BCZ [2025] EWCA Crim 1465: Jury Directions on Mens Rea for “Wilful” Child Cruelty by Assault under s.1 Children and Young Persons Act 1933

1. Introduction

The Court of Appeal (Criminal Division) in R v BCZ [2025] EWCA Crim 1465 has delivered an important clarification on the mental element of the offence of child cruelty under section 1(1) of the Children and Young Persons Act 1933 where the allegation is based on an assault. While the judgment ultimately leaves unresolved a long-standing technical question about the precise contours of “recklessness” in this context, it firmly establishes that:

• “Wilful” in s.1(1) imports a requirement of mens rea beyond mere intention to apply force; and
• In a cruelty-by-assault case, the prosecution must prove that the defendant intended or was subjectively reckless as to whether the manner of the assault was likely to cause unnecessary suffering or injury to health.

On the facts, the Court found that the trial judge’s directions to the jury failed to address this mens rea requirement at all, and that this deficiency – coupled with gaps in the evidence on the defendant’s appreciation of risk – rendered the conviction unsafe. The conviction was therefore quashed, with the Crown left to decide within seven days whether to seek a retrial.

The case sits at the intersection of three key strands of authority:

• R v Sheppard [1981] AC 394, on the meaning of “wilfully” in s.1(1);
• R v G [2003] UKHL 50; [2004] 1 AC 1034, which redefined “recklessness” in criminal damage; and
• subsequent child cruelty decisions and leading textbooks (Blackstone’s, Archbold) that attempt to reconcile those strands.

This commentary outlines the background, summarises the Court’s decision, explores the legal reasoning with particular focus on the unresolved issue around the objective element of recklessness, and assesses the wider implications for child cruelty prosecutions and jury directions.

2. Background and Key Issues

2.1 Parties and procedural posture

The appellant, anonymised as BCZ, was tried at Luton Crown Court before HHJ Bal Dhaliwal-Thomas and a jury. He faced four counts arising out of incidents in the family home in Luton in November 2022:

• Count 1 – Assault occasioning actual bodily harm (against his wife);
• Count 2 – Non-fatal suffocation (against his wife);
• Count 3 – Child cruelty, contrary to s.1(1) Children and Young Persons Act 1933 (against his 4‑year‑old son);
• Count 4 – Assault by beating (against his wife).

The jury acquitted him on counts 1, 2 and 4, but convicted on count 3 by a 10–2 majority. He received an 18‑month conditional discharge and ancillary orders; sentence was not in issue on appeal.

He appealed the conviction on count 3 with leave of the single judge, arguing that the trial judge had misdirected the jury on the mental element of the child cruelty offence, rendering the conviction unsafe.

2.2 The charge and factual basis

Count 3 alleged that on 28 November 2022, the appellant:

“being a person who had attained the age of 16 years and having the responsibility for [the complainant], a child under that age, wilfully assaulted the [complainant] in a manner likely to cause the said [complainant] unnecessary suffering or injury to health.”

The prosecution case was that:

• The appellant twisted or pulled his 4‑year‑old son’s ear to discipline him;
• This caused pain and distress, as evidenced by a silent video recorded by the child’s mother showing him distressed and pointing to his ear;
• The appellant admitted in interview and in oral evidence that he had pulled the ear as a form of discipline; and
• His bad character, including domestic offending towards his wife, evidenced a propensity to domestic abuse.

The defence accepted that the ear had been pulled, but maintained:

• The action was limited and not intended to cause pain;
• It was done to “teach his son a lesson” after the child had slapped or punched him during play;
• He did not foresee nor intend unnecessary suffering or injury; and
• The child’s distress in the video was for another reason – frustration at his mother not opening the bathroom door.

