R v Fartun Jamal

This appeal concerns the legal elements of the offence of causing or allowing the death of a child, contrary to section 5 of the Domestic Violence, Crime and Victims Act 2004 (“the section 5 offence”). It requires us to examine the decision of this court in R v ATT and BWY [2024] EWCA Crim 460 ; [2025] KB 225 (“ ATT ”).

On 4 March 2022 in the Crown Court at Harrow the applicant (then aged 25) was convicted of four offences: on Count 1, an offence of causing the death of a child contrary to section 5 of the Domestic Violence, Crime and Victims Act 2004 (“ the 2004 Act ”); on Counts 2 to 4, three offences of cruelty to a person under 16 years old contrary to section 1(1) of the Children and Young Persons Act 1933 .

On 29 th April 2022 the applicant was sentenced to 5 years and 6 months imprisonment, that sentence being reduced to one of 3 years and 6 months’ imprisonment on a subsequent appeal to this court: R v Fartun Jamal [2023] EWCA Crim 329 .

The applicant’s application for an extension of time, for leave to appeal her conviction under section 5 of the 2004 Act and, if granted, the appeal itself has been referred to the full court by the Registrar.

The decision in ATT was handed down some 2 years after the applicant’s trial and conviction. It is said that, on the basis of the court’s observations in ATT as to the required elements of a section 5 offence, there would have been no case to answer and the applicant should have been acquitted of that offence; alternatively, that the judge’s legal directions to the jury were wrong, rendering the conviction unsafe. Mr FitzGerald KC, for the respondent, takes no issue with the application for the necessary extension of time, accepting that, on the basis of what was said in ATT , there is a point of law going to the safety of the conviction. However, he submits we should not follow ATT and that the applicant’s conviction is safe.

We grant the necessary extension of time and we grant leave. Having granted leave, we shall refer to the applicant as the appellant in the remainder of this judgment.

The offences arose from events in February and March 2019. The section 5 offence, and the first of the child cruelty offences, related to the younger of the appellant’s two children, a baby, A, who was then around 11 months old. The remaining two child cruelty offences concerned A and another child, B.

On the 13 th March 2019, neighbours and emergency services attended the appellant’s flat after she reported that she had found A dead in her cot. Attempts to revive baby A failed. She had plainly been dead for some hours. A was pronounced dead and transported to hospital for examination, where she was found to have had a respiratory tract infection, bronchitis, and bronchopneumonia due to a bacterial infection. The appellant was arrested at the hospital on the 13 th March 2019 and interviewed. She exercised her right to silence in interview, submitting a prepared statement saying that she wanted the best for her children and would never intentionally harm them .

The prosecution case at trial was that, for 10 days or more, A had presented with obvious and significant symptoms that required medical attention. As A had a treatable condition, medical aid, up to and including the night before, would have prevented her death. The applicant knew that A was unwell

“…and/or at the very least that her health might suffer if she did not get [medical attention]. She made a deliberate decision not to get help and, given the nature of the illness and the age of her daughter, there was obviously a significant risk that she might suffer serious physical harm”

The prosecution accepted that the appellant was capable and that she had cared properly and responsibly for her children prior to this. Previous attendances at hospitals with A, in October 2018, demonstrated that the appellant was able to seek and obtain medical treatment when necessary; she also cleaned her flat in anticipation of a social services visit. However, it was also apparent that her life was ‘chaotic’ with financial and family problems. The prosecution case was that, by March 2019, she had lost interest in caring for her children.

The case on the section 5 offence concerned the appellant’s wilful neglect in failing to provide A with adequate medical aid during the relatively brief period in March 2019 when A was ill and needed help, up to and including the night before A died, which caused her death. The child cruelty offence in Count 2 alleged wilful neglect such as to cause unnecessary suffering or injury to health by failing to provide A with adequate medical aid on 13 th March 2019. Counts 3 and 4 concerned neglect of both children by reason of the very poor state of the flat, which was inadequate for them to live in.

