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 offence also allows for the fact that, with modern lifestyles and increasingly flexible family arrangements, a person may be a member of more than one household at any one time. But if this is so, the offence will only apply to members of the household where the victim was living at the time of the act which caused their death. Increasingly children may live in one household, for example with their parents, but spend most of their time in another, for example grandparents or aunts and uncles. In the example above, the grandparents would not have responsibility for what happened in the parents’ household and vice versa. making sure that the child or vulnerable person is treated promptly and appropriately for any injuries or illnesses which they may suffer

We would not necessarily expect a high volume of cases where charges under the new offence would be appropriate. It is difficult to be precise. Most recent Home Office statistics show that in the year 2003/4 there were a total of 70 victims of homicide under 16. In 30 of these the suspected perpetrator was a parent. But it is likely that only a small proportion of these would fall within the category where there was insufficient evidence to justify a charge of murder or manslaughter, and the new offence would result in additional people being charged. Moreover the offence is not limited to ‘which of you did it’ cases, but can be used where, even if there is strong evidence that one individual caused the death, there is evidence that other adult members failed to act to protect the victim in the circumstances set out in the legislation. So there may be additional cases resulting from this. We also need to add to this figure the cases where the member of the household who is suspect is not the parent, and the cases involving vulnerable adults rather than children. Based on current statistics, we would expect the number of cases to be small. Nevertheless, these may be important and difficult cases. 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 A submission that the prosecution have shown no, or fundamentally inadequate, evidence of the defendant's guilt on all elements of the offence; thus securing a judge-directed acquittal. This can occur at the end of the prosecution case before the defendant is under pressure to give evidence The victim must have been at significant risk of serious physical harm from a member of the household. The risk is likely to be demonstrated by a history of violence towards the vulnerable person, or towards others in the household. For example, a person cannot be guilty of allowing the death of a child or vulnerable person if the victim died from 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 and eventual death. They would therefore not be guilty of allowing the death if the death could not have been foreseen, even where it is clear that one of the household is guilty of a homicide offence. In that case every effort should be made by the investigating officer to obtain as much evidence as possible so that other appropriate charges can be considered. Appropriate charges might include murder/ manslaughter, or child cruelty or neglect under the Children and Young Person’s Act 1933. National Society for the Protection of Children ("NSPCC") "Which of you did it?" Working Group Report, published in Autumn 2003.A child or vulnerable adult dies as a result of an unlawful act of a person in the "same household" 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." The Law Commission consultative report Children: their non-accidental death or serious injury (criminal trials) - a consultative report (LC279), published on 15 April 2003. 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

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.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: b) the postponement, until the end of the defence case, of the decision on the question of whether there is a case to answer The 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 purpose of this circular is to provide guidance to those working in the criminal justice system on the provisions of sections 5 and 6, which introduce a new offence of causing or allowing the death of a child or vulnerable adult and new procedural measures linked to the offence. The offence will come into force in England and Wales on 21st March 2005. This Circular is for guidance only and should not be regarded as providing legal advice. Legal advice should be sought if there is any doubt as to the application or interpretation of the legislation.

The offence should therefore be investigated and dealt with sensitively. The ACPO/Centrex guidance on child abuse and safeguarding children, published on 3rd March 2005 and the ACPO/NCPE Guidance on Investigating Domestic Violence (launched in November 2004) will provide further direction to the Police Service of England and Wales. Where there is a need to carry out a joint enquiry under section S47 of the Children Act 1989 involving social services and the police this should be undertaken in accordance with the guidance set out in working together to safeguard children.Although the new offence will enable charges to be brought against all those in the household who had a responsibility for the death of a child or vulnerable adult, even where no charges were previously possible, the policy goal remains that the person who has caused the child’s or vulnerable adult’s death should be identified and convicted of murder or manslaughter if appropriate.