The offence defines the term ‘vulnerable adult’ as any 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. The age of 16 rather than 18 is used in this context because the term ‘child’ is defined as under 16, and the term ‘vulnerable adult’ needs to include anyone who is vulnerable but is no longer defined as a child. Legal convention means that the term ‘or otherwise’ will be read with the words which have gone before, so that it will cover those who are unable to protect themselves for reasons similar to those listed. Although there are a range of definitions of the term ‘vulnerable’ in other legislation and in guidance, it was necessary to define the term for the purposes of this offence so that it would be as inclusive as possible. It covers those who are vulnerable temporarily as well as permanently, and those who are vulnerable due to mental as well as physical incapacity. Although the term ‘vulnerable’ is clearly defined in the legislation, the extent of the term in this context will emerge as offences under this part of the Act come to court. 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 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. firstly, when the judge makes his or her decision as to whether there is a case to answer at the end of the defence case -if the judge considers that the jury could properly draw an adverse inference, he or she will be able to take the inference into account in making his or her decision on case to answer. It is anticipated that this will lead to more cases being put to the jury than is currently the case

If there was no obvious history of violence, or any reason to suspect it, then the other members of the household would not be guilty of this offence, even in clear cases of homicide. 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 were aware or ought to have been aware that the victim was at significant risk of serious physical harm from a member of the household 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.

Changes over time for: Section 22

The new offence may assist in achieving this goal. But by itself the new offence might not always open the way to such a conviction. The less culpable party could still not be willing to explain what happened. Or he or she might only give their version of what happened after the close of the prosecution case, by which time the judge would already have withdrawn the murder/manslaughter charge on the basis of there being no case to answer.

The Law Commission's report commented that this meant one or other parent were potentially "getting away with murder". [12] Subsection (3) establishes that only those who are 16 or over may be guilty of the offence, unless they are the mother or father of the victim. This is intended to reflect the special responsibility which parents have towards their children. It is also intended to reflect that the parent under 16 will normally have support and advice available to them from social services, health visitors and their GP amongst others. Other members of the household who are under 16 may not have this sort of support available, and are not under the same duty of care as the parents of the child. An intractable legal problem had arisen in relation to cases where a child or vulnerable adult cared for by two people dies as a result of ill-treatment. It is known that at least one of two people is responsible, but not which. This problem had been analysed in a number of cases. The Court of Appeal in Lane v Lane [10] held that neither person could be convicted, nor the trial proceed past the end of the prosecution case, because there was no evidence specifically pointing to a certain defendant. The Parliamentary Joint Committee on Human Rights looked carefully at whether the procedural measures would be compatible with the ECHR requirements to provide a fair trial (ECHR Article 6). They concluded that the measures would be compatible with a fair trial, because they are confined to the very particular circumstances in which the new offence would apply. The Law Commission have also pointed out that there is an obligation under the ECHR for signatory states to ensure that deaths are properly investigated as part of the obligation to ensure that everybody’s right to life is protected by law. Ministers have certified that in their view the DVCV Act is compatible with the ECHR rights.

Changes to legislation:

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 Law Commission report: Children: their non-accidental death or serious injury (criminal trials) (LC282), published on 16 September 2003. 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.