Wiltshire & Anor v R

On 20^th April 2017 at the Central Criminal Court the Applicants were convicted of the offence of causing or allowing the death of a child contrary to section 5 of the Domestic Violence, Crime and Victims Act 2004. They were acquitted of the offence of murder. On 18^th May 2017 each was sentenced by the Recorder of London to terms of 11 years’ imprisonment. The Registrar has referred their applications for leave to appeal against sentence to the full Court.

We grant leave to appeal but only on the ground identified at paragraph 44 below.

Rosalin Baker was born in July 1991 and was of previous good character. Jeffrey Wiltshire was born in June 1964, and had 6 convictions for 4 offences of dishonesty committed between 1979 and 1985, which were irrelevant for present purposes. The Appellants (as we now designate them) had a son in April 2014; another child died shortly after being born prematurely in 2015. The family was known to Newham Social Services because Baker had proved unreliable in co-operating with the professionals and failed to attend with her son for health appointments.

Imani, a daughter, was born prematurely on 2^nd June 2016 at nearly 29 weeks’ gestation. She had to remain in hospital until 5^th August 2016 when she was discharged into the care of Baker, on the basis that they live at her sister’s address in Bow. This did not happen, and the two children were placed on the child protection register on 15^th August.

On 1^st September it was agreed that Baker and her children would reside with her mother in Colchester. Whilst at that address Imani was seen by a social worker, health visitor and a nurse, and no injuries or irregularities were observed.

On 19^th September Baker, together with the children, moved from Colchester to stay with Wiltshire at his bedsit in Newham. Imani died there on 27^th or 28^th September 2016. The medical evidence could not establish the precise time of death.

At 9:28am on 28^th September Baker boarded a number 25 bus with Imani in a sling and her son. She was waved off by Wiltshire who gave her a “thumbs up” as the bus moved away. 28 minutes into the journey Baker sought help from passengers on the bus, claiming that Imani had stopped breathing. At least one passenger attempted CPR and paramedics were soon at the scene. Upon identifying evidence of injury, the police were contacted. Imani and Baker were taken to hospital where further attempts were made at resuscitation. Imani was pronounced dead at 11:30am. She died when she was very nearly 17 weeks old but her developmental age was in the order of 4 or 5 weeks.

Baker advised the police that she lived in Colchester and gave details of the father as Leon Wiltshire, a fictitious name also registered on Imani’s birth certificate. She claimed that the father had no contact with them. Baker was arrested at the hospital on suspicion of murder. She gave a prepared statement denying any involvement in causing any injury, and she answered no comment at interview.

Police visited Wiltshire that afternoon at his home address. He stated that Baker had been with him that morning. She had arrived with her children at 8am and left at about 8.30am. He told the police that when they had left home the children had been fine. He denied that he was the father of Baker’s children and claimed that she had been in a relationship with his cousin Leon.

Wiltshire was later arrested on suspicion of murder. At interview he admitted that he was the father of Baker’s children. He said that they had arrived from Colchester on 19^th September and had stayed with him for a little over a week. During that time they had all slept in his double bed. Wiltshire added that Baker had stayed at a friend’s place the previous night and had returned on the 28^th September. He had accompanied them to the bus stop and waved them off. Imani had been alive when they left. Her breathing had been laboured but this had been an issue since her discharge from hospital. Wiltshire also stated that he had noticed that Imani had a swelling above her eye, but they did not take her to hospital because they were scared of Child Protection and that the children might be removed from their care. Their son had also suffered from swollen eyes when he was younger. He denied that he had ever hit Imani or that he ever saw Baker hit her.

