R v BCZ

We make an order under s.45 Youth Justice and Criminal Evidence Act 1999 in relation to the child complainant in this case. No matter relating to that child shall, while he is under the age of 18, be included in any publication if it is likely to lead members of the public to identify him as a person concerned in the proceedings, including, in particular: (a) his name; (b) his address; (c) the identity of any school or other educational establishment attended by him; (d) the identity of any place of work; and (e) any still or moving picture of him.

On 4 October 2024 the Appellant was convicted by a jury at Luton Crown Court (by a majority of 10 to 2) of one count of child cruelty (count 3), before Her Honour Judge Bal Dhaliwal-Thomas. He was acquitted of three other charges: assault occasioning actual bodily harm (count 1); non-fatal suffocation (count 2); and assault by beating (count 4). On 9 December 2024, the same judge sentenced him to an 18 month conditional discharge and made the usual ancillary orders. No issue now arises in relation to sentence.

He now appeals against conviction with the leave of the single judge. The single ground of appeal is that the judge wrongly directed the jury on the ingredients of the offence of child cruelty and that, as a result, the conviction is unsafe.

The Appellant’s wife reported to the police a number of domestic incidents that occurred in the family home in Luton in November 2022. This resulted in three allegations of the Appellant offending against his wife. Those became counts 1, 2 and 4, of which the Appellant was acquitted. It also resulted in count 3, of child cruelty towards the Appellant’s 4-year-old son (to whom we shall refer as the complainant) on 28 November 2022.

The particulars of count 3 on the indictment read as follows (emphasis added):

“[BCZ] on the 28th day of November 2022 being a person who had attained the age of 16 years and having the responsibility for [the complainant], a child under that age, wilfully assaulted the [complainant] in a manner likely to cause the said [complainant] unnecessary suffering or injury to health.”

The prosecution case was that the wilful assault consisted of the Appellant twisting his son’s ear, causing pain which was by its nature likely to cause unnecessary injury or suffering.

To prove the case, the Crown relied on:

The defence case wasthat the act had occurred, but that it did not amount to a wilful assault and was not done in a manner that was likely to cause unnecessary suffering or injury to health. The Appellant gave evidence that, in response to his son slapping him, he grabbed and pulled his son’s ear to a limited extent in order to teach his son a lesson. He did not intend it to hurt and it did not amount to an assault.

Section 1 of the Children and Young Persons Act 1933 provides as follows:

“(1)

If any person who has attained the age of sixteen years and has responsibility for any child or young person under that age, wilfully assaults, ill-treats (whether physically or otherwise) , neglects, abandons, or exposes him, or causes or procures him to be assaulted, ill-treated (whether physically or otherwise), neglected, abandoned, or exposed, in a manner likely to cause him unnecessary suffering or injury to health (whether the suffering or injury is of a physical or a psychological nature), that person shall be guilty of an offence …”

The judge directed the jury in written directions which she read out as part of her summing up. Those written directions offered the following guidance for the jury on the elements of the offence:

“If you are to convict on count 3 on the indictment, the prosecution must prove so that you are sure that the defendant:-

1.

Being a person had attained the age of 16 years

This is not in dispute

2.

And having responsibility for [the complainant], a child under that age

It is not in dispute that the child was under 16 or that the defendant had responsibility for [the complainant].

3.

Assaulted

‘Assault’ means the intentional use of unlawful force.

4.

Wilfully

Means deliberately, in other words, that is by conscious decision.

5.

In a manner likely to cause [the complainant] unnecessary suffering or injury to health

Any degree of suffering or injury to health is enough, but it must be more than a slight fright or some small anxiety.

‘Unnecessary’ and ‘likely to cause’ have their everyday meanings.

It matters not, if no suffering or injury was in fact caused to the child, as the requirement in law is that it is ‘in a manner likely to cause’ such suffering or injury.”

The judge helpfully provided the jury with a route to verdict on all counts. Her route to verdict on count 3 was this:

“ROUTE TO VERDICT FOR COUNT 3

One way to arrive at your verdict is to answer the following questions bearing in mind the definitions given above:

1.

Are we satisfied so that we are sure that the defendant wilfully assaulted [the complainant]?

If no - you will find the defendant Not Guilty of count 3.

If yes – go onto consider question 2.

2.

Are we satisfied so that we are sure that the assault was in a manner likely to cause [the complainant] unnecessary suffering or injury to health?