This appeal concerns the section 5 offence only; none of the child cruelty convictions is challenged. Moreover, although it is now suggested that the judge’s summing up in respect of the section 5 offence omitted a necessary direction to the jury, based on the subsequent decision in ATT , there is no criticism whatsoever attaching to the trial judge. No-one argued the point before her and all counsel accepted the judge’s directions as correctly reflecting the law as it was understood at the time.

STATEMENT OF OFFENCE

[A] needed medical aid and FJ failed to obtain it;

FJ knew that there was some risk that [A]’s health might suffer if she did not receive medical aid but deliberately chose not to get it for her, or FJ simply did not care whether medical aid was needed or not;

There was a significant risk of [A] suffering serious physical harm from the failure to obtain medical aid; and

The failure to obtain medical aid for [A] caused her death.

Miss Lewis KC, for the appellant, relied on ATT as establishing that the prosecution must prove, in any case alleging a section 5 offence, a pre-existing risk of serious physical harm, whether the person charged with the section 5 offence is alleged to have caused the death or serious injury, or is alleged to have allowed the death or serious injury to be caused. She says that, on the facts of this case, there was no pre-existing risk of serious harm to A by the actions of the appellant and thus no case to answer on Count 1; alternatively that the judge misdirected the jury on the elements which were required to be proved, such that the conviction is unsafe.

Mr FitzGerald, for the prosecution in response, submitted that, on a proper interpretation of section 5(1) (c) of the Act , the prosecution must prove only that a “significant risk of serious physical harm” exists at the time of the unlawful act that causes death, i.e. conterminously with it. He contended that section 5(1) (c) does not require the prosecution to prove that a risk existed prior to that point in time. He maintained that this interpretation of section 5(1) (c) is the same regardless of whether one is considering the position of a person who caused the death or a person who allowed it (if indeed it is possible to identify which role the defendant performed). He argued that the court in ATT fell into error in its interpretation of section 5(1) (c) as requiring proof of a pre-existing risk. He says that it is open to this court to depart from that judgment because (a) insofar as ATT purported to address the application of section 5 in a case involving a continuing act where it could be proved that D’s unlawful act or omission caused death, the court’s observations were obiter, and/or (b) in any event, the court’s interpretation of section 5(1) (c) was wrong and was arrived at without the benefit of the full analysis and perspective now available to this court, allowing us to depart from that decision (see Sekhon [2002] EWCA Crim 2954 at [51] to [56] and Simpson [2003] EWCA Crim 1499 at [25] to [39]).

Mr FitzGerald’s secondary submission, which we did not understand him to press at the hearing, was that even if it had been necessary for the jury in this case to have been satisfied of the existence of a “significant risk of serious physical harm” prior to the unlawful act causing death, that requirement would inevitably have been satisfied at trial and the appellant would still have been convicted.

Both parties agreed that, if the appeal were to succeed, the appropriate course would be for this court to substitute a conviction under section 1 of the Children and Young Persons Act 1933 (cruelty to a child) reflecting the period of neglect between 4 th and 12 th March 2019.

was a member of the same household as V, and

had frequent contact with him,

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

D was, or ought to have been, aware of the risk mentioned in paragraph (c),

D failed to take such steps as he could reasonably have been expected to take to protect V from the risk, and

the act occurred in circumstances of the kind that D foresaw or ought to have foreseen.

The prosecution does not have to prove whether it is the first alternative in sub section (1 )(d) or the second (sub-paragraphs (i) to (iii)) that applies….

constitutes an offence, or

a person under the age of ten, or

a person entitled to rely on a defence of insanity.

In this section-

Subsections (2) to (4) apply where a person (“the defendant”) is charged in the same proceedings with an offence of murder or manslaughter and with an offence under section 5 in respect of the same death (“the section 5 offence”).

Where by virtue of section 35(3) of the Criminal Justice and Public Order Act 1994 (c. 33) a court or jury is permitted, in relation to the section 5 offence, to draw such inferences as appear proper from the defendant’s failure to give evidence or refusal to answer a question, the court or jury may also draw such inferences in determining whether he is guilty—

of any other offence of which he could lawfully be convicted on the charge of murder or manslaughter,

The charge of murder or manslaughter is not to be dismissed under paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998 (c. 37) (unless the section 5 offence is dismissed).

