Introduction

The case of ATT & Anor.R v [2024] EWCA Crim 460 was heard in the England and Wales Court of Appeal (Criminal Division) on May 8, 2024. The defendants, ATT and BMY, were charged with causing or allowing serious physical harm to a child, H, under section 5 of the Domestic Violence, Crime and Victims Act 2004 (as amended). This case addresses crucial aspects of statutory interpretation concerning the pre-existence of a significant risk of serious physical harm before the act that caused the injury.

The core issue revolved around whether the prosecution could establish that a significant risk of serious physical harm existed prior to, and independently of, the act that resulted in H's brain injuries. Both defendants contended that the prosecution had failed to prove such a case, leading to the initial ruling of no case to answer.

Summary of the Judgment

The trial judge initially dismissed the case, concluding that the prosecution had not established a significant risk of serious physical harm to the child, H, prior to the incident that caused his brain injury. The prosecution appealed this ruling to the Court of Appeal, arguing that the judge erred in interpreting section 5 of the Domestic Violence, Crime and Victims Act 2004, particularly regarding the necessity of a pre-existing risk.

The Court of Appeal granted leave to appeal but ultimately upheld the trial judge's decision. The appellate court affirmed that for section 5 to apply, the risk of serious physical harm must have been present before the act that caused the injury. The evidence presented did not sufficiently demonstrate such a pre-existing risk, leading to the dismissal of the prosecution's appeal and the confirmation of the acquittal of both defendants.

Analysis

Precedents Cited

The judgment extensively referenced several key precedents and legal authorities:

• B [2008] EWCA Crim 1144: Established that for leave to appeal, the prosecution must demonstrate a seriously arguable case or that it is in the interests of justice for the appeal to be heard.
• A [2008] EWCA Crim 2186: Initially considered in determining the test for granting leave to appeal but deemed less applicable due to statutory changes.
• Ikram [2008] EWCA Crim 586: Used to support the trial judge's approach to the route to verdict and the interpretation of section 5.
• Bollom [2003] EWCA Crim 2846: Addressed the context-sensitive assessment of the seriousness of injuries, emphasizing that the impact varies based on the victim's characteristics.
• Stephens and Mujuru [2007] EWCA Crim 1249: Clarified the meaning of "significant" in the context of risk, rejecting previous judicial misinterpretations.

These precedents collectively influenced the court's interpretation of the statute, particularly in understanding the necessity of a pre-existing risk separate from the act causing injury.

Legal Reasoning

The Court of Appeal undertook a meticulous statutory interpretation of section 5(1)(c) of the Domestic Violence, Crime and Victims Act 2004. The court emphasized that the language of the statute necessitates a significant risk of serious physical harm existing before the act that caused the injury. This is further supported by the explanatory notes and Ministry of Justice Circulars, which consistently outlined that the risk must be demonstrable through a history of violence or a reason to suspect such a risk.

The prosecution's argument that the act itself could constitute the risk was rejected. The court held that allowing the act causing the harm to also establish the risk would undermine the statutory purpose of identifying pre-existing risks within a household context. Moreover, the prosecution failed to demonstrate that the conduct of the defendants created a separate, significant risk prior to the incident resulting in H's injuries.

Regarding the specific evidence, the court found that while there were marks on H and indications of poor parenting, these did not collectively establish the required pre-existing risk of serious physical harm. The nature and extent of H's injuries, as compared to the precedent Bollom, were insufficient to meet the threshold of "serious physical harm."

Impact

This judgment reinforces the interpretation that under section 5 of the Domestic Violence, Crime and Victims Act 2004, establishing a pre-existing risk of serious physical harm is crucial for prosecution. It delineates the boundaries of the statute, ensuring that the offense targets genuine, ongoing risks rather than isolated incidents of harm.

Future cases will likely refer to this judgment when assessing whether the necessary pre-existing risk has been demonstrated. It clarifies the prosecution's burden in such cases, potentially leading to more stringent requirements for evidence of ongoing risk before serious harm occurs.

Additionally, this decision underscores the necessity for clear and compelling evidence when invoking statutory provisions aimed at preventing domestic violence and protecting vulnerable individuals within a household.

Complex Concepts Simplified

Significant Risk of Serious Physical Harm

This term refers to a clear and substantial possibility that an individual will suffer severe physical injury. In the context of the case, it means that there was an ongoing threat to H's safety before the act that caused his brain injury.

Section 5 of the Domestic Violence, Crime and Victims Act 2004

This section creates an offense for causing or allowing the death or serious physical harm of a child or vulnerable adult within a household. It is designed to address situations where multiple individuals in a household may be responsible, but it's unclear who exactly committed the harmful act.

Pre-Existing Risk vs. Act-Induced Risk

A pre-existing risk refers to the danger present before any specific act of harm occurs. An act-induced risk would imply that the act itself is what creates the danger. The court clarified that for section 5 to apply, the risk must be pre-existing.

No Case to Answer

This legal term signifies that, based on the evidence presented, the prosecution has not established sufficient grounds for the case to proceed against the defendants.

Conclusion

The appellate court's decision in ATT & Anor.R v [2024] EWCA Crim 460 underscores the necessity for a clear, pre-existing risk of serious physical harm when invoking section 5 of the Domestic Violence, Crime and Victims Act 2004. By affirming that the risk must exist independently of the act causing injury, the judgment provides critical guidance on the interpretation and application of the statute.

This case highlights the careful balance the courts must maintain between protecting vulnerable individuals and ensuring that legal provisions are applied appropriately based on the evidence. The dismissal of the prosecution's appeal serves as a precedent for future cases, emphasizing rigorous standards for proving significant risks within household settings.

Ultimately, the judgment contributes to the broader legal context by clarifying the elements required to establish offenses under domestic violence legislation, thereby aiding in the pursuit of justice for victims while safeguarding the rights of the accused.