R v SGQ

The provisions of section 45 of the Youth Justice and Criminal Evidence Act 1999 are engaged in this case because the victim, whom we shall refer to as "V", is a child whose welfare the court is required to consider. Restrictions imposed under section 45 in respect of a victim, witness, or defendant apply only until that individual reaches the age of 18. Because of the nature of this case and the risk of jigsaw identification of V, the name of the appellant has been anonymised by the use of randomly generated initials in the listing of the case.

On 29 January 2025, following a trial in the Crown Court at Norwich, the appellant was convicted of causing or allowing a child to suffer serious physical harm, contrary to section 5 of the Domestic Violence, Crime and Victims Act 2004. On 28 March 2025 she was sentenced to nine months' imprisonment suspended for 24 months, with a rehabilitation activity of up to 15 days.

The appellant now appeals against that conviction with limited leave of the single judge. In giving leave on certain of the grounds only, the single judge noted that additional and/or improved transcripts were required in order properly to consider part of the appellant's ground 2 as well as ground 4 and he referred the application for leave in respect of those grounds to the full court.

V is the appellant's son. At the time of the events we are dealing with V was a very young baby, just ten weeks old. He had been born by emergency Caesarean section in October 2018. The appellant also had an older son, aged around 18 months at the time.

In the early hours of the morning on 29 December 2018, the appellant took V to hospital, having called 111 shortly before to report that his right leg seemed bent and that he cried when she touched it. Following examination, he was found to have a displaced spiral fracture of the mid shaft of his right femur (upper thigh bone). Social Services were called and further assessments of V were carried out. It was discovered that V had sustained other injuries: a metaphyseal fracture of the left distal femur (thigh bone towards the knee), a metaphyseal fracture of the left proximal tibia (shin bone towards the left knee), and a metaphyseal fracture of the right proximal tibia (shin bone towards the right knee).

Paediatric radiologists reported that:

The appellant and her partner, V's father, were subsequently arrested and interviewed. Both denied causing any injury to V. The appellant said that she had noted that V’s hip was swollen and that she had tried gently to straighten out his leg, which caused him to cry. She was interviewed again following receipt of the medical evidence. She maintained her denial that she had not caused V's injuries. She said that on 28 December she had left V alone for an hour or two with the co-accused and returned home to see that V's leg was swollen.

At trial the prosecution relied on the following evidence:

Prior to it being conclusively established, during the course of the defence evidence, that the appellant had gone to Tesco's with her mother on the afternoon of 28 December, the prosecution had sought to suggest that both defendants had lied about the appellant’s absence from the home for two hours that afternoon.

The defence case for the appellant at trial was one of denial. It was submitted that there was no evidence that one parent or the other had caused the injury. There was, however, ample evidence of:

The appellant gave evidence that although the co-accused was not the biological father of her eldest son, they had resumed their relationship whilst she was pregnant, and he had been happy to raise the child as his own. They moved into their own flat and she had become pregnant with V. She said that she had struggled with the second pregnancy and that V had been born by emergency Caesarean section. The co-accused returned to work once V was around three weeks old and was out of the house from around 6 am to 6 pm. She said that V was a quiet baby who seemed to cry only when his nappy needed to be changed. Her evidence was that she did not see or notice anything prior to 28 December to suggest that V might have been injured.

The appellant said that she had spent Christmas with the co-accused, the children and her family. She had spent most of the day on 28 December at home but had gone out in the afternoon with her mother to the Tesco supermarket. She was away from the house for around 90 minutes to two hours, during which time the children were left in the care of the co-accused. After returning home she noticed, at around 5.30 pm, that V was a little unsettled and was crying on and off. She thought that he was hot, so she undid his Babygro and noticed that his leg was in an unusual position. When she tried gently to straighten it out, he cried. She had taken a couple of photographs of him – the last of which was at 8.42 pm. She denied that she had hurt V that evening. She called her mother and the non-emergency number 111 at that time. Following their advice, she later took V to hospital. She had been shocked when she found out about the hip injury and asked nurses on the ward if it might have been caused at birth. She denied that she had been searching on the internet for the causation of unexplained fractures to babies because she knew that she had caused the injury. She said that she had no idea how the injury had been caused; and her internet searches were based on things that had been mentioned at the hospital or that she had overheard when the medical staff were discussing the incident. She denied that she had done anything to harm V at any stage from his birth until his admission into hospital. She stated that she had never seen the co-accused handle either child in a rough manner. She denied that the messages which she had sent to the co-accused demonstrated that she had been struggling to cope with caring for the children.