2.3 Core legal issues on appeal

Three interlinked issues were before the Court of Appeal:

1. What is the required mens rea for “wilful” child cruelty by assault under s.1(1) of the 1933 Act?
   Specifically, must the prosecution prove that the defendant:
   • intended, or
   • was (subjectively) reckless as to
   the likelihood that the manner of the assault would cause unnecessary suffering or injury to health?
2. What content should a jury direction on “recklessness” carry in this context?
   Is it enough that the defendant was aware of the relevant risk (subjective recklessness), or must the jury also be satisfied that it was unreasonable for the defendant to take that risk (an additional, objective element)?
3. Given the directions actually given at trial, was the conviction safe?
   Could the Court treat the misdirection as immaterial because the only rational conclusion on the evidence was that the appellant had the necessary mens rea, or was the verdict necessarily unsafe?

3. Summary of the Judgment

3.1 Anonymity order

At the outset, the Court (Whipple LJ giving the judgment) made an order under s.45 Youth Justice and Criminal Evidence Act 1999 prohibiting publication of information likely to identify the child complainant until he reaches 18. This is routine in cases involving child complainants in criminal proceedings.

3.2 The trial judge’s directions

The trial judge provided written directions (read to the jury) and a route to verdict. For count 3, she directed that the prosecution must prove:

• Age and responsibility – not in dispute;
• Assault – defined as “the intentional use of unlawful force”;
• Wilfully – defined as “deliberately, in other words, that is by conscious decision”; and
• “In a manner likely to cause [the complainant] unnecessary suffering or injury to health” – with brief explanation that any degree of suffering/injury would suffice provided it was more than trivial, and that it was enough that the conduct was “likely to cause” such suffering/injury.

The route to verdict asked only:

1. Are we sure the defendant wilfully assaulted the child?
2. If so, are we sure the assault was in a manner likely to cause unnecessary suffering or injury to health?

No direction was given on:

• the mental element relating to the “manner” in which the force was applied; or
• the requirement that the defendant intended or foresaw (was reckless as to) the likely risk of unnecessary suffering or injury to health.

3.3 Common ground before the Court of Appeal

Initially, the Crown disputed that any misdirection had occurred. However, shortly before the hearing, in an amended Respondent’s Notice drafted by Mr Jarvis KC, the Crown:

• Conceded that the judge had misdirected the jury by failing to address the full mens rea for the offence; but
• Maintained that the conviction was nevertheless safe.

Both sides accepted that:

• The correct law, following Sheppard and as read in light of R v G, is that “wilfully” in s.1(1) requires proof of intention or recklessness as to the manner of the assault being likely to cause unnecessary suffering or injury to health.
• On the facts of this case, the relevant live issue was recklessness rather than intention, given the appellant’s evidence that he did not intend to hurt his son.

3.4 The unresolved point: does recklessness here include an objective “unreasonableness” element?

The remaining dispute between counsel concerned the content of the recklessness direction:

• Both parties agreed that the jury ought to have been directed to consider:

  “Are we satisfied so that we are sure that when he assaulted the child the defendant was aware of the risk that the manner in which he carried out that assault was likely to cause the child unnecessary suffering or injury to health?”

• The defence (Mx Benn) submitted that the jury also had to be directed that they must be sure it was unreasonable for the defendant to take that risk:

  “Are we satisfied so that we are sure that in the circumstances known to the defendant it was unreasonable for him to have taken that risk?”

• The Crown (Mr Jarvis) argued that this added “unreasonableness” limb is only required where the issue concerns the result element of an offence (as in s.1 Criminal Damage Act 1971), and not where recklessness relates to the conduct or manner in which something is done. Thus, he contended, in child cruelty cases of this type an objective unreasonableness requirement is not part of the mens rea.

The Court accepted that this nuanced question had remained unresolved in the 25 years since R v G. Ultimately, however, the Court declined to rule on it, holding that it was unnecessary to decide in order to dispose of the appeal.

3.5 Safety of the conviction

The Court held that:

• The directions given to the jury did not address the necessary mens rea at all;
• The jury’s verdict established only that the appellant intentionally used unlawful force (he deliberately pulled the ear) and that the manner of that assault was likely to cause some non-trivial suffering or injury; but
• There was:
  • a gap in the evidence – the appellant was never asked whether he was aware of a risk that his actions would cause unnecessary suffering or injury to health; and
  • a gap in the directions – the jury was never required to consider whether he foresaw such a risk (or was reckless in that sense).

