Stephens & Anor, R. v

The appellants in this case were charged on an indictment containing 15 counts. Those that are of particular relevance to this appeal related to injuries caused by the appellant Stephens, to a 4½ month old child, Ayesha, the daughter of his then partner, the appellant Sandra Mujuru. Although the child bore the surname Stephens, she was in fact Miss Mujuru’s child by a previous partner and unrelated to Stephens himself. Stephens had a son, Marcus, by a former partner, Miss Susan Muthoni. Marcus lived with his mother, but Stephens had supervised contact with him through the Social Services. Marcus and his mother lived within easy travelling distance of Stephens and Miss Mujuru.

Following their separation there were frequent disputes between Stephens and Miss Muthoni over his access to Marcus in which social workers, health visitors, the police and other agencies became involved. At one stage, Marcus was placed on the child protection register.

On three occasions between 11^th and 30th November 2002 Stephens assaulted Marcus causing the child minor injuries. On the first of those occasions he deliberately scratched both of the child’s cheeks, later saying that the wounds had been caused by the baby crying and rubbing its face whilst he was fetching its bottle. On the next occasion Stephens deliberately caused a small bruise and a scratch to the child’s face. This time he said that the baby had fallen off a chair when he had left him alone in order to get some milk. On the third occasion he was found holding Marcus in the bedroom. There was blood coming from the child’s mouth and there was blood on the bedding. Stephens said that the boy had fallen down the stairs and injured his mouth, but when Marcus was examined by a doctor a small healing split on the inside of his upper lip was found which, in the doctor’s view, was typical of the injury caused when an adult feeding a baby with a bottle pushes the bottle into the baby’s mouth with some force. It was, therefore, a classic indication of a non-accidental injury of a kind that would have caused temporary pain and distress to the child lasting for some hours.

Between February and April, 2005 Stephens committed a serious assault on Ayesha as a result of which she sustained a spiral fracture of the mid-shaft of the left humerus. Neither Stephens nor Miss Mujuru took any steps to obtain treatment for her, although in the view of the doctors it must have been clear that she was suffering considerable pain as a result of the injury.

On 9^th May 2005 Stephens was left alone at home to look after Ayesha when Miss Mujuru went to work. During the afternoon following a number of telephone conversations with a social worker concerning access to Marcus, he went off in a rage to the home of Miss Muthoni where he found her in the kitchen. He attacked her, kicking her on the head and striking her on the head with a frying pan and a vase. Miss Muthoni’s boyfriend, Winston Male, who was also in the house called the police. Miss Muthoni was taken to hospital suffering from a laceration to her right eyelid, bruising to her face and head, lacerations to the back of her head and injuries to her hands.

Following the attack Stephens went to Kingston Police Station where he told the police that he wanted to be arrested for beating up and trying to kill his partner. He complained that he had not been allowed to see his son. He was arrested at the police station on a charge of causing grievous bodily harm to Miss Muthoni and while on the way to the hospital to obtain treatment for his own injuries, he told the police that he had left a five-month old baby alone at his girlfriend’s flat. He said that he did not know the address of the flat, but gave the police the name and whereabouts of the baby’s mother which enabled them to trace Miss Mujuru at her place of work. They took her back to the flat where they found Ayesha lying on her back in her cot with her eyes closed, tightly wrapped in a blanket and with a dummy in her mouth. Only her head was visible, and it was impossible for her to move her arms. She appeared to be cold. An ambulance was summoned and Ayesha was taken to hospital where she was pronounced dead. While they were waiting for the ambulance to arrive Miss Mujuru told the police that when she had left home for work at 11.45 a.m. that morning the baby had been fit and well and fast asleep. She confirmed that she had arranged with Stephens that he would look after the baby until she finished work at 7 p.m.

