Summary of Court of Appeal Opinion (Anonymised)

Factual and Procedural Background

Appellant A and Appellant B were a couple and the parents of a child, the Victim, born in February 2018. In May 2018 the Victim, aged three months, was taken to The Hospital and found to have multiple serious injuries (including retinal haemorrhages, multiple fractures and contusions). Expert evidence, unchallenged at trial, described the pattern as suggesting repeated deliberate physical abuse occurring in between three and five separate events. Neither appellant sought medical assistance before the Victim was taken to hospital; social services and Police were contacted.

Both appellants were arrested and interviewed; each denied responsibility, offering alternative explanations that were rejected by expert evidence. The appellants were indicted with separate counts relating to each injury; there was no count charging them jointly for any injury. Appellant B pleaded guilty pre-trial to causing or allowing serious physical harm under section 5 of the Domestic Violence, Crime and Victims Act 2004 (as amended). The retrial before Judge Smith in The City in January 2025 resulted in convictions of both appellants on various counts of causing grievous bodily harm with intent (section 18 OAPA 1861) and a section 47 assault; majority verdicts were returned on several counts. Both appellants appealed; the Court of Appeal allowed both appeals and gave further directions, including ordering a retrial of Appellant A on section 5 counts only.

Legal Issues Presented

1. Whether the jury's guilty verdicts against both appellants for causing the same injuries were inexplicable or irrational (i.e. inconsistent) because the prosecution did not advance a case of joint enterprise and the indictment required separate findings as to which appellant caused each injury.
2. Whether the convictions were unsafe and should be quashed.
3. Whether a retrial should be ordered and, if so, on which counts.
4. Collateral issues relating to sentencing and bail for Appellant B and Appellant A.

Arguments of the Parties

Appellant B's Arguments (Attorney Harris)

• The verdicts were inexplicable and irrational because the prosecution never advanced a joint enterprise case; the only prosecutorial theory allowing both to be guilty under section 18 was that different injuries were inflicted by different appellants, but the prosecution never identified which injuries were attributed to whom.
• Accordingly the convictions were unsafe.

Appellant A's Arguments (Attorney Howat)

• Echoed the submission that the guilty verdicts make no sense absent joint enterprise; there was no evidence or prosecutorial case supporting joint enterprise.

Prosecution's Arguments (Attorney Pinnock)

• Accepted the prosecution had not been able to advance a positive case of joint enterprise at trial.
• Submitted that the verdicts were not necessarily inconsistent: the jury could have concluded the appellants acted together, or that some injuries occurred on multiple occasions such that each appellant individually inflicted unlawful violence within the relevant period and thereby caused or materially contributed to the injuries.
• Relied on R v Fanning and R v Durante for the approach to inconsistent verdicts, and invited the court to sustain convictions on alternative reconciliations of the verdicts.

Table of Precedents Cited

Court's Reasoning and Analysis

The court applied the Fanning test: whether no reasonable jury properly applying their minds could have reached the two guilty verdicts. The court examined how the case was opened, how evidence emerged, the judge's directions and the route to verdict (following Green).

The court considered and rejected the three reconciliations advanced by the prosecution on appeal:

• Joint enterprise: rejected because the prosecution had not put such a case at trial, the judge did not direct the jury on the legal requirements for joint enterprise or secondary liability, and there was no evidence of the appellants acting together. Any jury conclusion on joint enterprise would be speculative and unsupportable.
• Different injuries caused by different appellants: rejected as speculative and inconsistent with the indictment and with the jury's actual verdicts, which convicted both appellants of the same injuries rather than allocating injuries between them.
• Each appellant made a material contribution to injuries: rejected because expert evidence (unchallenged) indicated injuries arose in as few as three to five incidents and that at least some injuries (notably the skull fracture) resulted from a single direct impact; there was no evidence that particular fractures were caused by multiple distinct blows on separate occasions.

The court emphasised that the route to verdict required the jury, for each injury, to be sure that either Appellant A or Appellant B caused that injury. There was no evidential basis to be sure which appellant caused which injuries, nor any basis for concluding a given injury had been caused by both at different times. For these reasons the convictions for causing grievous bodily harm with intent (section 18) and the section 47 conviction could not stand.

The court noted section 5 of the 2004 Act was designed for precisely this factual situation: where the jury cannot be sure which household member inflicted injury but can be sure a defendant had awareness or failed to protect the child. On the material, evidence supporting a section 5 case against Appellant A was strong; Appellant B had already pleaded guilty to section 5 counts.

Holding and Implications

CORE RULING: The appeals are allowed and the convictions under sections 18 and 47 are quashed.

Direct consequences:

• Quashed convictions: Both appellants' convictions for causing grievous bodily harm with intent (section 18 OAPA 1861) and the section 47 conviction were quashed.
• Retrial ordered: Appellant A is to be retried in the Crown Court on the causing or allowing counts under section 5 of the 2004 Act only; retrial on sections 18/20/47 is refused for both appellants.
• Sentencing: Appellant B must be sentenced in the Crown Court on the section 5 counts to which she pleaded guilty following conclusion of Appellant A's retrial; the previous judge's direction that no separate penalty was imposed for the section 5 counts was quashed and sentencing should proceed at the appropriate time.
• Bail: Appellant B is granted unconditional bail. Any bail application by Appellant A must be made to the Crown Court.

No new legal principle was announced; the court applied established authorities (notably R v Fanning and R v Green) and concluded the convictions were unsafe on the facts presented.