R v Att and Another
| Jurisdiction | England & Wales |
| Court | Court of Appeal (Criminal Division) |
| Neutral Citation | [2024] EWCA Crim 460 |
| Year | 2024 |
2024 April 18; May 8
Crime - Court of Appeal (Criminal Division) - Application for leave to appeal - Prosecutor applying to Court of Appeal for leave to appeal against trial judge’s ruling - Test to be applied by Court of Appeal -
The two defendants were charged with an offence of causing or allowing a child to suffer serious physical harm, contrary to section 5 of the Domestic Violence, Crime and Victims Act 2004F1, after their three-month old son, H, had suffered serious physical harm while living in the same household as them. At the close of the prosecution case the judge ruled that neither defendant had a case to answer, finding that a reasonable jury properly directed could not be satisfied for the purposes of section 5(1)(c) of the 2004 Act that at the time when H suffered serious physical harm there had been a “significant risk of serious physical harm” being caused to H by the unlawful act of a member of the same household. In particular, the judge held that the “significant risk of serious physical harm” referred to in section 5(1)(c) could not be the risk occasioned by the act that caused the serious physical harm which constituted the offence. The prosecution applied to the Court of Appeal for leave to appeal against that ruling pursuant to section 58 of the Criminal Justice Act 2003F2, contending that the ruling had involved an error of law and had been a ruling that it was not reasonable for the judge to have made, within section 67(b) and (c) of the 2003 Act respectively.
On the application—
Held, granting leave but dismissing the appeal, (1) that, when considering whether to grant the prosecution leave to appeal against a judge’s ruling on the ground that the ruling had involved an error of law, within section 67(b) of the Criminal Justice Act 2003, the court should apply a test of whether it was in the interests of justice that the appeal be heard, but when considering whether to grant leave to appeal on the ground that the ruling was a ruling that it was not reasonable for the judge to have made, within section 67(c) of the 2003 Act, the court should apply a test of whether the prosecution had shown a seriously arguable case that the ruling was not a reasonable one for the judge to have made; and that, in the circumstances of the present case, leave to appeal should be granted on both grounds advanced by the prosecution (post, paras 3–5).
(2) That, on a true construction of section 5 of the Domestic Violence, Crime and Victims Act 2004, the “significant risk of serious physical harm” referred to in section 5(1)(c) could not arise from the “unlawful act” that constituted the offence; that, rather, the significant risk of serious physical harm referred to in section 5(1)(c) had to have been in existence prior to the commission of the relevant unlawful act; that, thus, an offence under section 5 would not be committed if there was no previous history of abuse within the household, nor any reason to suspect a risk of serious physical harm being caused; that, moreover, the requirement under section 5(1)(c) for a pre-existing significant risk of serious physical harm applied whether the defendant was alleged to have caused the serious physical harm or to have allowed the serious physical harm; that, therefore, the ruling of the judge in the present case had not involved an error of law for the purposes of section 67(b) of the 2003 Act; and that, on the facts, the ruling was not one that it had been unreasonable for the judge to have made for the purposes of section 67(c) of the 2003 Act, since it had been open to him to find that a reasonable jury properly directed could not be satisfied that there was a significant risk of serious physical harm being caused to H by the unlawful act of a member of the same household (post, paras 35–38, 41, 43, 45, 47–48, 51, 57–58, 59–60).
The following cases are referred to in the reasons for the judgment of the court:
R v Al-Ali
R v B
R v Bollom
R v Ikram
R v Stephens
The following additional cases were cited in argument:
R v Galbraith [
R v Price (Angela)
APPLICATION for leave to appeal under section 58 of the Criminal Justice Act 2003
On 2 April 2024 in the Crown Court at Derby, Judge Martin Hurst ruled that the defendants, ATT and BWY, who were charged on indictment with one count of causing or allowing serious physical harm to a child, contrary to section 5 of the Domestic Violence, Crime and Victims Act 2004, had no case to answer. On 3 April 2024 the Crown applied for leave to appeal under section 58 of the Criminal Justice Act 2003 against that ruling and gave the acquittal undertaking pursuant to section 58(8). The judge refused leave and ordered an expedited hearing before the Court of Appeal (Criminal Division).
The Crown applied for leave to appeal on the grounds that: (1) the judge had been wrong in law or, alternatively, made an error of law or principle in interpreting section 5(1)(c) of the 2004 Act as making it a pre-condition of any conviction under the 2004 Act, as causer as well as allower, that at the time of the death or serious physical harm there had to be a pre-existing significant risk of serious physical harm to the victim; (2) the judge had been wrong in law when he interpreted the route to verdict in the case of R v Ikram [
At the conclusion of the hearing, the court granted leave to appeal in the interests of justice pursuant to section 67(b) of the 2003 Act, dismissed the appeal for reasons to be given at a later date and ordered the defendants’ acquittals pursuant to section 61(7) of the 2003 Act.
The facts are stated in the reasons for the judgment of the court, post, paras 7–21.
Vanessa Marshall KC and Dawn Pritchard (instructed by
In interpreting and applying section 5(1)(c) of the Domestic Violence, Crime and Victims Act 2004 the court is invited to consider any drafts used by the authors of the Crown Court Compendium, who are soon to publish suggested directions and a sample route to verdict in relation to section 5.
The correct interpretation of section 5 of the 2004 Act is that the “significant risk of serious physical harm” being caused to the child or vulnerable person does not have to be pre-existing if the defendant is the person who caused the serious physical harm which constituted the offence because the significant risk of serious harm is proved by the conduct which caused the harm, provided that the conduct carried the necessary risk.
Parliament cannot have intended section 5 to be given a literal interpretation because it can be satisfied by a causer of serious physical harm even where there is no pre-existing significant risk. It is sufficient to satisfy section 5(1)(c) that when the defendant caused the serious injury that action posed a significant risk of harm. To find otherwise would lead to a real risk that where there is no previous history of violence or injury towards the victim in a household and the serious injury was caused in circumstances where there was a sudden loss of control, the defendant would have to be acquitted. A route to verdict reflecting the literal interpretation would risk the jury’s asking whether they should acquit where they were sure the defendant ATT caused the death but were unsure that she ought to have foreseen or been aware of the risk from the defendant BMY.
Section 5(1)(c) has two meanings depending on whether the defendant is the causer or the allower: see Domestic Violence, Crime and Victims Act 2004 (Home Office Circular No 9/2005) (4 March 2005). Section 5(1)(c) does not apply to consideration of whether the defendant is the causer of the unlawful act and there is no need to consider the environment of risk created by...
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