The findings of a post mortem examination carried out on Ayesha indicated that she was a well-nourished baby of normal size for her age. She had a healed fracture of the mid-shaft of the left humerus which was about six weeks old. One of the expert medical witnesses said that it could have been caused by gripping the child with considerable force in the region of the left elbow and forearm, but would not have resulted from mere heavy-handedness or playful handling. She also had an old head injury demonstrated by a thin, old subdural haematoma and multifocal axonal injury in the brain and spinal cord possibly linked with some older haemorrhage in the eyes. There was also a recent head injury indicated by a fresh bruise under the skin of the scalp and severe bilateral fresh retinal and perineural haemorrhages.

The Home Office pathologist concluded that Ayesha’s death had been caused by an injury to the brain resulting from a severe blow to the head. The presence of bruising to the scalp indicated a forceful impact against a hard flat surface, as if she had been picked up and swung against it. Death probably occurred almost immediately. He could not say whether the old injuries to the child’s arm, brain and spinal cord had all been caused at the same time or on different occasions.

Stephens and Miss Mujuru were jointly indicted on charges arising out of the various matters to which we have referred. On 7^th March 2006 at the Central Criminal Court before His Honour Judge Moss, Q.C. Stephens pleaded guilty to one count of assault occasioning actual bodily harm arising out of an assault on a friend of Miss Muthoni, Richard Jones, (count 3 in the indictment) and one count of cruelty to a person under 16 by wilful neglect arising out of his failure to obtain treatment for Ayesha’s broken arm (count 10). On 11^th April 2006 he was convicted unanimously on a number of other counts, including another count of cruelty to a person under 16 arising out of the assaults on his son, Marcus (count 1), one count of common assault arising out of an assault on Miss Muthoni (count 2), one count of causing grievous bodily harm with intent arising out of the fracture of Ayesha’s arm (count 6), a count of murder arising out of the death of Ayesha (count 13) and one count of wounding with intent to cause grievous bodily harm arising out of the attack on Miss Muthoni on 9^th May 2005 (count 15). He was sentenced to life imprisonment and ordered to serve a minimum period of 20 years (less the period of 11½ months he had spent in custody) and to various periods of imprisonment in respect of the other offences to be served concurrently with the life sentence.

On the same occasion Miss Mujuru was convicted unanimously on one count of cruelty to a person under 16 by wilful neglect arising out of her failure to obtain treatment for Ayesha’s broken arm (count 10) and one count of causing or allowing the death of a child (count 12). She was sentenced on each count to a Community Order for 24 months concurrent with conditions of supervision and residence.

Miss Mujuru appeals against conviction on count 12 by leave of the Single Judge who gave leave to argue only one of her grounds of appeal, namely, that concerning the correct interpretation of s.5(1) of the Domestic Violence Crime and Victims Act 2004. She also renews her application for permission to appeal on a second ground relating to the admission in evidence of certain witness statements in respect of which leave was refused.

Stephens appeals against sentence by leave of the Single Judge.

Count 12 of the indictment charged Miss Mujuru with causing or allowing the death of a child contrary to section 5(1) of the Domestic Violence, Crime and Victims Act 2004, the material parts of which provide as follows:

It was the prosecution case that Stephens was a violent and emotionally volatile person who in the past had harmed both his own son, Marcus, and Ayesha, whether out of frustration or vindictiveness, and who therefore posed a significant risk of causing serious physical harm to Ayesha if left alone with her for any length of time. The prosecution also contended that Miss Mujuru was aware both that he had been responsible for hurting Marcus and that he had caused the fracture of Ayesha’s arm by a deliberate act of some kind. Accordingly, it was said that she was aware that he posed a significant risk of serious physical harm to Ayesha and had failed to take such steps as she could reasonably have been expected to take to prevent it.

On 10^th and 11^th May 2005 Miss Mujuru was interviewed by two Family Liaison Officers as a potential witness. In the course of those interviews she described various meetings and conversations she had had with Miss Muthoni at the beginning of April in which Miss Muthoni had told her that Stephens was “not a nice guy” and was “difficult to live with” and in which she implied that he might be difficult with a baby. Later in the same interview she said that Miss Muthoni had told her that Stephens had hurt Marcus many times and that on one occasion he had made him bleed. Miss Mujuru said that when she had asked Stephens about that he told her that the injury had been caused accidentally when he was feeding Marcus. Nonetheless, she accepted that she had become suspicious, despite his denials, and her answers tended to give the impression that she accepted that what Miss Muthoni had told her might be true. Moreover, in the course of the first interview one of the officers had asked her a direct question about Ayesha’s general state of health, to which she replied that she had always been fit and well. She said nothing about any trouble with her arm, or indeed any other injury.