At the defendant’s trial the question whether there is a case for the defendant to answer on the charge of murder or manslaughter is not to be considered before the close of all the evidence (or, if at some earlier time he ceases to be charged with the section 5 offence, before that earlier time).”

Section 5 , as originally enacted, referred only to causing or allowing the death of a child or vulnerable adult. The offence was expanded to include a reference to a child or vulnerable adult suffering serious physical harm, by the Domestic Violence Crime and Victims (Amendment) Act 2012 (“ the 2012 Act ”).

ATT concerned the death of baby H from brain injuries. Investigations showed that the likely cause was a single event of severe shaking between 1 hour to 2 days before the CT scan done upon arrival at hospital. The mother and her partner were arrested and charged with the section 5 offence. The prosecution were unable to say which of the defendants had caused the injuries to baby H; accordingly the jury would have had to consider the case against each defendant on the basis that each had allowed the harm which led to death.

The trial judge ruled that there was no case to answer, concluding that the evidence was insufficient to demonstrate a pre-existing risk of serious harm to H at the hands of either parent. The prosecution appealed.

The reasoning in relation to the necessary elements of an offence under section 5 is to be found at paragraphs 35 and following of the court’s judgment, given by William Davis LJ. Having summarised the problem which sections 5 and 6 of the 2004 Act was intended to address, and having set out the relevant provisions of section 5 , he went on:

“37. The explanatory notes in relation section 5(1) (c) were in these terms:

“The victim must also have been at significant risk of serious physical harm. The risk is likely to be demonstrated by a history of violence towards the vulnerable person, or towards others in the household. The offence will not apply if the victim died of a single blow when there was no previous history of abuse, nor any reason to suspect a risk.”

William Davis LJ went on to refer to the 2012 expansion of the offence and to the Explanatory Notes and Ministry of Justice circular issued at that time:

“41. The Explanatory notes to the 2012 amending legislation (“the 2012 Explanatory Notes”) relating to section 5(1) (c) were as follows:

“The extended offence will …apply only where the victim was at significant risk of serious physical harm ( section 5(1) (c) of the 2004 Act ). The risk is likely to be demonstrated by a history of violence towards the vulnerable person, or towards others in the household. The extended offence will not apply if there was no previous history of abuse, nor any reason to suspect a risk.”

We have set out the court’s reasoning in ATT in detail as the decision is central to this appeal, forming the main part of counsel’s arguments before us.

STATEMENT OF OFFENCE

Following the decision in ATT the relevant section in Blackstones (at B1.99) now includes this:

“As can be seen from the draft indictment ...there are two ways of committing the offence (it being unnecessary to prove which one it is). In ATT ...the Court of Appeal made it clear that for both ways of committing the offence, s.5(1) (c) requires there to be, independently of the commission of the unlawful act causing the death, a pre-existing significant risk of serious physical harm from the unlawful act of a member of the household.”

Interestingly, the suggested form of indictment in Archbold remains unchanged in the 2026 edition after ATT .

The suggested form of directions to be given in respect of a section 5 offence in the October 2025 Crown Court Compendium similarly reflects the ATT requirement for a pre-existing risk.

In addressing the arguments made by counsel and in our discussion which follows we shall refer to the person who has caused the death as “ the causer ” and the person who has allowed the death to happen as “ the allower ”, whilst recognising of course that there may be more than one causer or allower in any particular case.

Miss Lewis submitted that the purpose and effect of the legislation is clear on its face, so that it is not necessary or appropriate to look elsewhere for its meaning. She argued that the wording of section 5 , in particular sub- section 5(1) (c), is clear that “at [the] time” of the act causing death there must have been a pre-existing risk. She invited our attention to the content of contemporaneous Parliamentary debates and to the Law Commission’s Report no 282, Children: Their Non-accidental Death or Serious Injury (“the Law Commission report”), giving rise to the change in the law introducing the section 5 offence and associated provisions. Miss Lewis argued that there is very little in the Parliamentary debates referring to the Law Commission recommendation for a new offence of aggravated child cruelty. She submitted that Parliament must have decided not to create such an offence, determining instead to enable the conviction of persons living in the household in respect of whom the jury could not say whether they were the causer or the allower. She accepted that when applied to a single defendant who has caused a death, the gateway requirement of pre-existing risk in section 5(1) (c) produces an odd result. But she pointed to the availability of alternative offences, arguing that s.5(1) (c) cannot be given a different meaning depending on whether a defendant is the causer or the allower, pointing out that one of the key features of the section 5 offence is that the prosecution does not have to prove which is which, see s.5(2) .

