Section 5 “Causer/Allower” Liability: the Act Itself Can Supply the “Significant Risk”, and the Crown Need Not Prove Which Alternative Applies
1) Introduction
In R. v SGQ [2026] EWCA Crim 649, the Court of Appeal (Criminal Division) dismissed an appeal against conviction for
causing or allowing a child to suffer serious physical harm, contrary to section 5 of the Domestic Violence, Crime and Victims Act 2004.
The appellant was the child’s mother; the co-accused was her partner and the child’s father. The complainant (“V”) was a very young baby.
The prosecution case was that V had sustained multiple non-accidental fractures over a short period. The central trial difficulty—typical of section 5 cases—was that
the evidence could not identify which adult caused the serious injury. The appeal raised: (i) whether there was sufficient evidence to leave the case to the jury
(including after a no-case submission); (ii) whether the trial judge “entered the arena” by prompting a potential change to the prosecution case/indictment; and
(iii) whether the summing-up was unfairly imbalanced.
The Court also recorded that section 45 of the Youth Justice and Criminal Evidence Act 1999 was engaged, and the appellant was anonymised by initials to
reduce the risk of jigsaw identification of the child.
2) Summary of the Judgment
- The conviction was held to be safe; the appeal was dismissed.
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The Court emphasised two key features of section 5:
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The “significant risk” in s.5(1)(c) must exist “at that time” (the time of the act causing serious harm), but
it may be created by the act itself; for a perpetrator, a pre-existing risk is not required.
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By s.5(2), the prosecution need not prove whether a defendant is the “causer” or the “allower”; a jury may convict under either route if satisfied to the criminal standard.
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There was ample evidence for a properly directed jury to convict either defendant as “causer” or “allower”, including expert radiology evidence,
the baby’s clinical presentation and distress, and the timing suggested by messages and the 111 call.
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The judge’s case-management discussion (including raising the possibility of an additional assault count) did not render the trial unfair:
the amendment was refused, and the case remained a section 5 prosecution against both defendants on an equal footing.
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The summing-up (including the route to verdict) was described as notably clear; the complaint of imbalance was rejected.
3) Analysis
3.1 Precedents Cited
The Court relied on R v Jamal [2026] EWCA Crim 135 for the proposition that, for a defendant who is the perpetrator of the harmful act (“causer”),
the Crown need not prove a pre-existing significant risk: the unlawful act itself can supply the risk required by s.5(1)(c).
In practical terms, SGQ applies Jamal to infant-fracture evidence by confirming that where the jury concludes a defendant inflicted the injury,
it is unnecessary to identify some earlier warning sign or pattern: the “risk” is inherent in the deliberate application of force sufficient to cause serious harm.
3.2 Legal Reasoning
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The “significant risk” requirement is time-specific, but not necessarily historically rooted.
The Court treated s.5(1)(c) as asking whether, at the time of the act that caused the serious harm, there was a significant risk of serious harm
being caused by an unlawful act of a household member with frequent contact. The risk may arise from:
- a pre-existing circumstance (e.g., prior injuries);
- a circumstance arising at or shortly before the act; or
- the act itself (where the defendant is the perpetrator).
This matters because the defence argument assumed that if both defendants were merely “allowers”, the Crown needed proof that a non-perpetrator knew or ought
to have known of a significant risk before the injury occurred. The Court accepted that this can be a live difficulty in section 5 cases—but it is not a reason
to stop the case where (as here) the jury could convict a defendant as a “causer” without needing pre-existing risk evidence.
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Section 5(2) permits a “either/or” prosecution without election between “causer” and “allower”.
The Court rejected the submission that, because the indictment was under section 5 rather than a substantive assault count, the jury could not convict the
appellant as the person who inflicted the fracture. To the contrary, s.5(2) expressly relieves the Crown of proving which alternative applies.
The decision underscores that section 5 is not confined to “failure to protect” scenarios: it accommodates conviction where the jury is sure the defendant was
the perpetrator, even if the Crown cannot prove which adult did it.
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How the injuries were used: “serious harm” versus “risk evidence”.
A key trial dynamic was the way the prosecution relied on multiple injuries. The Court accepted that the Crown’s presentation evolved:
the more recent spiral femur fracture was relied on as the “serious physical harm”, while earlier metaphyseal fractures operated as evidence that (if a defendant
was not the “causer”) there was a pre-existing significant risk and an opportunity to take protective steps.