In those circumstances, the Court refused to infer, on appeal, that the jury would inevitably have been sure of the appellant’s awareness of risk. Filling that gap would, in the Court’s words, be to “usurp the function of a trial and the role of the jury”. It therefore concluded that:

• The conviction was unsafe and had to be quashed; and
• A retrial might not be useful given the modest nature of the allegation and the passage of time since 2022, but the CPS retained the right to decide within seven days whether to apply for a retrial order.

4. Legal Framework and Precedents

4.1 Section 1(1) Children and Young Persons Act 1933

The offence of child cruelty, as currently framed, appears in s.1(1) of the 1933 Act (as amended). The Court quoted the essential part:

“If 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 (whether physically or otherwise), neglects, abandons, or exposes him, or causes or procures him to be assaulted, ill-treated (whether physically or otherwise), neglected, abandoned, or exposed, in a manner likely to cause him unnecessary suffering or injury to health (whether the suffering or injury is of a physical or a psychological nature), that person shall be guilty of an offence…”

The core structural features are:

• A person aged 16+ with responsibility for a child under 16;
• Engages in one of the proscribed forms of misconduct – assault, ill-treatment, neglect, abandonment, or exposure (or causes/procures such);
• Wilfully – a word that plainly imports a mental element; and
• That conduct is in a manner likely to cause unnecessary suffering or injury to health, physical or psychological.

In BCZ, the alleged misconduct was an assault (ear‑pulling) said to be carried out in a manner likely to cause unnecessary suffering.

4.2 R v Sheppard [1981] AC 394 – “Wilful” in the context of neglect

The leading case on “wilfully” in s.1(1) is the House of Lords’ decision in Sheppard, which concerned neglect by omission (failure to provide adequate medical aid). Lord Diplock, giving the majority speech, held that:

“The proper direction to be given to a jury on a charge of wilful neglect of a child … is that the jury must be satisfied (1) that the child did in fact need medical aid at the time … (the actus reus), and (2) either that the parent was aware at that time that the child's health might be at risk if it were not provided with medical aid, or that the parent's unawareness of this fact was due to his not caring whether his child's health were at risk or not (the mens rea).”

Two points from Sheppard matter here:

1. Lord Diplock treated “wilfully” as importing a mens rea requirement across all five verbs in s.1(1), not only neglect. He said:

   “… any offence under section 1 requires mens rea, a state of mind on the part of the offender directed to the particular act or failure to act that constitutes the actus reus and warrants the description ‘wilful’.”

   This makes clear that:
   • There must be a culpable mental state connected to the relevant conduct (assault, ill-treatment, etc.); and
   • “Wilful” does not merely mean that the physical act was deliberate; it concerns the mental attitude towards the risk of unnecessary suffering or injury to health.
2. He acknowledged that “wilfully” may operate slightly differently for acts (assault, ill-treatment) and omissions (neglect), but the common principle remains that the offender must be at fault in their state of mind as regards the risk to the child’s health.

Subsequent Court of Appeal authorities, such as R v W (Emma) [2006] Crim LR 2723 and R v D [2008] EWCA Crim 2360, have elaborated on Sheppard in the context of neglect. In BCZ, the Court noted these but did not need to analyse them in depth, as the appeal turned principally on how “wilfully” and “recklessness” interact rather than on the exact scope of “neglect”.

4.3 R v G [2003] UKHL 50 – Subjective recklessness

The second key authority is R v G, which concerned criminal damage under s.1(1) Criminal Damage Act 1971. The House of Lords rejected the previous objective “Caldwell recklessness” (R v Caldwell [1982] AC 341) and endorsed a subjective test of recklessness, aligned with Law Commission proposals.

The certified question was whether a defendant could be convicted of criminal damage where he gave no thought to the risk but, by reason of his age/personal characteristics, the risk would not have been obvious to him even if he had considered it. The House answered no, adopting a subjective formulation.