Miss Lewis criticised the respondent’s suggestion that the conviction was safe on the basis that, if the jury had been directed that it was necessary to find a pre-existing risk, the jury would have found such a risk in the appellant’s failure to take A for medical advice prior to the final fatal period of neglect beginning on the evening before A’s death. Ms Lewis characterised this as an artificial division into arbitrary sections of time which had no basis in logic or fact, where the act causing death was a single continuous course of conduct.

In response Mr FitzGerald also maintained that the words in s.5(1) (c) are clear, but he contended that they are clear in requiring no more than proof of the existence of risk contemporaneously with the unlawful act causing death. The risk can be found in the act itself, or from past behaviour. He submitted that there is nothing in the wording of sub-paragraph (c) that requires the risk to have pre-dated the unlawful act causing death.

Mr FitzGerald submitted that the illogicality of the appellant’s approach to section 5(1) (c), as it relates to causers, would apply also to allowers in a course of conduct case: for where there is a period of neglect lasting months then unless the prosecution could establish a pre-existing risk of harm prior to the months of neglect, no one could be liable, not even the allower. The absence of a significant risk of serious physical harm before the course of conduct causing death would allow both the causer and the allower to go free. To attach liability to the allower in such a case would require the artificial endeavour which Miss Lewis criticised, viz. breaking up the course of conduct into a first section (establishing the risk of harm) and a second section (the act causing death) when in reality it is all one unbroken course of conduct.

As William Davis LJ explained in ATT at [35], the problem which existed, prior to the enactment of provisions giving rise to the section 5 offence, was attaching liability for a child’s or a vulnerable person’s death to members of the household with responsibility for the care of that child or vulnerable person. Before the 2004 Act , such household members were able to escape liability because the prosecution was unable to prove, unless one defendant gave evidence against the other(s), which person was in fact responsible for the act(s) causing the death. The new provision enabled liability to be attached to members of the household in which the child or vulnerable person had been living, without having to distinguish between causer or allower; there was provision also (by means of the procedural changes in section 6) for incentivising defendants to give evidence.

The courts in conducting statutory interpretation are 'seeking the meaning of the words which Parliament used': Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 , 613 per Lord Reid of Drem. More recently, Lord Nicholls of Birkenhead stated: 'Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context' ( R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349 , 396). Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context. They are the words which Parliament has chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained. There is an important constitutional reason for having regard primarily to the statutory context as Lord Nicholls explained in Spath Holme , 397: 'Citizens, with the assistance of their advisers, are intended to be able to understand parliamentary enactments, so that they can regulate their conduct accordingly. They should be able to rely upon what they read in an Act of Parliament.'

External aids to interpretation therefore must play a secondary role. Explanatory Notes, prepared under the authority of Parliament, may cast light on the meaning of particular statutory provisions. Other sources, such as Law Commission reports, reports of Royal Commissions and advisory committees, and Government White Papers may disclose the background to a statute and assist the court to identify not only the mischief which it addresses but also the purpose of the legislation, thereby assisting a purposive interpretation of a particular statutory provision. The context disclosed by such materials is relevant to assist the court to ascertain the meaning of the statute, whether or not there is ambiguity and uncertainty, and indeed may reveal ambiguity or uncertainty: Bennion, Bailey and Norbury on Statutory Interpretation , 8 th ed (2020), para 11.2. But none of these external aids displace the meanings conveyed by the words of a statute that, after consideration of that context, are clear and unambiguous and which do not produce absurdity. ...

Statutory interpretation involves an objective assessment of the meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words which are being considered. ..."