In June 2005 statements were prepared for Miss Mujuru on the basis of those two interviews. They were signed and dated 9^th and 30^th June respectively, but by that time the police had already started to suspect her of involvement in Ayesha’s death and she was interviewed again at length under caution on 7^th and 12^th July. Eventually she was arrested on 30^th August and interviewed again. In the course of those later interviews Miss Mujuru admitted that Ayesha had hurt her arm and explained that Stephens had persuaded her not to take the child to hospital. She realised that if she had taken Ayesha to hospital questions might have been asked that might have led to his being taken into custody. She also said, however, that Stephens had told her that the injury to the child’s arm had been caused when he caught her as she was about to roll off the bed.

At the trial the prosecution applied to put in evidence Miss Mujuru’s two statements and the transcripts of the interviews in May on which they were based, together with materials relating to the later interviews, for the purpose of showing that for some time prior to Ayesha’s death she had known that Stephens was liable to cause the child serious harm if he was left alone with her for any length of time. The application was opposed by her counsel on the grounds that at the time she gave those interviews she was a vulnerable person who did not have the benefit of legal advice or the support of a responsible adult and that it would therefore be unfair to admit evidence of what she had said insofar as it tended to incriminate her. He therefore asked the judge to exclude it in the exercise of his discretion under sections 76 or 78 of the Police and Criminal Evidence Act 1984.

In his ruling the judge found that at the time of the two interviews in May the police had no reason to suspect Miss Mujuru of being involved in any way in Ayesha’s death. He found that she had been interviewed as a potential witness in an appropriate way and that there had been nothing unfair about the way in which those interviews had been conducted. He therefore declined to exclude evidence of what had been said in the course of them. However, he found that by the time the witness statements were prepared the position had, or should have, changed in that there were by then grounds for suspecting her of involvement in Ayesha’s death. He considered that it was wrong to invite Miss Mujuru to sign witness statements when she was coming under suspicion in relation to the matters to which they referred. Moreover, the judge was concerned that she had not been provided with any disclosure prior to the interviews in July. He considered that the whole of the process following the interviews in May had been unfair and he therefore excluded the remainder of the evidence in the exercise of his discretion under section 78 of the Police and Criminal Evidence Act.

Miss Mujuru’s first ground of appeal is that the judge was wrong to admit evidence of the two interviews that took place in May 2005. The single judge refused leave to appeal on this ground and she therefore renews her application before us.

Mr. Finucane Q.C. submitted that the admissions made by Miss Mujuru in the course of those interviews amounted to confessions within the meaning of section 76 of the Police and Criminal Evidence Act 1984. He submitted that at the time her age, the shock following the very recent death of her baby and her relationship with Stephens made her vulnerable and that she did not receive the degree of support to which she was entitled. It would be unfair, ,therefore to allow her answers to be used against her.

The critical questions, it seems to us, are whether Miss Mujuru was mentally vulnerable in any relevant sense at the time of the interviews and whether at that stage the police suspected, or should have suspected, that she had been involved in some way in Ayesha’s death. The judge held a voir dire in the course of which he heard evidence from the interviewing officers and psychiatrists called by the prosecution and the defence. He reached the conclusion that Miss Mujuru’s mental condition was not such as to prevent her understanding the significance of what was said to her or of questions she had been asked. Mr. Finucane accepted that she was not mentally vulnerable in the technical sense, but he submitted that she was mentally vulnerable in the ordinary sense of that expression and should have had the support of a sympathetic and responsible adult who, among other things, could have reminded her of her right to obtain legal advice. Her mother, who was present at the interviews, was not on particularly good terms with her and did not therefore adequately fulfil that role.

