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You are here: BAILII >> Databases >> The Law Commission >> CHILDREN: THEIR NON-ACCIDENTAL DEATH OR SERIOUS INJURY (CRIMINAL TRIALS) PART I [2003] EWLC 279(1) (30 April 2003) URL: http://www.bailii.org/ew/other/EWLC/2003/279(1).html Cite as: [2003] EWLC 279(1)

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PART I

INTRODUCTION

1.1      The proposals in this consultative report are intended to address a problem which has been recognised for many years by judges, academics and practitioners, and which has been highlighted by the press. It can be exemplified at its most intractable in the following situation:

A child is cared for by two people (both parents, or a parent and another person). The child dies and medical evidence suggests that the death occurred as a result of ill-treatment. It is not clear which of the two carers is directly responsible for the ill-treatment which caused death. It is clear that at least one of the carers is guilty of a very serious criminal offence but it is possible that the ill-treatment occurred while one carer was asleep, or out of the room.

1.2      As the law stands, as a result of the Court of Appeal's ruling in Lane and Lane^[1] it is likely that such a trial would not proceed beyond a defence submission of 'no case to answer'. As a result, neither parent can be convicted, and one or other parent, or both, might well have literally 'got away with murder'. It should be remembered that even though one parent may not have struck the fatal blow or blows, he or she may be culpable either through having participated in the killing actively or by failing to protect the child. In many cases of this type it is difficult, or impossible, to prove this beyond reasonable doubt, and therefore neither parent can be convicted.

Background to the consultative report

1.3      This consultative report is the result of work which has been carried out since mid-2002. The project was announced in the Law Commission's 36th Annual Report, 2001 as follows:^[2]

Non-accidental injury to children

5.13 Work will start shortly on a new project concerning non-accidental injury to children caused by their parents or carers. This project has arisen from our work on criminal liability for assisting and encouraging crime.

5.14 The problem it addresses is how to establish criminal liability in a case where it is apparent that one or both defendants must have committed the crime but there is no evidence which will allow the court to identify which, so as properly to apportion blame. At present it appears to be the law that a parent will be guilty of an offence where violence against their child is committed by another if (s)he fails to intervene by taking reasonable steps to prevent the harm where (s)he is able to so do. However, if there is no evidence as to which parent or carer was responsible and no evidence to establish the presence of both parties at the scene of the assault, there may be no basis for a finding of guilt in respect of either.

5.15 Accordingly, we will investigate whether there are any changes to the law, whether substantive or procedural, which would allow the conviction of those guilty of violent offences (or neglect) towards children for whose care they are responsible in circumstances where, presently, the courts are obliged to acquit them, and to make recommendations for changes in the law where it is thought to be appropriate.

1.4      The Commission's original intention was to produce a consultation paper in early 2003. However, we became aware of growing pressure to find a solution to this particular problem as soon as possible and also of the possibility that it might be the subject of legislation in the Criminal Justice Bill currently before Parliament. For these reasons it was decided to accelerate the normal consultation process. In December 2002 the Commission's Criminal Law Team produced an informal consultation paper which was circulated to various members of the judiciary, academics and professional bodies. A large number of responses were received.^[3] We are extremely grateful to all those who responded so promptly and so fully to that paper. The responses have been extremely valuable in directing the thinking of the Team and informing the decisions of the Commission. Not only has it become clear which proposals have attracted considerable support and which have been subject to opposition, but the responses have also opened up new avenues of approach. Following an analysis of the responses, the Law Commissioners have considered these issues, and have come to certain decisions. This consultative report is the outcome of that process.
1.5      This is an area with which the National Society for the Prevention of Cruelty to Children has been concerned for some time. We are currently awaiting the publication of the final Report of the Working Group set up by the NSPCC to consider this problem. We have been working closely with them throughout and we are hugely grateful to them for the generosity with which they have shared their thoughts and have allowed us access to their work in order to assist us in our efforts. We anticipate that many of the Working Group's recommendations will fall outside the scope of the legal issues addressed by this consultative report. A number of their likely recommendations could be implemented within the current legal framework. We know, however, that they have turned their minds to matters of law reform and we have taken their views, as expressed in the course of their work and in responding to our informal consultation, fully into account. It should also be noted that several members of the Working Party responded independently to the informal consultation paper.
1.6      In the course of the Committee stage of the Criminal Justice Bill in the House of Commons, a proposed amendment to the Bill was tabled which reflected some of the proposals which were contained in the informal consultation paper.^[4] The amendment was withdrawn, although the Parliamentary Under-Secretary of State for the Home Department, Hilary Benn, gave a number of undertakings. He acknowledged that the "issue has proved intractable for far too long", that it is an issue which goes to the heart of public confidence, and he gave a commitment that the Government will deal with it.^[5] Although he stated that the Government was attracted to many aspects of the proposed clause, he highlighted the complexity of the area and made reference to the need for further work, specifically noting the work being carried out by the NSPCC and the Law Commission. In his view:

