Child Abuse: Guidance on Prosecuting cases of Child Abuse

Introduction
General Principles
Achieving Best Evidence (ABE) video interviews
Statutory and Common Law Offences
Indictments
Issues commonly arising in child abuse cases
Practice, Procedure and Case Management
Annex A - Child Abduction Warning Notice(children under 16 years)
Annex B - Child Abduction Warning Notice (children under 18 years)

Introduction

The purpose of this guidance is to provide detailed practical and legal guidance to prosecutors dealing with child abuse cases.

It is not the purpose of this guidance to reiterate the detail of generic guidance contained elsewhere e.g. bad character. Where a reference is made to such guidance, a link will usually be provided.

This guidance should be read in conjunction with the CPS guidance 'Safeguarding Children Guidance on Children as Victims and Witnesses' and 'Children and Young People CPS policy on prosecuting criminal cases involving children and young people as victims and witnesses'.

General Principles

Standards

The 2008 HMCPSI report 'A Second Review of the Role and Contribution of the Crown Prosecution Service to the Safeguarding of Children' confirmed that the role of the CPS in safeguarding children involved child victims, child witnesses and young persons before the court.

Examples given of our role included:

fulfilment of the Service's stated principles of expedition, sensitivity and fairness in cases involving allegations of child abuse
high standards of advice, decision-making, case preparation, advocacy and witness care in child abuse cases and others involving children as victims and
consideration of the use of children as witnesses: the care afforded to them and the use of special measures to enable them to give evidence in the best way possible in terms of the quality of their evidence and reducing trauma to them.

Prosecutors should adopt the following key principles in cases of child abuse:

Expedition

Delay can cause unnecessary distress to the child witness and adversely affect the quality of the child's evidence.

Cases should be expedited through the court process where possible, particularly when the child is very young. The Court of Appeal in R v Malicki [2009] EWCA Crim 365 said

"...cases involving such young complainants must be fast-tracked. The proper administration of justice requires it. It is the responsibility of all concerned - prosecution and defence - to bring the need for expedition to the attention of the court (and we refer both to the magistrates' court and to the Crown Court because expedition is needed at all stages of the procedure) and it is the responsibility of the court to ensure that such expedition is provided."

Steps should also be taken to ensure the prosecution team do not allow cases to "drift" at the investigative stage where, for example, pre-charge advice has been sought and follow up actions requested. Such "drift" can endanger the child who has not yet been taken to a place of safety and undermine the ability of the very young witness to give evidence at a later date at court.

Sensitivity

Child abuse cases tend to require particular sensitivity because of the nature of the allegations and the emotional impact on the child and his/her family. All procedures available to assist a child witness to give their best evidence should be used. For example, focussed and concise ABE interviews, a range of special measures and witness support.

Fairness

When evaluating the evidence of adult and child witnesses, artificial hurdles should not be introduced in respect of the child's evidence. Evidence is no less reliable than that of an adult simply because it comes from a child. Corroboration is no longer required. Child witnesses should not have to satisfy some unspoken test simply because they are children.

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Definition of child

"Child", for the purpose of this guidance, means a person under the age of 18 years in accordance with the definition contained in the United Nations Convention on the Rights of a Child and the Children Acts 1989 and 2004.

The relevant date for establishing the child's age is the date of the offence and not the date on which the defendant is charged. Prosecutors should be aware that the definition of "child" varies in different statutes.

Purpose of having a definition of 'child abuse'

The general purpose of having a definition is to establish a framework within which policies for handling such cases can be developed and monitored and to enable a wide variety of professionals coming into contact with children to identify a range of actions or circumstances which may be potentially abusive to children

CPS definition for CMS flagging purposes

The definition of child abuse as described by other agencies is wide. The definition of child abuse for CPS monitoring purposes is: 'any criminal offence which falls within the criteria set out in 'Working Together to Safeguard Children' and involves a victim under 18'.

'Working Together to Safeguard Children - A guide to inter-agency working to safeguard and promote the welfare of children 2010' defines child abuse as:

"Abuse and neglect are forms of maltreatment of a child. Somebody may abuse or neglect a child by inflicting harm, or by failing to act to prevent harm. Children may be abused in a family or in an institutional or community setting, by those known to them or, more rarely, by a stranger, for example, via the internet. They may be abused by an adult or adults, or another child or children."

The definition goes on to give examples of neglect, physical, sexual and emotional abuse. While this is the multi-agency definition of child abuse, not all of the behaviour contained in the definition will amount to a criminal offence.

The majority of cases may be perpetrated by an adult, but this definition also includes crimes perpetrated by under 18s to ensure that cases such as a seventeen year old babysitter committing a sexual offence against children in his or her care is included.

This CPS child abuse definition, similar to the CPS definition of domestic violence, recognises that this may over a wide range of offences. Cases that would not normally be expected to be flagged as 'child abuse' include:

motoring offences where the child has been injured or killed;
medical negligence;
property offences.

In unusual or borderline cases or if in doubt, an abusive context or a breach of trust element is likely to mean that a case should be flagged as a child abuse case.

Not every child abuse case will require allocation to a child abuse specialist, for example a straightforward case involving neglect or assault

Local Safeguarding Children Boards (LSCB)

The Children Act 2004 introduced Local Children Safeguarding Boards to replace the Area Child Protection Committee; membership is determined by statute. Permanent members, for example local authorities and the police, are under a duty to safeguard children as well as to investigate and prosecute child abuse.

The CPS is not a permanent member but may attend meetings if invited to do so. Involvement of CPS Areas with their LSCBs is strongly recommended, whether via Local Criminal Justice Boards or direct.

Independent Safeguarding Authority (ISA)

In 2008, the ISA was established by the Safeguarding Vulnerable Groups Act 2006 to prevent unsuitable people from working with children and vulnerable adults. The ISA is a non-departmental public body which assesses the risk of harm that an individual would pose if they were to work with vulnerable groups, based on information received from a number of sources including the police, local authorities and employers.

On 12 October 2009, POCA, POVA and List 99 were replaced by two new barred lists administered by the ISA: the ISA Children's list and the ISA Adults' list. Checks of these lists can be made as part of an enhanced CRB check. It is a criminal offence for an employer to employ a non ISA registered person in certain circumstances. It is also an offence for a barred person to be employed in certain types of work involving vulnerable adults or children. Further information can be found at www.isa-gov.org.

Protection Orders

Section 46 of the Children Act 1989 permits a police officer, who has reasonable cause to believe that a child is at risk of significant harm, to remove the child to a place of safety, or to prevent the child from being removed from somewhere the child is safe e.g. a hospital.

Known as police protection, it is the most immediate form of protection available for any child, in that it can be put into effect at once, without the need for a court order.

Police protection can remain in force for up to 72 hours. Any police officer can make the order (the 'Initiating Officer') but it must be confirmed by an officer of at least the rank of Inspector (the 'Designated Officer') and it must be reported to the local authority who will then usually apply for an Emergency Protection Order (EPO), in the first instance.

The Designated Officer should ensure that the force Child Abuse Investigation Unit (or unit fulfilling that function) is made aware of children taken into police protection.

Section 44 of the Children Act 1989 enables the court to grant an EPO to secure the immediate safety of a child by removing the child to a place of safety, or by preventing the child's removal from a place of safety.

The court may make the order if there is reasonable cause to believe that the child is otherwise likely to suffer significant harm. The Order should only be made if the court is satisfied that it is both necessary and proportionate, and that no other less radical form of order will achieve the essential aim of promoting the child's welfare. The Order is not to be made for any longer than is absolutely necessary to protect the child.

Offences committed by children against children

Children may be the victims of abuse committed by other children. It is essential that the interests of all the children involved in the case are considered, including the impact of a prosecution and the most appropriate venue for trial, particularly where the children are very young.

For further information see the Youth Offenders Legal Guidance; for sexual offences involving a child defendant see the Legal Guidance on Sexual Offences.

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Achieving Best Evidence (ABE) Video Interviews

'Achieving Best Evidence in Criminal Proceedings: Guidance on interviewing victims and witnesses, and guidance on using special measures' latest edition published in 2011) provides detailed recommended procedure for interviewing child witnesses. The Guidance covers practical issues around initial contact with the witness, consent, when the child can be further interviewed and issues to be considered for very young children, children with disabilities or children who are psychologically disturbed.

