R v Fartun Jamal

The gateway requirement in the Domestic Violence, Crime and Victims Act 2004 is satisfied where, at the time of the unlawful act causing death or serious physical harm, there was a significant risk of such harm. The risk may pre-exist or arise from the act or omission itself.

The requirement applies equally to a causer and an allower. An allower must additionally satisfy the requirements concerning awareness, reasonable protective steps and foreseeability. The offence may apply to a course of neglect causing death, including neglect falling short of gross negligence manslaughter. The court declined to follow the broader interpretation in R v ATT and BWY [2024] EWCA Crim 460 in that context, while upholding its conclusion on its particular facts.

The appellant was convicted at the Crown Court at Harrow on 4 March 2022 of causing the death of a child under section 5 of the Domestic Violence, Crime and Victims Act 2004 and three offences under section 1(1) of the Children and Young Persons Act 1933. Her sentence was later reduced on an earlier appeal: R v Fartun Jamal [2023] EWCA Crim 329.

Following the later decision in R v ATT and BWY [2024] EWCA Crim 460, she sought an extension of time, leave to appeal her conviction and, if granted, an appeal on the ground that section 5 required proof of a pre-existing risk of serious physical harm. The central issue was whether that requirement applied to a causer whose unlawful act consisted of a course of neglect.

Disposition

The court granted the necessary extension of time and leave to appeal. It dismissed the appeal and held that the conviction was safe.

Statutory construction

1. Statutory words must be read in their statutory context. Explanatory materials, legislative history and other external aids may assist in identifying purpose and mischief, but cannot displace clear words which do not produce absurdity.
2. Section 5(1)(c) requires proof that, at the time of the unlawful act causing death or serious physical harm, there was a significant risk of serious physical harm to the victim. The reference to that time is linked to the time of the act in section 5(1)(b). The risk may be pre-existing or may arise from the act or omission itself.
3. The gateway in section 5(1)(c) has the same meaning for causers and allowers. Section 5(1)(d)(i) to (iii) imposes additional requirements on an allower, concerning awareness of the risk, reasonable protective steps and foreseeability. Those requirements do not apply to a causer.
4. Because section 5(6) defines act to include a course of conduct and an omission, the offence can apply where death results from a course of neglect amounting to child cruelty. Parliament did not require gross negligence for the unlawful act relied on.
5. R v ATT and BWY [2024] EWCA Crim 460 was correct on its particular facts, because both defendants could only be treated as allowers and the additional requirements in section 5(1)(d) therefore required a prior risk. Its broader construction of section 5(1)(c), insofar as it addressed a causer whose death-causing conduct was a course of neglect, was obiter and was not followed. The reasoning in Ikram [2008] EWCA Crim 586 was consistent with the present construction.

The jury directions correctly identified a risk arising from the appellant’s failure to obtain medical aid. The conviction therefore remained safe and the appeal was dismissed.

• Court of Appeal (Criminal Division): granted an extension of time and leave to appeal, but dismissed the conviction appeal and held the conviction safe.
• Court of Appeal (Criminal Division): reduced the appellant’s sentence on an earlier appeal in [2023] EWCA Crim 329.
• Crown Court at Harrow: convicted the appellant on 4 March 2022 of the section 5 offence and three child cruelty offences, and sentenced her on 29 April 2022.