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

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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.

National Society for the Protection of Children ("NSPCC") "Which of you did it?" Working Group Report, published in Autumn 2003.

The Home Office White Paper Justice for All (Cm 5563) - many of whose recommendations were implemented in the Criminal Justice Act 2003. 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. 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 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. Causing or allowing the death of a child or vulnerable adult [ edit ] Previous difficulties with the law [ edit ] 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. The Law Commission's report commented that this meant one or other parent were potentially "getting away with murder". [12]

The Law Commission consultative report Children: their non-accidental death or serious injury (criminal trials) - a consultative report (LC279), published on 15 April 2003. 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 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 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). 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 evidenceThis 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 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.

A child or vulnerable adult dies as a result of an unlawful act of a person in the "same household" 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. b) the postponement, until the end of the defence case, of the decision on the question of whether there is a case to answer The purpose of this circular is to provide guidance to those working in the criminal justice system on the provisions of sections 5 and 6, which introduce a new offence of causing or allowing the death of a child or vulnerable adult and new procedural measures linked to the offence. The offence will come into force in England and Wales on 21st March 2005. This Circular is for guidance only and should not be regarded as providing legal advice. Legal advice should be sought if there is any doubt as to the application or interpretation of the legislation.

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 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:

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