The purpose of an interview can include evidence gathering in criminal proceedings; evidence in chief; enquiries into 'significant harm' under s.47 Children Act 1989 and safeguarding issues and evidence gathering for civil proceedings e.g. care proceedings.

Video interviews are considered best practice for cases involving sex or violence but there are exceptions, for example where the abuse itself was video recorded, or the child objects or there are insurmountable difficulties in conducting the video interview.

The interviewer must consider the needs of the victim, for example: which special measures will be required? Is there a need for an early special measures meeting/discussion with the prosecutor? Is a Registered Intermediary required? Does the child require an interview supporter?

Section 47 enquiries, conducted by the local authority, into 'significant harm' may be taking place at the same time as a criminal investigation and will involve a strategy meeting between various agencies. Where it has been agreed by the police and children's social care, that it is in the best interests of the child that a full investigation is carried out, the responsibility for the investigation lies with the police, including any investigative interview. However, provided both the police officer and social worker have been trained to interview child witnesses in accordance with 'Achieving Best Evidence', there is no reason why either should not lead the interview.

Children with disabilities or where the child is very young or psychologically disturbed

Special care and planning for a video interview needs to be undertaken in respect of children with a disability or where the child is very young or psychologically disturbed. This is set out in detailed in Achieving Best Evidence. Deaf children may not be proficient either in the use of British Sign Language or in working with interpreters; particular thought must therefore be given to the use of an appropriately skilled interpreter possibly working with a Registered Intermediary.

The child who becomes a suspect

It may happen that a child who is being interviewed comes under suspicion of involvement of a criminal offence, e.g. a self incriminating statement. If this occurs, the interview should be terminated and the child told that they may be interviewed at a later date. Admissions made by a child in these circumstances may not be admissible in evidence and a further interview under PACE will be required.

Review of video evidence by the reviewing lawyer

The whole recording must be viewed for the purposes of review and before the tape is released to the defence or a third party. Further information can be found in Legal Guidance on Children as Victims and Witnesses.

PCMH / PTR case management issues

The following are some of the issues that should be addressed by the prosecution team in their pre-trial planning:

Special measures - a timely application (i.e. within the time limits laid down by the Criminal Procedure Rules) will need to be made for special measures, in particular video evidence in chief and TV link, using a Registered Intermediary and clearing the court room in sexual offence cases.
Any other supportive measures e.g. arrangements for a pre trial visit, arrangements for the witness to access the court building other than by the main public entrance, breaks, use of a supporter - these should be clarified at the PCMH/PTR and the PCMH questionnaire will cover these points.
Clarification as to any challenge to the admissibility of the video interview.
Editing - judges have a responsibility to eliminate undue repetition and may require interviews to be reduced in length, so as to reduce the burden on the jury and on the witness. Directions as to the time limits for the editing of the video will usually be given by the judge at the PCMH.

It is unacceptable to prolong the anxiety of young witnesses simply because these issues have not been addressed at PCMH/PTR.

Refreshing memory

Witnesses are entitled to see a copy of their statement or view their recorded interview before the trial. In the case of video recorded evidence this should be done before the trial (i.e. not immediately before giving their evidence over the live link).

Further detail can be found in Legal Guidance on Children as Victims and Witnesses.

Video security

A video-recording of a witness's statement can be a highly valuable piece of evidence in any investigation. It is also a record of intimate and highly personal information and images, which, in the interest of the witness, should be held strictly in confidence and for its proper purpose. It is therefore essential that adequate arrangements are made to store the recording safely and securely in a steel cabinet, and that access to it or to any official copies is restricted to those authorised to view the recording.

Video security is outlined in detail in Annex N of Achieving Best Evidence.

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Transcripts and ROVIs

See Annex P of Achieving Best Evidence. The functions served by a ROVI are such that one should be compiled in every case where a vulnerable witness is interviewed on video. Prosecutors should base their charging decisions on the viewing of the video. The ROVI may be used to assist this process. A request for a transcript should then only be made once the defendant has indicated his intention to plead not guilty.

Video interviews as unused material

A copy of the video recorded interview should be made available to the defence, providing it is properly disclosable under the Criminal Procedure and Investigations Act 1996.

Competence and Compellability

Section 53(3) and (4) Youth Justice and Criminal Evidence Act 1999, states that all persons (whatever their age) are competent to give evidence, unless they cannot understand questions asked of them at court or answer them in a manner which can be understood (with, if necessary, the assistance of special measures).

Compellability means that a witness can be legally required to attend trial, or be available for cross-examination on the live link if a special measures direction has been made. Most witnesses who are competent can be compelled to give evidence. However, care should be taken when considering issues of compellability in relation to children. Further information can be found in the Legal Guidance on Competence and Compellability.

Sworn and unsworn evidence

Where a video interview is to be played in court as evidence in chief, there is no need for the witness to be sworn. Section 31(2) and (3) of the Youth Justice and Criminal Evidence Act 1999 expressly provides that if the video is admitted by the court, it shall have the same legal status as that witness' oral testimony even where, if giving direct oral testimony, the witness would have been required to be sworn. Children under the age of 14 years will always give unsworn evidence (section 55(2) Youth Justice and Criminal Evidence Act 1999).

Witness Support and Preparation

In some areas of the country the Witness Service/Victim Support provide a specialist Young Witness Service.

Achieving Best Evidence provides guidelines for pre-trial preparation of young witnesses at Chapter Five. In addition, Appendix F refers to National Standards for Young Witness Preparation and Appendix K provides National Standards for the Court Witness Supporter in the Live Link room.

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Statutory and Common Law Offences

Sexual Offences

The Sexual Offences Act 1956 was implemented on January 1 1957 and repealed 1 May 2004 by the Sexual Offences Act 2003 ('SOA'). Prosecutors may find that they will need to use different sets of legislation, depending on the dates of the offences. Areas are therefore advised to retain a copy of Archbold 2004 to assist in respect of the offences committed prior to the implementation of the Sexual Offences Act 2003.

Full guidance on charging and prosecuting sexual offences involving children can be found in the Sexual Offences section of the Legal Guidance. An outline of some of the offences is given in the other sections that follow.

Meeting a child following sexual grooming (section 15 SOA, as amended by section 73(a) Criminal Justice and Immigration Act 2008)

This offence is intended to protect children from adults who communicate (not restricted to on-line communications) with them and then arrange to meet with them with the intention of committing a sexual offence against them, either at that meeting or subsequently. The offence is committed when the offender meets the child or travels with the intention of meeting the child, or arranges to meet the child, or the child travels with the intention of meeting the offender.

Abuse of position of trust (sections 16-24 SOA)

The primary purpose of the abuse of trust provisions is to provide protection for young people aged 16 and 17, who are considered to be particularly vulnerable to exploitation by those who hold a position of trust or authority in their lives.

Positions of trust are defined in section 21 and 22. For example, looking after persons in educational establishments, residential settings, or where duties involve regular unsupervised contact of children in the community.

Familial child sex offences

Sections 25 - 29 SOA 2003 address sexual activity with a child family member and inciting a child family member to engage in sexual activity. These offences reflect the modern family unit and take account of situations where someone is living within the same household as a child and assuming a position of trust or authority over that child, as well as relationships defined by blood ties, adoption, fostering, marriage or living together as partners.

Abuse of children through prostitution or pornography

Sections 47, 48, 49 and 50 SOA 2003 deal with paying for sexual services of a child; causing or inciting child prostitution or pornography; controlling a child prostitute or a child involved in pornography; and arranging or facilitating child prostitution or pornography respectively.

These offences are specifically designed to tackle the use of children in the sex industry, where a child is under 18. Children involved in prostitution are primarily victims of abuse and people who take advantage of them by exploiting them are child abusers.

In the above offences a child is defined as someone under 18. Consent is irrelevant. A reasonable belief that the child is over 18 affords a defence if the child is 13 or over. There is no defence of reasonable belief if the child is aged under 13

Internal Trafficking

Whilst the UK is primarily a destination state for human trafficking, an emerging issue is the "internal trafficking" of children. This term is used to describe the trafficking of children born, or normally resident in the UK. Internal trafficking is characterised by the recruitment, grooming and sexual exploitation of young teenage girls in the UK by organised crime gangs.

Not all cases of child sexual exploitation and abuse will be considered to be internal trafficking. Where evidence obtained by investigators supports an offence of trafficking within the UK (under section 58 of the Sexual Offences Act 2003) then this should be charged.

