Stephens & Anor, R. v

In section 5(1) of the Domestic Violence, Crime and Victims Act 2004, “significant” has its ordinary English meaning. It should not be judicially defined as “more than minimal”. Whether a risk of serious physical harm is significant, and whether the defendant knew or ought to have known of it, are ordinarily questions of fact for the jury.

A misdirection on that word does not itself make a conviction unsafe. The appellate court must assess the evidence and decide whether the error created a real danger of an otherwise unavailable conviction. In fixing a murder minimum term, the court may take account of associated offences sentenced in the same proceedings and must assess the seriousness of the whole offending.

Stephens and Mujuru were tried at the Central Criminal Court before His Honour Judge Moss QC. Stephens was convicted, among other offences, of the murder of Ayesha, a five-month-old child, and was sentenced to life imprisonment with a 20-year minimum term. Mujuru was convicted of causing or allowing Ayesha’s death, contrary to section 5(1) of the Domestic Violence, Crime and Victims Act 2004, and of wilful neglect.

Mujuru appealed her conviction. She challenged the admission of interviews conducted while she was treated as a witness, and contended that the judge had misdirected the jury by defining a “significant risk” as one that was more than minimal. Stephens appealed the minimum term as manifestly excessive.

The central issues were the proper meaning of “significant” in section 5(1), the fairness of admitting Mujuru’s interviews, the safety of her conviction, and the proper approach to Stephens’s minimum term.

1. Mujuru’s appeal was dismissed. Her renewed application for leave to appeal against the admission of the May 2005 interviews was refused. At that time the police neither suspected, nor had reason to suspect, her involvement in the child’s death. The interviews were conducted appropriately, despite her understandable shock and distress. Her mother’s presence did not render the process unfair. Answers capable of amounting to confessions were neither obtained by oppression nor by anything capable of rendering them unreliable. Exclusion under sections 76 or 78 of the Police and Criminal Evidence Act 1984 was therefore not warranted.

2. Under section 5(1)(c) of the Domestic Violence, Crime and Victims Act 2004, “significant” bears its ordinary meaning. Following the reasoning in Brutus v Cozens [1973] AC 854, an ordinary statutory word, used in no special sense, should not be replaced with a judicial definition. Whether the risk was significant is a factual question for the jury. The judge therefore erred in directing that “significant” meant merely “more than minimal”.

3. The error did not make the conviction unsafe. There was powerful evidence that Stephens posed a considerable risk of serious physical harm to Ayesha, including the broken arm, other injuries and his violence towards Marcus. The jury could properly find that Mujuru knew, or ought to have known, of that risk and failed to take reasonable protective steps by leaving the child in his care. This was not a borderline case in which the erroneous direction created a real danger of an improper conviction.

4. Stephens’s sentence appeal was dismissed. Under section 269 of, and Schedule 21 to, the Criminal Justice Act 2003, the seriousness assessment could include associated offences. The judge correctly took account of the whole sequence of violence against Ayesha, Marcus and Muthoni. The victim’s extreme youth and vulnerability, the breach of trust, and the history of violence were serious aggravating features. The absence of premeditation and of an intention to kill did not make the 20-year minimum term manifestly excessive.

• Court of Appeal (Criminal Division): Mujuru’s conviction appeal was dismissed and her renewed application for leave to appeal on the evidential ground was refused. Stephens’s appeal against his 20-year minimum term was dismissed.
• Central Criminal Court: Before His Honour Judge Moss QC, Stephens was convicted of murder and related offences and received life imprisonment with a 20-year minimum term. Mujuru was convicted of causing or allowing the death of a child under section 5(1) of the Domestic Violence, Crime and Victims Act 2004 and of wilful neglect.