The medical evidence at trial was that Imani had been the victim of serious physical violence sustained on at least three occasions. Her injuries comprised a fractured right wrist, at least 40 rib fractures, a fractured skull (in a number of places) and an underlying brain injury. Imani’s brain was found to have an area of contusional injury and subarachnoid haemorrhage in the right parietal lobe at the site of an overlying right parietal skull fracture and bruising in the scalp. In addition there was evidence of fracture to the left parietal bone and left occipital bone. The skull fractures occurred 2-5 days before death. There was also significant damage to the brainstem. The brain injuries were estimated to have occurred 5-7 days before death, although that estimate needed to be considered along with the age of the bone fractures. In addition, older damage was observed in the same or an adjacent area of the brain. There was also one area of bleeding in the muscle of the left eye and two areas in the muscle of the right eye. In the left eye there was an area of fresh retinal haemorrhage. These areas of fresh bleeding were consistent with trauma to the skull. Finally, there was evidence of a possible spinal fracture.

Imani’s external injuries included a purple swelling of the right eyelid, a deep graze under the chin, and a boggy swelling over the right side of the head, above the right ear.

The head injuries were the cause of death. The evidence was that they had been caused by Imani being thrown against the floor or an upright surface. They were of a kind that might be seen following a road traffic accident or a fall from, for example, a first-floor window.

The rib fractures were caused by the chest being squeezed, and were consistent with the body having been shaken on more than one occasion. Some of the rib fractures appeared to be older than the skull and remaining rib fractures.

The wrist fracture was caused by the arm being pulled or twisted. It occurred 4-8 days before death, and was therefore older than the skull fracture and the rib fractures.

The expert evidence was that the injuries would have caused pain and distress to Imani which would have been obvious to the parents. The Crown’s case at trial was that, at the very least, any parent who was not responsible for causing these injuries (assuming that only one parent was involved) must have been aware of the child’s distress, and that no steps were taken to alleviate that distress or protect her from future violence. In our view, these were close to irresistible inferences from the expert evidence.

With the assistance of Mr Duncan Atkinson QC for the Crown given during the course of the hearing, the sequence of events became clearer. The medical evidence established that there were at least three separate events causing injury. First, in chronological order, a shaking event which caused a number of rib fractures. This could not be precisely dated but was after 19^th September 2016. It could not be established that the older brain injury was caused on this occasion. The rib fractures would have caused pain and distress, but in the absence of a transcript of relevant evidence we cannot determine to what extent, for how long and in what circumstances. Secondly, an event which entailed Imani sustaining her skull fractures, underlying head injury, a number of rib fractures and her wrist fracture. This event, or series of events occurring on the same occasion, took place 2-5 days before Imani’s death. We have no doubt that these injuries were immediately distressing to Imani, and therefore obvious to anyone caring for her; but after a period, the length of which has not been specified before us, she fell into an almost unconscious state. The medical evidence was also to the effect that the head injury was fatal and irreversible, and that it was surprising that Imani survived for so long. The facial swelling arose as a result of the trauma which caused the head injury and developed over time. Thirdly, and much closer in time to Imani’s death, she suffered further fractures and/or re-fractures to the ribs.

The pre-sentence report on Wiltshire stated that he was continuing to distance himself entirely from any culpability. He was a long-term user of heroin and cocaine, and claimed that the night before Imani died he had been smoking cannabis and drinking rum. The evidence from neighbours called at the trial was that he was at home with Baker and the children. Wiltshire had suffered some sort of mental health breakdown in 2009, and there was evidence of bipolar illness, depression and diabetes. He had 25 children from 18 different women, all bar 6 were under 18, and he remained in contact with his 23 surviving children.

The pre-sentence report on Baker stated that she minimised her responsibility for the offence and placed most of the blame on Wiltshire. She told the probation officer that she found Imani dead at between 7-8am on the morning of 28^th September, and noted the presence of bruising and swelling. She accused Wiltshire of killing Imani. Feeling under immense pressure, she reluctantly complied with his plan to conceal the circumstances of the death. In the opinion of the probation officer, Baker put her needs, and those of Wiltshire, before the needs of their children. It was noted that Baker had never properly bonded with her daughter.

The toxicological evidence was that whilst responsible for Imani each Appellant had been under the influence of class A drugs.