In our view the words of s.5(1) (c) are clear. That provision requires proof, as an element of the offence, that “at that time” there was a significant risk of serious physical harm being caused to the child/vulnerable adult by the unlawful act of a household member. The reference to “at that time”, in paragraph (c), refers back to (b) “…at the time of that act” (i.e. the act causing death). The definition of “act” in sub- section 5(6) expressly includes a course of conduct and also an omission. The passive voice is used (“harm being caused”) as Nicklin J observed during argument, since causer and allower must be kept in the frame, permitting attachment of liability despite not knowing which is which.

We agree with Mr FitzGerald that all s.5(1) (c) requires is that a risk exists coterminous with the unlawful act. Nothing in the words used imports an additional requirement that the existence of the risk must be based on prior behaviour, or that the risk must be shown to have pre-dated the time of the unlawful act. On the contrary, the words are “at that time…”, meaning the time of the act. The plain meaning of the words used can encompass both a pre-existing risk and a present risk arising from the act/omission itself. Even if the causer is engaged in conduct that will instantaneously harm the victim (V), it is possible to say that there is a present significant risk in the split second before that occurs. V is “at risk”.

We think Miss Lewis is right that section 5(1) (c) is a gateway through which both causers and allowers must pass. That paragraph cannot bear a different meaning depending upon whether a causer or an allower is being considered. The separation, or potential separation, between causer and allower, affording additional safeguards to the latter, is provided for by the terms of the next paragraph of the sub-section. Section 5(1) (d) requires, at (i) to (iii), additional matters to be proved as regards awareness of risk on the part of the allower. In practice, in most cases where liability is sought to be attached to a person as an allower, the prosecution will need to demonstrate a pre-existing risk in order for (i) to (iii) to be satisfied (though see below for a course of conduct involving omissions). It will depend on the facts of each case. But the requirements in section 5(1) (d)(i) to (iii) do not apply to a causer. On the particular facts of ATT , the trial judge was correct to uphold the submission of no case to answer because the prosecution needed, but were unable, to satisfy requirements (i) to (iii) for both defendants as “allowers”, since the evidence could not establish which of them was responsible as a “causer” for the act of shaking which had killed H.

Ms Lewis did not seek to suggest that section 5 cannot apply to a course of unlawful conduct by a person where it can be shown that the unlawful conduct caused death. Nor is it suggested that section 5 cannot be used to prosecute either a causer or an allower where a such a course of conduct has caused death.

The court in ATT was not considering a case involving a course of neglect, nor yet a case involving a single defendant charged as a causer. Where someone is prosecuted solely as a causer then the requirements of section 5(1) (d) (i) to (iii) do not apply. Where the unlawful act relied on against a causer is a series of omissions amounting to neglect sufficient for child cruelty, all that needs to be shown pursuant to s.5(1) (c) is that “at the time [of the unlawful neglect]” there was a significant risk of serious physical harm being caused by that neglect.

Miss Lewis was obliged to accept that, in the case of a single defendant who has caused a death by neglect falling short of gross negligence, the ATT interpretation of section 5 produces an odd result, by allowing a causer with no prior history of neglect and thus no demonstrable pre-existing risk, to avoid liability. This would indeed be an odd result, for which we can see no logical reason or justification. The fact that the causer would have to be a member of the same household as the child and have frequent contact with the child provides the necessary domestic context to satisfy the mischief at which the overall scheme of the provisions is aimed. Miss Lewis’s answer was that, if the ATT interpretation produced an odd result, this was an unavoidable consequence of Parliament’s intention to capture offenders where there was a pre-existing risk, and that the behaviour of causers can be captured by other offences. But as Mr FitzGerald pointed out, if section 5(1) (c) is to be interpreted as requiring proof of a pre-existing risk, then allowers in a course of conduct case could also escape liability. By contrast, the straightforward reading of section 5(1) (c) as encompassing a present risk, whether associated with, or derived from, present or prior behaviour, leads to no such difficulty.

The definition of an unlawful act in section 5(6) is important. The types of act there identified include an omission. There is no mention of gross negligence. We agree with Mr FitzGerald that by the absence of any reference to gross negligence, Parliament must have intended the offence created by s.5 to cover causing death by neglect falling short of gross negligence.