The Court treated this as a permissible refinement of how the evidence supported the statutory elements, not an impermissible late change creating unfairness.
The summing-up and the route to verdict reflected this structured approach.
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Sufficiency of evidence and the no-case submission.
The Court identified “ample evidence” supporting a guilty verdict, including:
- expert evidence that fractures were non-accidental and occurred on multiple occasions;
- evidence the spiral fracture was acute and would cause pronounced distress and swelling;
- timing evidence from photographs, text/snapchat messaging, and the 111 call consistent with the injury occurring later that evening;
- evidence of caregiving opportunities and household context; and
- messages said to show stress/frustration in caring for two children.
Importantly, the Court held the later confirmation of a shopping trip did not undermine the sufficiency of the case, because the evidential basis permitted the
jury to place the causative event after the appellant’s return.
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“Entering the arena”: robust case management versus loss of neutrality.
The judge’s observations at the no-case stage included highlighting how the Crown might better align its presentation with section 5 (treating the spiral fracture
as the “serious harm” and earlier fractures as “risk evidence”), and also suggesting consideration of adding a separate assault count.
The Court acknowledged why such comments could be perceived as an invitation, but held no unfairness resulted: the amendment was refused, and the jury were not
directed that the appellant caused the injuries; the directions applied equally to both defendants.
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Summing-up fairness and the route to verdict.
The Court found the summing-up balanced and the route to verdict commendably clear, setting out sequential questions aligned to:
(i) unlawful infliction of the femur fracture; (ii) significant risk before it; and (iii) causer or (if not) the allower elements.
The absence of contemporaneous defence complaints about imbalance supported the conclusion that the summing-up was fair.
3.3 Impact
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Clarifies the practical operation of section 5 in “unknown perpetrator” households.
Courts and advocates are reminded that section 5 is designed to overcome evidential deadlock on identity of the perpetrator, while still permitting conviction where
a jury is sure a defendant was the perpetrator.
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Reinforces that “risk” can be inherent in the act for causers.
Following R v Jamal [2026] EWCA Crim 135, this decision underlines that the Crown does not need to construct a narrative of earlier warning signs to
prove section 5 against a causer.
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Encourages structured “injury sequencing” in charging and summing-up.
The approach of using the latest/most serious injury as “serious harm” and earlier injuries as evidence of pre-existing risk (for allower liability) is validated as
an intelligible way to present complex medical timelines to juries.
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Signals appellate tolerance for firm judicial case management—within limits.
The judgment indicates that judges may probe how the prosecution case fits the statutory elements without automatically “entering the arena”, especially where the
indictment is not amended and the jury directions remain even-handed.
4) Complex Concepts Simplified
- Section 5 “causer” vs “allower”
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A “causer” is the person who inflicts the unlawful act causing death/serious harm. An “allower” is a household member who did not cause it but
(broadly) knew or ought to have known there was a significant risk, failed to take reasonable protective steps, and the harm occurred in circumstances they foresaw
or ought to have foreseen. Under s.5(2), the prosecution does not have to prove which category applies to any particular defendant.
- “Significant risk” (s.5(1)(c))
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The risk must exist at the time of the harmful act. It can be shown by earlier events (such as prior injuries), or—in relation to the perpetrator—by the nature of
the act itself (twisting/pulling a baby’s limb creates an obvious risk of serious injury).
- “Serious physical harm”
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The prosecution must identify serious harm suffered by the child and link it to an unlawful act by a relevant household member. In this case, the femur spiral
fracture was treated as the principal “serious harm”.
- “Jigsaw identification”
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Even if a child is not named, publication of combined details (location, family circumstances, timeline) may enable identification. Courts may therefore anonymise
other participants and impose reporting restrictions to protect the child’s welfare (here under s.45 YJCEA 1999).
5) Conclusion
[2026] EWCA Crim 649 confirms a robust, jury-friendly approach to section 5 prosecutions involving multiple carers and uncertain perpetrator identity.
The Court emphasised (i) that the “significant risk” element does not require pre-existing risk proof where the defendant is the causer (applying
R v Jamal [2026] EWCA Crim 135), and (ii) that the Crown is not required to prove whether a defendant is a causer or an allower. On the facts, the
combination of expert evidence, clinical presentation, and timing evidence provided a sufficient basis for conviction, and the judge’s management and summing-up did
not undermine trial fairness.