R v SGQ

Section 5 of the Domestic Violence, Crime and Victims Act 2004 permits conviction where the prosecution cannot prove whether a household carer caused serious physical harm or allowed it to occur. It need not establish which alternative applies to a particular defendant. For an alleged causer, the significant risk of serious physical harm may arise from the act itself; a pre-existing risk need not be proved. For an alleged allower, the prosecution must prove the statutory awareness, protective-step and foreseeability requirements. A conviction is safe where a properly directed jury had ample evidence to find that each defendant either caused the serious injury or satisfied the allower conditions.

The appellant was convicted after trial in the Crown Court at Norwich of causing or allowing a child to suffer serious physical harm, contrary to section 5 of the Domestic Violence, Crime and Victims Act 2004. She received a suspended sentence of nine months’ imprisonment. The prosecution alleged that her infant son had sustained a recent serious fracture and earlier fractures, but did not have to prove whether she or the co-accused was the causer or allower.

On appeal, the appellant argued that there was insufficient evidence, that the trial judge had improperly invited a change to the prosecution case, and that the summing up was imbalanced. The central issues were whether the section 5 elements were capable of being proved and whether the judge’s conduct or directions rendered the conviction unsafe.

1. Appeal dismissed. The conviction was safe. The prosecution case remained a section 5 case against both defendants equally, whether as causer or allower.
2. Section 5(1)(c) requires a significant risk of serious physical harm to be present when the act causing the death or serious injury occurs. The risk may arise from a pre-existing circumstance or from a circumstance occurring at or shortly before the act. The act itself may create the risk. In respect of a perpetrator, the prosecution need not prove a pre-existing risk: R v Jamal [2026] EWCA Crim 135.
3. Under section 5(2), the prosecution need not prove whether a defendant was the causer or allower. If the defendant was not the causer, the jury must be satisfied of the additional requirements in section 5(1)(d)(i)–(iii), including awareness or constructive awareness of the risk, failure to take reasonable protective steps, and foreseeability of the relevant circumstances.
4. There was ample evidence on which a properly directed jury could convict the appellant. It could find that the recent spiral fracture was inflicted after her return from Tesco, when the child was in her care, and that earlier non-accidental fractures supplied evidence of a significant pre-existing risk. The medical, clinical, messaging and opportunity evidence could support guilt either as causer or allower.
5. The judge’s comments during the no-case submission were part of an evidential discussion. Although they could have been understood as inviting an amendment to add a substantive assault charge, the judge refused the amendment and gave directions applying the section 5 case equally to both defendants. There was therefore no material departure from judicial neutrality.
6. The criticism of the summing up was unfounded. The judge fairly summarised the defence case, and counsel had the opportunity to address the jury on the relevant points. Leave was granted for the remainder of ground 2, but refused on ground 4.

• Crown Court at Norwich: the appellant was convicted on 29 January 2025 and sentenced on 28 March 2025 to nine months’ imprisonment suspended for 24 months, with a rehabilitation activity requirement of up to 15 days.
• Court of Appeal (Criminal Division): limited leave was granted. The conviction was held safe and the appeal was dismissed.