In his sentencing remarks the Recorder held that these injuries were suffered on three occasions all of which took place after 19^th September and entailed the application of significant force. He recognised the difficulties in dating these injuries and identifying the precise sequence of events. In his view the skull fractures, the wrist injury and some of the rib fractures were caused on the same occasion. The remainder of the rib fractures were caused on an earlier occasion. The Recorder did not specify which injuries were sustained on the third occasion, but we are content to proceed on the basis of Mr Atkinson’s explanation.

The Recorder concluded that Baker had never bonded with her daughter. She had visited her only 20 times over the 63 days she had been kept in hospital before her discharge on 5^th August. She lied to the authorities about where they were living because she had wanted to live with Wiltshire knowing that social services had not permitted this.

The Recorder stated that Wiltshire had never visited the deceased in hospital, thereby showing a complete lack of interest in her. He knew that the children were not allowed to live with him.

Both Appellants had put their interests ahead of those of Imani at all times. Both Appellants had lied throughout and no reliance could be placed on anything they said. Whoever inflicted the injuries must have intended at the very least to cause Imani really serious bodily harm. If he was wrong about that, the Recorder stated that this would be a very serious case of manslaughter.

The Recorder stated that he would sentence the Appellants on the basis that each of them allowed Imani’s death rather than caused it. Further:

“Again, to exercise appropriate caution, I shall proceed on the basis that each defendant ought to have been aware of a significant risk of really serious harm being caused to Imani, and then failed to take such steps as she or he could reasonably have been expected to take to protect Imani from that risk. Of course, that consequence did come to pass, and Imani died as a result. The steps required to protect her were very basic indeed.”

The available mitigation for Baker was that she was still relatively young and had no previous convictions. The Recorder did not accept that Wiltshire had regularly assaulted and abused her over a period but accepted the possibility that this may have occurred on occasion. The Recorder accepted that Baker grieved for Imani and would now miss a relationship with her son. However, she had failed to co-operate with so many people and agencies who had tried to help her.

The available mitigation for Wiltshire was that he had not been in trouble for many years. The Recorder did not accept Wiltshire’s evidence in which he minimised his contact with Imani. He had ample opportunity to appreciate changes in her behaviour and health, and ought to have done. He had fathered 25 children, was much more mature that Baker, and held the upper hand in the relationship.

Having taken all matters into account the Recorder found no reason on the evidence to draw any distinction between the Appellants for the purpose of sentence. From 19^th September onwards their failures were equally bad and equally significant. That conclusion was reinforced by the way they both behaved after Imani’s death, which the Recorder described as a “cynical charade”. Baker’s account that she was simply overwhelmed by events could not be accepted.

In the Recorder’s view, the present cases were more serious than R v Ikram and Parveen [2009] 1 WLR 1419 where this Court upheld sentences of 9 years’ imprisonment, noting that although severe they were not manifestly excessive or wrong in principle. The Recorder placed particular weight on the conduct of both Appellants after Imani had died, and stated that this death, as had been the position in Ikram and Parveen, “occurred in circumstances of murder or very close to it”.

Wiltshire’s grounds of appeal, as advanced both in writing and orally by Mr Icah Peart QC, are that the sentence of 11 years’ imprisonment is manifestly excessive because:

In oral argument Mr Peart developed his grounds. As for the first ground, he submitted that the Recorder failed to adhere to his finding of fact that Wiltshire was not subjectively aware of the relevant risk: his culpability was lower because he merely ought to have been aware of it. In such circumstances, the level of culpability was also lower than it would have been had Wiltshire caused Imani’s death. As for the second ground, Mr Peart’s point was that the Recorder paid insufficient regard to emotional dependency. As for the third ground, Mr Peart submitted that Wiltshire’s culpability was lower than Baker’s because Imani was only in his company for some 16 days.

Baker’s principal ground of appeal, as advanced both in writing and orally by Mr Ian Henderson QC, is that the Recorder, having expressly determined to sentence her on the basis that she ought to have known of the risk but failed to take reasonable steps to prevent it, arrived at a manifestly excessive sentence in all the circumstances. The maximum sentence under the 2004 Act is one of 14 years’ imprisonment. Having regard to Baker’s culpability, and despite the aggravating features of the case, including the fact that the death involved criminality which amounted to murder or something close to it, and the behaviour of both Appellants after the event, the starting-point here should have been in a significantly lower bracket.