We have no difficulty in accepting that on 10^th and 11^th May Miss Mujuru must have been suffering from a degree of shock and distress, as was no doubt apparent to the interviewing officers who conducted the interviews in a sympathetic manner. However, it was important for the police to obtain such information as she could provide as early as possible in their investigation and we do not think they can be criticised for taking the course they did. The judge considered that the interviews had been conducted entirely appropriately and we agree. We do not think that the police had any reason to think that Miss Mujuru’s mother was unable to provide the degree of support she needed or that the absence of someone who might have been more sympathetic towards her made the process unfair. Mr. Finucane pointed out that a person interviewed as a witness, unlike a suspect, does not have the protection of being cautioned and thus of being reminded of the danger of withholding relevant information. That is true, but a potential witness can be taken to be aware of the importance of answering questions honestly and of not withholding information that he or she considers potentially important. It does not require a formal caution to alert a person to the risks that may arise as a result of failing to do so.

As to whether the police had grounds on 10^th or 11^th May for suspecting Miss Mujuru of involvement in Ayesha’s death, it is important to remember that the death had occurred only the previous day at a time when she had apparently been out at work. There was no reason to think that she had been directly involved (as indeed she had not) and at that stage they knew nothing about the broken arm which was only discovered later as a result of the post mortem. Her answer to the question about Ayesha’s state of health must therefore have appeared perfectly innocuous and can have given no reason to think that she might be hiding something. We are satisfied that at the time of these first two interviews the police did not suspect Miss Mujuru of any involvement in Ayesha’s death, nor did they have any reason to do so. It would have been insensitive and wrong for them to have treated her as a suspect and to have cautioned her.

The significance of Miss Mujuru’s answers given on 10^th and 11^th May only became apparent at a later date. Mr. Finucane did not seek to argue that they were not relevant and probative; the only question, therefore, is whether it was unfair in all the circumstances to admit them. In our view it was not and the judge was quite right to allow them to be put before the jury. Although those of her answers which tended to incriminate her amounted to confessions within the meaning of the Police and Criminal Evidence Act, they were not obtained by oppression or as a result of anything that might have tended to render them unreliable. The interview process as a whole was conducted fairly and we are therefore satisfied that the judge was quite right not to exclude the evidence under section 78 of the Act. The renewed application for leave to appeal on this ground is therefore refused.

At the end of the prosecution case a submission of ‘No case to answer’ was made on behalf of Miss Mujuru on the grounds that there was no evidence of a significant risk of serious physical harm to Ayesha within the meaning of section 5(1)(c) of the Domestic Violence, Crime and Victims Act and no evidence that she was, or ought to have been, aware of any such risk. Mr. Finucane submitted that “significant” in that context bore its ordinary meaning , but the judge expressed the view that it meant simply “more than minimal” and rejected the submission.

Prior to the summing up both counsel addressed the judge on the directions to be given to the jury. Mr. Finucane again submitted that they should be directed that a “significant risk” denoted more than a mere possibility of occurrence and carried with it the idea of something noteworthy or of considerable amount or importance, in accordance with the definition in The Oxford English Dictionary. In support of that proposition he relied on the decision in Lang[2005] EWCA Crim 2864, [2006] 1 W.L.R. 2509. The prosecution (then, as now, represented by Mr. Fisher Q.C.) appear to have agreed that the word “significant” should be given its natural meaning and to have supported the suggestion that the jury should be directed in accordance with Lang. However, the judge adhered to the view he had previously expressed and told them that the word “significant” in this context meant “more than minimal”. In due course the jury convicted Miss Mujuru.

Mr. Finucane submitted that the judge’s direction was wrong and did not reflect the correct meaning of the Act. By directing the jury that the risk was to be regarded as significant if it was more than minimal he had set the threshold too low, thereby leaving it open to them to convict Miss Mujuru on an improper basis.

