1) Introduction
This appeal concerned the correct legal elements of the offence of causing or allowing the death of a child
under section 5 of the Domestic Violence, Crime and Victims Act 2004 (“the section 5 offence”).
The appellant, Fartun Jamal, had been convicted (among other matters) of a section 5 offence based on
wilful neglect: failing to obtain medical aid for her 11-month-old child, A, who died from a treatable respiratory infection.
The central legal issue arose because, after the appellant’s trial, the Court of Appeal decided
R v ATT and BWY [2024] EWCA Crim 460; [2025] KB 225 (“ATT”), which stated that section 5(1)(c)
requires proof of a pre-existing significant risk of serious physical harm. The appellant argued that,
if ATT was correct, (i) there was no case to answer or (ii) the jury had been misdirected, rendering the conviction unsafe.
The prosecution invited the Court to decline to follow ATT on the construction of section 5(1)(c) in a “causer”/neglect case.
Key question: Does section 5(1)(c) require a “pre-existing” risk of serious physical harm, or is it enough that the risk exists
at the time of the unlawful act/omission (even if it arises from that act/omission itself)?
3) Analysis
A. Precedents Cited
1. R v ATT and BWY [2024] EWCA Crim 460; [2025] KB 225
In ATT, a baby died from injuries likely caused by a single shaking incident; the prosecution could not prove which of two household adults
was the “causer,” so each defendant’s liability necessarily depended on the “allower” route under section 5(1)(d)(i)–(iii).
The Court in ATT stated that section 5(1)(c) demanded a risk in existence before the fatal act, reinforced by explanatory materials, and rejected
a view that the risk could be “coterminous” with the fatal act.
In Jamal, the Court distinguished the functional necessity of a pre-existing risk in ATT’s factual posture:
because both defendants there could only be convicted as allowers, the prosecution had to prove the allower-specific requirements
(awareness/failure to protect/foreseeability), which in practice often demand a risk that exists before the fatal act.
However, Jamal held that this does not justify rewriting section 5(1)(c) into a universal “pre-existing risk” condition for all cases, including proven “causer” neglect cases.
The Court treated Ikram as materially significant. In Ikram, the Court of Appeal approved a trial judge’s “steps to verdict”
that framed the risk element as being satisfied by risk “at that time” arising from “that unlawful act” (i.e. the act causing death).
Although ATT had observed that section 5(1)(c) had not previously been authoritatively interpreted, Jamal reasoned that Ikram
implicitly endorsed the “risk arising from the act itself” reading and that the timing of risk was central to Ikram’s consideration of the adequacy of directions.
3. R (O) v Secretary of State for the Home Department [2022] UKSC 3; [2023] AC 255
The Court relied on R (O) for orthodox principles of statutory interpretation: focus primarily on the statutory text in context,
with external aids (Explanatory Notes, Law Commission reports, circulars, debates) playing a secondary role.
Jamal invoked this to justify prioritising the plain reading of “at that time” in section 5(1)(c).
These authorities were cited (via R (O)) to reinforce that courts seek the meaning of Parliament’s words, read in context,
so citizens can understand the law from the statute itself.
These cases were cited in argument as part of the framework explaining when the Court of Appeal may depart from an earlier decision
(particularly where a prior decision is obiter or reached without full analysis). Jamal ultimately treated ATT’s broad construction
on “pre-existing risk” as obiter for the scenario before it.
These cases appeared in the discussion of commentary and suggested directions (notably in Blackstone’s extract quoted in ATT),
particularly about directions aligning with statutory language. Their role in Jamal was indirect, illustrating the prior “common understanding”
that risk could be associated with the unlawful act itself.
7. Gibbins and Proctor [1918] 13 Cr App R 134
Mentioned as an example of murder by omission (deliberate starvation), used to illustrate that murder/unlawful act manslaughter are often ill-suited
to death by omission, underscoring the practical importance of section 5 for neglect cases falling short of gross negligence manslaughter.
8. R v Fartun Jamal [2023] EWCA Crim 329
This was the appellant’s earlier sentence appeal, relevant procedurally/background but not determinative of the section 5 construction issue.
