“Beyond the Tent”: The Court of Appeal Confirms a Broad Evidential Canvas for Child-Cruelty Charges and Re-states the Wide Discretion to Take Partial Verdicts
Commentary on Marten & Anor v Rex ([2025] EWCA Crim 241)

1. Introduction

The Court of Appeal (Criminal Division), presided over by The Lady Chief Justice, has delivered an important judgment in Marten & Anor v Rex. While the immediate appeal concerned the safety of convictions arising from the tragic death of “Baby A”, the ruling carries wider significance by:

• Clarifying how a jury may draw on a “sequence of events”—including conduct occurring before the alleged act of cruelty—to find guilt under s. 1(1) of the Children and Young Persons Act 1933 (“child cruelty”).
• Re-affirming the extensive judicial discretion to take partial verdicts (CrimPR 25.14.3H; CPD 8.6.5) even where counts are factually inter-linked.
• Rejecting calls for “fact-basis” interrogation of jury verdicts and underlining the limited circumstances in which a court should seek clarification.

The commentary that follows unpacks the background, decision, reasoning, and likely ramifications of the case, with complex concepts demystified for non-specialist readers.

2. Summary of the Judgment

Constance Marten and Mark Gordon were convicted by a Crown Court jury of (i) concealment of birth, (ii) cruelty to Baby A, and (iii) perverting the course of justice. They awaited retrial on counts of causing or allowing Baby A’s death and gross-negligence manslaughter when the present appeal reached the Court of Appeal.

The appellants advanced multiple grounds centred on the child-cruelty count (Count 2), complaining that:

• there was “no case to answer” and insufficient evidence;
• the judge’s directions improperly enlarged the ambit of Count 2 by letting the jury rely on events prior to the family’s move to a tent near Newhaven;
• the jury should have been asked to state the factual basis for their verdict;
• the judge mishandled partial verdicts and should have discharged the jury after a new Court of Appeal authority (R v ATT & BWY) was handed down mid-deliberations; and
• a later jury question on the standard of proof undermined earlier unanimous verdicts.

The Court of Appeal rejected every ground. In headline terms it held:

1. There was ample evidence—CCTV, pathologist testimony, lifestyle circumstances—for a properly directed jury to find wilful neglect likely to cause unnecessary suffering.
2. The jury were entitled to look at “the circumstances as they were in late December through to mid-January … and beyond”. Earlier episodes in East London were legitimate context, not a separate crime in themselves.
3. Directions on co-sleeping, exposure to cold and exhaustion were accurate; the judge’s refusal to delimit the jury’s enquiry to two neat hypotheses (smothering or hypothermia) was correct.
4. Partial verdicts were within the trial judge’s broad discretion and promoted orderly deliberations.
5. Neither ATT nor the later clarification request on the burden of proof rendered the convictions unsafe.

Result: Leave to appeal refused; all convictions stand.

3. Analysis

3.1 Precedents Cited and Their Influence

• R v ATT & BWY [2024] EWCA Crim 460
  • Authority for the proposition that “causing or allowing the death of a child” requires proof that a risk existed before the injury was inflicted.
  • The appellants argued that this fresh authority should have led to withdrawal of Count 3 and, by association, Count 2. The Court of Appeal disagreed, noting: ATT addresses a different offence; it left the cruelty count untouched.
• Criminal Procedure Rules 2020, r 25.14.3H and Criminal Practice Directions 2023, §8.6.5
  • Provide statutory footing for a judge’s discretion to accept partial verdicts. The Court relied on these instruments to uphold the trial judge’s decision to take verdicts on Counts 1, 2 & 5 while the jury remained undecided on Counts 3 & 4.
• Children and Young Persons Act 1933, s. 1(1)
  • Sets the elements of child cruelty: “wilfully assault, ill-treat, neglect, abandon or expose … in a manner likely to cause unnecessary suffering or injury to health”.
  • The Court’s interpretation—that the jury may assess the whole course of conduct and need not pinpoint a single act—now serves as a practical precedent for prosecutors and trial judges.
• R v Galbraith [1981] 1 WLR 1039 (test for “no case to answer”)
  • Although not expressly cited in the judgment, the trial judge’s decision—and its affirmation on appeal—tracks the familiar two-limb Galbraith test.