The nub of the issue is that we need to take account of the Law Commission's work.^[6]

1.7      Having stated that the Government believes that the correct course of action would be to wait until our recommendations are published, the Minister went on to state:

I also give my Hon. Friends the absolute assurance that the Government want to take action on the issue. We are committed to legislating on the matter, once we have found the right solution … we are keen to see the Law Commission's further views … . We will then proceed with legislation as quickly as possible, either in the [Criminal Justice] Bill if there is still time, or in a future Bill, because we are committed to making a difference on that aspect of the law.^[7]

1.8      In the light of these commitments, Vera Baird QC, MP for Redcar, withdrew the proposed amendment, although she once again stressed the importance of the issue.
1.9      The recommendations which the Law Commission is minded to make and which are contained in this consultative report are therefore the fruit of detailed consideration by: the Criminal Law Team; a substantial number of respondents who have considered the issues in depth and provided us with their insights; and by the Law Commissioners. The views of the Commission which they reflect are firmer than would be put forward in a consultation paper, and represent the recommendations which we are presently minded to make to the Government. We will welcome responses to this consultative report to enable us to finalise our recommendations which we anticipate making to the Government by this summer. Given that we have already carried out an informal consultation process and received a large number of detailed responses to that paper, the consultation period for responses to this consultative report will be shorter than is typically the case. We would be grateful to receive responses to this consultative report by the end of May, in order to enable us to formulate our recommendations to the Government this summer.

Some preliminary points

A two track approach

1.10      An important issue concerning the fundamental aim of this project was tellingly expressed by Professor David Ormerod^[8] in his response to the informal consultation paper and should, we believe, be addressed at the outset. He stated that we should be careful to recognise two distinct aims which the project might have.
1.11      One would be to craft reforms in order to allow more cases to be left to the jury, with the aim of convicting more people who cause physical harm to a child (with the emphasis being placed on the causative link). This aim would have in its sights one particular aspect of the problem which has been highlighted, namely that the present procedures have the effect that "those who might be responsible for causing the death or serious injury are not having their behaviour subjected to scrutiny by a jury".^[9] This would maintain the current focus of the law in seeking to establish who caused the physical harm to the child.
1.12      A second, alternative, or possibly additional, aim of reform would be to craft changes to the substantive law in order to "convict of some different type of offence all those adult carers who had responsibility for the welfare of the child at the time of the injury/ death".^[10] The basis for this would be that the defendant was guilty of a "wrong" underpinning the offence, that of failing adequately to ensure the safety of the child. As Professor Ormerod stated:

The fundamental difference would be that unlike in [the first alternative] the concern would not be to be convicting a greater proportion of those who caused harm, but to convict a greater proportion of those whose child suffers non-accidental injury.^[11]

1.13      It is important to recognise this distinction, as it must always be borne in mind that any new offences which are enacted for the fulfilment of Professor Ormerod's second purpose must be justifiable in and of themselves. New offences should not be proposed simply as a means to induce defendants into giving evidence, although this may be a beneficial side effect. Although, inevitably, there will be some interaction between these alternative aims of reform, the procedural dimension should remain separate and distinct from reform of the substantive law. New offences should not be used solely as a remedy to resolve the procedural problems associated with obtaining convictions for another type of offence. Therefore, although a new substantive offence may have collateral procedural advantages, in that a defendant who would previously have been unwilling to give evidence may be persuaded to do so, we would emphasise that a new offence should be justifiable on its own terms.