Lord Bingham, relying heavily on the Law Commission’s work, set out the now canonical definition (para 41):

“A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to –
(i) a circumstance when he is aware of a risk that it exists or will exist;
(ii) a result when he is aware of a risk that it will occur;
and it is, in the circumstances known to him, unreasonable to take that risk.”

Two things follow from R v G:

• The House of Lords definitively endorsed a subjective awareness of risk standard; and
• Lord Bingham’s wording appears to add an objective reasonableness overlay: the jury must also find that, in the circumstances as the defendant knew them, it was unreasonable to take that risk.

The question in BCZ is whether this combined subjective/objective model applies wholesale to recklessness under s.1(1) of the 1933 Act, and in particular to the “wilfully assaults … in a manner likely to cause” limb.

4.4 Textbook commentary: Blackstone’s and Archbold

The appeal was also influenced by textbook commentary:

• Blackstone’s Criminal Practice 2026, para B2.171, relying on Sheppard, which was cited by the defence to support the contention that foresight of harm (recklessness) is an ingredient of the offence.
• Archbold 2026, para 17B‑51, which, according to Mr Jarvis, supports the view that the subjective recklessness as set out in R v G is imported into “wilfully” in s.1(1), but without necessarily endorsing an objective unreasonableness test where the mental element relates to conduct rather than result.

While not binding, such texts are influential in framing arguments and illustrating the profession’s current understanding of how Sheppard and R v G interact in child cruelty cases.

5. The Court’s Legal Reasoning

5.1 Criticism of lack of assistance at trial

The Court explicitly noted that “none of the arguments which are currently before the Court were put before the trial judge” and described this as “very regrettable” (para 16). The judge, it said, “did not receive the degree of assistance which she was entitled to expect from counsel.”

This is more than a passing remark. It underscores:

• the professional duty of both prosecution and defence to assist the judge with applicable law, particularly in complex or evolving areas (such as the interaction of Sheppard and R v G); and
• the risk that inadequate legal directions – even in seemingly straightforward factual disputes – can undermine the safety of a conviction.

5.2 The agreed legal position: mens rea required for “wilful” assault under s.1(1)

Drawing on Sheppard and the post–R v G understanding of recklessness, the Court accepted (as common ground) that the trial judge should have directed the jury that:

• To convict, they had to be sure that the appellant either:
  • intended, or
  • was reckless (in the R v G sense)
  as to whether the manner of the assault was likely to cause unnecessary suffering or injury to health.

It was therefore insufficient to direct the jury merely that:

• the assault must have been intentional (i.e. the physical touching must have been deliberate); and
• the manner of the assault was likely in fact to cause unnecessary suffering or injury.

The jury needed a further question: did the defendant foresee the risk that his conduct, in the way he chose to carry it out, was likely to cause unnecessary suffering/injury (or did he intend that outcome)? Without such foresight or intent, the conduct may be inappropriate or unwise but does not amount to “wilful” cruelty in the statutory sense.

5.3 The unresolved dispute over the objective limb of recklessness

The Court carefully delineated the remaining point of law on which it heard full argument but ultimately declined to decide.

5.3.1 Defence position (Mx Benn)

Mx Benn argued that, in line with para 41 of R v G, the definition of recklessness has two elements:

1. A subjective element – awareness of a relevant risk; and
2. An objective element – it must be unreasonable in the circumstances known to the defendant to take that risk.

On this reading:

• The closing words “and it is, in the circumstances known to him, unreasonable to take that risk” qualify both limbs (circumstances and result) in Lord Bingham’s formulation.
• Even when the mental element concerns a conduct/circumstance aspect – as here, where the statute speaks of the manner of the assault – the jury must find both awareness of risk and unreasonableness in taking that risk.
• This interpretation is also said to be faithful to the Law Commission’s model on which Lord Bingham relied.

