Criminal law

Domestic Violence Crime and Victims Act 2004

Important provisions of the Domestic Violence Crime and Victims Act 2004 came into force during March 2005. The most significant relate to the deaths of children or vulnerable adults.


Section 5 deals with the situation where it is known that one of a limited number of persons must have been responsible for the death, but historically the Crown has not been able to prove, to the necessary standard, which of them was responsible.


A complex new offence is created under section 5. A person is guilty of an offence if:

A child or vulnerable adult dies as a result of an unlawful act of a person who was a member of the same household as the victim and who had frequent contact with him;

The defendant was such a person at the time of the act;

At that time there was a significant risk of serious physical harm being caused to the victim by the unlawful act of such a person; and

Either the defendant was the person whose act caused the victim's death or was, or ought to have been, aware of the significant risk of serious physical harm; and

The defendant failed to take such steps as he could reasonably have been expected to take to protect the victim from that risk; and

The act occurred in circumstances of the kind that the defendant foresaw, or ought to have foreseen.

The prosecution does not have to prove whether the defendant killed the victim, or being a person who was or ought to have been aware of the risk, failed to take reasonable steps to prevent the death.


A defendant who is not the mother or father of the victim may not be charged under this section if he is younger than 16 at the time of the act. The offence carries 14 years' imprisonment.


Important linked procedural changes are made by section 6. This provides that where a person is charged with an offence of murder or manslaughter, and with an offence under section 5 in respect of the same death, the defence may not make a half-time submission.


This has the affect of bringing into play the inference from silence under section 35 of the Criminal Justice and Public Order Act 1994 before a defence closing speech is made. This will make it very difficult for defendants not to give evidence where it is merely their case that another person was responsible for the death.


These provisions came into force in relation to any act that killed on or after 21 March 2005.


With effect from 31 March 2005, a jury may bring in a verdict of guilty to common assault, even though that allegation has not been specifically pleaded on the indictment. The court's powers are limited to the sentencing powers of the magistrates' court.


From 31 March, a new regime comes into force in relation to those unfit to plead in the Crown Court. The decision whether a defendant is fit to plead will now be one for the judge alone. Similarly, if such a finding is made, the decision whether the defendant did an act, or made an omission, is also one for the judge and no longer for a jury (see section 22).


In dealing with such a person, the court shall make either a hospital order, with or without a restriction order, a supervision order, or an absolute discharge. In relation to an offence where the sentence is fixed by law, a hospital order need only be made where the pre-conditions for such an order exist.





Procedural change - bail


Section 18 of the Criminal Justice Act 2003 was brought into effect on 4 April 2004. This allows the Crown to appeal against the grant of bail in the magistrates' court in the case of any imprisonable offence. Contrary to expectations, the provisions of sections 14 and 15 (so far as they reverse the presumption in favour of bail) were not brought into force at this time.




Consistent TIC policy


The Crown has now adopted a consistent policy that is being applied throughout the country in relation to the taking of offences into consideration (TIC).


If at any time a TIC is declined but a person is found, for instance by forensic evidence, to have committed an offence, he will be prosecuted for that offence even if he has since served a period of custody for matters committed at a later date.


This means that clients do stand the risk of a gate arrest. However, considerable judgement is required and the issues will need to be discussed fully with clients. Thus a client who admits offences at the time of an arrest, about which the police knew nothing, is likely to receive a discount, not only for an early guilty plea but also for additional remorse.


On the other hand, if the number of offences admitted significantly increases the seriousness of the offences charged, then it is conceivable that a higher level of penalty will be imposed. Each case will have to be considered on its merits, with the client and the risks balanced against the risks of later arrest.




Prosecution appeals


Provisions of part 9 of the Criminal Justice Act 2003 came into force on 4 April 2005 in relation to Crown Court cases sent, transferred or committed on, or after, that date. This allows the Crown an interlocutory right of appeal when the judge makes a ruling against the Crown where it is prepared to give an undertaking that, if unsuccessful on appeal, the defendant must be found not guilty.


These are therefore described as terminating rulings. Leave of the trial judge or of the Court of Appeal is required for the appeal to proceed. A further appeal is available to the House of Lords. The procedure cannot be used where there is already a right of appeal, such as that arising at a formal preparatory hearing. Defence costs in the appeal courts in these cases are payable from central funds.


The right of the Crown to appeal significant evidential rulings will be introduced at a later date.




Double jeopardy


Part 10 of the Criminal Justice Act 2003 was brought into force on 4 April 2005 and is of retrospective effect. It applies to any acquittal at a Crown Court or following a successful appeal of a Crown Court conviction to the Court of Appeal.


The power exists in relation to any qualifying offence, as defined in part 1, schedule 5. Only one such application may be made. The investigators will first have to obtain the leave personally of the Director of Public Prosecutions (DPP), or of his deputy. The case will then be referred to the Court of Appeal, which will only quash the acquittal if it is satisfied that:

There is new and compelling evidence (see section 78). Evidence is new if it was not adduced in the proceedings in which the person was acquitted. Evidence is compelling if it is reliable, substantial and, in the context of the outstanding issues, highly probative;

It is in the interests of justice (see section 79). Relevant considerations are whether the existing circumstances make a fair trial unlikely for the purposes of that question or otherwise the length of time since the qualifying offence was allegedly committed;

Whether it is likely that the new evidence would have been adduced in the earlier proceedings against the acquitted person but for a failure to act with due diligence or expedition;

Whether, since those proceedings or 4 April 2005 - whichever is later - there has been any failure to act with due diligence or expedition.

Investigators wishing to re-open a case require consent from the DPP before proceeding, unless an investigation would be substantially and irrevocably prejudiced.




By Anthony Edwards, TV Edwards, London