The need for the prosecution to prove that a crime has been committed

1.14      A further issue upon which we should make our position clear at the start of this consultative report concerns the type of case with which our recommendations are concerned. We are only concerned with those cases in which the prosecution is able to establish to the criminal standard of proof that the child died a non-accidental death, or suffered non-accidental serious injury and where, as a result of the present law of procedure and evidence, no one can be convicted of a crime which has undoubtedly been committed but where the perpetrator(s) are within a known group of individuals.
1.15      We are well aware that there is another, very troubling, set of cases where there is a converse problem. These are where there have been wrongful convictions of parents for offences of homicide where there is real doubt whether there has been any crime committed at all. This is because of a serious disagreement within the medical profession as to whether, in certain types of case, a child has died accidentally or non-accidentally.^[12] We particularly have in mind cases of cot death and shaken baby syndrome. We are not addressing these cases at all. We wish to make it abundantly clear that our recommendations would only ever apply where the Crown can prove beyond reasonable doubt that a child has suffered non-accidental serious injury or death.

The current law

1.16      Where one person with the requisite mens rea kills or injures a child, that person will (in the absence of a valid defence) be guilty of a criminal offence, such as murder or manslaughter, or one of the various non-fatal offences against the person. Another person who assists or encourages these actions may also be guilty of one or other of these offences under the normal principles of accessory liability.
1.17      In many cases of the type under consideration it cannot be proved which of two or more defendants was directly responsible for the offence and it cannot be proved that whichever defendant was not directly responsible must have been guilty as an accomplice. In the present context this may have involved an isolated act of violence by one parent, and the other parent may have been absent at the time. The present law is that there is no prima facie case against either and therefore both defendants must be acquitted at the conclusion of the prosecution case. This problem has been recognised by the judiciary for a considerable number of years, as was exemplified by Lord Goddard in Abbott:^[13]

If two people are jointly indicted for the commission of a crime and the evidence does not point to one rather than the other, and there is no evidence that they were acting in concert, the jury ought to return a verdict of not guilty against both because the prosecution have not proved the case. If, in those circumstances, it is left to the accused persons to get out of it if they can, that would put the onus upon them to prove themselves not guilty. Finnemore J remembers a case in which two sisters were indicted for murder, and there was evidence that they had both been in the room at the time when the murder was committed; but the prosecution could not show that either sister A or sister B had committed the offence. Probably one or other must have committed it, but there was not evidence which, and although it is unfortunate that a guilty party cannot be brought to 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.^[14]

1.18      This approach was confirmed in Bellman:^[15]

[I]f the evidence shows that one of two accused must have committed a crime but it is impossible to go further and say which of them committed it, both must be acquitted.^[16]

1.19      In Gibson and Gibson^[17] the Court of Appeal attempted to distinguish Abbott. The Court of Appeal appeared to suggest (obiter) that where two people had joint custody and control of a child they might both be convicted of manslaughter, regardless of any evidence against either of presence, on the basis of an inference that they were jointly responsible and so both guilty as charged. O'Connor LJ stated:

Is the criminal law powerless in the situation presented by this case? We think not. In law the defendants had joint custody and control of their baby. They were under a duty to care for and protect their baby… .