B. Legal Reasoning
1. Textual focus: “at that time” means contemporaneous with the unlawful act
The Court held that section 5(1)(c) requires proof that “at that time” (i.e. at the time of the unlawful act referred to in section 5(1)(b))
there existed a significant risk of serious physical harm being caused by the unlawful act of a household member.
It rejected the claim that the wording imports an extra requirement that the risk must have existed before the unlawful act.
The Court’s core construction was that section 5(1)(c) “can encompass both a pre-existing risk and a present risk arising from the act/omission itself.”
2. “Act” includes omission and “course of conduct”
Section 5(6) defines “act” to include a course of conduct and omission.
This mattered because the appellant’s case was put as a course of wilful neglect (an omission) causing death.
On that footing, the question becomes whether, during that ongoing neglect, there existed a significant risk of serious physical harm—something the Court held
could be satisfied without proving some earlier, independent “history” of abuse/neglect.
3. The “gateway” applies to both causers and allowers, but additional protections for allowers sit in section 5(1)(d)
The Court accepted that section 5(1)(c) is a common element (a “gateway”) for both “causers” and “allowers” and cannot change meaning depending on role.
But it located the allower’s additional safeguards in section 5(1)(d)(i)–(iii): awareness (actual/constructive), failure to take reasonable steps, and foreseeability.
This explained why, in practice, “allower” cases frequently require evidence of a risk existing before the fatal act—because an allower cannot fail to protect against a risk
unless the risk is sufficiently appreciable to them—but that does not justify converting section 5(1)(c) into an absolute precondition of prior risk in all cases.
4. Why the Court declined to follow ATT on “pre-existing risk” as a universal requirement
The Court gave two principal reasons:
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Obiter: ATT was not a course-of-neglect/“proved causer” case; its broader statements about section 5(1)(c) were therefore obiter when applied to such cases.
On ATT’s own facts, the need for prior risk was driven by the “allower” route under section 5(1)(d)(i)–(iii).
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Conflict with Ikram: Ikram approved directions that treated the risk as capable of deriving from the unlawful act itself, supporting Jamal’s construction and undermining ATT’s restrictive approach.
5. External materials: limited weight and context-specific
The Court carefully reviewed Explanatory Notes and circulars relied upon in ATT. It accepted such materials might illuminate the purpose, but stressed they were largely
focused on “allowing” scenarios—i.e. when it is fair to say another household member should have appreciated risk and acted.
They were not a “reliable guide” to the statute’s application where the prosecution proves the defendant’s own unlawful act/omission caused death, or where the conduct is continuous.
6. Avoiding a gap in liability for death by neglect falling short of gross negligence
A major practical driver in the Court’s reasoning was that the ATT approach would create an unattractive lacuna:
where a child dies from a course of neglect amounting to child cruelty but not gross negligence manslaughter—and there is no “history” generating a pre-existing risk—
section 5 would not apply, leaving only child cruelty (without reflecting the fact of death) as a viable conviction.
The Court considered that Parliament, by defining unlawful acts to include omissions and by setting a 14-year maximum for section 5, did not intend such a gap.
C. Impact
1. Recalibration of section 5(1)(c) after ATT
Jamal materially narrows ATT’s reach. In “causer” cases (including single-defendant prosecutions) and in course-of-conduct neglect cases,
the prosecution need not prove a pre-existing risk independent of the unlawful act/omission: it is enough that a significant risk exists contemporaneously with that act/omission.
2. Practical charging consequences in neglect deaths
The decision strengthens section 5 as a tool for cases of death caused by wilful neglect that may fall short of gross negligence manslaughter,
ensuring the “death-resulting” gravity can be reflected in the conviction.
3. Continued rigour for “allower” prosecutions
The judgment does not relax the “allower” protections. Where a defendant is pursued on the “allowing” basis, the prosecution must still satisfy
section 5(1)(d)(i)–(iii). In many cases that will continue, as a matter of evidence and common sense, to require showing a risk that was appreciable before the fatal act.
4. Directions and prosecutorial presentation
Jury directions should reflect that the risk in section 5(1)(c) may be:
- pre-existing (e.g. a history of violence/neglect), or
- coterminous with the unlawful act/omission itself (including during a course of conduct).
The Court’s approval of directions in this case suggests that routes-to-verdict focusing the jury on risk arising from the failure to obtain medical aid (rather than some earlier “history”)
are legally sound for “causer” neglect cases.