Ikram & Anor, R v

Section 6(4) of the Domestic Violence, Crime and Victims Act 2004 postpones, but does not prevent, a submission of no case to answer where murder or manslaughter and a section 5 offence are jointly charged. The prosecution must act responsibly on the whole evidence.

A defendant should not ordinarily be recalled to advance a contradictory factual case. The court retains an exceptional residual discretion where justice requires it. A section 5 offence is self-contained and its statutory elements must be clearly directed to the jury. Sentencing must reflect the culpability proved by the verdict and must not treat either defendant as the fatal perpetrator where the verdict does not establish identity.

The appellants lived with Talha Ikram, a 16-month-old child who died after repeated non-accidental injuries, including a fatal fractured femur. Each was charged with murder or manslaughter and with causing or allowing his death contrary to section 5 of the Domestic Violence, Crime and Victims Act 2004.

At Southwark Crown Court, the Crown withdrew the murder or manslaughter allegation against Ikram after all the evidence. Parveen was acquitted of murder and manslaughter. Both were convicted of the section 5 offence and sentenced to nine years’ imprisonment; Ikram received a consecutive sentence for perverting the course of justice.

They appealed their convictions and sentences, challenging the procedure, the refusal to recall Parveen, the jury directions, and the sentences.

1. The appeals against conviction and sentence were dismissed. Section 6(4) of the Domestic Violence, Crime and Victims Act 2004 postpones consideration of a no-case submission until all the evidence has been heard. It does not prevent such a submission. Once the Crown concluded on the whole evidence that the murder or manslaughter count could not continue against Ikram, it was obliged to say so. The withdrawal was not an abuse of process.

2. The judge rightly refused to recall Parveen after she had given evidence. A defendant ordinarily has one opportunity to give a full factual account. Recall may be allowed to clarify evidence, address a misunderstanding, or answer genuinely new and unforeseeable matters where justice requires it. It should not normally permit a defendant to replace sworn evidence with a contradictory defence. The court approved the general approach in R v Hakala [2002] EWCA Crim 730, while qualifying any absolute proposition that recall could never be permitted. No exceptional circumstance arose here.

3. Section 5 creates a new, self-contained offence. The prosecution need not prove which of two household defendants inflicted the fatal unlawful act. For the allowing route, it must prove the statutory conditions at the time of that act, including a significant risk of serious physical harm, the defendant’s actual or constructive awareness, failure to take reasonably expected protective steps, and the requisite foresight of the circumstances. The judge’s written steps to verdict accurately separated those elements and fairly left the factual issues to the jury.

4. For sentencing, section 5 covers a wide range of culpability and manslaughter sentencing principles may provide useful assistance. However, where the verdict does not identify the perpetrator, neither defendant may be sentenced as though proved to have inflicted the fatal injury. Each appellant was sentenced for allowing foreseeable grave violence to occur. The judge was entitled to find no meaningful distinction between their culpability. Nine years’ imprisonment, without guilty-plea mitigation, was severe but neither wrong in principle nor manifestly excessive.

• Court of Appeal (Criminal Division): Dismissed both appellants’ appeals against conviction and sentence.
• Southwark Crown Court: Both appellants were convicted of causing or allowing the death of a child contrary to section 5 of the Domestic Violence, Crime and Victims Act 2004. Each received nine years’ imprisonment; Ikram also received a consecutive 12-month sentence for perverting the course of justice.