The appellant also relied upon the following:

The issues for the jury in relation to the appellant were whether they were sure that:

At the close of the prosecution case the appellant and her co-accused applied to have the case dismissed for lack of evidence. Defence counsel submitted that the prosecution could not show which of the two defendants had caused the injuries and that both must therefore be considered as "allowers". As the prosecution's case was that all the fractures, spiral and metaphyseal, were serious injuries for the purposes of the charge, there was no evidence to demonstrate (i) that at the time serious harm was suffered, there was a significant risk of serious harm being caused to V by the unlawful act of another member of the household, or (ii) that either defendant (on the basis that both were to be considered as "allowers" rather than "causers") was or ought to have been aware of the risk of serious harm to V.

There was a discussion between counsel and the judge prior to his ruling in which the judge pointed out that the difficulty appeared to be in the way the prosecution had advanced its case, by relying on all the injuries as serious injury for the purposes of the single count. If the case were to be advanced on the basis that the most recent (and most serious) injury, being the spiral fracture of the right femur, was the serious injury then the earlier metaphyseal injuries would constitute evidence of pre-existing risk. The judge also suggested to prosecuting counsel that there was good evidence which indicated that it was the appellant who had caused the injuries, and he allowed the prosecution time to consider amending the indictment to add a section 20 charge against the appellant in respect of the spiral fracture.

We have seen the transcript of the further discussion prior to the judge's ruling. The prosecution applied to amend the indictment, to add a count of inflicting grievous bodily harm against the appellant, which Mr Rasiah KC, for the appellant, firmly resisted, essentially on the basis that it was prejudicial to the appellant for the case to be altered by including a charge of assault at this stage of proceedings.

In his ruling the judge refused to allow the amendment and dismissed both defence applications, holding that there was sufficient evidence to establish the necessary elements of the section 5 offence, whether as "causer" or "allower", for both defendants.

Mr Rasiah KC, who appeared for the appellant at trial, advances four grounds of appeal: first, that there was insufficient evidence and that the judge should have stopped the case (grounds 1 and 3); next, that the judge entered the arena by inviting the prosecution to change their case (ground 2); and lastly, that the summing up was imbalanced (ground 4).

In relation to the first ground, Mr Rasiah submitted that the prosecution, in opening, had "properly conceded" that the evidence did not prove which of the two defendants inflicted the fractures which V had sustained. The defendants could only have been convicted as "allowers" and, as such, there was insufficient evidence to prove that either the appellant or the co-defendant knew or ought to have known of a significant risk of serious harm being caused to V at the hand of the other. Given the expert evidence as to the likely effect on V of any of the metaphyseal fractures (short-lived fractiousness or "grizzling") a non-perpetrator could not have been expected to have realised that the baby had been injured. On this basis there was no case to answer against either defendant, and the judge had been wrong to invite the prosecution to change its case to allege that the appellant had been responsible for all of the injuries. Moreover, the judge had done so at the time when the prosecution were relying on what it said was a false account of the appellant going with her mother to Tesco for two hours on the afternoon of 28 December. Yet when this was demonstrated to be a true account, the judge had not re-visited his earlier decision.

The section 5 offence was introduced in order to deal with the situation where a child is killed or seriously injured in a home where two or more adult care-givers are present and it is impossible to say which has caused the death or serious injury. For present purposes, the relevant parts of section 5 of the 2004 Act are:

For simplicity, in this judgment we have referred to a person who has caused the death or serious injury as a "causer", and a person who has allowed it to happen as an "allower".

