Session 2010-11

DOMESTIC VIOLENCE, CRIME AND VICTIMS (AMENDMENT) BILL


EXPLANATORY NOTES

INTRODUCTION

1. These explanatory notes relate to the Domestic Violence, Crime and Victims (Amendment) Bill as introduced in the House of Commons on 30 June 2010 as a Private Member’s Bill. They have been prepared by Sir Paul Beresford, the Member 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 should 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 a part of a clause, does not seem to require any explanation or comment, none is given.

SUMMARY AND BACKGROUND

3. 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. The offence is limited to incidents where the victim died of an unlawful act and only applies to members of the household who had frequent contact with the victim. The household member must have either caused the victim’s death or failed to take reasonable steps to protect the victim, and the victim must have been at significant risk of serious physical harm. Only those who are 16 or over may be guilty of the offence, unless they are the mother or father of the victim.

4. A need has been identified to widen the scope of section 5 of the Act to include situations where children and vulnerable adults have been seriously harmed. "Serious harm" is defined in the 2004 Act as "harm that amounts to grievous bodily harm for the purposes of the Offences against the Person Act 1861."

Bill 22-EN

55/1

COMMENTARY ON CLAUSES

5. Clause 1 would add serious harm of a child or vulnerable adult to the offence set out in section 5 of the 2004 Act, and makes consequential amendments to sections 6 and 7 of the 2004 Act.

6. Section 5 of the Act, as amended, would read as follows:

5 The offence

(1) A person ("D") is guilty of an offence if-

(a) a child or vulnerable adult ("V") dies or is seriously harmed as a result of the unlawful act of a person who-

(i) was a member of the same household as V, and

(ii) had frequent contact with him,

(b)D was such a person at the time of that act,

(c)at that time there was a significant risk of serious physical harm being caused to V by the unlawful act of such a person, and

(d)either D was the person whose act caused V's death or serious harm or-

(i) D was, or ought to have been, aware of the risk mentioned in paragraph (c),

(ii) D failed to take such steps as he could reasonably have been expected to take to protect V from the risk, and

(iii) the act occurred in circumstances of the kind that D foresaw or ought to have foreseen.

(2) The prosecution does not have to prove whether it is the first alternative in subsection (1)(d) or the second (sub-paragraphs (i) to (iii)) that applies.

(3) If D was not the mother or father of V-

(a) D may not be charged with an offence under this section if he was under the age of 16 at the time of the act that caused V's death or serious harm ;

(b) for the purposes of subsection (1)(d)(ii) D could not have been expected to take any such step as is referred to there before attaining that age.

(4) For the purposes of this section-

(a) a person is to be regarded as a "member" of a particular household, even if he does not live in that household, if he visits it so often and for such periods of time that it is reasonable to regard him as a member of it;

(b) where V lived in different households at different times, "the same household as V" refers to the household in which V was living at the time of the act that caused V's death or serious harm .

(5) For the purposes of this section an "unlawful" act is one that-

(a) constitutes an offence, or

(b) would constitute an offence but for being the act of-

(i) a person under the age of ten, or

(ii) a person entitled to rely on a defence of insanity.

Paragraph (b) does not apply to an act of D.

(6) In this section-

"act" includes a course of conduct and also includes omission;

"child" means a person under the age of 16;

"serious" harm means harm that amounts to grievous bodily harm for the purposes of the Offences against the Person Act 1861 (c 100);

"vulnerable adult" means a 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.

(7) A person guilty of an offence under this section is liable on conviction on indictment to imprisonment for a term not exceeding 14 years or to a fine, or to both.