Criminalising the victim…

It’s Tony Blair’s favourite trope when it comes to the subject of law, order and criminal justice; the suggestion that what is needed to modernise Britain’s approach to criminal justice are measures that ‘rebalance’ the system in favour of the presumed ‘rights of victims’.

But I wonder, on hearing this, just how many people thought that this all too seductive idea might mean turning victims of crime into criminals?

What? Surely not, you might think. Well not only is this being suggested by a senior police officer in today’s Guardian but it already happened – and no one seems to have noticed.

To begin at the beginning, today’s Guardian features an article on gun crime in which the Chief Constable of Merseyside police, Bernard Hogan-Howe, makes the frankly staggering suggestion that witnesses to, and even victims of, gun crime should be subject to criminal proceedings if they refuse to give evidence, even in circumstances where they fear for their life:

One of the UK’s most senior police officers has called for new laws that would compel the public to give information to the police about gun crime – whether they want to or not.

In an interview with the Guardian, Bernard Hogan-Howe, the chief constable of Merseyside police and a contender to be next commissioner of the Met, said it was clear that more and more young people were getting involved in gun crime and that they were being protected by a wall of silence.

He said the only way to address this was to adopt laws similar to those in Australia “where people have a duty to report information about gun crime to the police”. He also believes the laws should extend to victims of gun crime who survive being shot but refuse to make a complaint because of fears of reprisals.

“The challenge is: people who survive do not want to complain and the best witness is quite often the victim who can help provide a description and motive. By refusing to help it can put the investigation on to the back foot.”

Now you’ll forgive me if I’ve got this wrong, but I’ve always had the impression that the role of the police is to protect the public from crime, not put members at risk in order to improve their clear up rates and secure convictions, but evidently Hogan-Howe doesn’t see things in quite the same way that I do, hence this absolutely staggering suggestion – testify or go to prison.

Aside from the very obvious civil liberties issues that raises – frankly there is the stench of Star Chamber justice about the whole suggestion – I can see one rather obvious practical problem here.

What Hogan-Howe is suggesting is that we take people who’s testimony could put a criminal in prison for a very long time but who refuse to testify for fear of reprisals, into prison with other criminals, some of whom could quite possibly be associates of the individual against whom the witness/victim is asked to give evidence.

It should be obvious, even by now, where this is heading, especially where the shooting in question was related to gang activity and/or organised crime – putting a witness in prison for refusing to testify stands a very good chance of resulting in the police finding themselves with a dead witness on their hands, if by mischance or oversight they are imprison alongside an associate of the criminal against whom they’re being ordered to testify.

Hogan-Howe, so the Guardian suggests, is a contender for the position of commission of the Metropolitan Police, when this next comes open. On the evidence of his comments to the Guardian, I would suggest that he should be considered to be a contender for early retirement instead, such is is apparent disregard for the most basic and fundamental of all police duties.

If that were not a frightening enough prospect to begin with, then a lead from this article by Henry Porter led to an Act of Parliament that passed into law in 2004 that already has the effect of potentially treating victims of domestic violence as criminals.

Here’s the relevant passage:

But the guilt by association – or proximity – which he suggests echoes new measures in the Domestic Violence, Crime and Victims Act under which a person may be charged for simply being in a household when a serious crime is committed and failing to report it.

What? Surely not?

So far as I was aware until today, the only Acts of Parliament containing provisions of this general nature deal with terrorism, however on further investigation of the Act referred to by Porter, I discovered this (please forgive the length of the extract – all will be explained in due course):

Causing or allowing the death of a child or vulnerable adult

5 The offence

(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.

(2) The prosecution does not have to prove whether it is the first alternative in subsection (1)(d) or the second (sub-paragraphs (i) to (iii)) that applies.

(3) If D was not the mother or father of V-

(a) D may not be charged with an offence under this section if he was under the age of 16 at the time of the act that caused V’s death;

(b) for the purposes of subsection (1)(d)(ii) D could not have been expected to take any such step as is referred to there before attaining that age.

(4) For the purposes of this section-

(a) a person is to be regarded as a “member” of a particular household, even if he does not live in that household, if he visits it so often and for such periods of time that it is reasonable to regard him as a member of it;

(b) where V lived in different households at different times, “the same household as V” refers to the household in which V was living at the time of the act that caused V’s death.

(5) For the purposes of this section an “unlawful” act is one that-

(a) constitutes an offence, or

(b) would constitute an offence but for being the act of-

(i) a person under the age of ten, or

(ii) a person entitled to rely on a defence of insanity.

Paragraph (b) does not apply to an act of D.

(6) In this section-

“act” includes a course of conduct and also includes omission;

“child” means a person under the age of 16;

“serious” harm means harm that amounts to grievous bodily harm for the purposes of the Offences against the Person Act 1861 (c. 100);

“vulnerable adult” means a 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.

