Factual and Procedural Background
In early 2018, a baby boy ("the Child") born to the Female Defendant and residing in a household with multiple young children, was admitted to hospital with serious brain injuries consistent with severe shaking. The Male Defendant frequently stayed at the family home but did not live there permanently. Both defendants were charged with causing or allowing serious physical harm to the Child contrary to section 5 of the Domestic Violence, Crime and Victims Act 2004.
The Child exhibited multiple marks on his body, some traumatic and non-self-inflicted, with catastrophic brain injuries confirmed by medical experts. Both defendants denied causing the injuries. Investigations by health visitors and social workers revealed a chaotic household with concerns about parenting and supervision but no evidence of physical harm prior to the Child’s hospital admission.
At trial, after the prosecution closed its case, both defendants submitted that there was no case to answer. The trial judge reserved judgment and subsequently ruled there was no case to answer for either defendant. The prosecution sought and was granted leave to appeal this terminating ruling. The Court of Appeal heard the appeal and dismissed it, affirming the trial judge’s decision and ordering the defendants’ acquittal.
Legal Issues Presented
- Whether the significant risk of serious physical harm required to establish the offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 must exist prior to and independently of the act causing the harm.
- Whether the evidence presented was sufficient to allow a reasonable jury properly directed to find a significant risk of serious physical harm to the Child prior to the injury-causing event.
- The correct test for granting leave to appeal a terminating ruling in this context.
Arguments of the Parties
Prosecution's Arguments
- The significant risk of serious physical harm did not have to be pre-existing if the defendant caused the harm constituting the offence.
- The trial judge misinterpreted legal authorities and Ministry of Justice guidance, failing to consider relevant legal texts supporting their interpretation.
- The evidence, including poor parenting, dangerous handling of the Child, and marks on the Child’s body, was sufficient to demonstrate a significant risk of serious physical harm.
- The offence under section 5 is a single offence not requiring proof of the specific role of the defendant.
Defendants' Arguments
- The trial judge correctly interpreted section 5 to require a pre-existing significant risk of serious physical harm, independent of the act causing the harm.
- The evidence was insufficient to establish such a pre-existing risk.
- The parenting was adequate in the circumstances and the marks on the Child were relatively superficial and not indicative of serious harm.
- The prosecution’s reliance on the case of Bollom was misconceived.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| B [2008] EWCA Crim 1144 |
Test for granting leave to appeal: a seriously arguable case that the judge was wrong. |
The court applied this test to assess whether the prosecution’s appeal against the terminating ruling was reasonable. |
| A [2008] EWCA Crim 2186 |
Alternative test for leave: interests of justice. |
The court discussed the relevance of this test but found it applied to unusual circumstances and was superseded by statutory amendment. |
| Ikram [2008] EWCA Crim 586 |
Interpretation of section 5 offence and jury directions. |
The court referred to Ikram for guidance on the route to verdict and statutory interpretation. |
| Bollom [2003] EWCA Crim 2846 |
Assessment of seriousness of injury must consider the victim’s characteristics. |
The court accepted the principle but distinguished the injuries in this case as not reaching the threshold of serious harm. |
| Stephens and Mujuru [2007] EWCA Crim 1249 |
Clarification of the meaning of "significant" risk in the offence. |
The court referred to this case to reject a trial judge’s misdirection and confirm the ordinary meaning of "significant". |
| Khan (Uzma) [2009] EWCA Crim 2 |
Jury directions consistent with statute. |
Cited in Blackstones Criminal Practice and discussed regarding the framing of jury directions. |
Court's Reasoning and Analysis
The court carefully analyzed the statutory framework of section 5 of the Domestic Violence, Crime and Victims Act 2004, including its original enactment and the 2012 amendment extending the offence to include serious physical harm as well as death. The court emphasized that the statutory language requires a significant risk of serious physical harm to exist "at that time," meaning prior to the act causing the harm.
The court rejected the prosecution’s argument that the risk could arise from the unlawful act constituting the offence itself, relying on the statutory wording, explanatory notes, Ministry of Justice guidance, and established case law. It clarified that the offence is designed to address situations where it is not possible to prove which household member caused the harm, but a pre-existing risk must be established regardless of the defendant's role.
On the facts, the court found that the prosecution could not identify which defendant caused the harm, thus the jury would have to consider each as a person who allowed the harm, requiring proof of a pre-existing significant risk. The court agreed with the trial judge that the evidence did not establish such a risk to a degree that a reasonable jury could safely find it.
The court reviewed the evidence of marks on the Child’s body and poor parenting, concluding that the injuries were not sufficiently serious to amount to grievous bodily harm and that the parenting concerns did not demonstrate a significant risk of serious physical harm. The judge’s assessment that the marks were insufficient to meet the threshold was held to be a reasonable conclusion.
The court also addressed procedural matters, confirming the appropriate test for granting leave to appeal and concluding that the prosecution’s appeal did not meet the threshold for overturning the terminating ruling.
Holding and Implications
The appeal was dismissed.
The Court of Appeal upheld the trial judge’s ruling that there was no case to answer against either defendant under section 5 of the Domestic Violence, Crime and Victims Act 2004. Both defendants were acquitted pursuant to section 61(7) of the Criminal Justice Act 2003.
The decision confirms the requirement that the significant risk of serious physical harm must pre-exist the act causing the harm for liability under section 5, regardless of the defendant’s role. The ruling reinforces the statutory interpretation of the offence and clarifies evidential thresholds for prosecutions under this provision. No new precedent was set beyond affirming established principles and the reasonableness of the trial judge’s factual conclusions.