The evidence established that while in their joint custody and control the baby had sustained grievous bodily harm which had been inflicted by one, other or both parents. There being no explanation from either parent, and no evidence pointing to one rather than the other, the inference can properly be drawn that they were jointly responsible and so both guilty as charged. This is not reversing the burden of proof. The case is quite different from that envisaged in Abbott, in particular the two sisters charged with murder, because the deceased was not in their joint custody or control.^[18]

1.20      In Lane and Lane,^[19] however, the Court of Appeal allowed appeals by two parents who had been convicted of manslaughter of their child, finding that the trial judge had been led into error by reliance upon the quotation from Gibson and Gibson. Croom-Johnson LJ stated that there was no justification for inferring the presence of both defendants or active participation by the non-striking parent, and that the jury should not have been invited to draw an inference that, in the absence of an innocent explanation, the parents were jointly responsible.
1.21      In relation to a failure by a parent to offer an explanation for a child's injuries, Croom-Johnson LJ pointed out in Lane and Lane that it may be that a defendant 'does not know the true explanation or has no means of knowing the facts which require explaining'. He stated:

... lack of explanation, to have any cogency, must happen in circumstances which point to guilt; it must point to a necessary knowledge and realisation of that person's own fault. To begin with, one can only expect an explanation from someone who is proved to have been present. Otherwise it is no more consistent with that person either not knowing what happened or not knowing the facts from which what happened can be inferred, or with a wish to cover up for someone else suspected of being the criminal. There may be other reasons.^[20]

1.22      In Lane and Lane, Croom-Johnson LJ stated that the result "distressing though it may be, is that a serious crime committed by someone goes unpunished".^[21] This has been the outcome in several subsequent cases involving children. For example, in Aston and Mason^[22] convictions for manslaughter were quashed by the Court of Appeal. The Lord Chief Justice stated:

We have felt forced to come to the unwelcome conclusion that there was nothing in the evidence at the close of the prosecution case which indicated that one of the appellants rather than the other was responsible for inflicting the fatal injuries. Each of them had the opportunity. ... Nor can we find any evidence upon which the jury might have concluded that the two of them were acting in concert ... .

There was, so far as we can see, no evidence upon which the jury could properly come to the conclusion that either of these two expressly or tacitly agreed that Doreen should suffer physical harm; or that either had wilfully and intentionally encouraged the other to cause injury to Doreen. Even allowing for the possibility that the minor bruising about the face and body may have happened at the same time as the fatal injuries, there was no evidence that there was any opportunity for one to intervene in an attempt to stop the activities of the other vis-à-vis the baby. Regrettably, this is one of those situations exemplified by the judgment of Lord Goddard in Abbott. The verdict cannot stand. The appeals must be allowed and the convictions of manslaughter quashed.^[23]

1.23      Similarly, in Strudwick^[24] manslaughter convictions were quashed by the Court of Appeal. The prosecution had not proved a prima facie case of manslaughter against either or both of the appellants, because it could not show who had caused the injuries which killed the child.
1.24      In S and C^[25] the child had suffered a series of assaults over a three month period and also "a number of serious and horrifying injuries during a 19-hour period (or thereabouts)". The mother and her boyfriend blamed each other. In relation to the assaults, which took place over a three month period, the Court of Appeal decided that a case could not be made against either the mother or the mother's boyfriend since the Crown could not prove in whose charge the child was when the assaults took place. On the other hand, in relation to the injuries which took place over a 19-hour period while the mother was present in the house at all times, it was a proper inference that she assaulted the child or was a party to it occurring. Nevertheless, the mother's conviction was quashed because the judge, in his summing up:

... did not make clear the four possible approaches the jury could take: that it was a joint enterprise; that C alone assaulted the child while S was asleep; that S alone assaulted the child while C was out or asleep; or that both must be acquitted because the jury could not be sure which of the two assaulted the child.^[26]

1.25      The current law is summarised by Smith & Hogan:

If all that can be proved is that the offence was committed either by D1 or by D2, both must be acquitted. Only if it can be proved that the one who did not commit the crime must have aided and abetted it can both be convicted. This is as true where parents are charged with injury to their child as it is in the case of any other defendants. The only difference is that one parent may have a duty to intervene to prevent the ill-treatment of their child by the other when a stranger would have no such duty. It is for the prosecution to prove that the parent who did not inflict the injuries must have aided and abetted the infliction by failure to fulfil that duty or otherwise.^[27]

Partial solutions available under the current law

1.26      The cases considered in the previous section demonstrate the difficulties which arise under the current law. There is, however, a group of cases in which convictions have been obtained, despite difficulties in identifying the person who inflicted injuries upon the child. These cases will be considered in this section.