(7) A person guilty of an offence under this section is liable on conviction on indictment to imprisonment for a term not exceeding 14 years or to a fine, or to both.

6 Evidence and procedure: England and Wales

(1) Subsections (2) to (4) apply where a person (“the defendant”) is charged in the same proceedings with an offence of murder or manslaughter and with an offence under section 5 in respect of the same death (“the section 5 offence”).

(2) Where by virtue of section 35(3) of the Criminal Justice and Public Order Act 1994 (c. 33) a court or jury is permitted, in relation to the section 5 offence, to draw such inferences as appear proper from the defendant’s failure to give evidence or refusal to answer a question, the court or jury may also draw such inferences in determining whether he is guilty-

(a) of murder or manslaughter, or

(b) of any other offence of which he could lawfully be convicted on the charge of murder or manslaughter,

even if there would otherwise be no case for him to answer in relation to that offence.

(3) The charge of murder or manslaughter is not to be dismissed under paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998 (c. 37) (unless the section 5 offence is dismissed).

(4) At the defendant’s trial the question whether there is a case for the defendant to answer on the charge of murder or manslaughter is not to be considered before the close of all the evidence (or, if at some earlier time he ceases to be charged with the section 5 offence, before that earlier time).

(5) An offence under section 5 is an offence of homicide for the purposes of the following enactments-

sections 24 and 25 of the Magistrates’ Courts Act 1980 (c. 43) (mode of trial of child or young person for indictable offence);

section 51A of the Crime and Disorder Act 1998 (sending cases to the Crown Court: children and young persons);

section 8 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (power and duty to remit young offenders to youth courts for sentence).

This horrific piece of legislation was put in place to deal with a difficult situation, one in which a child or vulnerable adult is killed in the family home as a result of an unlawful act in circumstances in which is it impossible or near impossible to ascertain definitively which member(s) of the family is/are directly responsible for the actions which cause their death.

The ‘classic’ scenario is therefore that in which a child dies of injuries inflicted by a parent or step-parent, resulting in the arrest of both parents, who then either refuse to testify again each other or, as likely, plead not guilty and claim that the responsibility for the child’s death rests with the other.

Now, if we ignore – for the sake of simplicity – the question of other individuals over the age of sixteen who live in or visit the house on a regular basis, which these provisions also cover, and focus only on the simplest possible scenario, that of two parents (or parent and step-parent) plus dead child, then that scenario presents us with two possibilities – either both parents were party of the abuse of the child at various times, irrespective of whose actions actually resulted in the child’s death, or only one of the parents (generally male) was an abuser, while the other (generally female) was themselves a victim and subject to abuse by their partner.

What this law does is introduce a catch-all offence of causing or allowing the death of a child or vulnerable adult that operates on the basis that even if an individual (an abused partner) took no part in the abuse that resulted in the death of the child (or vulnerable) they can still be held criminally liable for causing/allowing their death to take place by failing to act to prevent it if a jury decides that they might reasonable have foreseen that the child might die as a result of the actions of their partner, an offence for which the only permitted defences are that the child’s death could not have been forseen, that it would have been unreasonable for them to take the actions necessary to prevent the child’s death or insanity – and the Act pulls another interesting and largely unnoticed rabbit of the hat on that by altering the manner in which pleas of insanity are dealt with, across the board, so that these are now decided on solely by a judge and not be a jury, as was previously the case. So yet again, another long-standing element of criminal justice practice and procedure relating to juries has been done away quietly and without anyone noticing.

So far as the law is written, the question of whether an individual charged with this offence was themselves a victim of the abuser whose actions actually caused the death of the child is entirely immaterial, but for the question of whether it was reasonable for them to have acted to try and prevent the child’s death. The upshot of this, one would very strongly suspect from the kind of public attitudes and prejudices that surround such cases, is that a parent face with such a charge would have to try an convince a highly unsympathetic jury that their life would have been at risk has they attempted to take action to prevent the child’s death and that nothing short of such an argument would result in an acquittal – and even that might not be enough for some jurors who would take the view that a parent would, and should, put the safety of their child ahead of their own.

Throw into the mix the fact that these provisions cover anyone over the age of sixteen living in the household in which the child dies, or visiting it and the child on a regular basis – which would draw an older sibling of the child into the ‘circle of liability’ even if that sibling no longer lived at home and even if they had left home because they were themselves abused by the parent/step-parent who caused the child’s death and had left home because of it, and you have a veritable smorgasbord of possibilities for a blatant miscarriage of justice tied to an offence that carries a maximum sentence of fourteen years imprisonment.

