Key takeaways

• A guilty plea to the “causing or allowing serious physical harm” offence under the Domestic Violence, Crime and Victims Act 2004 imports acceptance of the objective elements: that the defendant ought to have been aware of a significant risk of serious physical harm and failed to take reasonable protective steps ([19]–[21], [28]).
• Sentencing focuses on a fact-specific culpability spectrum for “allowing” cases. Severe, repeated infant injuries, delay in seeking help, and drug use while caring can place culpability at least in the moderate bracket, even where the defendant is not sentenced as the perpetrator ([26]–[29]).
• English authorities and Sentencing Council guidance are persuasive in Northern Ireland for s.5-type offences; courts may borrow analytical frameworks (harm/culpability; aggravation/mitigation) without treating English starting points as binding ([6], [9], [15]).
• “Both parents in prison” is not, without more, an exceptional circumstance warranting suspension or a non-custodial disposal in serious child protection cases; the safety of vulnerable children predominates ([31]–[33]).
• On parity, where perpetration cannot be attributed and both defendants plead to “allowing,” equal sentences are permissible absent distinguishing features ([8], [14]).

Introduction

In The King v AD [2025] NICA 48, the Court of Appeal in Northern Ireland (Keegan LCJ, Kinney J, McLaughlin J; judgment delivered by Kinney J) considered an application for leave to appeal a sentence imposed for causing or allowing a child to suffer serious physical harm contrary to section 5 of the Domestic Violence, Crime and Victims Act 2004 (DVCVA). The case concerns a two-month-old infant, L, who sustained extensive injuries, including multiple fractures and a brain injury. Both parents, AD (the appellant) and BE (co-accused), pleaded guilty to the s.5 offence and received identical sentences of 14 months’ determinate custody.

The appeal challenged: (i) the trial judge’s assessment of the appellant’s culpability as moderate rather than low, (ii) an alleged failure to give weight to the pre-sentence report, psychological evidence (Dr Pollock), and rehabilitation prospects, and (iii) a failure to recognise “exceptional circumstances” given the impact on the child of both parents being imprisoned ([16]).

This judgment is significant for Northern Ireland sentencing in “allowing” cases under the DVCVA. It clarifies how a guilty plea operates on the objective mens rea, how courts should assess culpability on a spectrum in light of the factual matrix, the status of English authorities and guidance as persuasive, and the narrowness of “exceptionality” where the victim is a very young child.

Summary of the Judgment

The Court of Appeal granted leave to appeal but dismissed the appeal, upholding the Crown Court’s determinate custodial sentence of 14 months ([33]). The court:

• Affirmed that by pleading guilty, the appellant accepted the objective elements of s.5, making debates about whether he “ought to have known” redundant at the sentencing stage ([19]–[21], [28]).
• Held that the trial judge was entitled to assess culpability as moderate, having regard to the severity and multiplicity of injuries, evidence of unusual distress before presentation to hospital, delay in seeking help, and drug use while caring ([27], [29]).
• Rejected the contention that the trial judge ignored the pre-sentence report or Dr Pollock’s assessment; both were referenced and weighed, including the appellant’s minimisation and continued cannabis use ([30], [22]–[24]).
• Declined to find exceptional circumstances justifying a suspended or non-custodial sentence merely because both parents would be imprisoned and the child was placed in kinship care; personal problems attract limited weight where child safety is paramount ([31]–[33]).
• Endorsed the trial judge’s reliance on English case law and Sentencing Council materials as a structured cross-check for aggravating/mitigating factors, without adopting English guideline starting points as binding ([6], [9], [15]).

Factual background

L, born on 4 April 2019, was brought to hospital on 10 June 2019 with a swollen leg. Investigations revealed extensive injuries: approximately 20 fractures (to numerous ribs and long bones), bruising, and a brain injury. Medical opinion varied on whether the brain injury resulted from one or two episodes; the sentencing judge treated it as contemporaneous with the fractures and not a separate episode ([2]).

