276°
Posted 20 hours ago

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

£9.9£99Clearance
ZTS2023's avatar
Shared by
ZTS2023
Joined in 2023
82
63

About this deal

The Home Office consultation paper Safety and Justice: the Government's Proposals on Domestic Violence (Cm 5847), published in June 2003. 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. Therefore if it can be established that a child or vulnerable adult died as a result of an unlawful act, it need not be proved which of the two responsible members of the household either caused the death or allowed it to happen. In cases where it is not clear which of the co-accused caused the death, the offence, together with the procedures which support it, should provide a mechanism to help ensure that the person who caused the death is identified and appropriately charged and sentenced. It will therefore often be appropriate for the defendants in the case to be charged with the new offence and with murder/manslaughter. But the offence is self-standing and household members could be charged with the new offence for example, where there is no charge of murder/manslaughter or where evidence suggests that the defendant could not themselves have committed the criminal act which killed the victim. The CPS will issue legal guidance to assist prosecutors in making charging decisions.

The new offence will survive the "no case to answer" test as long as the fundamentals of the offence are demonstrated - the prosecution do not have to show whether the defendant caused or allowed the death to happen. The defendant will be under pressure to give evidence about what occurred - not to do so would result in the adverse inference being drawn. 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." attending anger management or parenting classes if appropriate, or ensuring other members of the household attend such classes 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.Was aware of the risk (or ought to have been), didn't take reasonable steps to do anything about it, and foresaw the circumstances which led up to the unlawful act causing death they were aware or ought to have been aware that the victim was at significant risk of serious physical harm from a member of the household Trials with a substantial number of charges can now be split into two phases: trial by jury of "specimen counts" and judge-only trial of the remaining counts. [9] This further expands the circumstances in which trials can be heard without a jury (see the Criminal Justice Act 2003). 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 offence defines the term ‘vulnerable adult’ as any 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. The age of 16 rather than 18 is used in this context because the term ‘child’ is defined as under 16, and the term ‘vulnerable adult’ needs to include anyone who is vulnerable but is no longer defined as a child. Legal convention means that the term ‘or otherwise’ will be read with the words which have gone before, so that it will cover those who are unable to protect themselves for reasons similar to those listed. Although there are a range of definitions of the term ‘vulnerable’ in other legislation and in guidance, it was necessary to define the term for the purposes of this offence so that it would be as inclusive as possible. It covers those who are vulnerable temporarily as well as permanently, and those who are vulnerable due to mental as well as physical incapacity. Although the term ‘vulnerable’ is clearly defined in the legislation, the extent of the term in this context will emerge as offences under this part of the Act come to court. Both have effect in relation only to the charge of murder or manslaughter, when those charges are accompanied by charges under the new offence. These procedural changes were proposed by the Law Commission in their report, Children: Their Non-accidental Death or Serious Injury, although the Act adopts a tighter mechanism for triggering them to keep them closely targeted at the “which of you did it?” cases. Inferences from silence The text of the Act including the new offence and procedural measures can be found on http://www.hmso.gov.uk/acts/acts2004.htm.The offence will not apply for example where the death was an accident, or was the result of a cot death (sudden infant death syndrome). Nor will it apply where there was one specific known risk within a household, such as a violent or abusive person, but the child or vulnerable person died or may have died from a different cause. The offence therefore does not criminalise members of the household for allowing the death if the death was the result of an event which they could not have anticipated or avoided. 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). each count or group of counts to be tried by a jury can be regarded as a sample of counts for judge-only trial thirdly, and more generally, the prospect of the adverse inference being drawn - in relation to murder/manslaughter as well as the new offence - may encourage one or more parties to give evidence explaining what happened 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:

This list is not exhaustive, but gives examples of the steps which might be considered reasonable. Some of these steps could be taken anonymously, if the defendant were afraid of being identified. This may particularly be the case if the defendant has been a victim of domestic violence. If the defendant has chosen to do any of these things anonymously, it may be more difficult to prove conclusively at a later stage that they did take the appropriate steps. If there are no records, for example, of an anonymous report having been received by social services, then the court will have to make a judgement on the evidence available about whether they believe reasonable steps were taken. b) the postponement, until the end of the defence case, of the decision on the question of whether there is a case to answerThe purpose of section 6(3) is to prevent the normal procedures by which the defence can apply for charges to be dismissed at the pre-trial stage from undermining the impact of the other procedural changes.

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. The offence of "causing or allowing the death of a child or vulnerable adult", now referred to as the "new offence", is committed under section 5 of the Act [13] if the following four conditions apply: 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.The Law Commission's report commented that this meant one or other parent were potentially "getting away with murder". [12] 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.

Asda Great Deal

Free UK shipping. 15 day free returns.
Community Updates
*So you can easily identify outgoing links on our site, we've marked them with an "*" symbol. Links on our site are monetised, but this never affects which deals get posted. Find more info in our FAQs and About Us page.
New Comment