Under this law, it would be perfectly possible for the 18 year old sister of a child, who was killed by their father, to be sent to prison for anything up to fourteen years for failing to take action to prevent their sibling’s death in circumstances in which the 18 year old no longer lived in the family home – simply visited their sibling on a regular basis – was themselves a victim of abuse by the same parent and was not even present in the house at the time the actions resulting in the death of their sibling took place.

Does that sound much like rebalancing justice in favour of victims to you?

To add insult to injury, the provisions of section 6 of the Act are as nasty a piece of legislative legerdemain as I have had the misfortune to see in a very, very long time.

What section 6 does is as follows.

First, it prevents judges from throwing out the charge of murder or manslaughter in cases where a parent is charged with both the murder or manslaughter of their child and with the section 5 offence of causing or allowing the death of their child at the conclusion of the prosecution’s evidence, even if the judge is of the opinion that the prosecution has failed to provide sufficient evidence to establish that the parent has a case to answer for murder/manslaughter.

Second, it expressly permits a judge/jury to make inferences of guilt based on the refusal of the defendent in such a case to take the stand and give evidence or answer a specific question put to them by the prosecution in relation to the offence of causing or allowing the death of their child and apply those same inferences to the question of whether they may guilty of the murder/manslaughter of their child.

Only after the defence has presented its evidence/testimony, if any, is the trial judge and/or permitted to consider whether there the defendent has a case to answer for murder/manslaughter.

In short, in such cases, the defence is compelled to present a case to the court irrespective of how thin or insubstantial the prosecution’s case for murder/manslaughter may be, specifically to provide the defendant with with the opportunity to incriminate themselves in the eyes of the jury by refusing to take the stand entirely or answering specific questions in relation to the charge of causing or allowing the death of their child.

The effect of this is to make a complete mockery of the right to silence and turn it into a catch-22. Should the defendant refuse to give evidence or answer questions that might cause them to incriminate themselves for the offence of causing or allowing the death of their child, that refusal can be used by the court to infer that they are guilty of the child’s murder/manslaughter. Find yourself charged with both offences and you damned no matter which way you turn.

This is not only already on the statute books – and has been there for getting on for three years, but so far as one can tell it passed into law without comment from even Liberty, who appear not to have noticed even the changes made to handling of insanity pleas by the courts, even though these changes apply across the board and not just to this specific offence.

Women’s Aid did notice and their briefing on the Act includes the following, very pertinent note:

Women’s Aid recommended that a victim of domestic violence should not be regarded as having caused or allowed a child or vulnerable adult to be killed unless there is clear evidence that this person actively contributed to the injury or killing of a child or a vulnerable adult. This was rejected.

Consequently, we are left to good offices of the judiciary and the common law (again), as it applies to the question of what constitutes steps that a victim of domestic violence could reasonably have taken to prevent the death of a child at the hands of their own abuser, to prevent his appalling piece of legislation turning victims of domestic violence into criminals in the most horrific circumstances one could possibly imagine.

One can easily come to hate a government that passes such appalling and incompetently-framed legislation of a kind that satisfies none of the principles of justice and all of the desire of the tabloid press for a witch-hunt in such cases.

6 thoughts on “Criminalising the victim…

  1. The law is essentially a limited reversal of an ancient Common Law tradition: that there is no legal obligation to act in defence of anybody, no duty to pull someone out of a burning car. You could argue that, in this very specific case, that’s justified – the relationship between parent and child should be different – but that’s really a political question.

    The problem, however, with examining the many (many) scenarios where this would lead to a clear travesty of justice is that judges have discretion to take these into account while sentencing. It is the absence of this discretion that leads to weird murder decisions. We are indeed left at tbhe mercy of the common law and the judiciary – but then that’s usually the case. As you say, it’s as much the incompetence as the authoritarianism with this Government that grates.

  2. It has been the law of the land that a witness who refuses to turn up can be sent for on a warrant for quite a while, or at the very least it was when I worked for the CPS.

    But beyond that, yup, another appalling slug of legislative cruftware.

  3. I guess the “member of the Household” definition gets social workers and other professionals who have failed an abused child despite having regular vists to the household, off the hook.

  4. “Then the Lord said to Cain, ‘Where is your brother Abel ?’ Cain answered ‘I do not know. Am I my brother’s keeper ?'” Genesis chapter 4, verse 9

    Is this “gun crime witnesses” scenario so very different from the “thought crime” under
    Terrorism Act 2000 Section 38B Information about acts of terrorism ?

    38B Information about acts of terrorism

    (1) This section applies where a person has information which he knows or believes might be of material assistance

  5. But if they don’t act to prevent yet report the crime, are they still able to be charged?

    ’cause witholding information from the police is already an offence, isn’t it?

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