If no, you will find the defendant Not Guilty of Count 3.

If yes, you will find the defendant Guilty of Count 3.”

Mx Benn represented the Appellant at trial and has submitted grounds of appeal against conviction. They submitted that the judge failed to direct the jury on the mental element of the offence. The sole element of the mens rea addressed by the judge was the requirement for the assault to be wilful (in the sense of intentional), but her directions were inadequate because a further mental element needed to be established in order to convict, namely foresight of harm through the appellant’s actions. Mx Benn relied on a passage in Blackstone’s Criminal Practice 2026 at para B2.171, which itself draws on the leading case of R v Sheppard [1981] AC 394 (“Sheppard”), a case to which we shall come.

The Crown initially disputed the Appellant’s ground of appeal, arguing that there was no misdirection by the judge because foreseeability was not an ingredient of this offence. However, by an amended Respondent’s Notice drafted by Mr Paul Jarvis KC (who did not appear at the trial of this matter) dated 27 October 2025, the prosecution conceded that the judge had misdirected the jury in failing to address the mens rea of this offence. However, the prosecution maintained that this conviction was nonetheless safe.

In response to the prosecution’s amended Respondent’s Notice, Mx Benn submitted addendum written submissions dated 28 October 2025, clarifying the extent of the common ground which had now emerged and challenging aspects of the prosecution’s formulation of the legal directions required to reflect the mens rea. Mx Benn disputed the safety of conviction in light of the acknowledged error in the legal directions. In light of these developments, Mx Benn reformulated the single ground of appeal to contend as follows:

“[The Appellant]’s conviction is unsafe because the jury was not directed that the defendant must have been reckless as to causing unnecessary suffering to the child or injury to the child’s health, which the prosecution had to prove as an element of the offence contrary to section 1(1) of the 1933 Act.”

As can be seen, the four corners of this appeal shifted substantially in the week before the appeal hearing. We were grateful to Mx Benn and Mr Jarvis for their quick responses and helpful submissions. With their assistance, we were able to identify the common ground and crystallise the issues for determination.

None of the arguments which are currently before the Court were put before the trial judge. That is very regrettable. The trial judge did not receive the degree of assistance which she was entitled to expect from counsel.

In this judgment, we will first identify the common ground and outline the reasons put before us for reaching that common ground. Secondly, we will identify the one area of dispute on the law which still divides the parties. Thirdly, and finally, we will consider whether, in light of what are now accepted to have been deficient directions, the Appellant’s conviction is safe.

In Sheppard, the House of Lords considered the meaning of “wilful” as it appears in section 1(1) of the 1933 Act. Lord Diplock (in the majority, with Lord Edmund-Davies and Lord Keith of Kinkel) answered the question raised in that appeal, which involved neglect of a child rather than an assault, in a passage at p 408F:

“The proper direction to be given to a jury on a charge of wilful neglect of a child under section 1 of the Children and Young Persons Act 1933 by failing to provide adequate medical aid, is that the jury must be satisfied (1) that the child did in fact need medical aid at the time at which the parent is charged with failing to provide it (the actus reus) and (2) either that the parent was aware at that time that the child's health might be at risk if it were not provided with medical aid, or that the parent's unawareness of this fact was due to his not caring whether his child's health were at risk or not (the mens rea)."

Lord Diplock appears to have thought that “wilfully” meant the same thing when applied to any one of the five verbs contained in section 1(1), including acts (of assault, ill-treatment, abandonment or exposure) and omission (by neglect), and that the word “wilfully” qualified the manner of that act or omission. Both points emerge from the following passage at p 403C-E (emphasis added):

“… any offence under section 1 requires mens rea, a state of mind on the part of the offender directed to the particular act or failure to act that constitutes the actus reus and warrants the description “wilful”. The other four verbs refer to positive acts, " neglect" refers to failure to act, and the judicial explanation of the state of mind denoted by the statutory expression "wilfully" in relation to the doing of a positive act, is not necessarily wholly apt in relation to a failure to act at all. The instant case is in the latter category, so I will confine myself to considering what is meant by wilfully neglecting a child in a manner likely to cause unnecessary suffering or injury to health.”

The application of this interpretation of the word “wilfully” in the context of neglect was examined further in W (Emma) [2006] Crim 2723, at paras 38, 54-64 and R v D [2008] EWCA Crim 2360, at paras 13-21.