Further guidance on investigating and evidencing such cases can be found in the Legal Guidance on Human Trafficking and Smuggling and the NPIA Child Abuse Guidance.

Offences outside the UK

Section 7 of the Sex Offenders Act 1997 extended the jurisdiction of the courts of England, Wales and Northern Ireland. It was repealed and replaced by section 72 of the SOA 2003 on 1 May 2004, which in turn was amended by s.72 Criminal Justice and Immigration Act 2008.

If a person commits an act outside the UK, which is an offence in that country or territory, that person can be prosecuted in the UK for the offence, if it is a sexual offence listed in Schedule 2 of the SOA 2003.

A distinction is made between UK nationals and UK residents. A national can be prosecuted for an act committed outside the UK, which is a Schedule 2 listed sexual offence if done in England, Wales or Northern Ireland. A resident can be prosecuted for an act committed outside the UK, if the act constitutes an offence under the law in force in that country and the act would be a Schedule 2 listed sexual offence if done in England, Wales or Northern Ireland.

Possession of indecent photographs of children

Section 160(1) Criminal Justice Act 1988 makes it an offence for a person to have any indecent photograph of a child in his possession. The offence is triable either way. The consent of the DPP is required. Further information can be found in the Indecent Photographs of Children chapter of the Legal Guidance

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Possession of a prohibited image of a child

Section 62 of the Coroners and Justice Act 2009 ('the Act') created a new offence of possession of a prohibited image of a child, punishable by up to three years' imprisonment. The offence came into force on the 6 April 2010; it is not retrospective and requires the DPP's consent.

The offence is targeted at non-photographic images (this includes computer generated images (CGI's), cartoons, manga images and drawings) and therefore specifically excludes indecent photographs, or pseudo-photographs of children, as well as tracings or derivatives of photographs and pseudo-photographs.

Further information can be found in the Prohibited Images of Children chapter of the Legal Guidance.

Taking, making or distributing indecent photographs of children

Section 1 Protection of Children Act 1978 makes it an offence for a person (a) to take, permit to be taken, or to make any indecent photograph or pseudo photograph of a child; or (b) to distribute or show such indecent photographs or pseudo-photographs; or (c) to have in his possession such indecent photographs or pseudo photographs, with a view to their being distributed or shown by himself or others; or (d) to publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs or pseudo-photographs, or intends to do so.

As amended by the SOA 2003, a 'child' is defined as under 18. The offence is triable either way. The consent of the DPP is required. Further information can be found in the Indecent Photographs chapter of the Legal Guidance.

Indecency with Children Act 1960 - repealed 1 May 2004

This offence involves any person who commits an act of gross indecency with or towards a child under the age of sixteen, or who incites a child under that age to such an act with him or another. The offence is either way and carries a maximum penalty of 10 years imprisonment on indictment.

Consent of the DPP is not required. Section 8 of the Sexual Offences Act 1967 (no proceedings shall be instituted except by or with the consent of the Director against any man for gross indecency or certain other offences where any person is under 21) shall not apply to proceedings under section 1 of the Indecency with Children Act 1960 (s.28 Criminal Justice Act 1972).

Sentencing Guidelines for sexual offences

For sentencing guidelines, see Sentencing Guidelines Council - Sexual Offences Act 2003. Note the increased sentence that can be imposed where familial offences are charged in preference to offences under sections 9 and 10 SOA 2003.

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Offences of Assault, Abduction, Kidnapping, Cruelty/Neglect

Full guidance on charging and prosecuting offences of assault can be found in the Offences against the Person section of the Legal Guidance. Some of the issues specific to cases involving children are set out the following sections.

Two parents/carers who is responsible?

In cases where there are two or more carers in charge of the child, it may not be possible to prove who is responsible for the injury. Attention should be paid to the timing of the injury, who had the care of the child at the relevant time and whether any other person had access to the child. If it is not possible to prove who is responsible, the case cannot be prosecuted unless an alternative charge can be found. It may be possible to charge neglect based on a failure to seek medical attention, or to charge section 5 of the Domestic Violence Crimes and Victims Act 2004 where it can be proved that the offender allowed the death.

Defence of reasonable chastisement / lawful correction

Section 58 Children Act 2004 provides that reasonable chastisement is no defence to offences under s.47, s.20, s.18 Offences against the Person Act or to s.1 Children and Young Persons Act 1933.

In cases of minor assaults by an adult upon a child, where an injury has been caused other than reddening of the skin, (such as grazes, scratches, abrasions, minor bruising, swelling, superficial cuts or black eyes), and where the injury is more than transient and trifling, the appropriate charge will normally be assault occasioning actual bodily harm. In these circumstances, the defence of reasonable chastisement is not available

The right of reasonable chastisement by a teacher has been severely restricted by s.548 Education Act 1996 which saw the abolition of corporal punishment for the majority of school children. Section 93(1) of the Education and Inspections Act 2006 enables a member of staff of a school to use, in relation to any pupil at the school, such force as is reasonable in the circumstances for the purpose of preventing the pupil committing an offence, causing personal injury to, or damage to property of, any person or engaging in any behaviour prejudicial to the maintenance of good order and discipline at the school or among its pupils.

Child abduction

The offence of child abduction is regulated by the Child Abduction Act 1984 as amended by the Children Act 1989. DPP consent is required for all offences under section 1.

Section 1 covers offences committed by a parent, guardian or other person who is connected with the child under the age of sixteen, with a view to removal from the United Kingdom. It can also be used for a person who aids and abets the abduction.

Section 2 covers offences committed by a person not connected with the child, who unlawfully takes or detains a child under the age of sixteen. The offence is triable either way. The maximum penalty on indictment is 7 years.

Child Abduction Warning Notices (formerly known as Harbourers Warning Notices) are a useful tool enabling the police to disrupt the criminal or undesirable activities of adults who are associating with young people against the wishes of the young persons' parent(s) or local authority carer. The Notices tend to be used where arrest/prosecution for any substantive offences is not available or is not appropriate at that time.

These Notices have provided useful evidence in many prosecutions, including in large scale 'grooming' cases. They have no statutory basis; they are part of an administrative process which, if properly used, can help to safeguard vulnerable youngsters and provide supportive evidence for criminal or other proceedings.

There are two Notices. One is for a child under 16. The other is for a child under 18 who is in the care of a Local Authority. A complainant statement is first obtained from the parent or carer with parental/lawful authority over the child, confirming that the suspect has no permission to associate in any way with the child. The police then serve the Notice.

In essence, the Notices identify the child/young person and confirm that the suspect has no permission to associate with or to contact or communicate with the child and that if he continues to do so, he may be arrested and prosecuted for an offence under s.2 Child Abduction Act 1984 or s.49 Children and Young Persons Act 1989 or for any other criminal offence committed in relation to that child.

The maximum penalty for the s.2 offence is 7 years; the maximum penalty for the s.49 offence is 6 months. Where the child is under 16 years old and in the care of the local authority under s.31 Children Act 1989, it is not an abuse of process to prosecute the s.2 offence, in preference to the s.49 offence, where the facts of the particular case support such a decision. See R v JA & Others [2202] 1 Cr.App.R. (S) 108.

The fact that the child may voluntarily seek out the company of the suspect is not a defence to either s.2 or s.49. See, for example R v Leather (1994) 98 Cr.App.R.179 in which the court held that the test was whether the child had been deflected from that which he would with parental consent otherwise have been doing.

See also Foster v DPP [2005] 1 WLR 1400 in which the child ran away from her foster carers in order to associate with the defendant. This case is also important for clarifying the distinction between taking and keeping in s.2. The court held that s.2(1)(a) required the child there and then to be in the lawful control when taken or detained, whereas s.2(1)(b) required only that the child was kept out of the lawful control of someone entitled to it when taken or detained.

In some cases, the police may consider it necessary to withhold the real name of the child from the suspect. For example, where the child has used an alias or a street name to conceal their identity from the suspect. In such cases, prosecutors may need to give careful consideration to obtaining appropriate statements that provide the necessary evidence, without exposing the child to further risk from the suspect or his associates.

It is not an offence in itself to breach the requirements of the Warning Notice, but evidence of the contents and the fact of the Notice having been served on the suspect can be used, for example, as evidence to: negate defences as to knowledge of the age of the child; support Bad Character applications; support bail or cautioning decisions; support civil applications such as ROSHOs, ASBOs, evictions, injunctions etc.

