Where non-accidental death or injury is caused by someone, but it is unclear which of two or more people actually caused the harm, and there is no evidence of secondary participation, then in the past nobody could be convicted (Lane and Lane (1986)). This had been a particular problem where children were injured or killed by a parent, but it was not clear which parent caused the death. When the child is very young they are particularly vulnerable because they are not able to speak and tell the authorities who caused them harm. The result appears to be that many non-fatal and fatal offences against children were going unpunished.
The NSPCC has found that every week three children under the age of 10 are killed or suffer serious injury (Plumstead (2002)). Children under the age of 3 are more at risk of being killed than any other age group in England and Wales (Home Office, 2006). Research carried out by Cardiff Family Studies Research Centre (Cathy Cobley and others (2003)) has found that the main suspects at the start of the police investigation are usually the natural parents of the child and occasionally other carers. In most cases it can be said with certainty that one of two identified people must have caused the serious injury, but it is often not possible to say which one. In this context, the rule in
Lane and Lane applied, so that unless it could be proved that one carer failed to intervene to
prevent the harm – and is thus liable as an accomplice (see p. 300) – no conviction was possible. This difficulty in identifying which carer carried out the attack meant that only a few cases of serious and fatal injury against children came to the criminal courts. As a result, sadly, a significant number of children were being killed or seriously injured each year, but only a relatively small number of those responsible were being convicted of any criminal offence. Where a conviction has been obtained, the charges and sentences did not reflect the gravity of the offence.
The Law Commission looked at the problem to see how the wrongdoers can be brought to justice. The Government has passed the Domestic Violence, Crime and Victims Act 2004 which follows many of the Law Commission’s proposals on the issue. Section 5 of the Act creates a new
Causing or allowing the death of a child or vulnerable adult
Figure 5.7 Victims under 16 years of age, by relationship of victim to suspect 2011/12
offence of causing or allowing the death of a child or vulnerable adult. The offence applies where a child or vulnerable person dies and:
● the death is the result of unlawful conduct;
● a member of the household with frequent contact with the victim caused the death;
● the death occurred in anticipated circumstances;
● the defendant was a member of the same household with frequent contact with the victim;
● the defendant either caused the death or was or should have been aware that the victim was at significant risk of serious, physical harm and failed to take reasonable steps to prevent the death.
In 2012 the offence it was extended to include causing or allowing a child or vulnerable adult to suffer serious physical harm.
People who do not live in the house can still be regarded as a member of the household, if they visit so often and for such periods of time that it is reasonable to regard them as a member of it. Only those who are 16 or over may be guilty of the offence, unless they are the mother or father of the victim. The existence of a risk to the victim is likely to be shown by a history of violence in the household. Thus, to impose liability, the prosecution will not have to show which member of the household actually caused the death and which failed to prevent the death. The fault element for this offence is only negligence and need not even be gross negligence. Defendants can be found negligent for failing to take steps to prevent a harm they should have foreseen. The offence puts legal responsibility on adult household members who have frequent contact with a child or vulnerable adult to take reasonable steps to protect that person if they knew or should have known they were at significant risk of serious physical harm. The offence carries a maximum sentence of 14 years. The Act also provides controversial procedural measures to help prosecutions for domestic homicides.
The scope of the offence of allowing the death of a vulnerable adult was considered by the Court of Appeal in R v Khan (2009). The victim was a young woman from Pakistan who came to England to marry the defendant. She was subjected to domestic abuse and murdered by her husband. Four adults who lived in the same household were convicted of committing the s. 5 offence of allowing the death of a vulnerable adult. The prosecution case was that the victim had been subjected to serious violence by her husband during the three weeks before her death and this must have been apparent to the other four adults in the household. The convictions were upheld by the Court of Appeal. The court empha- sised that the definition of the offence included both where the defendant saw the risk of serious physical harm and foresaw the occurrence of the unlawful act which resulted in death, but also where the defendant was unaware of the risk but ought to have been aware of it. Thus it includes people who choose to close their eyes to a risk of which they ought to have been aware. The fatal attack occurred in the garage at night, when the appellants were asleep, and involved a degree of violence that was markedly more extreme than anything inflicted on the victim in the house itself during the previous three weeks. The appellants argued that the circumstances were utterly different and could not reasonably have been foreseen by them. The Court of Appeal rejected this argument:
The act or conduct resulting in death must occur in circumstances of the kind which were foreseen or ought to have been foreseen by the defendants. They need not be identical. The violence to which [the
R v Khan (2009)
The academic, Johnathan Herring (2007) has pointed out that often when there is child abuse there is also abuse against the mother. He has suggested that the s. 5 offence risks criminalising women who have been subjected to domestic abuse themselves and have made an effort to pro- tect their children from abuse by, for example, trying to avoid leaving them on their own with their partner, but because of their experience as a victim they are not able to provide adequate protec- tion for their child. He has argued persuasively that the offence is inappropriately judgemental of a woman’s failure to prevent the killing of her child when she herself is also a victim of the killer. Because of the psychological damage caused to abused women they might fail to appreciate the extent of the risk to their child. Herring has commented:
If the State is to impose obligations on victims of domestic violence to protect their children then the State needs to ensure that assistance is in place to enable them to do so. The provision of services for women seeking to escape violence is inadequate, especially given the vulnerable state they are in.
In R v Khan (2009) the Court of Appeal rejected these criticisms, pointing out that s. 5(1)(d)(ii) makes clear that the protective steps which could have been expected of the defendant depend on what could reasonably have been expected of him or her.