Section 5 Domestic Violence, Crime and Victims Act 2004: “Allowing” Liability Turns on an Evidenced Pre-existing Risk and Foreseeable Circumstances—Not Mere Breach of a Safety Plan or Generalised Domestic Concern

1. Introduction

In Taborda & Anor v Rex [2026] EWCA Crim 627, the Court of Appeal (Criminal Division) (Lord Justice Jeremy Baker, Mr Justice Calver and His Honour Judge Simon (sitting as a Judge of the High Court)) considered appeals arising from the death of an 11-week-old infant (“the child”) in a household already subject to child-protection oversight and a written “safety plan”.

The applicant (the mother) was convicted of murder and cruelty to a person under 16 (Children and Young Persons Act 1933, s.1(1)), and related offences. The appellant (her partner at the time) was convicted of causing or allowing the death of a child (Domestic Violence, Crime and Victims Act 2004, s.5), cruelty to a person under 16, and perverting the course of justice.

The central appellate issues were:

  • Whether there was a case to answer (and ultimately safe convictions) against the appellant as an “allower” under s.5 DV, Crime and Victims Act 2004, in particular on risk awareness, failure to protect, and foreseeability of circumstances.
  • Whether fresh expert pathology evidence (Criminal Appeal Act 1968, s.23) undermined the convictions, in the context of post-trial disclosure about adverse judicial comment on experts in other proceedings.
  • Whether sentences were properly calibrated, including guideline categorisation for causing/allowing death.

2. Summary of the Judgment

The Court:

  • Dismissed the appellant’s conviction appeals on counts 3 (s.5 “allowing”) and 5 (s.1(1) cruelty), holding the trial evidence was sufficient and the convictions were safe.
  • Refused to admit fresh evidence from the appellant’s proposed expert (Professor Freemont) and refused leave to amend grounds based on that evidence.
  • Refused the applicant’s extension of time to seek leave to appeal her conviction on count 4 (cruelty), finding the fresh evidence did not undermine safety.
  • Refused the applicant’s renewed application for leave to appeal sentence, but ordered a clerical correction to the minimum term record in line with R v Sesay [2024] EWCA Crim 483.
  • Allowed the appellant’s sentence appeal: the Court recategorised culpability for the s.5 offence from guideline Category B to Category C and reduced the sentence on count 3 from 10 years to 7 years (total sentence 7 years).

3. Analysis

3.1 Precedents Cited

R v Jamal [2026] EWCA Crim 135

The Court relied on R v Jamal [2026] EWCA Crim 135 for the interpretation of s.5(1)(c) DVACA 2004. It reiterated that the “significant risk of serious physical harm” requirement is satisfied by a risk coterminous with the unlawful act; it may be a pre-existing risk or a present risk arising from the act/omission itself. Critically, the Court highlighted that where the defendant is pursued as an “allower” (rather than perpetrator), the prosecution will in practice often need to prove a pre-existing risk to satisfy s.5(1)(d)(i)–(iii).

R v Sheikh & others [2025] EWCA Crim 38

The Court applied R v Sheikh & others [2025] EWCA Crim 38 to the “foreseeability” safeguard in s.5(1)(d)(iii): the act must occur in circumstances of the kind the accused foresaw or ought to have foreseen. The Court endorsed the warning against interpreting “circumstances” so loosely that any domestic setting with general violence would suffice, thereby undermining the statutory safeguards.

London Borough of Hammersmith and Fulham v G & others [2024] EWHC 2200 (Fam)

This Family Division judgment featured because the prosecution disclosed it post-trial as containing adverse judicial comment on a prosecution expert (Professor Mangham). The Court treated it with seriousness but did not treat it as determinative: it noted the Family judge’s suggestion that the problems arose largely from workload pressures rather than wholesale unreliability.

Gee & others v Deputy International Limited [2018] EWHC 1208 (QB)

This Queen’s Bench Division judgment was invoked in relation to adverse comment about the defence-proposed expert (Professor Freemont). The Court ultimately drew on the concerns echoed there when assessing whether the proposed fresh evidence had the necessary credibility and impartiality to justify admission and to disturb safety.