CPS and the National Police Improvement Agency (NPIA) have agreed police Operational Guidance and a template for such Notices in order to avoid the problems that were arising previously with ambiguously drafted local versions. The Warning Notices templates are at Annex A (child under 16) and Annex B (child under 18 and in care). Prosecutors can obtain copies of the agreed Operational Guidance from NPIA, via their local police.

To ensure that there are no unforeseen or unintended consequences, NPIA has advised police forces not to amend the agreed templates locally, without prior discussion with prosecutors. However prosecutors are advised, in every case, to check carefully the wording of any Warning Notices actually used.

Prosecutors will need to consider carefully whether s.2 is the appropriate charge in circumstances where a section 58 Sexual Offences Act 2003 (internal trafficking) offence is properly made out on the facts of the case. The trafficking offence is triable either way. Maximum penalty on indictment is 14 years. The offence is a "lifestyle offence" within the provisions of Schedule 2, paragraph 4 (People trafficking), Proceeds of Crime Act 2002.

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Kidnapping

Kidnapping is a common law offence comprising the taking or carrying away of one person by another, by force or fraud, without the consent of the person so taken or carried away and without lawful excuse. It is punishable by fine or imprisonment or both.

The absence of the child's consent will be material in any kidnapping case, whatever the child's age. Younger children will not have the understanding or intelligence to give consent, so that the absence of consent will be a necessary inference from the child's age. With older children, it must be a question of fact for the jury whether the child has sufficient understanding and intelligence to give consent.

Under s.5 Child Abduction Act 1984, no prosecution shall be instituted for an offence of kidnapping if it was committed against a child under the age of 16 by a person "connected with" the child, within the meaning of s.1 of that Act, without the consent of the DPP.

Offences of child cruelty, neglect and violence

Section 1 Children and Young Persons Act 1933 provides that any person who has attained the age of sixteen years and has responsibility for any child or young person under that age, wilfully assaults, ill-treats, neglects, abandons or exposes him, or causes or procures him to be assaulted, ill-treated, neglected, abandoned, or exposed, in a manner likely to cause him unnecessary suffering or injury to health (including injury to or loss of sight, or hearing, or limb, or organ of the body, and any mental derangement) that person shall be guilty of a misdemeanour.

The definition of neglect includes failure to provide adequate food, clothing, medical aid or lodging and, in respect of suffocation, where the cause of death for an infant under 3 years is suffocation (but not caused by disease or the presence of a foreign body in the throat or air passages) while the infant was in bed with some other person who has attained the age of 16 years, that other person shall, if he was, when he went to bed, under the influence of drink, be deemed to have neglected the infant in a manner likely to cause injury to its health.

In deciding whether to prosecute for specific charges relating to the section 1 offence, an assault or both, each case will need to be considered on its own facts and its own merits.

A conviction for the section 1 offence will make it clear on the offender's record that it is an offence involving a child victim, a factor which should be borne in mind although not one which is determinative.

In terms of maximum sentence, the section 1 offence is triable either way carrying a maximum penalty of 10 years on indictment. The maximum penalty for a charge of assault under section 20 or section 47 Offences Against the Person Act 1861 is 5 years.

When selecting between neglect and a specific assault careful regard should be had to the question of whether the dangerous offender provisions are likely to apply having regard to the circumstances of the case and the offenders past record - following credit for a guilty plea a judge is unlikely to be able to use those provisions on a charge of ABH or section 20 GBH as the notional minimum term is likely to fall below the four year threshold. But given the higher maximum sentence available, the dangerous provisios may well be available if the offence charged is 'child cruelty'.

Child cruelty/neglect offences are particularly relevant where the behaviour has occurred over a period of time. The type of cruelty should be chosen with care. It may be preferable to have two or more alternative allegations in order that the conduct complained of is appropriately described.

A specific charge of assault is likely to be more appropriate where extreme violence is used, and serious injury sustained, sufficient to support a charge of wounding/causing grevious bodily harm with intent, contrary to section 18 of the Sexual Offences Act 1861. Examples include extreme shaking or swinging the child against a wall or object.

In some cases, the circumstances might warrant charges of both assault and section 1. For example, regular assaults and cruelty over a period of time, culminating in a child being pushed down the stairs and sustaining serious injuries. Each case should, of course, be considered on its own facts and its own merits.

Sentencing guidelines

The Sentencing Council issued a Definitive Guideline on Assault in March 2011, replacing the 2008 Guidelines. An earlier statutory body - The Sentencing Guidelines Council - published Overarching Principles: Assaults on Children and Cruelty to a child.

The second set of guidelines relating to children indicates that where a child is the victim and the offender an adult, custody will normally result, particularly where the offence involves an abuse of trust. Where an offender only intended to administer lawful chastisement and relatively minor injury occurred that was neither foreseen nor intended, custody will not normally be appropriate.

Child cruelty cases will normally result in custodial sentence but sentencers are advised to take into account any available information concerning the future care of the child and the impact that prison for the offender may have on the victim.

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Offences involving the death of a child

Full guidance on charging and prosecuting offences involving the death of a child can be found in the Homicide Legal Guidance

Familial Homicide

s. 5 Domestic Violence, Crime and Victims Act 2004 creates an offence of causing or allowing the death of a child under the age of 16 or of a vulnerable adult. This stand-alone offence imposes a duty upon members of a household to take reasonable steps to protect children or vulnerable adults within that household from the foreseeable risk of serious physical harm from other household members. The Act does not apply to a person under the age of 16 if they are not the parent of the child. Further guidance can be found in the Homicide chapter of the Legal Guidance.

Death of a child in its mother's womb

To kill a child in its mother's womb is neither murder nor manslaughter although it may be an offence under the Infant Life (Preservation) Act 1929. Where a person attacks a pregnant woman intending to do her grievous bodily harm and in consequence of that attack, she goes into premature labour with the child being born alive but subsequently dying as a result of being born prematurely, the attacker would be guilty of manslaughter in relation to the death of the child but not murder Att.-Gen.'s Reference (No.3 of 1994)

Non-Accidental Head Injury cases (previously referred to as Shaken Baby Syndrome [SBS])

See separate Legal Guidance on this topic.

Child Destruction, Infanticide, Endeavouring to conceal the birth of a child and using poison or instruments to cause miscarriage

Child destruction s.1 Infant Life (Preservation) Act 1929; involves the destruction of a child capable of being born alive prior to birth.

Infanticide s.1 Infanticide Act 1938; to be charged where the death of a child under 12 months is caused by the offender where the offenders balance of mind was disturbed by reason of her not having recovered from the effects of giving birth or subsequent lactation.

Concealment of birth s.60 Offences against the Person Act 1861; to be charged where a woman has been delivered of a child who died before, at or after its birth, and any person endeavoured to conceal the dead baby.

Use of poison or instruments to cause miscarriage; s.58 Offences against the Person Act 1861 to be read in the context of the Abortion Act 1967.

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Indictments

Full guidance on drafting indictments can be found in the Indictments section of the Legal Guidance and includes guidance on the following matters:

Criminal Procedure (Amendment) Rules 2007 - Prosecuting multiple offending;
Domestic Violence, Crime and Victims Act 2004 - Two-stage Trials;
Drafting indictments where counts straddle the implementation of the dangerous offender provisions.

Old/New Legislation - Dates to remember

Counts on the indictment must be drafted to reflect the changes in the law. For example:

16/9/85 - Indecent assault s.14 SOA 1956 - sentencing alters from 5 years if the child is under 13 or 2 years if the victim is 13 or over, to 10 years.
20/9/1993 - Sexual Offences Act 1993 s. 1 abolished the presumption that a boy under 14 is incapable of sexual intercourse, but only for offences committed after it came into force.
3/11/94 - Anal rape introduced under s.1 SOA 1956.
1/10/97 - s.1 Indecency with Children Act 1960 - sentencing alters from 2 years to 10 years.
1/9/1997 - s.7 of the Sex Offenders Act 1997 as amended by s. 72 SOA 2003 extended the jurisdiction of the courts of England, Wales and Northern to cover certain sexual offences committed abroad.
11/1/2001 - s.1 Indecency with Children Act 1960 - age of victim alters from 14 to 16 years.
1/5/2004 - SOA 1956 replaced by SOA 2003 -definition of 'child' under the Criminal Justice Act 1988 and the Protection from Children Act 1978 altered from 16 to18 years.
4/4/2005 - Dangerousness provisions introduced under CJA 2003.

