EAC v The King: Post‑Retirement Jury Information and Time‑Limited Child‑Cruelty Sentencing — Neutrality, Non‑Prejudice and Downward Adjustment

Introduction

This commentary examines the Court of Appeal (Criminal Division) decision in EAC v The King ([2025] EWCA Crim 1135), delivered by Lord Justice Holroyde, addressing two central questions:

• When, after the jury has retired, may a trial judge provide the jury with further factual material relating to an expert’s evidential base?
• How should the Sentencing Council’s guideline on cruelty to a child be calibrated where serious, repeated acts occur within a short period, and how far may a sentencer rely on pre‑indictment matters?

The appellant (anonymised as “EAC” to protect her young child “C” under a s45 Youth Justice and Criminal Evidence Act 1999 order) was convicted of two offences of cruelty to a person under 16 (Children and Young Persons Act 1933, s1(1)) arising from deliberate interference with a PEG‑J/gastrostomy feeding system and artificial inflation of a gastric drainage bag while the child was an in‑patient. Following four weeks’ trial in August 2024, the jury convicted on both counts. The judge imposed concurrent terms of 4 years 6 months’ imprisonment. On appeal, conviction challenges focused on the judge’s answer to a retired jury’s question about the prosecution expert’s records and alleged judicial hostility; the sentence challenge addressed culpability/harm categorisation and mitigation.

Summary of the Judgment

• Conviction appeal dismissed:
  • The trial judge did not err by answering a retired jury’s question with a neutral, accurate summary sourced from the expert’s own disclosed materials; applying R v Dunster, the intervention was in the interests of justice, neutral/incontrovertible, and non‑prejudicial.
  • Allegations of judicial bias/hostility did not cumulatively undermine trial fairness; the summing‑up was unchallenged, and the record did not demonstrate prejudice that rendered the convictions unsafe.
• Sentence appeal allowed:
  • While high culpability (category B) and serious harm (category 1) were upheld, the court held the offending was confined to a comparatively short period; the judge should have made an initial downward adjustment from the B1 starting point before mitigation.
  • The trial judge’s references to pre‑indictment conduct were problematic; a sentencer must sentence only for the proven indictment period (though background vulnerability may be relevant context).
  • Sentences of 4 years 6 months were quashed and concurrent terms of 3 years’ imprisonment substituted.

Factual Background (in brief)

C, aged 2 years 9 months, was profoundly vulnerable after neonatal brain injury resulting in blindness and cerebral palsy and was PEG‑J fed. During an admission to “E” hospital from late November 2019, staff recorded frequent daytime feed‑pump occlusion alarms, kinks/disconnections, and markedly increased gastric losses coinciding with the mother’s presence. Overnight, gastric losses were minimal. Family members of another patient took videos showing the appellant injecting fluid via syringe and apparently squeezing C while gauging the drainage bag. After the appellant’s arrest and loss of unsupervised access, pumping issues ceased and nutrition/weight rapidly improved. The defence contended that long‑standing pump errors/dystonia explained occlusions, that some flushing was permitted, and that Gabapentin explained improvement. The prosecution’s expert, Dr Bunn, rejected those benign explanations.

Analysis

Precedents and Instruments Cited

• R v Dunster [2021] EWCA Crim 1555, [2022] 1 Cr App R 12: establishes that there is no longer an absolute bar on giving a jury further material post‑retirement. The test is what the interests of justice require, with a strong default that new evidence should be adduced before retirement. Dunster identifies three indicia for rare exceptions:
  • the new material answers a question asked by the jury,
  • is neutral or incontrovertible, and
  • does not disadvantage the defendant by the stage at which it is admitted.
• Sentencing Council, “Child cruelty” guideline (offences of cruelty to persons under 16): categorises culpability (A–C) and harm (1–3) with starting points and ranges, and contemplates adjustments and mitigation.
• Sentencing Council, “Sentencing offenders with mental disorders” guideline: mental disorders may affect culpability and/or the impact of custody; the court noted no direct culpability reduction but recognised the imprisonment impact.
• Children and Young Persons Act 1933, s1(1): cruelty to persons under 16.
• Youth Justice and Criminal Evidence Act 1999, s45: reporting restrictions to protect a child; the Court of Appeal extended anonymity to the appellant to avoid jigsaw identification of the child.

