Khan & Ors, R v

Domestic Violence, Crime and Victims Act 2004, section 5, creates liability for a household member with frequent contact with a vulnerable victim who fails to take reasonably expected protective steps against a significant risk of serious physical harm.

“Frequent contact” is a free-standing factual threshold. It does not incorporate the separate requirements of awareness, reasonable protective action, and foresight. The circumstances of the fatal act need only be of the same kind as those foreseen or reasonably foreseeable; they need not be identical. An apparently fit adult may be vulnerable where dependency significantly impairs self-protection, and vulnerability may be temporary.

Sabia Rani, a 19-year-old woman living with her husband and his family in Leeds, was beaten to death by her husband. He was convicted of her murder.

The three appellants, who lived in the same household, were convicted at the Crown Court at Leeds of allowing the death of a vulnerable adult, contrary to section 5(1) of the Domestic Violence, Crime and Victims Act 2004. They challenged the judge’s directions on the medical evidence and on the statutory requirements of frequent contact, reasonable protective steps, and foresight of the circumstances of the fatal violence. Two appellants also appealed their sentences.

1. The appeals were dismissed. The judge’s directions on the medical evidence, read as a whole, accurately explained the uncertainty about when the deceased’s soft-tissue injuries developed. His corrective directions ensured that the jury did not treat the earlier injuries as necessarily sufficient to cause death.

2. Under section 5 of the Domestic Violence, Crime and Victims Act 2004, an adult may be a vulnerable adult even if young and physically fit where dependency on others significantly impairs the ability to protect himself or herself from violence, abuse, or neglect. Vulnerability may be temporary, including where it results from injury, illness, or an accident. These observations did not alter the conclusion that vulnerability was properly left to the jury on the facts.

3. “Frequent contact” in section 5(1) is an independent factual condition for identifying a potential defendant. If it is absent, the prosecution fails. If it is established, the jury must separately determine the statutory requirements concerning risk, awareness, reasonable protective steps, and foresight. It is wrong to import those later requirements into the meaning of frequent contact.

4. Section 5(1)(d) encompasses both actual and objective awareness and foresight. It therefore includes a person who closes his or her eyes to a risk which ought to have been appreciated. Liability remains limited by section 5(1)(d)(ii), which requires close attention to the defendant’s personal circumstances and to the steps reasonably expected of that person. On the evidence, no further direction identifying possible protective steps was required.

5. The fatal act must occur in circumstances of the kind foreseen or reasonably foreseeable. Exact identity is unnecessary. Escalated personal violence was capable of being of the same kind as earlier personal violence, notwithstanding that the final assault occurred elsewhere and was more severe. The judge’s statutory direction was correct, and the convictions and the challenged sentences stood.

• Court of Appeal (Criminal Division). In [2009] EWCA Crim 2, dismissed the three appeals against conviction and the two appeals against sentence.
• Crown Court at Leeds. His Honour Judge Stewart QC convicted the appellants of allowing the death of a vulnerable adult contrary to section 5(1) of the Domestic Violence, Crime and Victims Act 2004. Uzma Khan and Nazia Naureen received custodial sentences; Majid Hussain received a suspended sentence with unpaid work.