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

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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 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 ]

In cases where it is not clear which of the co-accused caused the death, the offence, together with the procedures which support it, should provide a mechanism to help ensure that the person who caused the death is identified and appropriately charged and sentenced. It will therefore often be appropriate for the defendants in the case to be charged with the new offence and with murder/manslaughter. But the offence is self-standing and household members could be charged with the new offence for example, where there is no charge of murder/manslaughter or where evidence suggests that the defendant could not themselves have committed the criminal act which killed the victim. The CPS will issue legal guidance to assist prosecutors in making charging decisions. 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. The text of the Act including the new offence and procedural measures can be found on http://www.hmso.gov.uk/acts/acts2004.htm.

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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 National Society for the Protection of Children ("NSPCC") "Which of you did it?" Working Group Report, published in Autumn 2003. 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 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. 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 safeguards which apply are similar to those that apply to adverse inferences drawn from silence under section 35 of the 1994 Act and aim to prevent a jury from drawing an adverse inference in inappropriate circumstances and from giving improper weight to any inference they did draw. Firstly, the jury would only be able to draw an inference if it was “proper” to do so. The judge would have to direct the jury only to draw an inference if it was satisfied that the defendant’s silence could only be attributed to the defendant having no answer to the charges against him or none that would stand up to cross-examination. This safeguard means that the jury would not be able to draw an inference against the defendant if it thought that the defendant’s silence could be attributable to other reasons, such as his desire to protect another person/defendant. Where a person is charged both with the new offence and with murder/manslaughter, section 6(4) of the DVCV Act provides that the decision on a defence submission of “no case to answer” made at the end of the prosecution case shall be postponed until the close of all the evidence, providing that the prosecution has successfully established a case to answer on the charge of the new offence. If the decision on whether there was a case to answer were not postponed, and new evidence emerged about who caused the death, the murder/manslaughter charges would already have been dropped and, despite new evidence, it would not be possible to achieve a conviction for murder/manslaughter.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 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.