It is common ground that the approach in Sheppard must now be read in light of R v G [2003] UKHL 50, [2004] 1 AC 1034 (“R v G”). That case concerned a different statutory provision, section 1 of the Criminal Damage Act 1971. The issue in that appeal was the meaning of recklessness in the context of that provision. Their Lordships reached a decision which departed from R v Caldwell [1982] AC 341. The point of law certified for the House of Lords was this:

“Can a defendant properly be convicted under section 1 of the Criminal Damage Act 1971 on the basis that he was reckless as to whether property was destroyed or damaged when he gave no thought to the risk, but by reason of his age and/or personal characteristics the risk would not have been obvious to him, even if he had thought about it?”

Lord Bingham (with whom the other members of the committee agreed) referred to the Law Commission’s Working Paper No 31, General Principles: The Mental Element in Crime (published on 16 June 1970), in which a definition of recklessness was proposed in the following terms:

“A person is reckless if – (a) knowing that there is a risk that an event may result from his conduct or that a circumstance may exist, he takes that risk, and (b) it is unreasonable for him to take it having regard to the degree and nature of the risk which he knows to be present.”

He noted that the Criminal Damage Act 1971 had largely followed the Law Commission’s proposals for reform (para 13). He analysed the extensive case law on the meaning of recklessness in various contexts and emphasised that the House was only charged with determining the meaning of recklessness for the purposes of section 1 of the Criminal Damage Act 1971 Act (para 28). He noted that Parliament had substantially adopted the Law Commission’s draft and it could not be supposed that by “reckless” Parliament “meant anything different from the Law Commission” (para 29). He agreed with the Appellants’ arguments (paras 31-40). He answered the certified question, drawing on clause 18(c) of the Criminal Code Bill annexed by the Law Commission to its Report on Criminal Law: A Criminal Code for England and Wales and Draft Criminal Code Bill, Vol 1 (Law Com No 177, April 1989), in the following way (para 41):

“A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to –(i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take that risk.”

Drawing the threads together so far, it is common ground that the judge should have directed the jury about the mens rea for this offence and further that the mens rea included intention or recklessness as to the manner of the assault on the complainant.

The area where a dispute remains relates to the precise content of the recklessness direction. It is agreed that the jury should have been directed to consider whether they were sure that the Appellant either intended or was, in the sense identified by Lord Bingham in R v G, reckless as to whether the manner in which he carried out the assault was likely to cause the child unnecessary suffering or injury to health.

Mr Jarvis conceded that, had the issue of mens rea been fully considered at trial, the prosecution case would have been that the Appellant acted either intentionally or recklessly in this respect. That is, however, to be wise with hindsight because that it not how the prosecution case was put. In light of the Appellant’s evidence about intention (which we shall discuss below), Mr Jarvis accepts that the central issue on this appeal relates to whether the jury was sure that the Appellant had acted recklessly.

In relation to recklessness, Mx Benn submitted that the jury should have been directed that if they were sure that the Appellant was reckless in this respect, they should also have been directed that they needed to be sure that it was unreasonable for the Appellant to have taken the risk that the manner of his assault would cause unnecessary suffering or injury to health; in other words, that the jury needed to be sure of an objective, as well as a subjective, element of recklessness before convicting him. Mx Benn makes that submission based on Lord Bingham’s formulation of the test, set out at paragraph 41 of R v G,which we have cited at paragraph 23 above. Mx Benn submits that the closing words contained in paragraph 41 - “and it is, in the circumstances known to him, unreasonable to take the risk” - qualify both limbs of what has gone before and apply not only when the issue concerns a result (second limb), but also when the issue concerns a circumstance (or conduct element) (first limb). In the context of section 1(1) of the 1933 Act, Mx Benn submits that the question is whether the manner in which the assault (or ill-treatment, neglect, abandonment or exposure) was done was wilful, which is a question more about circumstance (or conduct) than result, and one which falls more appropriately within the first limb.

So, Mx Benn submitted, the issue of recklessness in this case consisted not only of the subjective question going to the Appellant’s awareness of the risk, but also of the objective question of whether, if the Appellant was aware of the risk, it was reasonable for him to take that risk. It was submitted that this reading of R v G was consistent with the view of the Law Commission in its report (Law Com No 177, April 1989), on whom Lord Bingham’s conclusion substantially rested.

