Factual and Procedural Background
The Appellant was convicted on 4 March 2022 at the Crown Court at Harrow of: (Count 1) an offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 ("the section 5 offence"); and (Counts 2–4) three offences of cruelty to a person under 16 contrary to section 1(1) of the Children and Young Persons Act 1933. Sentence was imposed on 29 April 2022 (5 years 6 months), subsequently reduced on appeal to 3 years 6 months in R v Fartun Jamal [2023] EWCA Crim 329. The Appellant sought an extension of time and leave to appeal her section 5 conviction; the Registrar referred that application to the full court. The court granted the extension and leave.
The offending arose from events in February–March 2019. The section 5 count and one child-cruelty count related to the Appellant's younger child, A (about 11 months). On 13 March 2019 A was found dead in her cot; post-mortem showed respiratory tract infection, bronchitis and bronchopneumonia from bacterial infection. The Appellant was arrested and, in interview, exercised the right to silence, providing a prepared statement asserting she would never intentionally harm her children. The prosecution case was that A had presented with significant symptoms for ten days or more that required medical attention, that medical aid would have prevented the death, and that the Appellant wilfully neglected to obtain medical aid. Counts 3–4 related to neglect arising from the poor state of the flat. Only the section 5 conviction is challenged on this appeal; the child-cruelty convictions are not challenged.
The decision in R v ATT and BWY [2024] EWCA Crim 460; [2025] KB 225 ("ATT") was handed down after the trial. The Appellant relies on ATT as altering the legal elements of the section 5 offence; the prosecution accepts an extension of time but disputes the correctness of ATT and contends the conviction is safe. The court ultimately dismissed the appeal.
Legal Issues Presented
- Whether section 5(1)(c) of the Domestic Violence, Crime and Victims Act 2004 requires proof of a pre-existing risk of serious physical harm (i.e. a risk existing prior to the unlawful act that caused death), or whether the required "significant risk of serious physical harm" may be coterminous with, or arise from, the unlawful act/omission itself.
- Whether the decision in R v ATT and BWY should be followed or departed from on the point in (1), and whether any omission in the trial judge's directions (in light of ATT) rendered the Appellant's conviction unsafe.
Arguments of the Parties
Appellant's Arguments
- Attorney Lewis relied on ATT as establishing that s.5 requires proof of a pre-existing risk of serious physical harm in every case alleging a section 5 offence, whether the defendant is alleged to have caused or to have allowed the death. On the facts here, no pre-existing risk caused by the Appellant existed and thus there was no case to answer on Count 1; alternatively, the judge failed to give a necessary direction rendering the conviction unsafe.
- Parliamentary material and the Law Commission report support a focus on pre-existing risk and on capturing "allowers" rather than creating an offence of causing death by neglect; the statutory wording should be read to require a prior risk.
- Attempting to divide a continuous course of conduct into artificial temporal segments to manufacture a pre-existing risk is illogical.
Respondent's Arguments
- Attorney FitzGerald submitted that s.5(1)(c) requires proof only that a significant risk of serious physical harm existed "at that time" (i.e. coterminous with the unlawful act causing death), and that the risk may arise from the act/omission itself; there is no statutory requirement that the risk pre-dated the act.
- He argued that the court in ATT erred in reading a mandatory pre-existing-risk requirement into s.5(1)(c); the court could depart from ATT because the passages in ATT on continuous courses of conduct were obiter or incorrectly reasoned.
- As a secondary point (not pressed at hearing), even if a pre-existing risk had to be shown, the evidence here would have satisfied that requirement.
