Commentary on Sections Section 2: Evidence and procedure in cases of serious physical harm
11.Section 2  inserts a new section 6A into the 2004 Act, similar to section 6 of the 2004 Act. New section 6A provides for special rules for trials in England and Wales where a defendant is charged within the same proceedings, and in relation to the same physical harm, with an offence of causing or allowing serious physical harm under section 5 and with an offence under section 18 or 20 of the Offences Against the Person Act 1861 (grievous bodily harm etc) or an offence under section 1 of the Criminal Attempts Act 1981 of attempting to commit murder (subsection (1) and subsection (2) ). The provisions in subsections (3) to (5)  apply where this is the case.
12.Subsection (3)  makes provision for drawing such inferences as appear proper from a defendant’s failure to give evidence in court (or refusal, without good cause, to answer any question). Where a court or jury is permitted under section 35(3) of the Criminal Justice and Public Order Act 1994 to draw an adverse inference in respect of the offence under section 5 from the defendant’s failure to give evidence or to answer questions, an adverse inference may also be drawn in relation to the charge under section 18 or 20 of the Offences Against the Person Act 1861 or a charge under section 1 of the Criminal Attempts Act 1981 of attempting to commit murder, even if there would otherwise be no case for the defendant to answer on that charge.
13.Subsection (4)  sets out how charges should be dealt with where a person is sent by a magistrates’ court to the Crown Court for trial (pursuant to section 51 of the Crime and Disorder Act 1998), and the defence makes an application for the charges to be dismissed (under paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998). This subsection prevents the charge under section 18 or 20 of the Offences Against the Person Act 1861 or a charge under section 1 of the Criminal Attempts Act 1981 of attempting to commit murder being dismissed if the judge does not dismiss the section 5 charge.
14.Subsection (5)  defers the decision on a question of whether there is a “case to answer” on a charge under section 18 or 20 of the Offences Against the Person Act 1861 or a charge under section 1 of the Criminal Attempts Act 1981 of attempting to commit murder until the close of the defence case, unless the prosecution fails to establish a case to answer on a charge under the section 5 offence by the conclusion of its case.  This means that the court will hear all the evidence that is to be presented in the case before deciding whether the charges can safely be left to the jury.