In oral argument Mr Henderson emphasised that offences under section 5 of the 2004 Act fell on a spectrum of gravity, with causing death being the most serious (and within that there could be a range covering murder, manslaughter close to murder, and less serious manslaughter), and allowing death without having subjective knowledge of the risk being the least serious. Allowing death with subjective knowledge of the risk occupied the middle of this spectrum. Mr Henderson submitted that the present case falls into the least serious category. He also emphasised that other decided cases of allowing death were predicated on subjective awareness of the risk having been established.

Unlike Wiltshire, Baker does not take a specific point on disparity. Further, Mr Henderson does not criticise the Recorder for holding that the circumstances of the death involved criminality which amounted to murder or close to it. Despite this tension between the respective grounds of appeal of both Appellants, we have given separate consideration to them.

We have already mentioned Ikram and Parveen. In that case the child, who was 16 months old when he died, had sustained a fracture to his left tibia. Within 12 hours of his death she suffered a fracture to his left femur and various other injuries; the immediate cause of death was a pulmonary fat embolism originating in or near the fracture site. The judge sentenced both defendants on the basis that it could not be established who caused the fatal injury or injuries, but the individual who allowed the child’s death knew of the risk that grievous bodily harm would be inflicted yet failed to take any steps to prevent it (paragraph 68). An additional feature of the case was that the injuries were sustained in a “brutal attack” and the death occurred in circumstances which were close to murder, or manslaughter of the most serious kind (paragraph 69).

The Court of Appeal, Sir Igor Judge P (as he then was) presiding, enunciated several principles of general application at paragraph 67 of its judgment:

“We repeat that section 5 of the Act created a new offence. It provides a route to conviction whenever the jury are unable to say which of two (or sometimes more) defendants, caused or allowed the death of a child or vulnerable adult. Even if the identity of the person responsible for the fatal injuries cannot be established, the possible range of culpability, both in relation to the circumstances in which death occurred and as between the different defendants, is very wide. The victim may have been killed in circumstances which amount to murder. Culpability for the death may also encompass all the levels of manslaughter, both at the higher and towards the lower end of the scale. In the present case for example, it is difficult to imagine the state of mind which impelled the deliberate forced fracturing of the left femur on the leg which had only recently been subjected to a fracture of the tibia which was less than an intention to cause really serious bodily harm. At the same time the defendant who allows the fatal injury to be inflicted may on the evidence be very close to an accomplice to virtually but not quite the full extent of that violence, or a doomed pathetic individual, so dominated by the other defendant, that notwithstanding his awareness of the risk that really serious bodily harm might be inflicted on the victim, lacked a will of his own. Wherever the case may fall in terms of the culpability of the perpetrator, a conviction of the section 5 offence means that it has been established that the defendant who failed to protect the victim either appreciated or ought to have appreciated that there was a significant risk that the victim would endure serious harm at the hands of the ultimate perpetrator, in circumstances which that defendant foresaw or ought to have foreseen. Although section 5 of the 2004 Act created a new offence, its link with manslaughter is clear, and the general approach to sentencing in manslaughter cases provides useful assistance to the court considering the sentencing decision after conviction of the section 5 offence.”

As we have already said, on the facts of that particular case it was clear that both defendants were aware of the risk that grievous bodily harm would be inflicted on the child.

We observe that, given that the range of culpability is very wide, each case must be seen as very much fact-specific. Ikram and Parveen is not a guideline case. Given that the Court of Appeal specifically stated that the general approach to sentencing in manslaughter cases is applicable to this statutory offence, we also point out that in December 2009, and after Ikram and Parveen was decided, the Court of Appeal increased the level of sentences in unlawful act manslaughter cases in Attorney General's Reference (No 60 of 2009); R v Appleby R v Bryan and another R v Cowles and another [2009] EWCA Crim 2693. In our view, there is no reason to confine this authority to unlawful act rather than gross negligence manslaughter.