Legal Reasoning

1) Post‑retirement jury question and the expert’s evidential base

The retired jury asked which medical notes the prosecution expert, Dr Bunn, had seen. The judge summarised that she had been shown e‑notes (7 July 2017–21 February 2022) and e‑patient records (June 2019–June 2022) from the E hospital (some duplication), had not been shown D hospital notes, and had seen discharge letters/outpatient documents. He also reminded the jury of her cross‑examination admissions about not seeing earlier hospital records.

Applying Dunster, the Court of Appeal held:

• The judicial answer squarely answered the jury’s question.
• The information came from the expert’s disclosed list and the Digital Case System; although the date spans were not recited in oral evidence, they were readily apparent from the disclosed record and were incontrovertible/neutral.
• The defence was not disadvantaged: the answer reiterated limits on the expert’s knowledge, a point the defence had emphasised, and the defence could cross‑examine on any earlier records they considered material.

Key to the court’s conclusion was the neutrality and accuracy of the information and the absence of any need to reopen evidence or speeches. The court also stressed that while the better course is to elicit this foundation orally in chief or re‑examination, the judge’s intervention here was proper and caused no unfairness.

2) Alleged judicial bias or hostility

The appellant catalogued examples (tone with the intermediary, interruptions of defence witnesses, truncating a video, remarks during a photocopying issue, and robust questioning of the grandmother). The Court of Appeal assessed the trial holistically: a lengthy hearing, no challenge to the summing‑up, and no indication of partiality or that the judge’s interventions affected the jury’s assessment of the evidence. Even assuming the defence’s descriptions of tone, the material did not cumulatively render the convictions unsafe. The fair‑trial threshold was not crossed.

3) Sentencing: calibrating culpability and harm for short but serious cruelty; avoiding pre‑indictment aggravation

Three sentencing points stand out.

• Culpability: Category B (high). The court affirmed the trial judge’s categorisation. Multiple daily acts of kinking/occluding or altering gastric losses were “multiple incidents of serious cruelty,” and in any event there was a “deliberate disregard for the welfare of the victim.”
• Harm: Category 1. The child’s failure to take nutrition and failure to gain weight constituted “serious developmental” and/or “serious physical harm.” Although a case could be made for category 2 on a “high likelihood of category 1 harm,” the judge was entitled to place it in category 1. However, the case was at the lower end of that category because of its confined duration.
• Duration and starting‑point movement. Because the offending was limited to a comparatively short period, the court held there should have been an initial downward adjustment from the Category B1 starting point (6 years), before mitigation. The Court of Appeal posited 4 years 6 months as the correct adjusted starting figure, then applied mitigation to reach an overall sentence of 3 years’ imprisonment.

The court expressed concern about the trial judge’s references to what “must” have been happening before the indictment period, cautioning that a defendant must be sentenced only for the proven indictment offending. Pre‑indictment facts can supply context (e.g., the victim’s frailty on admission), but cannot be used as a foundation to enhance sentence for uncharged conduct.

Mitigation remained substantial: significant delay, the appellant’s autism/mental health (affecting the impact of custody rather than culpability), and the effect of custody on family ties. The trial judge’s 18‑month reduction for mitigation was considered open to him; the error lay in not first adjusting downward for the short duration of the offending before applying mitigation.