The Law Commission report foreshadowed the provisions of the 2004 Act . In that report, the Law Commission recommended certain procedural changes, some of which were reflected within section 6 of the 2004 Act . There was also a recommendation that two new offences be created: first, an aggravated form of the existing offence of child cruelty under the Children and Young Persons Act 1933 , to cover the case where a death has resulted; second, a new offence of “failure to protect”. Parliament decided instead to create the single s.5 offence of causing or allowing the death of a child, together with procedural provisions shifting the timing of a submission of no case to the end of all the evidence in a case where a charge of murder/manslaughter is also on the indictment. The purpose of doing so, as the Hansard reports of debates at the time make clear, was two-fold: first, to address procedural matters so as to incentivise defendants to give evidence, enabling as much evidence as possible to be put before the court to obtain a conviction for the more serious offence of murder/manslaughter; second, to attach liability to members of the household who stood by and did nothing. Miss Lewis stressed that these Hansard extracts omit any discussion of the situation where one person engages in a course of conduct amounting to neglect causing death. She drew attention particularly to what the Minister of State, Baroness Scotland, said during the debate in Grand Committee on 21 st January 2004 when responding to a question about the risk of serious physical harm being caused:

“We are looking at the species of cases with which these provisions usually deal. In many of them the death is not actually a one-off incident but a culmination of acts that happen over a period of time. Others in the household often say that they knew nothing of what was going on. The person who did not do the act will be guilty only if he knew of the risk of significant harm. He may say that he had no idea, that there was no history or indication that it might happen and that it happened spontaneously, out of the blue. There is a question about the responsibility of care that they have – should the person have done something and was there a duty on them to say something…

Miss Lewis argued that this and the other extracts upon which she relied show that Parliament was focussed on a pre-existing risk which would capture allowers, whilst contemplating that causers would be charged with more serious offences; an offence of causing death by neglect was simply not within Parliament’s contemplation at that time. Mr FitzGerald accepted that there were no definitive Ministerial statements on the offence capturing neglect amounting to cruelty causing death, though as he pointed out there are references which emphasise neglect and preventing deaths of children through neglect. He suggested that it was not surprising that the debates should have focused on the more controversial aspects of using the new provisions to flush out perpetrators.

During its discussion, the court in ATT referred to extracts from Explanatory Notes to the 2004 Act , and to the 2012 Act expanding the section 5 offence, including a passage which reads (in the 2012 Notes):

“The extended offence will not apply if there was no previous history of abuse, nor any reason to suspect a risk.”

However, a closer examination of the Explanatory Notes to the 2004 and 2012 Acts shows that they were focused on liability for allowing death or injury and it was in that context that the Notes were emphasising the need to establish a risk of which a defendant could reasonably be expected to be aware: see for instance paragraphs 25-27 of the 2004 Explanatory Notes, part of the last paragraph of which was relied upon in ATT in support of its interpretation of section 5 :

“25. Sub section (1 ) sets out the circumstances under which a person is guilty of an offence of causing or allowing the death of a child or vulnerable adult. It limits the offence to where the victim has died of an unlawful act, so it will not apply where the death was an accident, or where for example a child may have suffered a cot death. The offence only applies to members of the household who had frequent contact with the victim, and could therefore be reasonably expected both to be aware of any risk to the victim, and to have a duty to protect him from harm.

The household member must have failed to take reasonable steps to protect the victim. What will constitute “reasonable steps” will depend on the circumstances of the person and their relationship to the victim.

The victim must also have been at significant risk of serious physical harm. The risk is likely to be demonstrated by a history of violence towards the vulnerable person or towards others in the household. The offence will not apply if the victim died of a single blow when there was no previous history of abuse, nor any reason to suspect a risk. Where there is no reason to suspect the victim is at risk, other members of the household cannot reasonably have been expected to have taken steps to prevent the abuse. They will therefore not be guilty of the new offence, even where it is clear that one of them is guilty of a homicide offence.”

Even if it were permissible to regard these Explanatory Notes as providing some assistance in the interpretation of section 5 , they cannot provide a reliable guide to the application of section 5 in a case where it can be proved that a defendant’s unlawful act caused death, or where death resulted from a course of conduct.

