The Domestic Violence, Crime and Victims Act - Essay Example

RUNNING HEAD: PROBLEM QUESTION Problem Question Analysis Problem Question Analysis One revolutionary law finally ended the years of frustration felt by the public and the courts in the inability to bring to justice those responsible for violence in the familial environment. The Domestic Violence, Crime and Victims Act 2004 (DVVA) has enabled the Crown to rightfully convict those who through complicity or deed inflict severe bodily harm or death on a child entrusted to their care. The DVVA was enacted to overcome deficits that had been detected in current statutes, namely murder and manslaughter, involving children when multiple parties (the parents) were present on or about the time of the crime, either could have reasonably been responsible for the crime, and there is no compelling evidence to indicate which party actually carried out the offence. These points of law will be discussed later. In the scenario presented we will discuss whether under the DVVA Maureen and Dan are likely to be convicted for causing or allowing the death of a child. In S5 (1) of the law specific criteria need to be meet to in order to consider prosecution under this act. (1) A person ("D") is guilty of an offence if- (a) a child or vulnerable adult ("V") dies 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- (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. The law states that in order to be guilty of the offence four criteria must be met. As Valerie was thrown against the wall and later died of brain damage at the hospital, we can reasonably infer that the medical findings will conclusively prove these injuries and therefore, her death, were a result of an unlawful act. The person or persons committing this act must according to subsections (i) and (ii), be members of the same household as Valerie and have had frequent contact with her. Maureen, Valerie's mother, was the leasee of the flat in which the victim resided and as her biological parent and raising the child it is obvious that both of these criteria were met. Dan, although not the biological father, he does reside and had been residing in the same residence at the time of the offence. Further he was assisting Maureen with rent payments. While cohabitating as husband and wife, a reasonable person would infer that Dan had frequent contact with Valerie as well. At the time of Valerie's death, both Dan and Maureen were residing together and did have frequent contact with the victim. According to the Children and Young Persons Act 1993 and as further defined in the Children Act 1989.1 Although not the biological parent by nature of the relationship Dan did have a responsibility for Valerie. As explained further in LAWCOM 282 "A person who is presumed to be responsible for a child or young person by virtue of subsection (1)(a) shall not be taken to have ceased to be responsible for him by reason only that he does not have care of him"2 When the police arrived at the flat Dan stated he was sleeping woke to find Maureen standing over Valerie screaming. Maureen recounted that Valerie had been sleeping and she was in the bath at the time of the offence. Upon hearing the commotion when Dan awoke Valerie from her sleep causing the child to cry after which Dan picked up the child and threw her against Maureen, according to her statement to the police, rushed from the bathroom to find the child lying on the floor. Although each had in this initial investigation incriminated the other, they did, in fact, establish that they were at the premises on or about the time of the offence thereby establishing that either of them could have been responsible for the death of the child. Subsection (c) requires that there was 'significant risk' of serious harm to Valerie by the unlawful act of either Dan or Maureen. Again in this case throwing a two year old child against a wall, it is reasonable to assume that such an act would cause serious harm to the victim. As previously stated both defendants admitted that they had been present at the time of the child's death therefore one of them was the party who actually committed the offence against the victim. Subsection (4) further requires that three criteria be met in order to be punishable under DVVA 2004, either defendant should have been aware of the risk, failed to take reasonable measures to protect Valerie from the risk and the defendant should have or did foresee the circumstances that resulted in Valerie's death. Again responsibility becomes an issue. The Family Law Act 1996 in section 63 defines this responsibility, in the context relevant here, as a couple cohabitating as man and wife and as earlier described in the Children and Young Persons Act 1933 as amended. Having established a connection and a responsibility, it now becomes important to determine if there was a 'real risk' of danger to Valerie upon which this whole case hinges. LAWCOM 282 defines this real risk as "the child is "likely" to suffer significant harm"3 and "reflects a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case."4 Additionally, the awareness must be that one of the offences set out in Schedule of punishable offences, in this particular includes assault with bodily harm. Further the defendant must have had reasonable belief that such an injury might have occurred and did not attempt to protect the child. The burden of proof here lies with the state in showing that defendant did not take reasonable steps to protect the child. In the current scenario Maureen had seen Dan hit the child on several occasions. On the second such occasion she had him leave, but allowed him to return several days later when he promised her he would not hit Valerie again. Maureen had, as stated, recounted these details to the police. The law states that the reasonableness only has to show likelihood of bodily harm. As Dan had struck Valerie on several occasions and Maureen had shown enough concern over his actions to have him leave the home, a reasonable person would believe that Maureen saw the possibility that such an act would occur and in allowing Dan to return to the home did not protect Valerie. Dan, on the other hand, never claimed to have seen prior abuse of Valerie by Maureen. However, in this case it is reasonable to assume that as the claim of prior physical assault was there one of the two parties had committed the assault. The burden rests with the prosecution during the trial to show the risk was there and the protection of the child was not acted upon. As further stated in the scenario, Dan had been drinking prior to the events leading up to the death of Valerie. The DVVA specifically address this issue. S3 (1) a and b state that voluntary intoxication is not a defence for excusing lack of knowledge or the reasonable steps to be take to protect the child from the risk of assault. Therefore, Dan has no grounds, in this case, to claim his being drunk prevented him from protecting the child. Maureen and Dan also have a statutory responsibility to disclose the facts of the events leading up to the death of Valerie during the relevant time5 leading up to and include her death. When the police arrived after Valerie was thrown against the wall, Maureen and Dan both gave accounts to the police of the relevant time. At that time the police should have according to clause 5 cautioned each that he "suspects that a person whom he is questioning in connection with the offence ("A") is subject to the statutory responsibility in relation to the offence."6 (LAWCOM 2003, p. 58). The constable should have explained that the defendants did not need to answer questions and if they did the ramifications their statements may make on prosecution under DVVA. However, based on the scenario, Dan was arrested for suspicion of murder so it is reasonable to assume the police did not at the time consider complicity under the DVVA. In determining the likelihood of conviction under DVVA the main area of contention still remains the likelihood that serious bodily harm would befall Valerie. As stated in DVVA explanatory notes in regard to clause 6 it states: The victim must also have been at significant risk of serious physical harm. The risk is likely to be demonstrated by a history of violence towards the vulnerable person, or towards others in the household. The offence will not apply if the victim died of a blow when there was no previous history of abuse, nor any reason to suspect a risk. 