London Borough of Croydon v D & others [2024] EWFC 438

This Family Court judgment contained criticisms of the paediatrician (Dr Cleghorn). The Court distinguished those criticisms as turning materially on a misidentification of the individual to whom primary medical evidence was attributed, and held that in this criminal trial she was providing clinical opinion on an injury diagnosed/aged by others, within her competence, without a closed-mind approach.

R v Sesay [2024] EWCA Crim 483

The Court applied R v Sesay [2024] EWCA Crim 483 to ensure the record correctly reflected the minimum term after deduction of remand time, treating the point as one of accurate recording rather than substantive resentencing.

3.2 Legal Reasoning

(a) The s.5 DVACA 2004 framework and what mattered on this evidence

The Court set out s.5 in full and focused on the appellant’s position as an alleged “allower”. This made s.5(1)(d)(i)–(iii) decisive: the prosecution had to prove (i) awareness/constructive awareness of the significant risk, (ii) a failure to take reasonable protective steps, and (iii) the act occurred in foreseeable “circumstances of the kind”.

The Court held that, at the close of the prosecution case, there was sufficient evidence to proceed (and ultimately convict) because:

  • Expert evidence (accepted by the Court as credible and ultimately reinforced on appeal) supported an earlier traumatic injury to the child’s left wrist within 3–6 days before death.
  • The household context and caregiving pattern provided a basis for the jury to infer the applicant was responsible for that earlier injury.
  • The paediatric evidence supported that a caregiver would notice pain/distress changes, permitting the jury to find the appellant knew or ought to have known of the earlier serious harm and therefore of a pre-existing risk.
  • The appellant’s own case was that he took no steps, because he claimed no awareness—leaving the jury to decide whether that stance was credible in light of the medical and surrounding evidence.

(b) Foreseeability: “circumstances of the kind”

Applying R v Sheikh & others [2025] EWCA Crim 38, the Court accepted that foreseeability must not collapse into “some form of violence might occur”. Here, the earlier injury was an unlawful application of force to an infant, and the Court treated the fatal assault as occurring against that background and in a household where the applicant’s continued substance use was a heightened risk factor. That combination was capable of satisfying s.5(1)(d)(iii) without treating “circumstances” as a mere general domestic setting.

(c) The safety plan: relevant, but not a substitute for proof

A significant practical point was the Court’s endorsement of the trial judge’s direction on the safety plan: the jury could treat it as evidence of knowledge and wilfulness, but they were warned not to convict “wholly or mainly” on breach of the plan. The Court rejected the argument that the plan was irrelevant to counts 3 and 5. It reasoned that the plan was directed to safety from neglect and from heightened risks associated with the applicant’s substance use; evidence that the appellant signed it, understood (at least in part) its protective purpose, and then repeatedly breached it could rationally bear on the statutory questions (awareness, reasonable steps, wilful exposure).

(d) Fresh evidence and adverse judicial comment on experts

The Court’s treatment of fresh expert evidence was notable for its pragmatism and its emphasis on credibility and impartiality. It considered:

  • Post-trial disclosure of adverse judicial comment regarding experts in other cases.
  • Multiple rounds of expert reports and a joint meeting process.
  • Live evidence from four experts, including a highly experienced overseas specialist.

The Court ultimately refused to admit the proposed fresh evidence because it did not generate concern about trial reliability or safety. It found the prosecution experts’ opinions mutually supportive and consistent with the histological features, while forming an adverse view of the defence-proposed expert’s reluctance to diagnose a classic metaphyseal lesion due to its association with inflicted trauma, and viewed his evolving position as undermining reliability. On that basis, the Court concluded the fresh evidence lacked the necessary weight to disturb the convictions.

