R v ATT & Anor

For an offence under section 5(1)(c) of the Domestic Violence, Crime and Victims Act 2004, the significant risk of serious physical harm must exist before, and independently of, the unlawful act that causes the death or serious physical harm. That requirement applies whether the defendant is alleged to have caused the harm or allowed it. Section 5(2), which removes the need to identify which household member caused the harm, does not alter the elements which must be proved.

An unexplained injury to a young baby rightly causes concern, but it does not by itself establish a significant risk of serious physical harm. The word “significant” bears its ordinary meaning and sets a high threshold requiring clear supporting evidence.

The prosecution appealed against a terminating ruling made at the close of its case in the Crown Court at Derby. ATT and BWY had been charged with causing or allowing serious physical harm to their baby, H, contrary to section 5 of the Domestic Violence, Crime and Victims Act 2004.

The trial judge held that there was no case to answer. He found that the evidence did not establish a pre-existing significant risk of serious physical harm, and rejected the prosecution’s submission that the act causing H’s brain injury could itself supply that risk.

The prosecution contended that the statutory risk requirement differed for a person who caused the harm, and that the evidence of parenting, handling and earlier marks on H’s body sufficed for a jury. The central issues were the construction of section 5(1)(c) and whether the judge’s no-case ruling was one which no reasonable judge could have made.

1. Appeal dismissed. The court confirmed the terminating ruling. It ordered the acquittal of both respondents under section 61(7) of the Criminal Justice Act 2003.

2. Section 5(1)(c) of the Domestic Violence, Crime and Victims Act 2004 requires a significant risk of serious physical harm which exists before the unlawful act causing the charged death or serious physical harm. The wording “at that time”, read with the allowing limb in section 5(1)(d), requires a risk from which a household member could have taken reasonable protective steps. The risk cannot be coterminous with the act constituting the offence.

3. The same construction applies whether a defendant is alleged to have caused the harm or allowed it. Section 5(2) permits the prosecution to leave the precise role unresolved, but does not permit the elements in section 5(1)(a) to (c) to vary with the role ultimately attributed to a defendant. The court did not accept the contrary construction suggested in passages from Blackstone’s Criminal Practice.

4. On the evidence, the prosecution could not establish which respondent caused H’s brain injury. Each respondent’s case would therefore have required proof of the allowing limb, including a pre-existing significant risk.

5. The judge’s assessment of the evidence was reasonably open to him. Parenting shortcomings which created no physical risk, and text messages showing parental stress, had no probative value in establishing the statutory risk. Prop feeding and lifting H by his baby grow did not alter that conclusion.

6. The visible marks on H were capable of showing inflicted injury, but they were superficial and did not amount to serious physical harm even when assessed in the context of a very young baby. Nor did they establish a significant risk of such harm. “Significant” is an ordinary English word; a direction that it means merely more than minimal is erroneous. The statutory threshold is high and requires clear evidence.

• Court of Appeal (Criminal Division) Dismissed the prosecution’s appeal from a terminating ruling and ordered acquittals under section 61(7) of the Criminal Justice Act 2003.
• Crown Court at Derby At the close of the prosecution case, ruled that ATT and BWY had no case to answer on a charge under section 5 of the Domestic Violence, Crime and Victims Act 2004.