Inferring joint enterprise

1.27      In Marsh and Marsh v. Hodgson^[28] both parents agreed that they had been together with the child, who was in their joint company throughout the period of two days in which the non-accidental injuries must have been caused. Both parents were convicted, and on appeal to the Divisional Court, Ashworth J. said:

... there was strong evidence which the justices accepted to show that the injuries to this child were inflicted by human agency. Secondly, there was evidence to show that in all probability those injuries were inflicted on or about June 3. Thirdly, there was evidence, accepted by the justices, to the effect that both the defendants admitted that they had been in charge, and joint charge, of this child during June 3 and 4. No doubt there would be moments when one or other of the defendants would be absent, but the substance of that answer was that: we were both responsible for this child throughout June 3 and 4.^[29]

1.28      It was held that the prosecution had presented ample evidence calling for an answer from the defendants, as the evidence demonstrated that "the child's injuries had been caused by human agency and that the defendants were jointly in charge of the child at the material time". As the defence put forward was "untenable", the defendants' appeal was rejected.
1.29      In Lane and Lane^[30] Croom-Johnson LJ emphasised that the point of that case was that "in effect both parents were there all the time".^[31] He described the case as "a straightforward application of the ordinary principles of proof in criminal law".^[32]
1.30      In Russell and Russell^[33] Lord Lane CJ stated:

Generally speaking, parents of a child are in no different position from any other defendants jointly charged with a crime. To establish guilt against either, the Crown must prove at the least that that defendant aided, abetted, counselled or procured the commission of the crime by the other. The only difference in the position of parents, as opposed to others jointly indicted, is that one parent may have a duty to intervene in the ill-treatment of their child by the other where a stranger would have no such duty.^[34]

In this case, the child had died as a result of an overdose of methadone. The Court of Appeal upheld the parents' conviction for manslaughter because the parents admitted that they had jointly administered methadone to the child on previous occasions. Lord Lane CJ stated that this was a fact from which, in the absence of any explanation, the jury could infer that the administering of the drug on a later occasion was also a joint enterprise.

1.31      This approach may be useful where both of the defendants have admitted to conduct which is similar to the conduct which eventually causes the child's death. Professor Glanville Williams, however, criticised the decision in his article 'Which of you did it?'.^[35] He described the decision as a miscarriage of justice to all concerned^[36] and considered the Court of Appeal's conclusions that both parents were present at the time to be "unconvincing".^[37] In his view it constituted a "mighty leap in reasoning"^[38] to infer from an admitted involvement in earlier administration of small quantities of a drug that there was a joint enterprise to the administration of the massive fatal dose. He considered that it was "extraordinary"^[39] to uphold the conviction where both defendants had given all the evidence that might be expected of an innocent person.

