DOMESTIC VIOLENCE, CRIME AND VICTIMS (AMENDMENT) BILLDOMESTIC VIOLENCE, CRIME AND VICTIMS (AMENDMENT) BILL

These notes refer to the Domestic Violence, Crime and Victims (Amendment) Bill

as brought from the House of Commons on 21 st October 2011 [HL Bill 104]

Explanatory Notes

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introduction

1. These explanatory notes relate to the Domestic Violence, Crime and Victims (Amendment) Bill as brought from the House of Commons on 21st October 2011. They have been prepared by the Ministry of Justice, with the consent of Lord Laming, the Peer in charge of the Bill, in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.

TERRITORIAL EXTENT AND APPLICATION

3. Clause 4(3) and (4) set out the territorial extent of the Bill. The main substantive provisions of the Bill extend to England and Wales only (clause 4(3)). The Bill does not contain any provisions that fall within the legislative competence of the National Assembly for Wales and does not affect the functions of the Welsh Ministers.

SUMMARY AND background

4 . Section 5 of the Domestic Violence, Crime and Victims Act 2004 created an offence of causing or allowing the death of a child or vulnerable adult. That offence was created to deal with cases where it was clear that one of a number of adults in a household was responsible for the death of a child or vulnerable adult in that household but it could not be proved which .

5. The Bill extends the offence in section 5 of the Domestic Violence, Crime and Victims Act 2004, to cover causing or allowing serious physical harm (equivalent to grievous bodily harm) to a child or vulnerable adult.

6. The Bill also provides for special procedural and evidential rules , similar to those at section 6 of the 2004 Act, which apply to certain offences which are charged within the same proceedings as the extended section 5 offence .

commentary on CLAUSES

Clause 1: Causing or allowing a child or vulnerable adult to suffer serious physical harm

7. Clause 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 result s from an accident, or from a natural cause .

· appl y 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 protect ed 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 o nly 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.

Clause 2: Evidence and procedure in cases of serious physical harm

11. Clause 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) or an offence under section 1 of the Criminal Attempts Act 1981 of attempting to commit murder ( su bsection (1 ) and s ubsection (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 c harge.

13. Subsection (4) sets out how charges should be dealt with w here a person is sent by a m agistrates’ 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 . Subs ection (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.

Clause 3: Consequential amendments

15. Clause 3 gives effect to the Schedule which contains consequential amendments to other legislation.

Clause 4: Short title, commencement and extent

16 . Clause 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 . Clause 4(3) provide s that the extent of the Bill - England and Wales - is subject to clause 4(4) .

18 . Clause 4(4) provide s 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.

Schedule: consequential amendments

19 . The S chedule contains amendments to other legislation. These are as follows.

Criminal Justice Act 1982

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.

Coroners Act 1988

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.

Law Reform (Year and a Day Rule) Act 1996

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.

Criminal Justice and Court Services Act 2000

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.

Sexual Offences Act 2003

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.

Criminal Justice Act 2003

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.

Domestic Violence, Crime and Victims Act 2004

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.

Armed Forces Act 2006

29. Paragraph 11 of the Schedule amends section 51 of the Armed Forces Act 2006 (jurisdiction of Service Civilian Court) so that the reference, in subsection (5)(a) of that Act, to an offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 includes reference to causing or allowing serious physical harm.

Coroners and Justice Act 2009

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.

FINANCIAL EFFECTS OF THE BILL

3 1 . I t is estimated that the Bill’s provisions would result in a round 65- 150 additional prosecutions per year , with an associated annual increase in costs for the Criminal Justice System of £10-20 million. Th e preferred estimate of 150 additional cases is b ased on data provided by six C rown P rosecution S ervice areas about the potential number of cases in 2010 and assumes that a forecast based on the number of cases in 2010 would be representative of the expected number of cases going forward.

EFFECTS OF THE BILL ON PUBLIC SERVICE MANPOWER

3 2 . No change in the workload of any Government department or agency is anticipated on implementation of this Bill.

SUMMARY OF THE IMPACT ASSESSMENT

33. An impact assessment for the Bill as amended at Committee stage in the House of Commons has been completed. As indicated above, there are likely to be additional prosecutions resulting in an increase in costs for the P olice, the Crown Prosecution Service (CPS) , L egal A id, Her Majesty’s Court s and Tribunals Service (HMC T S) and the National Offender Management Service (NOMS).

34. It has not been possible to monetise any of the benefits of the Bill at this stage. In terms of non-monetised benefits, the impact assessment concludes that closing this gap in the law may lead to a more effective use of resources and increased confidence in the CJS. It may also contribute to protecting the public particularly children and vulnerable adults. The extension would help to ensure that people can no longer evade justice by remaining silent or blaming each other if they are co-accused of serious physical harm against a child or vulnerable adult and it cannot be proved which member of a household caused the harm.

35. An equality impact assessment initial screening has been completed and concluded that a full equality impact assessment was not required. In terms of age and disability, there is potential for a positive impact on some of the most vulnerable members of society as the Bill is intended to provide increased protection for children and vulnerable adults who are at risk of serious physical harm at the hands of members of their own household. However, due to limitations in the available evidence, we are unable to assess the potential for any other differential impacts, in relation to victims or perpetrators, resulting from the provisions in the Bill. 

36. Copies of the impact assessment and equality impact assessment initial screening can be obtained from the Ministry of Justice Library. The Library can be contacted on 020 3334 3000 or by emailing moj.library@justice.gsi.gov.uk.

COMMENCEMENT

3 7 . The Bill will come into force on such day as the Secretary of State may specify by order (clause 4(2) ) .