Marten & Anor v Rex

Factual and Procedural Background

On 15 January 2024, the Appellants stood trial at the Central Criminal Court on an indictment containing five counts related to the life and death of their newborn child, referred to as Baby A. The charges included concealment of birth, cruelty, causing or allowing death (or alternatively gross negligence manslaughter), and perverting the course of justice by concealing the body. The jury returned guilty verdicts on counts of concealment, cruelty, and perverting the course of justice but were unable to reach verdicts on the charges related to causing or allowing death and gross negligence manslaughter. Sentence was adjourned pending a retrial on those counts, scheduled for March 2025. Applications for leave to appeal against the convictions were referred to the full court.

The Appellants, a couple who had been in a relationship since 2016 and were homeless during the relevant period, concealed the pregnancy and birth of Baby A from family, social services, and healthcare professionals. The prosecution's case was that they lived "off grid" with the baby, exposing her to cold and neglect, which led to her death. The baby’s remains were found in March 2023. The cause of death was unascertained, with expert evidence unable to exclude hypothermia or smothering. The Appellants denied wilful neglect and asserted they cared for the baby appropriately, albeit unconventionally.

Legal Issues Presented

1. Whether the trial judge erred in rejecting the submission that there was no case to answer on the count of cruelty (count 2).
2. Whether the judge failed properly to direct the jury as to the ambit and basis for conviction on count 2.
3. Whether the judge misdirected the jury regarding the basis for conviction on count 2, including the role of co-sleeping as potential neglect.
4. Whether the taking of partial verdicts was appropriate given the interrelation of counts.
5. Whether the judge should have asked the jury for clarification of the factual basis of their adverse verdict on count 2.
6. Whether the jury’s request for assistance on the standard of proof after verdicts on counts 1, 2, and 5 rendered those verdicts unsafe.
7. Whether the judge was correct in refusing to discharge the jury following the Court of Appeal decision in a related case (R v ATT & BWY [2024] EWCA Crim 460) during jury deliberations.

Arguments of the Parties

Appellants' Arguments

• The Appellants contended that there was insufficient evidence to establish a prima facie case on the cruelty count, asserting the baby’s death could be explained by an exhausted mother accidentally falling asleep after breastfeeding.
• They argued the jury was not properly directed on the ambit of count 2, particularly regarding whether earlier events before arrival at Newhaven could be considered and the legal definitions of "unnecessary suffering" and "injury to health."
• They submitted that the judge misdirected the jury by allowing co-sleeping to be considered an unlawful act constituting neglect.
• The Appellants challenged the judge’s decision to take partial verdicts before the jury had resolved all counts, arguing the counts were intrinsically linked.
• Mark Gordon argued that the judge should have sought clarification from the jury on the factual basis of their verdict on count 2, suggesting that some bases (e.g., clumsy handling) would not support a conviction.
• It was also argued that the jury’s request for assistance on the standard of proof after verdicts rendered those verdicts unsafe.
• The Appellants sought discharge of the jury following the Court of Appeal decision in ATT, contending the legal directions and case required reconsideration.

Respondent's Arguments

• The prosecution submitted that none of the grounds of appeal were arguable, describing most as wholly misconceived.
• They maintained the judge was correct to reject the no case to answer submission, emphasizing the evidence of exposure and neglect.
• The prosecution clarified that the earlier events (e.g., East London incidents) were not relied upon in isolation but as part of the overall conduct relevant to count 2.
• They supported the taking of partial verdicts as a proper exercise of judicial discretion.
• The prosecution contended the ATT decision did not impact count 2 and that the jury should continue deliberations accordingly.
• They argued that the jury’s request for clarification on the standard of proof did not undermine the safety of the verdicts already returned.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed the submission of no case to answer on count 2, concluding that the judge was correct to reject it. The evidence, including CCTV footage and circumstances of exposure to cold and neglect, provided a sufficient evidential basis for the jury to infer wilful neglect or exposure likely to cause unnecessary suffering or injury to health. The court emphasized that the jury was properly directed to consider both exposure to cold and the risk of smothering due to co-sleeping in the context of exhaustion and inadequate care.

Regarding the ambit and basis of count 2, the court upheld the judge’s directions allowing the jury to consider the entire sequence of events from late December through mid-January and beyond, rejecting the Appellants’ contention that earlier incidents were improperly included. The judge’s refusal to single out specific earlier incidents (such as the Doner Kebab restaurant visit) was deemed appropriate to avoid undue focus on matters not specifically queried by the jury.

The court rejected the argument that co-sleeping could not constitute neglect for count 2, clarifying that the judge’s directions on this point related primarily to count 3 and did not affect the proper approach to count 2.

On the impact of the Court of Appeal decision in ATT, the court found no error in the judge’s refusal to discharge the jury or amend directions, noting that ATT’s legal principles did not affect count 2 and that any issues pertaining to counts 3 and 4 could be addressed at retrial.

Concerning the taking of partial verdicts, the court recognized the discretionary nature of this power and upheld the judge’s decision, reasoning that the counts, while related, required separate analysis and that the jury’s following of directions supported returning verdicts on counts 1, 2, and 5 before resolving the others.

The court also dismissed the submission that the judge erred in declining to seek further clarification from the jury on the factual basis of their verdict on count 2, noting that the jury had already indicated wilful neglect as the basis and that further inquiry would have been inappropriate.

Finally, the court addressed the jury’s post-verdict question on the standard of proof, concluding that the judge’s conventional response did not render the verdicts unsafe. Indeed, any ambiguity likely operated in the Appellants’ favor by possibly raising the standard of proof applied.

Holding and Implications

The court REFUSED the applications for leave to appeal against the convictions on counts 1, 2, and 5. The convictions on these counts were held to be safe, with no arguable grounds for interference. The court confirmed that the judge’s directions, handling of jury questions, and exercise of discretion in taking partial verdicts were proper. The decision leaves the retrial of counts 3 and 4 scheduled for March 2025 unaffected, with any legal issues relating to those counts to be addressed there.

No new precedent was established by this decision beyond the application of existing principles to the facts of the case. The direct effect is the maintenance of the convictions on counts 1, 2, and 5 and the continuation of proceedings on the remaining counts.