Crimes against the person

 

:Law Commission report Parents and caregivers will be liable if they fail to protect their children from injury or fail to intervene when a child is at risk under a package of reforms recommended by the Law Commission.  

The new provisions are outlined in the Law Commission’s latest report on the Crimes Act 1961 which focuses on Part 8 of the Act dealing with crimes against the person, including homicide, assault, and injury offences.  

The   most   substantial   changes   recommended   by   the   Commission   relate   to   the provisions addressing child assault, neglect, and ill treatment.  

 “We   share   the   government’s   view   that   some   of   the   existing   offences   and   their maximum penalties are inadequate and do not sufficiently protect our children”, said Law Commission President Sir Geoffrey.      

The new provisions are designed to expand the duties of care parents and guardians owe children and other vulnerable dependents such as the elderly or impaired.

Under a proposed new  law adults living in the same household as a child under 18 whom they know to be at risk of death, serious injury or sexual assault, will be legallyliable if they fail to take reasonable steps to protect them. 

The provision is modelled on an offence in the English Domestic Violence, Crime and Victims Act 2004 (UK), and would also apply to any vulnerable adult living in the home.

Currently there is no legal duty for adults to intervene to protect a child in their home. Sir Geoffrey said that in practice this means household members who are neither perpetrators of, nor, legally speaking, parties to, ill treatment or neglect cannot be held liable for their failure to intervene, no matter how outrageous or how obvious the ill treatment or neglect of the child might be. “In our view that is entirely unsatisfactory and needs to change.”

The Commission has also proposed expanding the current provision requiring parents and caregivers to provide children and other vulnerable dependents with “necessaries” (a broader concept than the “necessaries of life” and including food, medical care, adequate clothing etc). The Commission does not think this offers sufficient protection and wants parents and caregivers to have an additional legal duty to take reasonable steps to protect the person in their charge from injury.

Liability for offences involving “cruelty to a child” will also be strengthened under the proposed reforms. At present, a person is not guilty of this offence if their acts were done out of ignorance or thoughtlessness. The Commission proposes replacing this defence with a gross negligence test which means the jury would only need to be satisfied that the alleged conduct was a major departure from the standard of care expected of a reasonable person.

It would be extended to cover those in charge of children up to 18 years of age, as well as vulnerable adults. The maximum penalty would increase from 5 years imprisonment to 10 years.

The Commission has also reviewed the “core” assault and injury offences in the Crimes Act; as well as the “specific” assault offences (such as assault on a child, and male assaults female).

“We recommend that all of these offences be simplified,” said Sir Geoffrey. “Although a few specific offences need to be retained, the majority should be repealed and replaced by three new sections containing six new offences, to cover the whole range of assaults and injuries short of death.” The Commission has also looked closely at the offences which deal with “endangering” or criminally negligent activity.

The report recommends a hierarchy of offences depending on whether death, injury, or risk of injury results. However, the scope of homicide law is not altered by the Commission’s proposed changes. “This is about clarifying and codifying the existing law dealing with homicide, not changing it,” Sir Geoffrey said. “We have also undertaken a substantial revision of maximum penalties, to try to ensure that they are consistent,” Sir Geoffrey said.

“We have recommended a number of changes. But these are less significant than they first appear. They principally result from a re-organisation of the offences, rather than any policy to alter sentencing outcomes. None of the revised penalties has decreased.”

The government will announce today its response to the Commission’s report. “A Crimes (Offences Against the Person) Amendment Bill has been drafted, and is appended to our report. It is ready for introduction, if the government agrees,” Sir Geoffrey said.

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