Section 55 Violent Crime Reduction Act 2006 - transitional provisions for the Sexual Offences Act 2003

Section 55 Violent Crime Reduction Act 2006 came into force 12 February 2007. This allows the defendant to be convicted where:

He is charged in respect of the same conduct with an offence under the Sexual Offences Act 2003 and an offence specified in section 55(2) which includes an offence under Sexual Offences Act 1956; and
The only barrier to his conviction of the 2003 offence is that it cannot be proved beyond reasonable doubt that the conduct took place after the 2003 Act came into force; and
The only barrier to his conviction of the pre-commencement offence is that it has not been proved beyond reasonable doubt that the conduct took place before the enactment providing for the offence was repealed.

There is a conclusive presumption for the purpose of determining guilt that the conduct took place:

Before the 2003 Act came into force, where the maximum penalty for the pre-commencement offence is less that the maximum sentence under the 2003 Act.
After the 2003 Act came into force for every other offence.

Section 55 applies to any proceedings, whenever commenced, other than proceedings in which the defendant has been acquitted or convicted of the pre-commencement or the 2003 offence.

Bad character

Full guidance can be found in the Legal Guidance on Bad Character Evidence.

Of particular relevance to many child abuse cases is section 112(2) Criminal Justice Act 2003, which states that where a defendant is charged with two or more offences in the same criminal proceedings, it has the effect as if each offence were charged in separate proceedings.

Also of use in child abuse cases is section 101(d) CJA 2003 'it is relevant to an important matter in issue between the defendant and the prosecution' i.e. whether a defendant has a propensity to commit crimes of the kind with which he is charged, except where his propensity makes it no more likely that he is guilty of the offence. Examples of such evidence might include previous convictions or previous incidents that did not result in a conviction.

The defendant may have a propensity to commit crime if he has a desire to commit a particular crime, such as paedophilia. Proof of propensity is not limited to commission of the same kind of offences but could include any evidence that made it more likely the defendant had behaved as charged. Evidence that a defendant had viewed child pornography was capable of being adduced in evidence at trial under section 101(1)(d) of the Criminal Justice Act 2003 to demonstrate a propensity for offences involving the sexual abuse of children, but was not automatically admissible. Evidence of possession was not evidence of committing sexual abuse or assault but related to an important matter in issue between the defendant and the Crown. To show a sexual interest in children made it more likely that the allegation of a child complainant was true rather than incidentally made against someone who was unlikely to behave as alleged (R v D, P and U [2011] WLR (D) 166]).

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Issues commonly arising in child abuse cases

Medical/scientific evidence

When reviewing any file in which a child alleges abuse, prosecutors should always check whether there is any medical or scientific evidence to support the child's account. The following points should be considered:-

Medical evidence

a) Qualifications and field of specialism of the expert. A consultant paediatrician would normally examine a child who is alleged to have suffered abuse. Other medical experts may be required for certain types of injury e.g. an ordontologist to examine a bite mark.
b) In cases of anal abuse, signs of any trauma may disappear quickly. This point will need to be covered in the expert's statement. If there is a tear in the anal passage, there may be another explanation e.g. constipation.
c) In cases of vaginal abuse, the lack of trauma may not preclude abuse and this point should be covered in the expert's statement. However, if the child describes repeated penetrative abuse over a number of years from a young age, the effect on the prosecution of the lack of any trauma to that area and an intact hymen should be considered in consultation with the expert.
d) Colposcopes are cameras that may be used at the examination. If the defence instruct their own expert, he/she will wish to view the video of the examination.

Other scientific evidence

Other examples of scientific evidence include DNA (swabs taken at the medical examination, DNA from a baby or a foetus, bed clothes, clothing etc.) fingerprints, forensic examination of computers and mobile phone interrogations.

Presence of the expert at the conference and the trial

When prosecuting rape, the presence of the expert at the conference with counsel and the trial is now recommended practice. If an expert is not present at the conference or in the trial, an explanation should be endorsed on the file.

Second opinions

In W (Children) {2009} EWCA Civ 59 the Court of Appeal considered a number of cases in which second medical opinions had significantly affected outcomes. In one case, doctors had deferred to the consultant paediatric neuro-radiologist who advised the injuries were non-accidental. Only after a care order had been made did the parents obtain a second opinion, as a result of which the Court of Appeal ordered a re-hearing at which the parents were vindicated.

In W (Children) Lord Justice Wilson said "The moral which I draw from this case and will never forget is that a hypothesis in relation to causation of a child's injuries must not be dismissed only because such causation would be highly unusual and that, where his history contains a demonstrably rare feature, the possible nexus between that feature and his injuries must be the subject of specialist appraisal at an early stage."

Disclosure guidance

See chapters 36 and 37 in the Disclosure Manual deal with material relating to experts.

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Collusion and innocent contamination

When reviewing files, prosecutors may need to consider whether there is any evidence of collusion. Have the witnesses concocted accounts or is there an innocent explanation? Where there are concerns, the officer should take further statements to clarify any issues raised, for example, have there been any overlapping periods in the same school or have any of the victims met each other?

Consideration should also be given to the possibility of innocent contamination, particularly where the same police officer has been responsible for interviewing a number of potential victims or witnesses.

Compensation

Claims for compensation are increasing and the public awareness of the right to claim compensation has led to some victims submitting claims prior to court proceedings. Child abuse victims are equally entitled to compensation but if a claim is submitted prior to trial, it can complicate the investigation and prosecution. Defence advocates may claim complaints have been made for profit and use it as a tool to test credibility and motivation for making the complaint.

Family court concurrent proceedings

See Legal Guidance on Children as Victims and Witnesses.

Hearsay

The hearsay provisions are to be found in Chapter 2 of Part 11 of the Criminal Justice Act 2003. These provisions came into force on 4 April 2005. Full guidance is available in the Legal Guidance on Hearsay.

The most common forms of hearsay used in child abuse cases are:

Business documents s.117 (eg. mobile phone interrogations).
Expert evidence s.118.
Confessions and mixed statements s.118.
Previous complaint by the victim about conduct which would constitute the offence or part of it, where the complaint was made as soon as could reasonably expected, the complaint was not made as a result of a threat or promise and, before the statement is adduced, the witness gives oral evidence in connection with the subject matter, s.120. (Note that this replaces the previous doctrine of 'recent complaint' and now extends beyond sexual cases. Section 114(d) [interests of justice] may be an alternative route for inclusion of the evidence, if all the provisions of section 120(7) cannot be met.).

Unused material

Full guidance on disclosure, including the Protocol for the Control and Management of unused Material in the Crown Court can be found in the Legal Guidance chapter on Disclosure.

The contents of both the MG6C and the MG6D are often extensive in child abuse cases. All material should be examined carefully and should only be disclosed if it undermines the prosecution case and/or assists the defence case.

Third Party Material

Full guidance on the obtaining and use of Third Party material can be found in the Legal Guidance chapter on Disclosure - Third Parties.

The following types of material may be classed as third party material: medical notes; Social/Children's Services material; education material (LEA or school); counselling / therapy notes; Rape Crisis/ISVA notes; information or evidence arising in parallel family/civil proceedings.

Investigators are under a duty to pursue all reasonable lines of enquiry, whether these point towards or away from a suspect. Reasonable lines of enquiry may include enquiries as to the existence of relevant material in the possession of a third party, for example, where a child witness is in the care of the local authority, the social services may have relevant material relating to the allegation under investigation (CPIA Code of Practice 3.5)

In R v Alibhai [2004]EWCA Crim.681, the court held that under the Act the prosecutor is only under a duty to disclose a third party's material if that material had come into the prosecutor's possession and the prosecutor was of the opinion that such material satisfied the disclosure test. Before taking steps to obtain third party material, the Court emphasised that it must be shown that there was a suspicion that the third party not only had relevant material and that the material was not merely neutral or damaging to the accused but satisfied the disclosure test.

Where material is obtained from third parties, the investigator should discuss with them any sensitivities attached to the material that might influence whether it is used as evidence or otherwise disclosed to the defence, or whether there may be public interest reasons that justify withholding disclosure. The third party's views must be passed to the prosecutor using the MG6D. (Disclosure Manual 4.23).