The Court of Appeal returned to this topic in Attorney General’s Reference (R v Mills and others) [2017] 2 Cr. App. R. (S.) 7, a case involving the death of a vulnerable adult. At paragraph 40 of the Court’s judgment Hallett LJ, Vice-President of the CACD, re-emphasised that each case turned on its own facts, and that all the circumstances had to be considered:

“Causing or allowing a child or vulnerable adult to die is a serious offence, in some cases as serious an offence as the most serious offence of manslaughter. It is an offence that can be committed in a wide variety of circumstances and for the purposes of sentence, an offender's culpability must be assessed very carefully. This will involve an assessment of all the circumstances including the nature of the relationship between the offender and the victim and the nature of what Mr Cray called the breach of duty towards the victim. We were not persuaded that any greater emphasis should necessarily be placed on the nature of the relationship (as the offenders argued) or on the nature of the breach of duty (as Mr Cray argued). They may be both equally relevant.”

Again, on the facts of Mills it was clear that the defendants had subjective awareness of the risk: see paragraphs 42 and 46 of the judgment.

In R v Petherick [2013] 1 Cr. App. R. (S.) 116 the Court of Appeal, Hughes LJ presiding, set out a number of observations of a general nature applicable to the sentencing of offenders with children and the Article 8 rights of all relevant parties. In our view, the seventh and eighth of these observations are particularly relevant here:

“Seventh, the likelihood, however, of the interference with family life which is inherent in a sentence of imprisonment being disproportionate is inevitably progressively reduced as the offence is the graver and M v South Africa is again a good example. Even with the express Constitutional provision there mentioned, the South African Constitutional Court approved the result in which in one of the cases a sentence of four years was necessary upon a fraudulent mother, despite the fact that she was the sole carer for a number of children who were likely to have to be taken into care during her imprisonment - see paragraphs 43 to 44. Likewise, in HH, the majority of the Supreme Court was satisfied that there was no basis on which the extradition to Italy could be prevented of a father who was in effect the sole carer for three young children, but who had been a party to professional cross border drug smuggling. His extradition of course meant not only his imprisonment, but his imprisonment too far away from the children's home for there to be more than the most rare of contact.

Eighth, in a case where custody cannot proportionately be avoided, the effect on children or other family members might (our emphasis) afford grounds for mitigating the length of sentence, but it may not do so. If it does, it is quite clear that there can be no standard or normative adjustment or conventional reduction by way of percentage or otherwise. It is a factor which is infinitely variable in nature and must be trusted to the judgment of experienced judges.”

Although separate points are raised, these applications for permission to appeal may be taken together.

The majority of the grounds raised are not arguable and we refuse permission in relation to them. The Recorder never lost sight of the fact that he was sentencing each Appellant on the basis that she or he allowed the death of Imani rather than caused it. In a case where the culpability of the perpetrator was high (“close to murder, or manslaughter of the most serious kind”), the culpability of the individual who allowed this to take place was likely to be higher because, as Sir Igor Judge P. has explained, there was a failure to accord the child “appropriate protection from awful, foreseeable violence”. This, we reiterate, is not to equate the person who allows the death to occur with the perpetrator.

Nor is there anything in the submission that insufficient regard was paid to the impact of length of sentence on Wiltshire’s 23 surviving children. The degree of emotional support could not have been considerable. In any event, this was such a serious case, inevitably requiring a lengthy prison sentence, that any reduction to reflect the position of Wiltshire’s children could not be warranted.

Further, there is no merit in the submission that Wiltshire should have received a lower sentence given his lesser caring role. The Recorder was well placed to assess the respective culpability of both Appellants following a contested trial. The fact remains that all of Imani’s injuries were sustained at a time when she was living with her parents at Wiltshire’s bedsit.

The issue which causes some difficulty, and on which we grant permission to appeal, is whether the Recorder gave sufficient weight to his anterior finding that each Applicant ought to have been aware of the significant risk of serious harm being caused to Imani, as opposed to being subjectively aware of it. This point featured in Mr Peart’s submissions somewhat late in the day although it had always been at the forefront of Mr Henderson’s grounds. We are grateful for Mr Atkinson’s assistance upon it.