Prosecutions for cruelty or neglect

1.32      In Lane and Lane, Croom-Johnson LJ suggested that the maximum penalty for the offence under section 1 of the Children and Young Persons Act 1933 should be increased. This was done by section 45 of the Criminal Justice Act 1988. As a result, the maximum sentence for this offence is now 10 years imprisonment. There are a number of cases in which convictions for child cruelty or neglect under this provision have been obtained, even though convictions for other offences have not been possible. For example, in Strudwick,^[40] although the manslaughter convictions were quashed (see above^[41]), convictions for cruelty were upheld on appeal. The mother's boyfriend had admitted using some violence towards the child, and the mother had seen this violence. The sentences for manslaughter had been 15 years for the mother's boyfriend and 10 years for the mother. The convictions for two counts of child cruelty were punished by sentences of ten years and seven years concurrently for the mother's boyfriend, and seven years and five years concurrently for the mother.
1.33      In S and M^[42] the child's father found bruising on the child. The medical evidence indicated that the bruising had been sustained between 12 hours and three days before. The child's mother, and the mother's boyfriend, blamed the father for the child's injuries. There was no evidence as to which adult had assaulted the child and the prosecution did not argue that there was a joint enterprise between them. The Crown case was that one had assaulted the child and the other had been guilty of wilful neglect by failing to seek medical attention for the child after the injuries had been inflicted. They were both convicted of cruelty contrary to the Act and their appeals were dismissed. The Court of Appeal stated that there was evidence of neglect for the jury to consider, in the sense that the appellant or appellants had refrained from seeking medical aid, because he or she was reckless as to whether the child might be in need of medical treatment or not.
1.34      As part of his contribution to the report of the NSPCC Working Group, Christopher Kinch QC analysed sentences for child cruelty imposed since 1988, when the maximum sentence was increased to 10 years. He commented:

A review of the sentences in cases reported in the sentencing encyclopaedia and elsewhere suggests that after 1988, the courts began to impose sentences well in excess of the previous maximum in serious cases of cruelty. More recently the courts have been prepared to impose sentences in the region of eight years imprisonment for the worst cases.^[43]

Using one suspect as a prosecution witness

1.35      Where the child's injury must have been committed by one of two people, the prosecution may have to decide whether to bring charges against both, or to prosecute one person and to use the other person as a witness for the prosecution. This happened in Lewis.^[44] The child was 14 months old, was taken to the hospital by the mother and was found to have suffered a spiral fracture to his right arm. The mother's boyfriend denied causing the injury. He was prosecuted for causing grievous bodily harm to a child. The child's mother gave evidence for the prosecution. She gave evidence that, on the day before the child's injury was discovered, she had left the house to go shopping for 40 minutes while the child was asleep. She said that the defendant had agreed to "listen out for" the child during this time. She denied injuring the child herself and said that she did not know how the child was injured. At the end of the prosecution case a submission of no case to answer was made but the judge ruled that there was evidence for consideration by the jury. The defendant gave evidence on his own behalf and denied that he had injured the child. He also denied that he had agreed to listen out for the child. He was convicted of causing grievous bodily harm with intent to do grievous bodily harm. He appealed against conviction. One of his grounds for appeal was that the judge should have upheld the submission of no case to answer. In relation to this argument, having taken into account both the defendant's argument that there was no reasonable basis for the Crown to prefer the mother's account of events and the line of authority starting with Abbott^[45] and including Aston and Mason,^[46] Otton LJ stated:

We have considered that submission with considerable care. Cases of child abuse are always anxious and this is no exception. However, we have come to the conclusion that the learned recorder was right to let the case go to the jury. [The mother] had given evidence which clearly implicated the appellant. Her evidence on the substantial issue in the case was neither inherently weak nor tenuous: she described how she had left the baby in the appellant's care; the behaviour and demeanour of the child in the period after her return and the hours thereafter. This was consistent with the evidence of Dr Matthew. In our view this was a case where the jury were called upon to decide whether they accepted her evidence and to draw the inference that the injury was inflicted by the appellant. In our view the learned recorder's exercise of discretion cannot be faulted.

Moreover, there was no error in principle in the prosecution proceeding on the basis of the mother's evidence against the appellant or in calling her as the principal Crown witness in the trial rather than charging her. The line of authority from Abbott ... is not authority, in our view, for the proposition that both should be charged and stand trial in a situation where a child within their joint care suffers physical abuse. In our view the prosecution had a discretion, depending upon how they viewed the case and the evidence at its disposal, to proceed against one, or both, or neither. We cannot say that that discretion was in any way exercised capriciously or other than fairly. We therefore find no substance in that first ground of appeal.^[47]

1.36      We recognise that prosecutors may face difficulties in deciding how to exercise this discretion in cases where two people are blaming each other for the child's death or injury. We do not believe, however, that these difficulties can be usefully addressed through legal reforms. This is, in truth, an area where the CPS will have to continue conscientiously to apply its own well established policies in the light of the particular facts of individual cases. There is no evidence, nor would we expect there to be any, that the CPS or anyone would consider that this problem can be addressed successfully by a practice of invariably charging one of those who must have committed the offence and relying on the other to give evidence.