5.3.2 Crown position (Mr Jarvis)

Mr Jarvis submitted that:

• The “unreasonableness” requirement in para 41 of R v G was crafted for the result-based criminal damage offence, and the wording shows that the objective limb attaches only to the result component.
• Where recklessness concerns conduct or a manner of acting, as in s.1(1) child cruelty, it is sufficient that the defendant was subjectively aware of the relevant risk; there is no need to add an independent objective test of reasonableness.
• This approach, he contended, aligns with Archbold’s treatment of “wilfully” and avoids overcomplicating jury directions in child cruelty prosecutions.

5.3.3 The Court’s stance

The Court explicitly recognised that:

• This point has not been definitively resolved since R v G; and
• It raises an “interesting point of law” that may need resolving in a future case.

However, because:

• The trial directions did not even meet the lower common denominator (they omitted any reference to subjective awareness of risk); and
• The appeal could be decided on that basis alone,

the Court declined to adjudicate between the competing interpretations of Lord Bingham’s definition. As Whipple LJ put it:

“In those circumstances, it is not necessary for us to resolve the interesting point of law identified by the parties. It has waited 25 years already and it will have to wait a bit longer.” (para 40)

The result is that the scope of any objective element of recklessness in child cruelty cases, and more broadly in conduct-based offences employing “recklessness”, remains, for now, an open question.

5.4 Why the conviction was unsafe

The Court’s reasoning on safety hinged on two gaps:

1. The evidential gap – absence of focused evidence on foresight of risk; and
2. The legal gap – absence of a jury direction on the requisite mens rea.

5.4.1 The appellant’s evidence and the live issue of recklessness

The appellant’s own evidence included:

• Admission that he had pulled/pinched his son’s ear;
• Assertion that he did not intend to hurt his son, but acted to educate or censure him;
• Denial that any reddening or real injury occurred; and
• Alternative explanation for the child’s distress (the bathroom door incident).

The Court observed that:

• If the jury could have accepted that the appellant did not intend to cause suffering (even as a reasonable possibility), the only remaining route to conviction was by proving recklessness – that he foresaw the likely risk but went ahead anyway.
• Accordingly, “the issue of recklessness would have been live” (para 36).

However, the appellant had never been squarely asked whether he was aware of a risk that his manner of discipline might cause unnecessary suffering or injury. There was no direct evidence eliciting his state of mind on risk appreciation. This left a significant evidential gap on what was, in hindsight, a crucial issue.

5.4.2 The missing directions

The Court then examined the trial directions:

• The judge’s explanation of “wilfully” was essentially confined to the deliberate nature of the physical act (“conscious decision”);
• No direction linked wilfulness to any foresight of harm or to the “manner likely to cause” requirement; and
• The route to verdict did not ask the jury any question about the appellant’s awareness of the likely risk of unnecessary suffering.

Thus, the jury:

• Were never tasked with deciding whether the appellant was reckless in the sense required by law; and
• May have convicted simply because they were sure that:
  • he deliberately pulled the ear, and
  • such ear‑pulling, objectively speaking, was likely to cause some suffering or injury.

That is insufficient for a s.1(1) offence.

5.4.3 Why the Court would not “plug the gaps”

Mr Jarvis urged that, even if the directions were defective, the Court could safely conclude that, had the jury been properly directed, they would inevitably have found the necessary recklessness, particularly given the appellant’s own admissions about pinching the ear.

The Court rejected this argument:

• The appellant had not been asked, and the jury had not been directed to consider, whether he foresaw a risk of unnecessary suffering or injury;
• The Court could not assume what evidence might have emerged had questioning on that issue been more focused; and
• Nor could it assume how a properly directed jury would have evaluated such evidence.

To “plug” these gaps ex post facto, the Court said, would be to “usurp the function of a trial and the role of the jury” (para 39). It therefore accepted defence submissions that, even on the Crown’s own preferred legal approach to recklessness, the conviction must be quashed as unsafe.

5.5 Consequences: conviction quashed, retrial in doubt

The Court therefore:

• Quashed the conviction on count 3 (para 41); and
• Expressed doubt about the practical utility of a retrial given:
  • the modest scale of the alleged offending;
  • the passage of time since November 2022; and
  • the fact that the appellant had received only an 18‑month conditional discharge.