The Home Office and Ministry of Justice Circulars accompanying the 2004 and 2012 Acts reflect a broader application of section 5 , highlighting its utility in a case of death by neglect falling short of gross negligence:

“28. Investigating officers should remember that a victim can be put at risk by neglect. If a child dies of neglect and other household members knew of the significant risk of serious injury from neglect, they could be guilty of the new offence. Where a vulnerable adult dies of neglect, this may not necessarily mean that the death was caused by a criminal act which would be caught by the offence. It would only be caught if the neglect was so serious that it would constitute gross negligence manslaughter (a criminal act). In that event it may be possible to charge all or some of the parties with gross negligence manslaughter rather than the new offence” (2005 Circular)

Under the heading “ Death or serious harm resulting from neglect ”, the 2012 Circular made the same point, concluding:

“25. So, if a child dies or suffers serious physical harm as a result of neglect which would constitute an offence under section 1 of the Children and Young Persons Act 1933 and other elements of the section 5 offence are present, the defendants could be guilty of causing or allowing the child to die or suffer serious physical harm.”

As with the Explanatory Notes to the 2004 and 2012 Acts, referred to above, examination of the Circulars shows that, insofar as they suggest the need for a pre-existing risk in a section 5 case, this is in the context of a person who allows the death of a child rather than a person who causes it (or where it cannot be proved which (s)he is).

The Law Commission report emphasised that a 10-year child cruelty maximum sentence (10 years being the maximum at that time, since raised to 14 years) would be insufficient for the offence of cruelty causing death, recommending a 14-year maximum for that offence. By contrast, the Law Commission recommendation for the second offence of “failing to protect”, i.e. standing by and allowing the death, was a 7-year maximum. The fact that Parliament enacted a 14-year maximum for the section 5 offence tends to suggest that it had the aggravated child cruelty offence in contemplation when it did so.

It is not surprising that the court in ATT should have focussed on the position of allowers, when the facts of that case required it to do so. The court was considering, in an expedited hearing, a case involving (a) harm caused by a discrete positive act (shaking) where (b) it could not be proved which of the two defendants had caused the death and which had allowed it. Each of the defendants in ATT could therefore only have been convicted on the basis that she/he had allowed the death, engaging the requirements of s.5(1) (d) (i) to (iii) in respect of each defendant. The court’s conclusion that proof was required of a risk of harm which pre-existed the act of shaking causing death was, in these particular circumstances, inevitable, and correct. But this was because of the necessary application of the provisions of s.5(1) (d) taken together with the gateway risk requirement in section 5(1) (c), not by the application of the latter provision alone.

In ATT the court referred to other offences with which a causer could be charged, at [39]:

“If the jury were satisfied that the relevant defendant had unlawfully killed the victim but they were not sure that this occurred in the context of a pre-existing significant risk of serious physical harm, that defendant would not escape liability because they would be guilty of murder or manslaughter.”

Where death has resulted from a positive act the obvious charge is one of murder or unlawful act manslaughter. Save in very particular circumstances (see, for example, Gibbins and Proctor [1918] 13 Cr App R 134 , a case of murder by deliberate starvation), neither of these offences will be appropriate where death has resulted from an omission to act. On the facts of the present case both parties accepted that the neglect was not of a kind that would have been sufficient for gross negligence manslaughter. Other cases on their facts may be different: where a duty is owed to a child by a parent or other carer, the degree or circumstances of neglect may be such as to support a charge of gross negligence manslaughter. But this will not be so in every case. The prosecution clearly decided that it could not maintain a charge of gross negligence manslaughter against the appellant here. If Miss Lewis is right, then there is no offence which could properly reflect the fact that a death has been caused by a course of neglect amounting to the offence of child cruelty, where there was no pre-existing risk. We do not think that in enacting s.5 , Parliament intended to perpetuate such an omission.

Turning to the question of whether we are bound by the decision of this court in ATT , after careful consideration we have decided that Mr FitzGerald is right and that we are not so bound. In the first place, insofar as ATT purported to address the application of section 5 in a case involving a continuous course of conduct where it can be proved that a person’s unlawful act or omission caused death, the court’s observations were obiter , as Miss Lewis accepted. With the utmost respect to the court which decided that case, we have taken a different view of s.5(1) (c) on the very different facts before us.

