W, R v

For an offence of wilful neglect under the Children and Young Persons Act 1933, the prosecution must prove the required culpable state of mind. A genuinely mistaken failure to appreciate a child’s need for medical care is insufficient. An omitted express direction on that requirement does not make a conviction unsafe where the summing-up, read as a whole, meant that the jury could convict only if sure that the defendant knew the child was at risk and required medical attention.

A case may properly be left to the jury where the overall circumstantial evidence permits it to reject a carer’s account and infer the requisite knowledge, notwithstanding evidence that some injuries may be difficult for a non-perpetrator to identify.

The appellant was convicted by a jury at the Crown Court at Truro of cruelty to her infant daughter, contrary to section 1(1) of the Children and Young Persons Act 1933. The child had sustained 22 non-accidental fractures and a bite mark over a period when she was cared for by the appellant and her husband.

The Crown alleged that the appellant wilfully neglected the child by failing to protect her and by failing to obtain medical attention when she knew that the child was at risk or injured. The appellant maintained that she believed her husband’s accounts of accidental incidents and did not know that the child required further care.

On appeal, she challenged the refusal of a submission of no case to answer, the adequacy of the direction on wilful neglect, the direction on lies, and the treatment of expert evidence.

1. Appeal dismissed. The conviction was safe.

2. The court accepted the approach stated by Lord Keith in R v Sheppard [1981] AC 394. Wilful neglect requires culpability beyond neglect itself. A parent who deliberately withholds medical care despite knowing that it is needed is guilty, as is a reckless parent. A parent who genuinely fails to appreciate the need for care through inadequacy or stupidity is not guilty. In this case, recklessness was not alleged. The issue was whether the appellant knew that the child was at risk or needed medical attention.

3. There was a case to answer. The jury could assess the whole body of evidence, including the scale and timing of the injuries, the child’s likely pain and distress, the appellant’s daily care of the child, and the accounts given by the parents. It was open to the jury to reject the appellant’s account as untrue and to infer that she knew what was occurring. Withdrawing the case would have usurped the jury’s function.

4. The trial judge should have given a clear and specific direction based on Sheppard. Nevertheless, the summing-up repeatedly identified the sole issue as whether the appellant knew that the child was at risk and required protection or medical aid. On the evidence and directions as a whole, the jury could not have convicted unless sure of that knowledge. The omission therefore did not render the conviction unsafe.

5. The criticisms of the lies direction and the direction on expert evidence disclosed no error affecting safety. The reporting restriction remained: the child must not be identified.

• Court of Appeal (Criminal Division): Dismissed the appellant’s appeal and upheld her conviction: [2006] EWCA Crim 2723.
• Crown Court at Truro: On 30 January 2006, a jury convicted the appellant of cruelty to a person under 16. On 29 March 2006, she received six months’ imprisonment, suspended for two years.