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. They will therefore not be guilty of the new offence, even where it is clear that one of them is guilty of a homicide offence. Maureen's pre-trial questioning by the police is not admissible in court as determined in DVVA. She never reported any abuse to the police or to any child protection agencies. Therefore, other than her testimony, there is no history of abuse. Therefore, in this case, I do not believe under DVVA the defendants would be found guilty even though it is obvious that one of them had committed the act. In this case, Dan should have been prosecuted under the statutes for murder and manslaughter. In this particular case knowing that one of the two had committed the offence and reviewing their statements I would have charged Dan in this case and used Maureen as a prosecution witness. It is very similar to Lewis7 as described in LAWCOM 282. In this case the defendant, like Dan denied the charges and the prosecution used the mother's testimony that she had not been responsible for the death of the child. The defendant was convicted and appealed based on the fact that the court should not have taken the mother's word over his own. The appeal was denied as the appellant court ruled that the mother had given testimony that was not weak, described the behaviour of the child before and after her return, was in concurrence with the physician's findings and therefore the prosecution was well within its power to use her testimony. The burden of proof was still upon the prosecution to prove its case. Further the appellant court stated: 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 As stated the burden of proof would be on the Crown to prove Dan's guilt. This was, in my opinion, the offence with which the Crown should have charged Dan. The major difference between Abbott8 and DVVA lies in the legal quandary that this decision placed upon prosecution and finding of guilt when two parties, the parents, were present at the time of death of child and neither could be definitely shown to have committed the offence. DVVA allows for the prosecution of both if the facts of the case meet the criteria delineated above. The problem as described by LAWCOM 282 prior to enactment of DVVA was when "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"9 This was further stated in Bellman10 when the court found that if the evidence determined that one of the two parties was guilty but determination of which defendant actually committed the offence, both must be acquitted. The court attempted to correct itself in Gibson and Gibson11 which 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 court found in this case (as is the premise of DVVA) that both parents had responsibility for the child in this case, neither offered a plausible cause of the child's death, both had been present at the time therefore shared responsibility for the child's death and were both convicted on manslaughter. The court further stated that unlike Abbott12 the parents had a shared responsibility for the protection of the child in their joint custody. The attempt to justify the interpretation of the law in Gibson and Gibson was overturned in Lane and Lane.13 In this case manslaughter convictions were reversed when the court found 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."14 It was further stated that not knowing or claiming not to know what the circumstances were in the case of the offence does not infer guilt by one party. They may not have been present. Inferring otherwise assumes their presence which may or may not be the case. The final comment made by the court in this case was "distressing though it may be, is that a serious crime committed by someone goes unpunished."15 This differs from DVVA in that the responsibility of the parties does not end when the child is not present. For instance, in cases of divorced parents, both parents could be charged if as an example the non-custodial parent saw severe signs of abuse on the child but made no attempt to protect the child by reporting their suspicions and rather returned the child to the abusive environment. Under DVVA the parent could be charged for failure to protect the child. The precedent set in Abbott was, in most instances, upheld again and again. For example, in Aston and Mason,16 a similar case involving the death of a child the parents' convictions were quashed. In reversing the lower court the Lord Chief Justice found: 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 Again in Strudwick17 and S and C18 the court found that without prima facie evidence against either party no conviction for both would be upheld and in the case of S and C the court could not prove at the time of the offence that had control of the child. The long standing moral dilemma of this has been alleviated with the enactment of the DVVA. This law does not allow the complicity and disregard of two people who are entrusted with the precious gift of a child's life to manipulate the law to escape punishment for offences committed against innocent children. Whilst it has come a long way in speaking out for those who have no voice of their own, it affords due protection to the accused as well. References Aston and Mason (1992) 94 Cr App R 180. Bellman (1989) AC 836. Children Act 1989 Children and Young Persons Act 1993 Domestic Violence, Crime and Victims Act 2004 "Domestic violence, crime and victims act bill explanatory notes." (29 Mar. 2004). Bill 83-EN. The United Kingdom Parliament, House of Commons. Retrieved 8 Feb. 2006, from http://www.publications.parliament.uk/pa/cm200304/cmbills/083/en/04083x--.htm The Family Law Act 1996 Gibson and Gibson (1985) 80 Cr App R 24. Lane and Lane (1986) 82 Cr App R 5. "The Law Commission (LAW COM no 279). Children: their non-accidental death or serious injury (criminal trials)" (15 Apr. 2003). Retrieved 8 Feb. 2006, from www.lawcom.gov.uk/docs/lc279.pdf "The Law Commission (LAW COM no 282). Children: their non-accidental death or serious injury (criminal trials)" (15 Sep. 2003). Retrieved 8 Feb. 2006, from www.lawcom.gov.uk/docs/lc282.pdf Lewis Court of Appeal, Criminal Division, unreported, 5 September 1997, case no 96/8306/X5 Re Abbott (1955) 2 QB 497 S and C [1996] Crim LR 346 Strudwick (1994) 99 Cr App R 326 Read More