However, it left the decision to the CPS, granting them seven days to indicate whether they would seek an order for a retrial (para 42).

6. Complex Concepts Explained in Plain Terms

6.1 Actus reus and mens rea

• Actus reus: the physical or external component of an offence – here, the act of assaulting a child in a manner likely to cause unnecessary suffering or injury to health.
• Mens rea: the mental or internal component – here, the defendant’s state of mind regarding the risk of causing unnecessary suffering or injury by the way he carried out the assault.

6.2 “Wilfully” in s.1(1)

“Wilfully” does not simply mean “did it on purpose” in the everyday sense. In child cruelty law, following Sheppard, it means that:

• The defendant’s state of mind must be culpable in relation to the risk to the child’s health – i.e. he must intend or be reckless as to that risk;
• It is not enough that he intentionally performed the physical act (such as pulling an ear);
• The mental fault must connect the manner of the conduct with its likely consequence for the child’s welfare.

6.3 Subjective and objective recklessness

In everyday terms:

• Subjective recklessness: the defendant actually realised there was a risk of a harmful outcome and went ahead anyway.
• Objective recklessness (or the “unreasonableness” overlay): not only did the defendant realise there was a risk, but it would also be viewed by a reasonable person as unreasonable to take that risk in the circumstances known to the defendant.

After R v G, English criminal law generally requires at least subjective awareness of risk. Whether an additional objective reasonableness test is required in all “recklessness” contexts is precisely the question left open in BCZ.

6.4 “Likely to cause unnecessary suffering or injury to health”

This phrase does not require the child actually to have suffered harm. It is enough that:

• the conduct was likely, judged prospectively, to cause some non-trivial suffering or injury to health; and
• the suffering or injury would have been unnecessary – i.e. not required by any legitimate purpose of parenting, discipline, or care.

The Court did not dwell on the threshold of “likely” or “unnecessary” in this case, as the focus was on the mental element, but the judge directed the jury that any degree of suffering was enough provided it went beyond “slight fright or some small anxiety”.

6.5 Safety of conviction on appeal

Under the Criminal Appeal Act 1968 (s.2), the Court of Appeal must allow an appeal against conviction if it considers the conviction unsafe. A conviction can be unsafe where:

• there was a material misdirection or error of law; and
• the appellate court cannot be sure that the verdict would necessarily have been the same if the trial had been properly conducted or directed.

In BCZ, the Court found both an error of law (failure to direct on mens rea) and a material evidential gap (no exploration of the defendant’s awareness of risk), and refused to speculate about what a properly directed jury would have done.

7. Impact and Significance

7.1 Immediate doctrinal impact: directions in child cruelty cases

The decision has immediate and concrete consequences for the conduct of trials under s.1(1) 1933 Act, particularly where the alleged cruelty consists of assault or other affirmative acts:

• Judges must not treat “wilfully” as satisfied by a finding that the alleged assault was merely intentional in the ordinary sense.
• They must direct juries that conviction requires proof that the defendant:
  • intended to cause unnecessary suffering or injury, or
  • was reckless as to the likelihood that the way he acted would cause such suffering or injury.
• Where recklessness is in issue, juries must be given a proper definition of recklessness, at least requiring subjective awareness of risk.

Failure to give such directions risks rendering convictions unsafe, as in BCZ.

7.2 Practical consequences for practitioners

7.2.1 Prosecution

• Charging decisions: When charging child cruelty based on physical acts (ear‑pulling, smacking, shaking, etc.), prosecutors must ensure they are prepared to prove not merely the act and objective likelihood of harm, but the defendant’s mental state regarding that likelihood.
• Case preparation: It will be vital to obtain and lead evidence that enables the jury to infer intention or subjective awareness of risk – for example:
  • the nature, intensity and duration of the conduct;
  • any prior warnings, injuries or concerns about the child’s vulnerability;
  • the defendant’s own admissions or explanations; and
  • patterns of similar behaviour as bad character evidence.
• Jury directions: Prosecutors must assist judges with draft directions that capture the mens rea for wilful cruelty, explicitly linking “wilful” to foresight of likely suffering or injury.