The Protocol between the Crown Prosecution Services, Police and Local Authorities in the exchange of information in the investigation and prosecution of child abuse cases makes provision for access to the local authority files not already filed with the court. All Areas are encouraged to develop local protocols based on the national protocol.

The Protocol involves the appointment of local authorities and police Disclosure Officers. A package of potentially disclosable material is prepared jointly between the local authorities and police. PII/notification applications should then only be required where disclosure to the defence cannot be resolved by consent.

Where documents have already been filed in family proceedings, an approach should be made to the local authority to seek general information about what documents exist. A decision should then be made as to whether to make an application to the family court to see the documents.

Protocol on the Disclosure of Police Information in Family Proceedings 2006 - this protocol deals with material to be disclosed to the local authority and to other parties in civil/family proceedings.

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Therapy and Counselling

'Provision of Therapy for Child Witnesses Prior to a Criminal Trial: Practice Guidance 2002' confirms that pre-trial counselling/therapy does not automatically preclude a witness from testifying. The interests of the child in terms of counselling/therapy are paramount and a prosecution may have to be stopped to allow appropriate treatment to take place.

CPS Rape Policy

Extensive guidance can be found in the Rape and Sexual Offences chapter.

Historical Abuse and Institutional Abuse

Issues relating to historical and institutional abuse are dealt with in Safeguarding Children - Guidance on Children as Victims and Witnesses and in ACPO guidance.

The following issues may arise: loss or deliberate destruction of evidence; witnesses deceased or untraceable; previous indication that no prosecution would follow; delay in making a complaint; trawling; collusion; compensation; changes in legislation.

Lessons from 'Baby P' and the Lord Laming Review 2009

Following the death of Baby P in 2008, and the local authority's Serious Case Review, Lord Laming conducted a national review of child Safeguarding procedures. Some of the findings, which may have particular relevance to prosecutors, are set out below.

Strategy meetings

Police can request follow up strategy meetings during complex or prolonged investigations.
Strategy meetings should involve key staff from health and education, as well as police and children's social care services.

Risk Assessment

New incidents can be interpreted in terms of the existing understandings of family dynamics, with insufficient attempts to use the incidents to prompt re-assessments.
Proper account needs to be taken of historical concerns.
Holistic paediatric assessments (as opposed to Emergency Protection Order medicals) can be undertaken in response to a s.47 enquiry.
Medical reviewers - a combination of injuries should raise the likelihood of physical abuse in any child. Where that child is also on the protection register, this is especially likely.
Apparent co-operation of parent tends to provide reassurance for professionals about mother's parenting skills.
Teachers are well positioned to observe, record and communicate to key workers any comments, writings, drawings made by children who are subject to a child protection plan.
Specific questions need to be asked about household composition. Other siblings need to be interviewed. Where the family is in receipt of State benefits, it may be necessary to be particularly alert, to ask specific questions and to look for the evidence of a cohabitee.

Chronologies and overview diagrams can provide useful overviews

Genograms illustrating the most relevant members of the household and personal network.
Key dates of the most significant events and professional decisions.
Clear chronologies of events and key points at which decisions are made.
Agencies involvement presented chronologically.
Glossary of abbreviations used.

Challenging

Even if parents are trusted, an open and inquisitive attitude by professionals needs to be maintained at all times.
Robust challenge to procedures, practice and performance may sometimes be necessary.
There can be a tendency, where working with families where neglect may be a feature, to see a positive report as effectively cancelling out a concern.
Full exploration of comment is required where, for example a carer says that a very young child bruises easily and they might be accused of hurting the child.
Where child is not yet a toddler and apparently fell down stairs, full clarification of circumstances is required.
Paediatrician attendance at strategy meeting is very important where medical opinion is of central significance. The paediatrician can advise on findings of medical examinations and the need for any further assessments e.g. X-rays or scans. This will assist with perceptions of risk.

Information and communication

Clear procedures and protocols need to be established for communication and collaboration between social care, health and police services to ensure effective assessment, planning and review of cases.
The key factors in deciding whether or not to share confidential information are necessity and proportionality, i.e. whether the proposed sharing is likely to make an effective contribution to preventing the risk and whether the public interest in sharing information overrides the interest in maintaining confidentiality. In making the decision you must weigh up what might happen if the information is shared against what might happen if it is not and make a decision based on professional judgement. [Information sharing: Guidance for practitioners and managers. HM Government 2008]

Serious Case Reviews

There can be too much emphasis on the writing of an often long and unwieldy report with insufficient focus by LSCBs on whether lessons are being learned from a child's death or serous injury and whether action plans are subsequently implemented.
The future of SCRs depends, to a large degree on the guarantee of confidentiality. Full reports should therefore remain confidential beyond the immediate partners involved in a case, the relevant inspectorates, Government Office and the relevant government departments.

Local Safeguarding Children Boards (LSCBs) and Children's Trusts

Ultimately it is the Children's Trust that is responsible for improving the well-being of children in the area across all five Every Child Matters outcomes, including keeping children safe.
The responsibilities of the LSCB, in ensuring that the multi-agency partners in each local area are co-operating to safeguard and promote the welfare of children effectively, are a fundamental part of the overarching responsibilities held by the Children's Trust.

Prosecutors should be aware that the police can request follow up strategy meetings during complex or prolonged investigations. So, for example, where paediatrician attendance at a strategy meeting is important because medical opinion is of central significance, but the paediatrician does not attend, the police should be advised to seek a follow up strategy meeting to ensure that prosecutors are able to make fully informed decisions as to charge.

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Practice, Procedure and Case Management

Special Measures

The Youth Justice and Criminal Evidence Act 1999 creates 2 types of witnesses eligible for assistance: those eligible on the grounds of age or incapacity (vulnerable) s.16; and those eligible on the ground of fear or distress in connection with testifying in the proceedings (intimidated) s.17.

Full guidance can be found in the Special Measures chapter of the Legal Guidance.

Evidence by live link under s.51 Criminal Justice Act 2003

Section 51 provides that a witness (other than a defendant) may give evidence through a live link where the court is satisfied that giving evidence in this way is in the interests of the effective or efficient administration of justice. Full guidance can be found in the Live Links section of Legal Guidance.

Transfer procedure

Section 53 Criminal Justice Act 1991 authorises the Director to serve a notice of transfer on the magistrates' court certifying that in his opinion:

the evidence of the offence would be sufficient for the person charged to be committed for trial;
a child victim or witness to the commission of the offence will be called as a witness at the trial;
for the purpose of avoiding any prejudice to the welfare of the child the case should be taken over and proceeded with without delay by the Crown Court.

In some cases the defendant will face a number of charges. Some of these charges may not qualify for transfer under section 53. However, where it would be proper to join these on the same indictment with charges that do qualify for transfer, it is permissible to transfer all the charges that can appear on the same indictment.

The transfer procedure may not be required at all where the case involves an indictable only offence, which can be sent under s.51 Crime and Disorder Act 1988, or where the new allocation procedure (once in force) is preferred.

The decision to transfer shall be taken by the prosecutor and communicated to the court at the earliest opportunity. If Crown Court trial is appropriate, the notice should be served promptly and before the mode of trial / allocation decision has taken place. A notice of transfer should not be served in the youth court until the magistrates have considered venue and determined that the case is appropriate for Crown Court trial.

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Essential Steps Checklist and Advice/Review Checklist in Rape Cases

An advice/review checklist has been developed in relation to rape and serious sexual offences. It is a non-exhaustive list but should be used by prosecutors in all such cases.

Appropriate questioning

Child witnesses should be questioned in a manner appropriate to their age and level of understanding. Intermediaries will often be helpful and, in some cases, essential in ensuring that questions are asked in a way that best enables the witness to understand and respond.

Advocates are, of course, entitled to challenge the evidence given by witnesses, however particular care should be taken with child witnesses to ensure cross-examination is conducted in plain and simple language and is not aggressive, hectoring, overly robust or demeaning. This is likely to be especially important in cases involving sexual offences, where giving evidence may be particularly difficult.

Inappropriate questioning not only prevents the child witness from giving their best evidence but may also cause acute distress to the child. This is unnecessary and avoidable and is therefore to be deprecated. Prosecutors should be robust in objecting to inappropriate questioning.

Guidance on how questions should be asked, inappropriate questioning (e.g. asking the child to demonstrate intimate touching), relevant extracts from the Equal Treatment Bench book and the NSPCC Good Practice Guidance can all be found in Safeguarding Children - Guidance on Children as Victims and Witnesses.