Two days before hospital presentation, family members heard L “squealing,” described as “not normal,” when the parents took her upstairs to change a nappy at a party ([3]). Initially, both parents gave no explanation and denied drug use. The appellant later suggested a fall from bed and admitted daily cannabis use while caring for L—explanations discounted by medical evidence ([4], [6]).

The Crown offered no evidence on four counts (including GBH and neglect). The appellant then pleaded guilty to the “causing or allowing serious physical harm” offence under s.5. The trial judge identified aggravating features (extent and repetition of injuries; drug use while caring) and mitigation (youth, effectively limited record, remorse qualified, guilty plea), fixed a 20-month starting point, and applied a discount for plea to reach 14 months’ custody ([7], [10]).

Legal framework

The court set out the section 5 framework and the nature of the “causing or allowing” offence, emphasising three features relevant here:

• The offence addresses the evidential difficulty where two carers are present and the perpetrator cannot be identified; a special verdict distinguishing “causing” from “allowing” is not required (Hopkinson [2013] EWCA Crim 795; [13]).
• For sentencing, neither defendant is sentenced as perpetrator where the perpetrator cannot be ascertained; both are sentenced for allowing the perpetrator to act (Ikram and Parveen [2008] 2 Cr App R(S) 114; [14]).
• The mental element in “allowing” is objective (“ought to have been aware” of a significant risk of serious physical harm and failed to take reasonable steps). The court may consider a defendant’s situation in assessing what steps were reasonably expected, for example in cases involving domestic abuse or modern slavery (Khan [2009] EWCA Crim 2 at [33]; [19]–[21]).

Analysis

Precedents and texts cited and their influence

• R v SD (NICA, 10 August 2021, TRE11550) ([5]): A Northern Ireland authority in which the Court of Appeal converted a custodial sentence to probation against a significantly less serious injury background, a single incident, and strong post-offence rehabilitation. The present court distinguished SD as materially different: lesser harm, single episode, and non-perpetrator status, leading to a different outcome. SD illustrates that probation can be appropriate in distinctly less serious and rehabilitative contexts; it does not set a norm for multi-incident severe harm to an infant.
• R v Nemet and Rapasi [2018] EWCA Crim 2195 ([6], [15]): English Court of Appeal decision used as a comparator and a framework for identifying harm/culpability factors. Although not binding in NI, it is persuasive and offered a three-year starting point in the English context. Here, the NI court accepted the utility of the English analysis without importing its starting point, reflecting jurisdictional discretion and the specific “allowing” basis.
• R v Ikram and Parveen [2008] 2 Cr App R(S) 114 ([9], [14]): Authoritative on the principle that, where the perpetrator cannot be identified, sentencing for “allowing” applies equally to both carers—neither is sentenced as perpetrator. This underpinned the parity between AD and BE and the trial judge’s refusal to distinguish between them ([8]).
• R v Hopkinson [2013] EWCA Crim 795 ([13]): Confirms that juries need not specify “causing” versus “allowing”; the offence was designed to overcome attribution difficulties. This supports the approach that plea and conviction under the composite offence obviate the need to resolve perpetration at sentencing.
• Khan [2009] EWCA Crim 2 ([20]): Recognises that the objective test (“ought to have been aware” and “reasonable steps”) must be applied with sensitivity to the defendant’s circumstances, especially where coercion or vulnerability is alleged. The present court noted the point but explained that, where the defendant pleads guilty and does not establish particular vulnerabilities, the theoretical debate about the objective test does not alter the culpability analysis ([20]–[22]).
• Smith, Hogan and Ormerod, Criminal Law (17th ed.) ([12]): Cited for the proposition that the mental element in the “allowing” limb is negligence (“ought to have been aware” of risk). The court acknowledged this description but considered it of limited assistance post-plea ([28]).

Legal reasoning

1) The effect of a guilty plea on the mens rea debate

The court drew a clear line: once the defendant pleads guilty to the s.5 offence (in its serious harm form), he accepts that he ought to have been aware of a significant risk and failed to take reasonable steps, and that the harm occurred in circumstances he foresaw or ought to have foreseen ([19]–[21], [28]). That acceptance forecloses a separate argument that his culpability must be low merely because the mental element is “negligence” in an abstract sense. As a result, sentencing turns on where, on a spectrum, his factual culpability lies, informed by the totality of circumstances.