Previous discussions of the need for reform

1.37      The problems considered in this paper were discussed by Professor Griew in his article 'It must have been one of them',^[48] and by Professor Glanville Williams in his article 'Which of you did it?'.^[49] Both articles were very critical of the decision in Gibson and Gibson,^[50] and supportive of the decision in Lane and Lane.^[51] Professor Griew said:

Cases of child abuse have given particular difficulty. Recent case law got briefly onto a wrong footing because of a dictum in Gibson and Gibson... .

This was fairly plainly erroneous and was soon effectively discredited in Lane and Lane. ...

The true view appears to be that, to establish the complicity of one parent in the other's act of injuring the child, there must be evidence to justify a finding either of 'joint enterprise' – which requires active assistance or encouragement – or of encouragement passively given by failing to take steps that he or she might have taken in discharge of his or her duty to protect the child. It simply cannot be assumed – in the absence of any other evidence – that a parent present when his or her child was injured actively assisted or encouraged the act. And there may have been no time to protect the child or, if one parent was in terror of the other, no breach of duty in failing to do so. ^[52]

1.38      Professor Griew did not suggest that the rule in Lane and Lane should be reversed. Professor Williams' conclusions were even less supportive of changes to increase the effectiveness of the criminal law in such cases:

Public money would be far better spent on providing refuges for battered wives, and the mothers of battered children, than on prosecutions of parents and sentences of imprisonment the social advantage of which is highly doubtful.^[53]

1.39      On the other hand, the Report of the Royal Commission on Criminal Justice^[54] recognised the difficulties which arise where a crime may have been committed, more than one person is present and it is impossible to say who has committed the offence. The Report stated that this "typically happens when one of two parents is suspected of injuring or murdering a child but it is impossible to say which one".
1.40      The Royal Commission stated that it had "every sympathy with the public concern over such cases"^[55] but rejected the possibility of evidential changes to allow adverse inferences to be drawn from a parent's failure to provide an explanation for the child's injuries. This is one of the issues being considered by the NSPCC Working Group and upon which we make certain recommendations.
1.41      There are certain other issues which are relevant to this problem but upon which we express no opinion in this report. First, the admissibility of evidence of a defendant's previous misconduct has been considered by the Law Commission and is the subject of a recent report.^[56] The Criminal Justice Bill, which is currently before Parliament, includes provisions to reform the law in this area. Issues relating to expert evidence were considered in the Auld Report.^[57] These issues are relevant to a wide range of criminal proceedings and it would not be sensible, in our view, to attempt to address them in the context of this report.

The format of this report

1.42      We consider the extent of the problem in Part II, taking account of the relevant research and the experience of those who responded to our informal consultation paper. In Part III we examine the way in which the civil law deals with this particular problem. In Part IV we set out our approach to the reforms which we propose. In Part V we identify the options for reform which we are rejecting and explain why we are doing so. This is, in our view, important as there are a number of possible ways to reform the law and it is necessary to explain why certain approaches are unacceptable so as to place in context those which we believe to be appropriate. Finally in Parts VI and VII we set out, respectively, the evidential and procedural changes and the changes to the substantive law which we are minded to recommend.