3.2 Legal Reasoning

1. No-case submission rejected. The Court emphasised that cruelty focuses on the likelihood of suffering; actual physical injury or certainty of hypothermia need not be proven. The evidence—e.g., Baby A in a sleepsuit, carried in a shopping bag, living in an unheated tent in winter—was ample for a jury to find neglect.
2. “Sequence of events” approach. The Court endorsed the trial judge’s invitation to treat the period from late December 2022 until Baby A’s death as a continuous narrative. Earlier conduct in East London, while not independently criminal, could illuminate the appellants’ mindset, resources, and parenting choices.
3. Co-sleeping as potential neglect. The judgment rejects submissions that the judge misdirected by calling co-sleeping “unlawful”. Co-sleeping per se may be lawful, but in the particular circumstances—winter, exhaustion, off-grid camping— the jury could regard it as neglect likely to risk smothering.
4. Partial verdicts. Factual linkage between counts does not outlaw partial verdicts. The jury logically answered the predicate question (Was there cruelty?) before turning to causation (Did cruelty cause death?).
5. No “fact-basis” interrogation. Jury autonomy is paramount; the Court refused to open the door to piecemeal dissection of verdicts absent genuine ambiguity.
6. Standard-of-proof note. The later question—“100 % certain?”—could only mean the jury were leaning toward an over-strict standard, so it fatally harmed no one.

3.3 Likely Impact

• Prosecutorial Strategy. CPS may cite Marten to argue that s. 1(1) cruelty can be made out by an accumulation of neglectful episodes even where medical causation is obscure.
• Trial Directions. Judges now have authoritative backing for: (a) a broad temporal canvas when directing juries on cruelty counts, and (b) taking partial verdicts despite factual overlap, so long as the logical sequencing of issues is made plain.
• Appeals Practice. Defence arguments that focus on isolating single incidents or demanding “factual basis” clarification face a steeper hill post-Marten.
• Child-Protection Policy. Agencies may regard the case as judicial recognition that “off-grid parenting” without basic safeguards (temperature, medical visits, birth registration) can readily cross the threshold into criminal neglect.

4. Complex Concepts Simplified

• No Case to Answer (Galbraith test) – A mid-trial argument that the prosecution evidence is so weak that, even if accepted at its highest, no reasonable jury could convict. If successful, the judge directs an acquittal without the defence being called.
• Partial Verdicts – A jury may return verdicts on certain counts while continuing to deliberate on others. The judge’s discretion to accept these aims to save court time and provide clarity.
• Section 1(1) CYPA 1933 – Child Cruelty – Criminalises wilful neglect or exposure of a child in a manner likely (not certain) to cause unnecessary suffering or injury to health.
• Cause of Death “Unascertained” – Pathologists sometimes cannot determine an exact cause. Criminal liability for cruelty can still attach where the defendant’s conduct was likely to cause harm, even without proof of causation.
• Reporting Restriction (CCA 1981, s. 4(2)) – A court order postponing publication of certain details to avoid prejudicing ongoing or future proceedings.

5. Conclusion

Marten & Anor v Rex does not create a radical new doctrine, but it agilely consolidates and clarifies:

• The wide evidential lens through which juries may assess cruelty to a child.
• The permissibility of treating a constellation of neglectful acts as a single course of conduct for s. 1(1) CYPA 1933.
• The breadth of a trial judge’s powers regarding partial verdicts, jury notes, and the management of late-breaking case-law.

By refusing leave to appeal, the Court of Appeal underscores the primacy of common-sense jury evaluation over hyper-technical line-drawing where a child’s welfare is at stake. Future defendants arguing that juries have “strayed” in cruelty cases will now have to surmount the robust reasoning in Marten.