Although he had supported Mr. Finucane’s submission at the trial that the jury should be directed along the lines indicated in Lang, before us Mr. Fisher Q.C. drew attention to one matter in particular which he suggested the court might wish to take into account when deciding whether the judge’s direction was correct, namely, the different legislative context in which the expression is found in this case. In Lang the court was concerned with the construction of sections 225-229 of the Criminal Justice Act 2003 which provide for the court to pass sentences of imprisonment for public protection and extended sentences of imprisonment on offenders who pose a significant risk to members of the public of serious harm through further offending. Since a sentence of imprisonment for public protection involves imprisonment for an indefinite period, it was obviously desirable for the court to give guidance to sentencing judges in terms which included a reminder of the ordinary meaning of the word “significant”, since, if the threshold were set too low, many more offenders might be sent to prison for an indeterminate period than Parliament had intended. Section 5 of the Domestic Violence, Crime and Victims Act 2004, on the other hand, is intended to provide protection to children and vulnerable adults who are at risk of suffering serious physical harm at the hands of those with whom they live. It imposes criminal liability not only on those who cause death, but also on members of the same household who were aware of the risk and have failed to take reasonable steps to protect the deceased from it. It can be argued, therefore, that the purpose of the section would be better served by construing the word “significant” in a broader way.

It is worth noticing that the court in Lang did not seek to give the word “significant” a meaning other than that which it ordinarily bears. It merely drew the attention of judges to its presence and to the ordinary meaning of the word as found in one of the most authoritative dictionaries of the English language. The purpose of doing so was simply to ensure that the presence of the word was not overlooked or its force minimised. In our view the word “significant” is an ordinary English word in general use and we see no reason to think that Parliament intended it to bear anything other than its normal meaning in the section now under consideration. In Brutus v Cozens[1973] A.C. 854 a protester interrupted a match at Wimbledon by stepping on to the court, blowing a whistle and throwing leaflets. Others then followed him carrying banners and placards and play was brought to a halt. The main protester was prosecuted under section 5 of the Public Order Act 1936 for using insulting behaviour likely to cause a breach of the peace. The magistrates dismissed the charge on the grounds that his behaviour was not insulting, but the Divisional Court held that any behaviour which affronted others and evidenced a disrespect or contempt for their rights was “insulting” within the meaning of that section. On appeal the House of Lords restored the magistrates’ decision on the grounds that it was a decision of fact as it would have been if a jury were called upon to decide whether a person had used insulting behaviour. Such a decision could only be challenged on the grounds that it was perverse.

In his speech Lord Reid observed that the way in which the case had been formulated for the opinion of the court appeared to assume that the meaning of the word “insulting” was a matter of law, but he rejected that view in the following terms at page 861:

In our view there is nothing in the Domestic Violence, Crime and Victims Act 2004 to suggest that the word “significant” as used in section 5(1) was intended to bear anything other than its ordinary meaning. It is an ordinary English word in common use and we do not think that it is any less intelligible to the average member of a jury than the word “insulting”. There may be room for disagreement in any given case about whether risk of serious physical harm to the deceased was or was not significant and, if it was, whether the defendant was or ought to have been aware of the fact, but the decision remains one of fact for the jury applying their collective understanding of the word “significant”. In our view, therefore, the judge was wrong to tell the jury that it means “more than minimal”; he should not have sought to define it, for the reasons given by Lord Reid in Cozens v Brutus and, if asked, should have told them to give the word its ordinary meaning.