Note 1    (1986) 82 Cr App R 5.    [Back]

Note 2    (2001) Law Com No. 275, published 26 March 2002 (footnote omitted).    [Back]

Note 3    The respondents are listed in the Appendix to this report.    [Back]

Note 4    The amendment was proposed as New Clause 27 by Dr. Desmond Turner, Vera Baird and Ian Lucas on Friday 28th February 2003. The debate took place on 4th March 2003 in the House of Commons Standing Committee B.    [Back]

Note 5    Hansard (HC, Standing Committee B) 4 March 2003, col 1268.    [Back]

Note 6    Hansard (HC, Standing Committee B) 4 March 2003, col 1269.    [Back]

Note 7    Ibid.     [Back]

Note 8    University of Leeds.    [Back]

Note 9    Professor David Ormerod, in his response to the informal consultation paper, 29 January 2003.    [Back]

Note 10    Ibid.    [Back]

Note 11    Ibid.    [Back]

Note 12    There are, however, also cases in which disagreement between medical experts has led to wrongful acquittals. Expert evidence relating to the controversial condition of “temporary brittle bone disease” has been discredited by members of the judiciary in several cases for this reason: Re X (Non- Accidental Injury: Expert Evidence), [2001] 2 FLR 90; Re AB (A Minor) (Medical Issues: Expert Evidence), [1995] 1 FLR 181.    [Back]

Note 13    [1955] 2 QB 497.    [Back]

Note 14    Ibid, at p 503–4.    [Back]

Note 15    [1989] AC 836.    [Back]

Note 16    Ibid, at p 849.    [Back]

Note 17    (1985) 80 Cr App R 24.    [Back]

Note 18    Ibid, at p 30.    [Back]

Note 19    (1986) 82 Cr App R 5.    [Back]

Note 20    Ibid, at p 14.    [Back]

Note 21    Ibid, at p 18.    [Back]

Note 22    (1992) 94 Cr App R 180.    [Back]

Note 23    At p 185.    [Back]

Note 24    (1994) 99 Cr App R 326.    [Back]

Note 25    [1996] Crim LR 346.    [Back]

Note 26    Ibid, at p 346.    [Back]

Note 27    Smith & Hogan, Criminal Law (10th ed, 2002) p 151 (footnotes omitted).    [Back]

Note 28    [1974] Crim LR 35.    [Back]

Note 29    Cited in Lane and Lane (1986) Cr App R 5 at pp 11–12 (page 5 of the original transcript of Marsh and Marsh v Hodgson [1974] Crim LR 35).    [Back]

Note 30    (1986) 82 Cr App R 5.    [Back]

Note 31    Ibid, at p 12.    [Back]

Note 32    Ibid.    [Back]

Note 33    (1987) 85 Cr App R 388.    [Back]

Note 34    Ibid, at p 393.    [Back]

Note 35    (1989) 52 MLR 179.    [Back]

Note 36    Ibid, at p 191.    [Back]

Note 37    Ibid, at p 192.    [Back]

Note 38    Ibid, at p 193.    [Back]

Note 39    Ibid.    [Back]

Note 40    (1994) 99 Cr App R 326    [Back]

Note 41    See para 1.23.    [Back]

Note 42    [1995] Crim LR 486.    [Back]

Note 43    Christopher Kinch QC, Papers for the NSPCC “Which of you did it” Conference in Cambridge, 2 November 2002, Defence Perspective, para 7.2.    [Back]

Note 44    Court of Appeal, Criminal Division, unreported, 5 September 1997, case no 96/8306/X5.    [Back]

Note 45    [1955] 2 QB 497.    [Back]

Note 46    (1992) 94 Cr App R 180.    [Back]

Note 47    Court of Appeal, Criminal Division, unreported, 5 September 1997, case no 96/8306/X5.    [Back]

Note 48    [1989] Crim LR 129.    [Back]

Note 49    (1989) 52 MLR 179.    [Back]

Note 50    (1985) 80 Cr App R 24.    [Back]

Note 51    (1986) 82 Cr App R 5.    [Back]

Note 52    [1989] Crim LR 129 at p 132–3 (footnotes omitted).    [Back]

Note 53    (1989) 52 MLR 179 at p 199.    [Back]

Note 54    (1993) Cm 2263, chapter 4, para 25.    [Back]

Note 55    Ibid.    [Back]

Note 56    Evidence of Bad Character in Criminal Proceedings (2001) Law Com No 273.    [Back]

Note 57    A Review of the Criminal Courts of England and Wales, October 2001, Chapter 11 paras 129-151.    [Back]