CHILDREN: Non-Accidental Death and the Lacuna of Prosecution. A Critical Analysis of the Law Commission's Proposals and a Re-evaluation of the Underlying Case Law

Abstract

The aim of this dissertation is to examine the Law Commission's proposals in respect of their final report on CHILDREN: Non-Accidental Death and Serious Injury, Law Com 282 and to determine whether the proposals are capable of meeting the criteria set by the Law Commission; i.e. that any recommendations must be justifiable on their own terms.

In order to do this a strict literal legal methodology will be employed. This is not because of its suitability to meet the social malaise that is the cause of the problem, or because of the fact that it identifies how that problem might be resolved, it is utilised because it is regarded as the primary method of interpretation.

The dissertation is split into two distinct chapters and both of these chapters are equally sub-divided into two parts. In chapter one part I, the proposed Bill is analysed clause by clause and subjected to imminent critique. Part II of chapter one then utilises the cases identified by the Law Commission to determine whether the provisions of the new Bill would substantially alter the out-come of any of the cases demonstrative of the identified lacuna. Reference is also draw to the partial enactment of the Bill within the Domestic Violence Crime and Victims Act 2004; however this Act is not the main focus within the dissertation.

The Second and last chapter re-evaluates the pre-existing case law in this area. Again the methodology employed is one of literal legal interpretation, the reason for this being the fact that during the research for this paper it became apparent that there was a commonly held misinterpretation as to the extent and focus of the legal principles found within the substantive cases in this area of law. For instance, the case of Lowe 1973 is the substantive case on the distinction between an unlawful act and an omission within the offence of unlawful act manslaughter, omissions not being considered sufficient for this offence. Lowe is still considered good law despite being overruled by the House of Lords in Sheppard 1981. Reconciliation of these two cases and the earlier case of Senior 1899 is employed to demonstrate this misinterpretation.