However, it does not follow that the conviction must therefore be regarded as unsafe. At the close of the prosecution case there was evidence before the jury capable of supporting a finding that Stephens had killed Ayesha by striking her head against a hard object or surface and that there was a very real risk that he might cause her serious physical harm, either deliberately or as the result of some minor act of violence intended to harm her in a less serious way. There was also evidence before the jury capable of supporting a finding that Miss Mujuru knew that Stephens had broken Ayesha’s arm, or had good reason to think that he might have done so, and that she was, or ought to have been, aware that there was a significant risk that he might deliberately harm Ayesha again. If they made those findings, the jury could go on to find that by leaving Ayesha in his care while she went to work Miss Mujuru failed to take such steps as she could reasonably have been expected to take to protect her. In our view, therefore, the judge was right to reject the submission of ‘No case to answer’ and leave the case to the jury. Moreover, this was not, in our view, a borderline case so far as the nature and magnitude of the risk to Ayesha was concerned. There was powerful evidence that Stephens did represent a considerable risk to the child: not only the broken arm, but also the other injuries discovered at the post mortem and his behaviour towards Marcus. There may have been more room for argument about Miss Mujuru’s awareness of the nature and gravity of that risk, but we do not think that by directing the jury that “significant” meant more than minimal the judge created a real danger of their convicting her when they would not otherwise have done so. We are satisfied in the light of the evidence as a whole that the conviction in this case is safe and that the appeal must be dismissed.

Stephens appeals against the minimum term of 20 years set by the learned judge pursuant to section 269 and Schedule 21 of the Criminal Justice Act 2003.

He is 38 years of age and had no relevant previous convictions. There were psychological and neuropsychological reports before the court indicating that he had mild learning disability and was impulsive and of impaired judgment with poor anger control. He had suffered a head injury in a road traffic accident many years before, following which he had received in-patient psychiatric care. Further neurological examination was recommended. However, the judge proceeded to sentence without further reports and in our view was entitled to do so. It seems to us that nothing in those reports substantially affected the decision on the minimum term to be served.

In his sentencing remarks the judge described Stephens as a “self-centred and jealous man with a dangerously short fuse”. He accurately summarised the facts of this series of offences and took the entire history into account in fixing the minimum term. He rightly took a starting-point of 15 years and recognised that the lack of premeditation and the absence of an intention to kill were important mitigating factors. However, he also identified a number of very serious aggravating features and did so in terms which we cannot fault. The most important of these were the very young age of the victim (4½ months) and her consequent vulnerability, the gross breach of trust and the history of violence directed towards her.

Mr. Ross submitted that the minimum term of 20 years set by the judge in this case was out of line with sentences passed in other similar cases and he drew our attention in particular to Attorney General’s Reference No. 106 of 2004 (Shahajan Kabir)[2004] EWCA Crim 2751, [2005] 1 Cr.App.R.(S.) 120 in which a minimum period of 13 years set for the murder of a child aged 10 months was increased to 16 years. He also emphasised the absence of premeditation or of any intention to kill.

We recognise that both lack of premeditation and the absence of an intention to kill may often provide considerable mitigation, but, as has been said on many occasions, each case must be considered on its own facts. It is interesting to note that in Kabir the court wondered whether an even higher figure would be appropriate before increasing the minimum term to 16 years in respect of a defendant who, unlike Stephens in this case, did not stand to be sentenced for any related offences. In Peters [2005] EWCA Crim 605, [2005] 2 Cr.App.R.(S.) 101 this court explained in paragraphs 13-16 of its judgment why an intention to cause grievous bodily harm rather than to kill does not necessarily constitute significant mitigation. It is true that no weapon was used in this case, but the victim was a very young child who was deliberately harmed in a way that caused her death, and in our judgment this element is of little weight in the present case.

Schedule 21 of the Criminal Justice Act 2003, which sets out the general principles to be applied when fixing the minimum period to be served, as well as examples of aggravating and mitigating circumstances, applied to this case by virtue of section 269(5). The Schedule itself says nothing about the relevance of other offences, but section 269(3) provides that the minimum term is to be set by reference to the seriousness of the offence, or of the combination of the offence and any one or more offences “associated with it”. By virtue of section 305 of the Act the provisions of section 161(1) of the Powers of Criminal Courts (Sentencing) Act 2000, which defines an “associated offence” as one in respect of which the offender is convicted in the same proceedings or in respect of which he is sentenced at the same time, applied in this case.

In the light of the entire sequence of violent offences against Ayesha, Marcus and Miss Muthoni, all of which the judge was required to take into account, we cannot accept the submission that the minimum period set by the judge was manifestly excessive, and the appeal is therefore dismissed.