Impact and Significance

• Post‑retirement jury information:
  • This decision consolidates a pragmatic, fairness‑driven approach: judges may, in rare cases, provide the jury with neutral, accurate, and disclosed material after retirement where it directly answers a jury question and causes no prejudice. It underscores the importance of:
    • Ensuring an expert’s evidential base (what they reviewed) is clearly recorded and disclosed.
    • Preferably eliciting that foundation in live evidence to avoid later procedural friction.
    • Judges confining any post‑retirement assistance to uncontested, “incontrovertible” facts drawn from the case materials.
  • Where neutral disclosure cannot be achieved without further evidential exploration, the appropriate options are to refuse the request or, in extreme cases, discharge the jury for a retrial.
• Sentencing in child‑cruelty cases:
  • The decision provides a worked example of properly situating serious, repeated acts within Category B culpability and Category 1 harm, yet justifying a downward adjustment from the B1 starting point because the pattern, although serious, was time‑limited.
  • It gives a clear warning against sentencing by inference for pre‑indictment behaviour. Judges may recognise the child’s existing vulnerability as context but must not enhance sentence for uncharged historical conduct.
  • It distinguishes between mental health’s impact on culpability (none shown here) and on the impact of imprisonment (significant), reinforcing careful, case‑specific use of the Sentencing Council’s mental disorders guideline.
• Protective anonymity in appellate proceedings:
  • To give effect to a s45 order protecting a child, the Court of Appeal may anonymise an adult party where naming the adult risks identifying the child, illustrating robust protection against jigsaw identification.

Complex Concepts Simplified

• PEG‑J feeding and gastric drainage: A PEG‑J tube delivers nutrition directly into the jejunum; a gastric drainage bag collects stomach secretions. Interfering with tubing (kinking/pinching/disconnecting) can interrupt feeding; injecting fluid into the gastric port can create false “losses.”
• Dystonia: A movement disorder involving involuntary muscle spasms. The expert explained it affects skeletal muscles of the limbs and would not cause intestinal feed‑pump blockages as alleged by the defence.
• “Unsafe” conviction vs “manifestly excessive” sentence:
  • “Unsafe” (conviction): focuses on trial fairness and reliability of the verdict; here, the court found no prejudice from the judge’s answer to the jury and no cumulative bias.
  • “Manifestly excessive” (sentence): the appellate court intervenes where the sentence falls outside the proper range or reflects an error in principle. The sentence was reduced due to improper reliance on pre‑indictment inferences and failure to adjust for short duration before mitigation.
• Category B1 (Child Cruelty guideline): High culpability (B) with serious harm (1) gives a 6‑year starting point (range 4–8 years). Courts can and should adjust that starting point for case‑specific features (here, short duration), then apply mitigation.
• “Neutral or incontrovertible” information (Dunster): Facts drawn from disclosed, agreed, or plainly verifiable sources that do not advantage either side; suitable for limited post‑retirement clarification.
• Dangerousness/extended sentence: Even for grave cruelty, an extended sentence under dangerousness provisions requires a significant risk of serious harm justifying extension; the trial judge found an extended sentence disproportionate, and the Court of Appeal did not disturb that view.
• Concurrent sentences: Multiple offences sentenced to run at the same time, appropriate where the criminality forms part of the same episode or course of conduct (as here).

Key Precedent‑Shaping Takeaways

• Post‑retirement jury assistance is permissible in rare cases if it:
  • directly answers the jury’s question,
  • comprises neutral/incontrovertible material drawn from disclosed sources, and
  • does not disadvantage the defence by timing.
• In sentencing for child cruelty:
  • High culpability and serious harm may still warrant a downward movement from the B1 starting point where the offending is confined to a short period.
  • Do not sentence for inferred pre‑indictment conduct; background frailty is relevant context, not an aggravating proxy for uncharged behaviour.
  • Mental health/autism may not reduce culpability absent a causal link, but can substantially affect the impact of imprisonment and thus mitigation.

Conclusion

EAC v The King refines two practical areas of criminal procedure and sentencing. First, it affirms, through a careful application of Dunster, that judges may furnish retired juries with narrowly tailored, neutral and incontrovertible information to answer specific questions without compromising fairness. Second, it supplies structured guidance for sentencing in child‑cruelty cases: even where culpability is high and harm serious, a short offending period may justify an initial downward adjustment from the guideline starting point, with mitigation then applied. The court’s caution against relying on pre‑indictment inferences to bolster sentence is a valuable restatement of principle. The substituted concurrent sentences of three years reflect a calibrated approach that punishes grave wrongdoing while respecting temporal limits of the proved criminality and the proper operation of the Sentencing Council’s framework.