2) The culpability spectrum in “allowing” cases

The court affirmed a spectrum from lower culpability (limited awareness and failings in a single incident) to higher culpability (awareness or obviousness of risk, repeated harm, significant force, opportunities to act, and aggravating contextual conduct). Applying that framework:

• Nature and extent of injuries: an infant with approximately 20 fractures, bruising, and a brain injury. Severe harm weighs heavily ([25], [27]).
• Multiplicity: injuries occurred on more than one occasion, creating continued opportunities to notice and intervene ([25], [27]).
• Observable distress: evidence of “not normal” crying at a party two days prior to hospital presentation suggested obvious cause for concern ([3], [27]).
• Delay in seeking assistance: there was some delay before seeking medical help ([6], [27]).
• Drug use while caring: daily cannabis use while providing infant care aggravated culpability ([7], [24], [27]).
• Minimisation: the appellant’s minimisation during police and probation interviews undermined mitigation and insight ([24], [29], [30]).

Given those features, it was “appropriate to consider the nature and extent of the injuries, the fact that they were inflicted on more than one occasion” and the other indicators of awareness, and to place culpability in the moderate (not low) bracket ([27], [29]).

3) Harm assessment

Harm was properly assessed as serious in light of the sheer number of fractures and the brain injury in a very young child ([10], [25]). Even though the sentencing was on the “allowing” basis, the degree of force and the medical picture inform the foreseeability and the expectation that reasonable steps would be taken—thereby shaping culpability.

4) Use of English guidance and comparators

The court approved the trial judge’s structured approach, drawing on the English Sentencing Council’s harm/culpability architecture and on Nemet for analogous factors, while emphasising that English starting points are not binding in Northern Ireland ([6], [15]). This signals that NI courts may legitimately “translate” English guidance into a NI framework, focusing on principled factor-identification rather than tariff transplantation.

5) Weight to pre-sentence materials and psychological evidence

Contrary to the appellant’s argument, the judge engaged with the pre-sentence report and Dr Pollock’s assessment. Dr Pollock found no cognitive impairment, psychosis, or personality disorder likely to affect parenting; the appellant admitted cannabis use and minimised responsibility ([22]). The probation report described continuing drug use, naïveté about victim impact, medium likelihood of reoffending, and poor engagement even whilst subject to a combination order ([24], [30]). Those findings undercut claims of significant mitigation and supported the conclusion that exceptional leniency was unwarranted.

6) Exceptional circumstances and the effect of imprisoning both parents

The court reiterated that exceptional circumstances are narrowly drawn and, in the context of serious harm to a very young child, the personal problems of offenders “will frequently carry little weight” ([32]). Kinship placement with the paternal grandmother, the child’s youth and lack of awareness, and the parents’ prior supervised contact did not establish a disproportionate impact justifying departure from custody. This affirms a child-protection–first approach: the vulnerability of infants eclipses general hardship consequent upon parental imprisonment ([31]–[33]).

7) Parity and non-differentiation between co-defendants

Consistent with Ikram, the court endorsed the trial judge’s stance that, where neither defendant is to be treated as perpetrator and there are no material distinctions, parity is appropriate—both were sentenced for “allowing” ([8], [14]).

8) Starting point and plea reduction

The judge adopted a 20-month starting point and reduced it to 14 months for the late guilty plea ([10]). While Nemet referenced higher English starting points, the NI court did not consider the 20-month starting point wrong in principle given the “allowing” basis and the judge’s global assessment. The reduction reflects credit for plea notwithstanding its relatively late timing; the Court of Appeal found the end sentence within the appropriate range ([33]).

