Constance Marten & Anor v R

An offence of child cruelty by wilful neglect or exposure does not require proof that the child suffered injury or died from the neglect. It is sufficient to prove neglect or exposure in a manner likely to cause unnecessary suffering or injury to health. Co-sleeping is not unlawful in itself, but may constitute such neglect when assessed in its circumstances.

A jury may consider the whole sequence of relevant conduct and may convict on one proved instance; persistence is not required. Where overlapping counts have distinct elements, a judge may exercise a broad discretion to take partial verdicts. A later jury question about the standard of proof does not retrospectively undermine verdicts already returned unless it provides a proper basis for finding them unsafe.

The applicants were tried at the Central Criminal Court on charges concerning the life and death of their newborn child, Baby A. The jury convicted both applicants of concealment of birth, child cruelty and acts tending and intended to pervert the course of justice. It could not reach verdicts on causing or allowing the death of a child or gross negligence manslaughter, and a retrial on those counts was listed.

Both applicants sought leave to appeal their conviction for child cruelty. Mark Gordon also challenged his convictions on the other two counts. The principal issues concerned the sufficiency of the evidence, the scope of the judge’s directions on neglect, the effect of R v ATT & BWY [2024] EWCA Crim 460, partial verdicts, and the safety of the jury’s verdicts.

1. The applications for leave to appeal were refused. There was no arguable ground on which any conviction could be regarded as unsafe.

2. The judge correctly rejected the submission of no case to answer on child cruelty. The offence required proof that the applicants exposed or neglected Baby A in a manner likely to cause unnecessary suffering or injury to health. It did not require proof that Baby A was cold, that her health had actually been affected, or that the exposure caused her death. The evidence permitted the jury to assess the applicants’ treatment of the child throughout her life, including exposure to cold and the circumstances of co-sleeping. Co-sleeping was not unlawful without more, but it could amount to neglect in the circumstances alleged.

3. The directions on the ambit of count 2 were proper. The jury was entitled to consider the sequence of events from late December until Baby A’s death, whenever it found that death occurred. It could find one instance of wilful neglect or exposure; persistence was unnecessary. “Unnecessary suffering” and “injury to health” were ordinary English expressions for the jury to apply. Count 2 was both a standalone count and a potential stepping stone for the death counts, but those latter counts required separate analysis of causation. R v ATT & BWY [2024] EWCA Crim 460 did not affect count 2.

4. Under rule 25.14.3H of the Criminal Procedure Rules 2020, the judge had a broad discretion to take partial verdicts. He exercised it permissibly because the counts, although factually connected, required distinct analysis. The jury had also identified wilful neglect as the basis for its verdict on count 2, and further factual inquiry would have been inappropriate. Its later question about the standard of proof concerned count 3 after the earlier verdicts had been returned and gave no basis to doubt them.

• Court of Appeal (Criminal Division): applications for leave to appeal against convictions refused in [2025] EWCA Crim 241.

• Central Criminal Court: following a trial before His Honour Judge Lucraft KC, the jury convicted both applicants on counts of concealment of birth, child cruelty and perverting the course of justice. The jury did not reach verdicts on the counts of causing or allowing death and gross negligence manslaughter.