead [ edit ]

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.The Home Office policy leaflet "A Better Deal for Victims and Witnesses", published on 21 November 2002. 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. they were aware or ought to have been aware that the victim was at significant risk of serious physical harm from a member of the household 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 The offence should therefore be investigated and dealt with sensitively. The ACPO/Centrex guidance on child abuse and safeguarding children, published on 3rd March 2005 and the ACPO/NCPE Guidance on Investigating Domestic Violence (launched in November 2004) will provide further direction to the Police Service of England and Wales. Where there is a need to carry out a joint enquiry under section S47 of the Children Act 1989 involving social services and the police this should be undertaken in accordance with the guidance set out in working together to safeguard children.

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 of "causing or allowing the death of a child or vulnerable adult", now referred to as the "new offence", is committed under section 5 of the Act [13] if the following four conditions apply: The Law Commission report: Double Jeopardy and Prosecution Appeals (LC267), published in March 2001. Both have effect in relation only to the charge of murder or manslaughter, when those charges are accompanied by charges under the new offence. These procedural changes were proposed by the Law Commission in their report, Children: Their Non-accidental Death or Serious Injury, although the Act adopts a tighter mechanism for triggering them to keep them closely targeted at the “which of you did it?” cases. Inferences from silence 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 decisionThe 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. Was aware of the risk (or ought to have been), didn't take reasonable steps to do anything about it, and foresaw the circumstances which led up to the unlawful act causing death 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." attending anger management or parenting classes if appropriate, or ensuring other members of the household attend such classes