The Advocacy Training Council's report "Raising the Bar; the handling of vulnerable witnesses, victims and defendants" includes a useful' toolkit' to assist advocates as they prepare their lines of questioning, in particular identifying common problems encountered when examining particular vulnerabilities, and recommending possible solutions.

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Sentencing

Prosecutors should be in a position to make application for relevant ancillary orders and to assist the court generally when sentencing. In particular, it is important that the prosecutor has regard to the protection of a particular victim or of the public.

Prosecutors should be aware of the sentencing guidelines in relation to sexual offences involving children (Sentencing Guidelines Council - Sexual Offences Act 2003).

Full guidance can be found in the Sentencing and Ancillary Orders Applications and Sentencing of Dangerous Offenders sections of the Legal Guidance. The Guidance includes details on the following orders:

Notification s.80 - s.103 Sexual Offences Act 2003

Defendants subject to a conviction, finding or caution for a relevant sexual offence must, within three days of the relevant date, notify to the police the information set out in subsection 83(5) of the SOA. This includes information such as the names he uses, his home address, and the address of any other premises he regularly resides or stays.

Sexual Offences Prevention Orders (SOPOs) - s.104 Sexual Offences Act 2003

A SOPO is an order which prohibits a defendant from doing anything described in it. The order has effect fro a fixed period (not less than five years) specified in the order or until further order.

Foreign Travel Orders - s.114 Sexual Offences Act 2003

A Foreign Travel Order is a civil preventative order used to prevent or restrict convicted sex offenders from travelling outside the UK. A person subject to a FTO can also be required to surrender their passport.

Risk of Sexual Harm Order (RSHO) - s.123 Sexual Offences Act 2003

This is a civil, preventative measure, order to deter unlawful or harmful sexual activity with a child. The police can apply for the order against anybody over 18 who has engaged in sexually explicit conduct or communication with a child or in the presence of a child on at least two occasions.

There is no requirement for a conviction. Whether the behaviour is sexual is based on whether a reasonable person would consider it to be. The order can be made if the court is satisfied it is necessary to protect children generally or a specific child from harm from the defendant.

Forfeiture

Section 39 of the Police and Justice Act 2006 and Schedule 11 to the Act amend the Protection of Children Act 1978 to allow the police to forfeit indecent photographs of children held by the police after any lawful seizure. Images can be forfeited where a decision has been made not to proceed with a prosecution or there has been no conviction or where a caution has been issued.

Disqualification Orders - sections 28 & 29 Criminal Justice and Court Services Act 2000

A Disqualification Order can only be made by a Crown Court or Higher Court to disqualify a person convicted of an 'offence against a child' from working with children.

Schedule 4 of CJ & CSA 2000 lists the relevant offences. A child is a person under the age of 18. The order may (and in some cases must) disqualify from working with children indefinitely. Qualifying sentences in broad terms are 12 months or more imprisonment or detention in a Young Offenders institution or guardianship or hospital order (and includes suspended sentences of 12 months or more).

The Court must have regard to: degree of harm to the victim; level of culpability of the offender; level of risk posed by offender to society; the need to deter others from acting in a similar fashion. These orders are retrospective.

With effect from 12 October 2009, some changes were made to sections 24, 26-38 of the Criminal Justice and Courts Services Act 2000.

The Safeguarding Vulnerable Groups Act 2006 provides that the legislation relating to disqualification orders will be fully repealed. The Government intends to initiate that full repeal once relevant provisions of the new Vetting and Barring Scheme (VBS) have come into force making disqualification orders redundant.

Because implementation of the VBS is being phased, repeal of disqualification orders is also being phased. Therefore from 12 October 2009, when barring and referral provisions of the VBS begin, disqualification orders remain available to the court, in certain circumstances.

Schedule 10 of the Safeguarding Vulnerable Groups Act 2006 (SVGA) makes provision for the repeal of: Sections 24, 26-38 of the Criminal Justice and Courts Services Act 2000 (CJCSA); s.42(1); schedule 4; and schedule 7 paras 155, 157 and 158. Also s. 299 Criminal Justice Act 2003 and Schedule 30.

Article 3 of the Safeguarding Vulnerable Groups Act 2006 (Commencement Order No 6, Transitional Provisions and Savings) Order 2009, which came into force on 12th October 2009, provides for the partial repeal only of some of the provisions of the CJCSA listed above.

With effect from 12 October 2009, sections 24, 26 to 38, and 42(1) of, and Schedule 4 to, the CJCSA ceased to have effect for the purposes of enabling a disqualification order to be made in relation to a person who is [already] barred from regulated activity by virtue of s.3(2) of the SVGA.

Also, the offence in section 35 of the CJCSA (of applying for, offering to do, accepting or working in a regulated position) ceased to have effect where an individual who is subject to a disqualification order:
a) is barred from regulated activity by virtue of section 3(2) of the SVGA; or
b) was so barred but no longer is; or
c) is removed from the children's barred list in accordance with paragraph 2(4) of the SVGA (Transitional Provisions) Order 2008 (i.e. after receiving representations from that person under the 2008 Order, the ISA decide to remove him or her from the children's barred list).

Where paragraph (b) or (c) above applies, section 35 of the CJCSA ceased to have effect but only in relation to a disqualification order to which the relevant individual was subject immediately before being included in the children's barred list and where the Independent Safeguarding Authority (referred to in the SVGA as the Independent Barring Board or IBB) knows of that disqualification order.

In essence, this means that a) where a person is already barred by the ISA no disqualification order can be made in respect of that individual. And b) where a person who is already subject to a disqualification order is barred by the ISA, any breach of that disqualification order will not be enforceable under the CJCSA provisions. Instead, where a person is barred from regulated activity, the barring offences in sections 7 and 9 of the SVGA will apply if that person seeks/offers to or engages in regulated activity or where another person knowingly permits the barred person to engage in regulated activity.

Where a person is not barred from regulated activity by virtue of s.3(2) or is no longer barred from such activity, disqualification orders in relation to that person are still available under the CJCSA provisions and, in relevant cases, prosecutors should continue to apply for such orders to be made, for the time being.

Whilst it was intended that in November 2010, the obligation to be monitored (in relation to new entrants to regulated activity) starts to take effect this has not yet happened. Currently, there are a number of offences which may lead to a disqualification order being imposed but which will not, of themselves, lead to automatic barring under the SVGA (for example sections 13, 66 and 67 Sexual Offences Act 2003, child sex offences committed by children or young persons, exposure and voyeurism committed against a 16 or 17 year old). This also includes any offence where the offender was under 18 at the time of the offence, or under 18 when the order was made.

If the power to make disqualification orders were repealed before the monitoring system becomes active, an individual who committed one of these offences might be able to engage in regulated activity unhindered. Once any new entrant to the workforce is required to be monitored however, the systems will be in place to ensure that the ISA will be informed if any applicant has committed one of these offences.

The Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009 (SI 2009/37) refer to disqualification orders made before 20th January 2009 and after 20th January 2009.

Where a disqualification order was made prior to that date, a person is only automatically included in the children's barred list if all the matters in regulation 3(2)(a) to (c) are satisfied.

Anyone subject to a disqualification order made before 20th January 2009, remains subject to the section 35 CJCSA offence until either the disqualification order is rescinded or the ISA complete their considerations under the Transitional Provisions Order (i.e. notwithstanding their inclusion in the new children's barred list, individuals are to be subject to their "old" bar until their inclusion in the new list is confirmed).
In relation to a disqualification order made on or after that date, a person is automatically included in the children's barred list (with the right to make representations unless the underlying offence is an automatic barring offence that does not attract representations - see regulation 4(6) of those Regulations).

The fact that someone is fully confirmed on the children's barred list does not mean that the disqualification order is no longer in existence. What it means is that that person no longer commits an offence under section 35 of the CJCSA - they will commit an offence under section 7 of the SVGA if they seek/offer or engage in regulated activity whilst being barred from doing so under section 3(2) of the SVGA.

If a person were subject to a disqualification order immediately before they were barred from regulated activity under section 3(2) of the SVGA, and the ISA was aware of the disqualification order before that person was barred, section 35 of the CJCSA continues to have no effect when that person is removed from the children's barred list but only in relation to that particular disqualification order. This means that once a person is removed from the children's barred list, further disqualification orders can be made in relation to that person and section 35 will have effect in relation to any further disqualification orders unless the person is subsequently 're-barred' under the SVGA.