There are two aspects of these provisions that are particularly germane to the case before us. First, there is the requirement under section 5(1)(c) for the risk of serious physical harm to be present at the time of the act causing death or serious injury. The risk might arise from a pre-existing circumstance or a circumstance occurring at or shortly before the time of the act causing death or injury. The act itself may create the significant risk, for example a parent assaulting a baby by twisting and pulling on the baby's leg would be risking a serious injury to the baby. It is not necessary, in respect of a perpetrator, for the prosecution to prove a pre-existing risk: see R v Jamal [2026] EWCA Crim 135.

The second point of note arises from sub-section (2): the prosecution does not have to prove whether a particular defendant is a "causer" or an "allower". There are additional elements of which the jury needs to be satisfied in order to convict a defendant as an "allower" (the requirements under sub-section 5(1)(d)(i) – (iii)), but the prosecution does not have to prove whether a particular defendant caused the death or injury or allowed it. The fact that the prosecution in this case charged the appellant (and her partner, the co-accused) with the section 5 offence, rather than a substantive assault, did not preclude the jury from concluding that the appellant caused the spiral fracture to V (if that is what they did).

Looking at the prosecution Opening Note and comparing it to the way in which the case was summarised by the judge in his summing up, there does not appear to us to be a great difference. The prosecution did not tell the jury in their opening that "the evidence was insufficient to prove that the appellant caused serious harm to V", as Mr Rasiah submitted. Paragraph 2 of the Opening Note reads:

There was nothing in that passage about there being insufficient evidence to say who had caused the injuries.

What does appear to have happened is that the prosecution initially sought to suggest to the jury that all of the fractures were to be considered as serious injury for the purposes of the section 5 offence. However, by the time of the summing up the position had changed, such that the prosecution relied on the last, most serious, spiral fracture as the serious injury for the purposes of the offence, pointing to the earlier metaphyseal fractures as putting either defendant (if the jury thought she (or he) were not the causer) on notice of a significant risk as required by the provisions of section 5(d)(i) – (iii). The judge summarised the prosecution case to the jury in this way:

The judge's route to verdict, which we commend for its clarity, followed the same approach:

As is apparent from the summing up and from the judge's directions, it was not the prosecution case to the jury that it was the appellant who had caused the injuries, nor did the judge make any such suggestion to them. The directions which he gave applied to both defendants equally. It was for the jury to determine whether they were satisfied that one or other, or both of the defendants had either caused or allowed the infliction of the spiral fracture to V's right femur.

There appears to us to have been ample evidence from which a properly directed jury could find the appellant guilty whether as "causer" or as "allower":

The shopping trip to Tesco's on the afternoon of 28 December does not alter the position, since there was plainly an evidential basis for the jury to conclude that the spiral fracture occurred after the return from that trip (see above). After the appellant's return there was no suggestion that the co-accused had been alone with V, rather it was the appellant who took him and changed him, straightening his leg and causing him to cry.

The comments made by the judge when considering the defence submission of no case to answer were in the course of a discussion about the evidence and the state of the case. Such discussions are common, particularly in cases such as this. We can understand why what the judge said could have been seen as an invitation to the prosecution to amend the indictment to charge the appellant with assault; likewise the concern that, in doing so, he had strayed from a strictly neutral role. But in the event the judge refused the application to amend, and the prosecution case remained a section 5 case against the appellant and her co-accused equally as "causer" or "allower". As we have said, the change was in how the spiral or metaphyseal fractures were relied upon to make that case.

We turn to the final ground, in which Mr Rasiah criticises the summing up as imbalanced. Having now obtained a more complete transcript, we simply cannot see any justification for such a criticism. Mr Rasiah made one correction at the start of the factual summing up, which the judge accepted. Neither defence counsel sought to make any further comments or suggestions for correction or amendment at the time. We are quite sure that Mr Rasiah would have drawn the jury's attention to all the key defence points, including the prosecution change of position on the trip to Tesco's, in his closing address. There was no need for the judge to repeat all of those points to the jury in his summing up, as long as he fairly summarised the defence case, which in our view he did.

We grant leave for the remainder of ground 2, as it was appropriate for us to hear all of the arguments on ground 2 together. However, having now obtaining a full transcript of the judge's summing up, we refuse leave on ground 4.

For the reasons we have given, we conclude that the appellant's conviction is safe. The appeal is dismissed.