- Both parties agreed that, if the appeal succeeded, the appropriate disposal would be to substitute a conviction under section 1 of the Children and Young Persons Act 1933 for the period of neglect.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v ATT and BWY [2024] EWCA Crim 460; [2025] KB 225 |
Held that s.5(1)(c) requires proof of a risk of serious physical harm that pre-existed the unlawful act causing death; emphasised the gateway risk as demonstrable by history of abuse and tied to requirements for an "allower". |
The court analysed ATT in detail, accepted ATT's correctness insofar as it addressed allowers in its facts, but concluded ATT was obiter on the point of continuous courses of conduct/causers and declined to be bound by ATT where it restricted s.5(1)(c) to a pre-existing-risk-only interpretation for causers or course-of-conduct cases. |
| R v Fartun Jamal [2023] EWCA Crim 329 |
Appellant's earlier appeal reducing sentence; cited for procedural history and sentence adjustment. |
Used to record the appellant's successful appeal against sentence and to situate the present application for leave and extension of time. |
| Sekhon [2002] EWCA Crim 2954 |
Authority on when this court may depart from previous decisions (principles for not being bound by earlier Court of Appeal decisions in certain circumstances). |
Referred to by the prosecution as permitting departure from ATT where ATT's observations were obiter or wrongly decided; the court considered these principles in deciding it was not bound by ATT on the relevant point. |
| Simpson [2003] EWCA Crim 1499 |
Authority on the Court of Appeal's approach to previous decisions and when departure may be appropriate. |
Relied on by the prosecution as part of the basis for submitting that this court could depart from ATT; the court considered this in its assessment of ATT's precedential effect. |
| Ikram [2009] 1 WLR 1419 |
Provides an example of directions and reasoning where the necessary proof of risk was derived from the unlawful act itself; approval of a "steps to verdict" approach breaking down elements including risk at the time of the unlawful act. |
The court treated Ikram as supporting the view that s.5(1)(c) can be satisfied by risk arising from the unlawful act itself and found that Ikram conflicted with a restrictive reading in ATT; Ikram was relied on to support the present interpretation of s.5(1)(c). |
| Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 |
Principle that courts seek the meaning of the words used by Parliament; statutory interpretation begins with the text and context. |
Cited in support of the court's application of established principles of statutory interpretation when construing s.5(1)(c). |
| R (O) v Secretary of State for the Home Department [2022] UKSC 3; [2023] AC 255 |
Restates modern approach to statutory interpretation: meaning from words in context, external aids secondary, purposive and contextual analysis. |
The court applied these principles to interpret "at that time" in s.5(1)(c) and to justify reliance primarily on statutory wording and context (including related statutory provisions). |
| Khan (Uzma) [2009] EWCA Crim 2 |
Illustration that directions framed in accordance with statute usually pre-empt criticism and on foreseeability and the circumstances a defendant ought to have foreseen. |
Referenced as authority for the approach to jury directions and foreseeability within the statutory framework of s.5. |
| Gibbins and Proctor [1918] 13 Cr App R 134 |
Historic example where omission (deliberate starvation) supported a murder conviction; used to illustrate that omissions can, in narrow circumstances, found a murder charge. |
Referred to when discussing the inappropriateness in many omission/neglect cases of charging murder or gross negligence manslaughter and why s.5 fills a legislative gap for deaths from neglect falling short of gross negligence. |
Court's Reasoning and Analysis
The court began from the statutory text of s.5, noting that subsection (1)(c) requires that "at that time there was a significant risk of serious physical harm being caused to V by the unlawful act of such a person", and that s.5(6) defines "act" to include a course of conduct and omission. Applying the modern principles of statutory interpretation (as restated in R (O) and authorities), the court held that the plain words "at that time" refer to the time of the act causing death and can encompass either a pre-existing risk or a risk coterminous with, or arising from, the unlawful act/omission itself.
The court accepted that ATT correctly interpreted s.5(1)(c) in the specific facts of ATT (where both defendants could only be considered as allowers and where, therefore, the requirements in s.5(1)(d)(i)–(iii) made proof of a prior risk necessary). However, the court distinguished ATT on its facts and reasoning: ATT's restriction of s.5(1)(c) to a pre-existing-risk-only reading was, in respects material to causers and to continuous courses of conduct causing death, obiter. The court found conflict between ATT's restricted interpretation and the reasoning in Ikram, where the court had approved directions that derived the necessary risk from the unlawful act itself.
The court emphasised that s.5(1)(d)(i)–(iii) provide additional safeguards applicable to an "allower" (awareness of risk, failure to take reasonable steps, foreseeability), and that the gateway requirement in sub‑paragraph (c) must remain common to both causers and allowers. But that gateway need not be read as excluding risks that arise contemporaneously with the unlawful act: for a causer (or in a continuous course of negligent omissions) s.5(1)(c) can be satisfied by a present risk produced by the act/omission itself.
The court concluded that a restricted reading (requiring proof that the risk pre-dated the causing act in every case) would produce anomalous results, including permitting some causers who caused death by neglect (short of gross negligence) to escape liability entirely, contrary to the statutory scheme and purpose. The court therefore interpreted s.5(1)(c) as not requiring, in every case, a pre-existing risk; the risk may be coterminous with the unlawful act/omission.
Holding and Implications
Appeal dismissed.
Holding: The court held that the trial judge's legal directions on the section 5 offence were correct and the Appellant's conviction is safe. The court construed section 5(1)(c) as requiring that "at that time" (the time of the unlawful act) there was a significant risk of serious physical harm, a formulation that can be satisfied either by a pre-existing risk or by a risk coterminous with, or arising from, the unlawful act/omission itself. The court declined to follow ATT to the extent that ATT suggested s.5(1)(c) always requires a pre-existing risk (ATT was treated as binding on its facts concerning allowers but not determinative for causers or course-of-conduct cases).
Implications: The direct effect is that the Appellant's section 5 conviction is upheld. The court clarified the proper construction of s.5(1)(c) for cases involving causers and continuous courses of conduct: a pre-existing risk is not an absolute requirement in every imaginable s.5 case. The decision departs from ATT in respect of that restricted interpretation, and the court explained how ATT was correct on its facts (allowers) but not authoritative for the point as applied to causers or continuous omissions.