By contrast, Mr Jarvis submits that the closing words of the answer given in para 41 of R v G (see above at paragraph 23) qualify only the second limb, so as to apply only where the issue relates to the result of the person’s actions. There is no objective element to recklessness when it arises in the context of conduct or the manner in which something is done. Where recklessness in relation to conduct is at issue, it is sufficient for the jury to be sure that the person was aware of the likely risk of causing unnecessary suffering or injury to health when they acted (or omitted to act) as they did, whether or not that conduct resulted in harm. Mr Jarvis said he was supported in his argument by the 2026 edition of Archbold where it is stated that recklessness “in the subjective sense” set out in R v G is imported into the definition of wilfully (para 17B-51).

To clarify the ambit of the dispute, we invited counsel to agree the recklessness direction which should have been given to the jury in this case and then to set out the additional direction for which Mx Benn argues. This is what counsel helpfully provided:

“[Agreed] Are we satisfied so that we are sure that when he assaulted the child the defendant was aware of the risk that the manner in which he carried out that assault was likely to cause the child unnecessary suffering or injury to health?

[Not agreed] Are we satisfied so that we are sure that in the circumstances known to the defendant it was unreasonable for him to have taken that risk?”

Both counsel accept that, in the 25 years since R v G was decided, this point has not been resolved and remains at large.

We have set out above the directions which were given to the jury. There was no mention of intention or recklessness in relation to the manner in which the assault charged on count 3 was committed. The judge’s explanation of the term “wilfully” as part of that count related only to the deliberate nature of the act. The directions should at least have included the agreed direction at paragraph 31 above, which posed the question whether the jury were sure that the Appellant was aware of the risk that the manner in which he carried out that assault was likely to cause the complainant unnecessary suffering or injury to health.

Mx Benn submitted that the conviction is unsafe, even on Mr Jarvis’ proposed legal approach, because the mens rea of the offence was simply not addressed. All that could safely be inferred from the jury’s verdict was that the jury were sure that the Appellant wilfully applied force to the complainant in the sense that the assault was deliberate or the product of a conscious decision (because that is what the judge directed the jury to consider). No inference about the Appellant’s awareness of risk could be inferred.

Mr Jarvis disputed that, arguing that, if the jury had been directed in the terms he suggested, the jury would inevitably have concluded that the Appellant was aware of a risk that, by his actions, he would cause his son to suffer unnecessarily. He said that that conclusion was unavoidable on the Appellant’s own evidence.

To resolve this dispute, it is necessary to consider the evidence that the Appellant actually gave at trial. The Appellant accepted pinching his son’s ear, but denied this had caused reddening or that, in so doing, he had hurt his son; he said that he had not wanted to hurt his son; he said that he had acted in order to educate his son who, in the course of play-fighting, had slapped or punched him; he said that his son was crying for a different reason (ie because his mother would not open the door for him).

There were some inconsistencies in the Appellant’s evidence, but, at its height, the Appellant maintained that he did not intend to hurt his son, only to censure and educate him. If the jury accepted that explanation as possibly true (and we cannot know whether they did or did not, because they were not asked about that) the issue of recklessness would have been live, because, in that event, the prosecution would have had to prove that the Appellant had been reckless as to the risk (even though the injury was unintended) in order to secure conviction. That is why the arguments on appeal have focussed on recklessness rather than intention.

When it comes to recklessness, however, the Appellant was not asked whether he was aware of a risk that he would cause unnecessary suffering to his son by his actions. He had no opportunity to give his answer, fair and square, on whether he foresaw a risk of harm by his actions. There was a gap in the evidence on what now emerges as a material issue.

There was, in addition, a gap in the directions, which meant that the jury never applied their collective mind to whether the Appellant was aware of the risk of causing unnecessary suffering.

Those gaps cannot, in our judgment, be fairly plugged on appeal. The issue of recklessness was for the jury to determine on the basis of relevant evidence going to that issue. We would usurp the function of a trial and the role of the jury if we made assumptions about what evidence might have been given and what the jury might have decided if it had been given. We accept Mx Benn’s submissions that, even on Mr Jarvis’ legal approach, this appeal must be allowed.

In those circumstances, it is not necessary for us to resolve the interesting point of law identified by the parties. It has waited 25 years already and it will have to wait a bit longer.

We quash this conviction as unsafe.

We doubt the utility of any retrial in this matter, which on any view involves modest offending dating back to November 2022. But it is for the CPS to decide whether to apply for an order for a retrial and they have 7 days to inform this Court of their decision.