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Annex A

CHILD ABDUCTION WARNING NOTICE (Children under 16)

I have been advised that the following young person has recently been in your company and/or that you have allowed them to be at your property/home address. [delete as appropriate]

CHILD'S NAME	AGE	DOB
[Care needed where childs real name is not known to suspect]

I wish to make it clear on behalf of [insert name of person/department with parental responsibility]) that you have no permission or authority to communicate with this young person, either directly or indirectly, or to allow this young person to enter or stay in your home or other property or your vehicle, or to be in your company, at any time of day or night before they reach the age of 16 years.

YOU MUST NOT THEREFORE AT ANY TIME OF DAY OR NIGHT:

allow this young person to enter or stay in your house, flat, room, place of work or other property, whether you are there or not;
allow this young person to enter or stay in any other property you are present in;
allow this young person to enter or travel in any vehicle or caravan you own or are travelling in;
meet with this young person or remain in their presence;
telephone, text, e-mail, write or communicate with this young person in any way, directly or indirectly through other people;
provide this young person with any food, drink, gift or any other item.

If this young person approaches or makes contact with you, you must immediately:
refuse to allow them to enter the property or vehicle you are in and ask them to leave or, in appropriate circumstances, leave the premises or vehicle yourself;
contact Social Services or the Police [insert phone numbers] if they refuse to leave;
break off any communication.

If you do not comply and this young person is traced to your home / property / vehicle or is found in your presence, then you are liable to arrest and prosecution under Section 2 Child Abduction Act 1984, which carries a maximum sentence of 7 years imprisonment. You may also be liable for other criminal offences arising out of your contact with this young person.

Any suggestion that you are offering this young person necessary shelter or hospitality will be no defence. The Parents (Local Authority) wish to make it clear that no such services from you are required and are indeed unwelcome.

Person Receiving Warning

Name:
Date of Birth:
Address:

I confirm that:

the officer has read and explained the contents of this warning notice to me;
I have/have not been shown a photograph of the young person concerned;
I am clear as to which young person is being referred to; and
the officer has handed me a copy of this warning notice.

Signature:

Time:

Date:

Reason given if person refuses to sign:

Officer Issuing Warning

Collar Number & Name:
Station:

I confirm that:

I have read and explained the contents of this warning notice to the person named above;
I have / have not shown the person a photograph of the young person;
where a photograph has not been shown, I verified that the person knows which young person I am referring to by:

....................................................................................................................................................................................................................
....................................................................................................................................................................................................................
....................................................................................................................................................................................................................

I have handed the person a copy of this warning notice.

Signature:

Time:

Date:

Annex B

CHILD ABDUCTION WARNING NOTICE (Children under 18)

I have been advised that the following young person has recently been in your company and/or that you have allowed them to be at your property/home address. [delete as appropriate]

CHILD'S NAME	AGE	DOB
[Care needed where childs real name is not known to suspect]

I wish to make it clear on behalf of [insert name of relevant Local Authority department] that you have no permission or authority to communicate with this young person or any young person who is under the care or supervision of [insert name of Local Authority department], either directly or indirectly, or to allow them to enter or stay in your home or other property or your vehicle, or to be in your company, at any time of day or night before they reach the age of 18 years, unless this is with prior written consent from the Local Authority.
It is your responsibility to check that any young persons you have contact with are not under the care or supervision of [insert name of Local Authority department].

YOU MUST NOT THEREFORE AT ANY TIME OF DAY OR NIGHT:

allow any of these young persons to enter or stay in your house, flat, room or place of work, whether you are there or not;
allow any of them to enter or stay in any other property you are present in;
allow any of them to enter or travel in any vehicle or caravan you own or are travelling in;
meet with any of them or remain in their presence;
telephone, text, e-mail, write or communicate with any of them in any way, directly or indirectly through other people;
provide any of them with any food, drink, gift or any other item.

If any of these young persons approaches or makes contact with you, you must immediately:

refuse to allow them to enter the property or vehicle you are in and ask them to leave or, in appropriate circumstances, leave the premises or vehicle yourself;
contact Social Services or the Police [insert phone numbers] if they refuse to leave;
break off any communication.

If you do not comply and this young person, or any other young person in the care of the Local Authority, is traced to your home / property / vehicle, or is found in your presence, then you are liable to arrest and prosecution under Section 49 Children Act 1989 which carries a maximum sentence of 6 months imprisonment or Section2 Child Abduction Act 1984 which carries a maximum sentence of 7 years imprisonment. [delete reference to s.2 if child is over 16] You may also be liable for prosecution for other criminal offences arising out of your contact with these young persons.
Any suggestion that you are offering these young persons necessary shelter or hospitality will be no defence. The Local Authority have parental responsibility for the young people in their care and wish to make it clear that no such services from you are required and are indeed unwelcome.

Person Receiving Warning

Name:
Date of birth:
Address:

I confirm that:

the officer has read and explained the contents of this warning notice to me;
I have / have not been shown a photograph of the young person concerned: I am clear as to which young persons are being referred to and to which young person in particular;
and the officer has handed me a copy of this warning notice

Signature:

Time:

Date:

Reason given if person refuses to sign:

Officer Issuing Warning

Collar Number and Name
Station:

I confirm that:

I have read and explained the contents of this warning notice to the person named above;
I have / have not shown the person a photograph of the particular young person;
where a photograph has not been shown, I have verified that the person knows which particular young person I am referring to by:

...........................................................................................................................................................................................................................

...........................................................................................................................................................................................................................

I have handed the person a copy of this warning notice.

Signature:

Time:

Date

Top of page

How to use this Legal Guidance

PDF Information

Child Abuse: Guidance on Prosecuting cases of Child Abuse

Introduction

General Principles

Standards

Expedition

Sensitivity

Fairness

Definition of child

Purpose of having a definition of 'child abuse'

CPS definition for CMS flagging purposes

Local Safeguarding Children Boards (LSCB)

Independent Safeguarding Authority (ISA)

Protection Orders

Offences committed by children against children

Achieving Best Evidence (ABE) Video Interviews

Children with disabilities or where the child is very young or psychologically disturbed

The child who becomes a suspect

Review of video evidence by the reviewing lawyer

PCMH / PTR case management issues

Refreshing memory

Video security

Transcripts and ROVIs

Video interviews as unused material

Competence and Compellability

Sworn and unsworn evidence

Witness Support and Preparation

Statutory and Common Law Offences

Sexual Offences

Meeting a child following sexual grooming (section 15 SOA, as amended by section 73(a) Criminal Justice and Immigration Act 2008)

Abuse of position of trust (sections 16-24 SOA)

Familial child sex offences

Abuse of children through prostitution or pornography

Internal Trafficking

Offences outside the UK

Possession of indecent photographs of children

Possession of a prohibited image of a child

Taking, making or distributing indecent photographs of children

Indecency with Children Act 1960 - repealed 1 May 2004

Sentencing Guidelines for sexual offences

Offences of Assault, Abduction, Kidnapping, Cruelty/Neglect

Two parents/carers who is responsible?

Defence of reasonable chastisement / lawful correction

Child abduction

Kidnapping

Offences of child cruelty, neglect and violence

Sentencing guidelines

Offences involving the death of a child

Familial Homicide

Death of a child in its mother's womb

Non-Accidental Head Injury cases (previously referred to as Shaken Baby Syndrome [SBS])

Child Destruction, Infanticide, Endeavouring to conceal the birth of a child and using poison or instruments to cause miscarriage

Indictments

Old/New Legislation - Dates to remember

Section 55 Violent Crime Reduction Act 2006 - transitional provisions for the Sexual Offences Act 2003

Bad character

Issues commonly arising in child abuse cases

Medical/scientific evidence

Medical evidence

Other scientific evidence

Presence of the expert at the conference and the trial

Second opinions

Disclosure guidance

Collusion and innocent contamination

Compensation

Family court concurrent proceedings

Hearsay

Unused material

Third Party Material

Therapy and Counselling

CPS Rape Policy

Historical Abuse and Institutional Abuse

Lessons from 'Baby P' and the Lord Laming Review 2009

Practice, Procedure and Case Management

Special Measures

Evidence by live link under s.51 Criminal Justice Act 2003

Transfer procedure

Essential Steps Checklist and Advice/Review Checklist in Rape Cases

Appropriate questioning