Leanne Buckley-Thomson writes an update for Crown Office Row on the Domestic Violence, Crime and Victims (Amendment) Act 2012 which comes into force today and brings with it a change in the law dealing with those who cause or allow the death of a child or vulnerable adult.
Previously, pursuant to s5 of the Domestic Violence, Crime and Victims Act 2004, a person could be found guilty of the offence of causing or allowing the death of a child or vulnerable adult if the victim died as a result of the unlawful act of a person who was a member of the same household as the victim and had frequent contact with them at the time of said act. There had to be present a significant risk of serious physical harm caused to the victim by that act and the Defendant had to have either caused the death or to have been, or ought to have been, aware of the risk, and further had to have failed to take reasonable steps to protect the victim and have foreseen or ought to have foreseen the circumstances in which the act occurred [s5(1)(a-d)]. Although this provision resulted in successful and sometimes high profile convictions, such as in the case of Baby P, it was far from suitable as it meant that prosecutions could not be brought in cases whereby it was clear that non-accidental injuries had been caused to the victim but the individual responsible could not be identified. This created a loophole whereby child abusers could evade prosecution by refusing to talk or by blaming other people, widening the pool of possible perpetrators.
Section 1 of the Domestic Violence, Crime and Victims (Amendment) Act 2012 amends section 5 of the 2004 Act extending the offence of causing or allowing the death of a child or vulnerable adult to cover serious physical harm. The same conditions as set out in section 5 of the 2004 Act continue to apply. In recognition of the extension to injuries which do not result in death, sentencing for the offence has been amended to specify that imprisonment for a term not exceeding 14 years or a fine or both [s5(7) 2004 Act] applies to causing or allowing a person’s death. Further a subsection (8) is added to section 5 specifying that causing or allowing a person to suffer serious physical harm attracts imprisonment for a term not exceeding 10 years or a fine, or both [s1(6) 2012 Act].
Children’s Charities have already spoken out welcoming the change, with NSPCC’s Chief Executive Andrew Flanagan referring to it as “a real victory for children”. However Action for Children’s Head of Parliamentary and Public Affairs Matthew Downie, whilst describing the new law as “an important step”, reminds that it “should be used as a catalyst to ensure all child protection laws are updated” drawing particular attention to the “outdated” provisions of the Children and Young Persons Act 1933.
