Thursday, 23 July 2020

Physical harm to a child ~ conviction quashed

On 6 December 2019 in the Crown Court at Durham (Judge Adkin and a jury) the appellant (RN) was convicted of two counts of causing or allowing serious physical harm to a child contrary to section 5 of the Domestic Violence Crime and Victims Act 2004 (Counts 1 and 2). RN's appeal against conviction  has been allowed.

RN v R [2020] EWCA Crime 937 - Vice-President of the Court of Appeal (Criminal Division) Fulford LJ, Garnham and Farbey JJ.

Section 5 (as amended from 2 July 2012 by the Domestic Violence Crime and Victims (Amendment) Act 2012) is the offence
of "Causing or allowing a child or vulnerable adult to die or suffer serious physical harm."

Section 5 originated from Law Commission proposals published in September 2003  - “Children: their non-accidental death or serious injury (criminal trials)" - together with a report by the NSPCC "Which of you did it?" published in autumn 2003.

A potential source of difficulty with section 5 is that it provides for two alternative ways in which, what is in law a single offence, can be committed. The defendant (D) could be either the person whose act caused the death or physical harm OR could be a person who failed to take such steps as he could reasonably have been expected to take to protect the victim. The prosecution does not have to prove which alternative actually applies. It will suffice if the jury find D guilty under either of the alternatives.

In RN's case, the judge provided the jury with a written "route to verdict" on each of two counts under section 5. Count 1 related to fractures suffered by a baby. Count 2 related to brain injury suffered by the baby. The route to verdict on Count 2 read:

Count 2
Q1 Are we sure that RN caused the fresh subdural brain bleed? If Yes then she is guilty of count 1 and you would not need to consider Q2, if no. i.e. you are not sure she caused the subdural brain bleed then go to Q2.
Q2 Are we sure that RN was aware (or ought to have been aware) that there was a significant risk that H would be caused serious physical harm by being assaulted by another ( here CM) and she failed to take steps to protect H from serious violence. If you are sure she was aware of that risk and failed to protect H then she is guilty, if you are not sure then she is not guilty.
A similarly worded route was provided for Count 1.

On 5 December 2019, the jury acquitted RN under Count 2.  RN's partner - CM - was convicted under Count 2.

Due to circumstances explained in the Court of Appeal judgment, on 6 December the jury returned verdicts under both counts of Guilty in relation to both defendants. Thus, RN was acquitted on Count 2 one day and convicted the next !


There are some instances where juries, having pronounced a verdict, have been allowed to change it. The general principles (as derived from older cases) are set out in the Court of Appeal's judgment in R v Paul Andrews [1986] 82 Cr App R 148.

"It seems to this Court, both on those two authorities (Parkin [1824] 1 Mood. C.C. 45; 168 E.R. 1179 and Vodden [1853] Dears. C.C. 229; 169 E.R. 706) and as a matter of general principle, that the position in law is as follows: where the jury seeks to alter a verdict which has been pronounced by the foreman, the judge has a discretion whether to allow the alteration to be made. In exercising that discretion he will, it goes without saying, take into account all the circumstances of the case; in particular the important considerations will be the length of time which has elapsed between the original verdict and the moment when the jury express their wish to alter it, the probable reason for the initial mistake, the necessity to ensure that justice is done not only to the defendant but also to the prosecution. The fact that the defendant has been discharged from custody is one of the factors but is not necessarily fatal to the judge's discretion to alter the verdict to one of guilty. If the jury have been discharged and a fortiori if they have dispersed, it might well be impossible for the judge to allow the verdict to be changed. That however it is unnecessary to decide upon the instant appeal. Clearly if there were any question of the jury's verdict being altered as a result of anything they heard after returning their initial verdict, then there could be no question of allowing a fresh verdict to be returned."

In RN's appeal, the Court of Appeal held that it was not a clear-cut instance of a jury indicating that there had been a mistake in the way the verdicts had been delivered, with that indication being provided promptly and the matter being resolved in circumstances which excluded the possibility of any further deliberations and a change of mind.

In all the circumstances, the court could not exclude the possibility that the jury's verdicts, as finally delivered, may have been influenced by things they heard or discussed after the original acquittals.

RN's appeal was allowed. Given that the acquittals on Counts 1 and 2 should not have been reversed, there was no question of a retrial.

RN's partner - CM - who was convicted on both Counts received two concurrent terms of 9 years' imprisonment.

23 July 2020

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