Impact and implications

For sentencing courts in Northern Ireland

• Clarifies that, once a defendant pleads to the s.5 serious-harm offence, the sentencing focus is not on re-litigating whether he “ought to have known” but on calibrating culpability across a spectrum informed by the complete factual matrix.
• Confirms the legitimacy of using English Sentencing Council structures and case law as persuasive analytical tools, while preserving NI discretion on starting points and ranges.
• Signals that aggravating features in infant cases include repeated episodes of harm, evidence of distress that should have prompted intervention, delays in seeking medical care, and drug use while caring.
• Reaffirms the narrowness of “exceptional circumstances” capable of displacing immediate custody where very young children suffer serious harm.

For practitioners

• Defence: After a guilty plea to “allowing,” mitigation should focus on demonstrable insight, cessation of risk factors (e.g., substance misuse), verified engagement with services, and any credible, case-specific vulnerabilities that bear on what “reasonable steps” were practicable. Mere parental status or kinship placement will rarely suffice to avoid custody.
• Prosecution: Evidence of repeated injury patterns, contemporaneous observations (e.g., unusual crying), timelines evidencing delay in seeking care, and caregiving under the influence are potent aggravators that support moderate or higher culpability within “allowing.”

Systemic and doctrinal effects

• Mens rea clarification: The court’s approach streamlines sentencing by treating the plea as fixing the objective awareness/failure-to-protect elements, curtailing post-plea disputes about mental state in “allowing” cases.
• Parity principle reinforced: Where causation is indeterminate and both carers plead to “allowing,” equal treatment is the default absent differentiating circumstances.
• Child-protection emphasis: The judgment underscores a protective orientation—serious harm to infants attracts immediate custody; collateral hardship is not easily “exceptional.”

Complex concepts simplified

• “Causing or allowing” (DVCVA): A composite offence designed for cases where a child (or vulnerable adult) is seriously harmed or killed while in a household, and it is impossible to prove which caregiver inflicted the harm. It criminalises both the perpetrator and the other caregiver who, being aware or who ought to have been aware of a significant risk, failed to take reasonable steps to protect the victim.
• Objective test (“ought to have been aware”): The court asks what a reasonable person in the defendant’s position should have realised and done. Personal circumstances can inform what steps were reasonably expected, but the test does not depend solely on the defendant’s subjective beliefs.
• Culpability spectrum in “allowing”: Even without proof of perpetration, culpability ranges from lower (single episode, less obvious risk, limited opportunity to act) to higher (multiple incidents, clear distress, significant force, delays in seeking help, risky caregiving behaviors like drug use).
• Exceptional circumstances: A narrow concept allowing departure from immediate custody. Hardship to dependants, including a child placed in kinship care, will not usually be “exceptional” in serious child harm cases unless truly disproportionate effects are demonstrated.
• Determinate custodial sentence: A fixed prison term, typically split between custody and licence. The length and any release provisions are governed by domestic sentencing legislation and practice; here, the total term was 14 months.
• Persuasive guidance: Courts in NI may consider English Sentencing Council guidelines and English appellate decisions as persuasive aids to structure analysis, though they are not binding in NI.

Conclusion

AD [2025] NICA 48 delivers clear sentencing guidance for Northern Ireland in cases of “causing or allowing” serious physical harm to a child. It confirms that a guilty plea fixes the objective mens rea, shifting sentencing to a granular, fact-driven assessment of culpability. The court’s acceptance of a moderate culpability assessment—given extreme, repeated injuries to an infant, warning signs, delay in care, and drug use while caring—underscores the seriousness with which the jurisdiction treats failures to protect vulnerable children.

By validating the use of English authorities and guideline structures as persuasive, while declining to import tariffs, the court promotes principled consistency without eroding NI sentencing autonomy. Its firm stance on “exceptional circumstances,” rejecting parental imprisonment as a routine ground for suspension, reinforces a protective, victim-focused sentencing philosophy. Practitioners should expect NI courts to examine the entire factual matrix—including observable distress, caregiving context, and post-offence insight—when locating culpability on the “allowing” spectrum. The decision is thus a significant marker in NI child protection sentencing jurisprudence, harmonising doctrinal clarity with practical, fact-sensitive evaluation.