Second, the earlier decision of this court in Ikram [2009] 1 WLR 1419 appears to us to conflict with the decision in ATT . In Ikram a strong court, presided over by Sir Igor Judge P (as he was then, sitting together with Gross and Blair JJ), considered the propriety of the legal directions given by the trial judge in that case. Ikram concerned the death of a 16-month-old boy, T. The only adults in the house with T, at the time of his death, were the two defendants: the father of T and his partner. A post-mortem showed 21 different injuries inflicted less than 48 hours before death, including fractured ribs and a fractured femur. The primary cause of death was a pulmonary fat embolism from the fracture to the femur. At the close of the evidence, the prosecution withdrew the charge of murder/manslaughter against T’s father. The judge refused a submission of no case, made on behalf of the partner, and also refused to allow her to be recalled to permit her to give a different account. In the event, the jury acquitted the partner of murder/manslaughter and convicted both defendants of the s.5 offence. The defendants appealed. Each contended, as a ground of appeal, that the judge had erred in his directions to the jury on the s.5 offence. The court rejected the criticisms of the judge’s summing up, citing and approving his directions in his written “steps to verdict”, at [60] to [62]:

“60. …Having dealt with murder and manslaughter as it affected the second defendant, the text came to the count of causing or allowing the death of the child. It reads, at para 10:

“To establish this offence against a particular defendant, the [Crown] must prove, so you are sure of the following elements:

[T] died as a result of the unlawful act of the defendant who

was a member of the same household as [T] when this act occurred, and

had frequent contact with [T], and

at that time there was a significant risk of serious physical harm being caused to [T] by that unlawful act .

[T] died as a result of an unlawful act of the other defendant

that both defendants were members of the same household as Talha, when this act occurred, and

both defendants had frequent contact with [T] and

at that time there was a significant risk of serious physical harm being caused to [T] by that unlawful act and

a defendant failed to take such steps as he/she could reasonable have been expected to take to protect [T] from the risk and

the unlawful act occurred in circumstances that a defendant foresaw or ought to have foreseen.”

This analysis of the ingredients of the offence was accurate…

In short, the judge broke down the essential ingredients of the offence as they applied to each defendant, stage by stage…In our view this was a helpful way of directing the jury about the ingredients of the offence.”

It is right, as the court in ATT pointed out, that no previous case, including Ikram, had considered the correct interpretation of section 5(1) (c). However as appears from the judgment in Ikram , at [63], each defendant took a point that the judge should have directed the jury more closely as to when, on the evidence, he or she should have been aware of a significant risk of serious harm. The question of what s.5 required in relation to timing of proof of risk was accordingly central to the court’s consideration of the directions which the judge gave in that case. As appears from the highlighted passages of the trial judge’s “steps to verdict”, above, the Court of Appeal specifically approved a construction of the elements of the s.5 offence under which the necessary proof of risk derived from the unlawful act itself.

The judgment in Ikram , and the trial judge’s directions, were not the subject of any detailed analysis by the court in ATT . Our construction of section 5(1) (c) aligns with the (implicit) construction given to that provision by the court in Ikram . We disagree with a restricted interpretation of s.5(1) (c) which precludes any possibility of the necessary risk of harm being founded alone on the unlawful act which has caused the death (or serious harm). The restricted construction given to s.5(1) (c) by the court in ATT was not necessary to the result of the appeal for the simple reason that on the particular facts before the court in that case; a prior risk of harm needed to be shown for all the elements of s.5 to be made out against both defendants as allowers . The court said so in terms at the conclusion of the judgment at [59], which we have already quoted. Therefore, the court’s construction of s.5(1) (c) was, in our view obiter , certainly as regards a person, such as this appellant, accused of causing death through a course of conduct amounting to child cruelty.

For these reasons we conclude that the judge’s legal directions to the jury in the present case were correct and the conviction is safe. The appeal will be dismissed.

Finally, we wish to pay tribute to the helpful, highly proficient submissions of leading and junior counsel in this interesting case. We are most grateful to them all.