(e) Sentencing: guideline categorisation for “allowing”

The Court took a more defendant-specific view of culpability under the offence-specific guideline for s.5 DVACA 2004. Although the harm was necessarily Category 1 (death), it held the trial judge had overstated culpability by placing it in Category B (which includes “prolonged” serious neglect/cruelty). The Court reasoned that the critical risk-awareness window for serious physical harm ran from the earlier injury to death—3–6 days—and on those facts it could not properly be described as “prolonged” serious neglect. It substituted Category C (starting point 5 years), but still endorsed a substantial uplift within range to reflect additional defaults (including failures around substance-related risk) and overall criminality and totality, arriving at 7 years.

3.3 Impact

  • Sharper discipline in s.5 “allowing” cases: The decision reinforces that where the defendant is not the perpetrator, a conviction will usually depend on evidence of a pre-existing risk that the defendant knew or ought to have known about, and on careful analysis of what was foreseeable.
  • Safety plans as evidential context, not determinative liability: Breach of a safety plan can support inferences about knowledge/wilfulness and reasonable steps, but appellate approval is expressly tied to a direction guarding against conviction “wholly or mainly” on breach.
  • Fresh expert evidence and impartiality: The case illustrates that the Court may refuse s.23 fresh evidence where it views the proposed evidence as lacking the requisite impartiality or credibility, particularly where it does not realistically displace a coherent body of expert opinion accepted at trial and reinforced on appeal.
  • Sentencing calibration for “allower” culpability: Even where the outcome is death, the Court signalled that “prolonged” neglect should not be assumed and must be justified by the proved time window and the nature of omissions. This may drive more granular culpability analysis in future s.5 sentencing exercises.

4. Complex Concepts Simplified

“No case to answer”
A submission made after the prosecution case that the evidence is legally insufficient for a jury properly to convict. If accepted, the count ends without the defence being called.
Section 5 DVACA 2004 (causing or allowing death/serious harm)
A household offence designed for cases where a child dies (or suffers serious harm) and it may be unclear who inflicted it. A non-perpetrator can be guilty as an “allower” if they knew/ought to have known of a significant risk, failed to take reasonable protective steps, and the fatal act occurred in foreseeable circumstances of the relevant kind.
“Significant risk” (s.5(1)(c)) and “coterminous”
The risk must exist at the time of the unlawful act leading to death/serious harm. It can be pre-existing (already present) or arise from the act/omission itself; for “allowing” cases, a pre-existing risk will often be the practical route to proving awareness and foreseeability.
“Circumstances of the kind” (s.5(1)(d)(iii))
Not a requirement to foresee the precise mechanism of harm, but it is not satisfied by vague generality (“something violent might happen”). The relevant “kind” focuses on the context in which harm occurs (for example, recurring maladaptive behaviour patterns), assessed on all the evidence.
Classic metaphyseal lesion
A fracture near the growth plate in infants, classically associated with shearing/traction forces. It may be radiologically subtle and sometimes is identified histologically (microscopy). In this appeal, the lesion’s presence and dating mattered because it could evidence an earlier inflicted injury creating a pre-existing risk.
Fresh evidence on appeal (Criminal Appeal Act 1968, s.23)
The Court may receive new evidence if it is credible, relevant, and could reasonably affect safety. The Court here assessed not only technical disagreement but also the reliability and impartiality of the proffered expert opinion.
Totality
A sentencing principle requiring the overall sentence to be just and proportionate to the offending as a whole, especially where multiple offences are sentenced concurrently or consecutively.

5. Conclusion

Taborda & Anor v Rex [2026] EWCA Crim 627 confirms a structured, safeguard-conscious approach to s.5 DVACA 2004 “allowing” liability: convictions should rest on evidence establishing a significant pre-existing risk, awareness (actual or constructive), a failure to take reasonable protective steps, and circumstances of the relevant foreseeable kind—while allowing safety-plan evidence to play a supporting (not decisive) role.

The decision is equally important for its appellate handling of contested expert pathology: adverse judicial comment in other proceedings does not automatically destabilise a conviction, and fresh evidence will be refused where it does not credibly undermine the trial expert foundation. Finally, the Court’s sentence reduction underscores that culpability categorisation in “allowing death” cases must be tethered to the proved duration and nature of the defendant’s omissions, not inferred from the tragic outcome alone.