R v Shagufa Sheikh & Ors

Section 5 of the Domestic Violence, Crime and Victims Act 2004 imposes liability on a household member who causes, or fails reasonably to protect a vulnerable adult from, serious physical harm. For a non-perpetrating defendant, the relevant foresight is of a significant risk of further serious physical harm, not necessarily of the precise unlawful act or an offence category. But the harm must occur in circumstances of the kind foreseen or foreseeable. That safeguard cannot be reduced to the fact that the harm occurred in a domestic setting. The assessment is fact specific.

Four household members were convicted at the Crown Court at Leeds of causing or allowing a vulnerable adult to suffer serious physical harm, contrary to section 5 of the Domestic Violence, Crime and Victims Act 2004. The victim had suffered a caustic burn and later sustained hypoxic-ischaemic brain damage after becoming unconscious. The prosecution could not identify which appellant had caused the serious harm or establish its precise mechanism, and proceeded on secondary liability.

The appellants challenged the construction of section 5(1)(c) and (d), contending that the later unlawful act had to be of the same kind, or in circumstances of the same kind, as the earlier act creating the risk. The first appellant also argued that her low mental age meant that no reasonable jury could find that she could reasonably have been expected to protect the victim. The central issues were whether the statutory safeguards were satisfied and whether the jury had been properly directed.

1. Appeals allowed. The convictions on counts 1, 2, 3 and 5 were quashed.
2. For secondary liability under section 5(1)(d) of the Domestic Violence, Crime and Victims Act 2004, section 5(1)(d)(i) concerns the reasonable foreseeability of a significant risk of further serious physical harm arising from previous unlawful conduct by a member of the same household. It does not require foresight of the precise later act or a defined category of offence.
3. Section 5(1)(d)(iii) focuses on the circumstances in which the risk was realised, rather than on the category or precise nature of the unlawful act. The circumstances need not be identical, but the requirement is a substantive safeguard and cannot be satisfied merely because the act occurred in a domestic setting.
4. The question is fact specific. The jury must consider all the evidence and circumstances, including the relationship between antecedent conduct and the later act and any common situation, behaviour or intended outcome.
5. On the evidence, the caustic sacral injury and the later administration of a minimal quantity of glimepiride were so different that a properly directed jury could not safely conclude that the later act occurred in circumstances of the kind foreseen or foreseeable. The trial judge had also failed to give sufficient assistance on the intent required for administering a noxious substance and had wrongly treated the domestic setting as sufficient. A suitable direction would have had to address each possible causative act, the expert evidence, the relevant intent and each component of section 5(1)(d).
6. The separate argument concerning Shagufa’s low mental age did not justify allowing the appeal on that ground. Her ability and capacity to take reasonable protective steps, assessed with the other evidence, was a question for the jury.

• Court of Appeal (Criminal Division): the conjoined appeals against conviction were allowed. The convictions on counts 1, 2, 3 and 5 were quashed.
• Crown Court at Leeds: the four appellants were convicted on 18 December 2023 of causing or allowing a vulnerable adult to suffer serious physical harm under section 5 of the Domestic Violence, Crime and Victims Act 2004.