7.2.2 Defence

• Cross-examination strategy: Defence counsel should be alert to the need to explore (and, where appropriate, highlight the absence of) evidence of the defendant’s awareness of risk at the relevant time.
• Client’s evidence: Where a defendant admits the physical act but denies intending harm, it will usually be essential to address directly:
  • whether he foresaw any risk of causing the type of suffering/injury alleged; and
  • if so, why he nonetheless believed the conduct to be acceptable (e.g. cultural disciplinary practices, perceived triviality of force, etc.).
• Requests for directions: Defence counsel should press for jury directions that:
  • make clear that wilfulness requires intent or recklessness as to the likely suffering/injury, and
  • where appropriate, raise the possible need for the objective “unreasonableness” limb (pending future appellate clarification).

7.3 The unresolved recklessness question: future litigation

The case highlights a doctrinal tension that remains open: does “recklessness” in s.1(1) child cruelty:

• require only subjective awareness of risk (as to the manner of the conduct), or
• also require the jury to find that it was unreasonable for the defendant to take that risk, in the circumstances known to him?

This has potential ramifications not just for child cruelty offences but for any offence where:

• the statute is silent as to the precise definition of recklessness; and
• the fault element concerns conduct or circumstances rather than a purely result-based outcome.

A future case that squarely raises this point – perhaps in more serious cruelty or neglect litigation, or in another “wilful” offence – may prompt the Court of Appeal or Supreme Court to provide definitive guidance. For now, practitioners must navigate the uncertainty, and judges may need to consider giving directions that incorporate both elements where it is safe and clear to do so.

7.4 Emphasis on fairness and the role of the jury

Finally, BCZ reinforces the appellate court’s reluctance to:

• speculate on what a jury would have done had they been properly directed; or
• retro-fit findings on mental state where the trial process did not explore those issues and the jury were not asked to decide them.

This reflects a principled commitment to:

• the centrality of the jury’s fact-finding role; and
• the requirement that serious findings of criminal guilt rest on:
  • properly framed issues;
  • adequate evidential foundation; and
  • accurate legal directions.

8. Conclusion: Key Takeaways

R v BCZ [2025] EWCA Crim 1465 does not revolutionise the law of child cruelty, but it does crystallise and reinforce several important principles:

1. “Wilful” child cruelty under s.1(1) CYPA 1933 requires mens rea.
   The prosecution must prove that the defendant intended or was reckless as to whether the manner of the assault (or other proscribed conduct) was likely to cause unnecessary suffering or injury to health. Mere proof of an intentional assault that is objectively likely to cause harm is not enough.
2. Recklessness entails at least subjective awareness of risk.
   Following R v G, the defendant must actually foresee a risk that his conduct, in the way he carries it out, is likely to cause unnecessary suffering or injury. The Court left open whether the R v G objective “unreasonableness” limb is also required in this context.
3. Accurate jury directions are essential.
   Trial judges must go beyond defining “assault” and “wilfully” in purely physical or everyday terms. Directions must expressly address the mental element connecting the defendant’s state of mind to the risk of harm to the child.
4. Counsel bear a duty to assist the judge with the law.
   The Court’s criticism of the failure to put these arguments before the trial judge serves as a reminder of the responsibility on both sides to ensure that complex or evolving areas of law are properly addressed and that appropriate directions are crafted.
5. Appellate courts will not cure fundamental omissions by speculation.
   Where a key element of an offence (here, mens rea) has not been the subject of evidence and direction, the Court of Appeal will be slow to uphold a conviction by inferring what the jury “must have” decided. In such cases, convictions are likely to be quashed as unsafe.

In practical terms, BCZ stands as a clear warning: in child cruelty prosecutions – especially those based on arguably “disciplinary” forms of physical chastisement – the line between lawful parenting and criminal cruelty turns critically on the defendant’s mental state towards the risk of causing unnecessary suffering. It is that state of mind, and not merely the physical act, which must be carefully explored in evidence and rigorously defined for the jury.