This is a case with numerous aggravating features. Imani was defenceless and extremely vulnerable. Both Appellants were in a position of trust towards her which they grossly abused. Imani’s injuries were sustained on at least three occasions during the relatively short period she was living at Wiltshire’s bedsit in Newham. The family were all sleeping in one double bed, and Imani’s condition at all material times must have been patent to both Appellants. For 2-5 days after Imani suffered her head injuries, she was comatose or close to being so, but no action was taken to obtain medical help. The fact that Imani could not have been saved does not reduce the strength of this aggravating factor. Even in that condition, Imani suffered further rib injuries which could have been prevented. Further, the Appellants must have colluded with each other to deceive social services, and the “cynical charade” on the bus aggravated the offence to a substantial extent. It amounted to clear evidence of attempted cover-up, however unlikely it was to be successful, threw light on their overall state of mind and attitude at an earlier stage when Imani was alive, and caused distress and panic to a number of members of the public who must have been shocked and appalled by what was unfolding, or apparently unfolding, before them.

Furthermore, the Recorder was extremely well-placed to assess both Appellants having presided over their trial. His assessment that the present case is a serious example of its type must be accorded considerable weight.

However, we accept Mr Henderson’s submission that there is a difference for the purposes of sentence, but not conviction, between cases of actual and constructive knowledge. Section 5(1)(d) of the 2004 Act provides:

“(d)

either D was the person whose act caused the death or serious physical harm or –

(i)

D was, or ought to have been, aware of the risk [of serious physical harm being caused];

(ii)

D failed to take such steps as he could reasonably have been expected to take to protect V from the risk; and

(iii)

the act occurred in circumstances of the kind that D foresaw or ought to have foreseen.”

The Recorder stated that he was exercising caution in sentencing the Appellants on the basis that each ought to have been aware of a significant risk of serious harm being caused to Imani. His reasons for coming to that conclusion are not spelt out, although he was giving them the benefit of the doubt. In this regard we should also add this important qualification to Mr Henderson’s analysis. The issue of constructive knowledge does not raise a unitary question: matters of fact and degree always arise. The “doomed pathetic individual” mentioned by Sir Igor Judge P. will be low down on the scale of culpability. There are other situations where a defendant, although lacking the awareness required by the first limb of section 5(1)(d)(i), only just falls short of doing so. In our judgment, the present case is precisely such a situation.

No doubt the reason why the Jury convicted both Appellants is that they were able to draw inferences applicable to all elements of the charge – on the subordinate premise that death was allowed rather than caused – from all the available evidence, including what happened after the fatal injury was sustained and, indeed, after Imani had died.

Even so, for present purposes we cannot and do not proceed on the basis that the Recorder’s cautious approach was incorrect and should be reconsidered. Mr Atkinson for the Crown did not invite us to do so. The Recorder stated in terms that the present case is more serious than Ikram and Parveen, but in our view it is unnecessary to make that judgment, save to observe that the second factor identified by the Recorder as rendering this case more serious – the death occurring “in circumstances of murder of close to it” – was also a feature of that case.

Our overall approach is not to apply previous authority of this Court as if it were a guideline case. It is not. Instead, we have had regard to all the relevant circumstances, including the nature of the relationship between the Appellants and the victim, and the nature of the breach of duty, as well as the aggravating and mitigating factors we have previously identified.

In our judgment, the Recorder gave insufficient weight to his finding that this was a case of constructive knowledge, albeit one which, as we have already said, was at the upper end of the spectrum of gravity applicable to such cases. We have also enumerated all the aggravating factors, at least one of which was highly unusual. We are accordingly persuaded that the sentences he imposed were manifestly excessive. The correct sentences in this case are 10 years’ imprisonment for each Appellant. Accordingly, we allow the appeals, quash the sentences of 11 years’ imprisonment, and for them substitute sentences of 10 years’ imprisonment.