A jury convicted four household members of causing or allowing serious physical harm to Ambreen Sheikh. The prosecution could not prove who had administered the drug said to have caused her brain injury. The appeal concerned a different question: did an earlier episode of violence have to involve the same method of inflicting harm before the jury could find that the circumstances of the later injury were foreseeable?
Ambreen lived with her husband and members of his family. She was 30 at the time of the events in question.
On 1 August 2015 she was taken to hospital unconscious. Clinicians found severe brain swelling and an earlier serious injury for which she had received no medical attention. The prosecution relied on the earlier injury and the failure to obtain help as evidence of the circumstances in the household.
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The prosecution case
The prosecution alleged that a member of the household had caused serious harm by administering a drug. It said the earlier injury had been inflicted with a caustic substance and would have been apparent to others in the household. It could not identify who inflicted either injury. Section 5(2) of the Domestic Violence, Crime and Victims Act 2004 relieved it of having to prove whether a particular defendant caused or allowed the harm.
The respondents denied that Ambreen was a vulnerable adult, that unlawful administration had been proved, and that the sacral lesion preceded the brain injury. They also said that section 5(1)(d)(iii) was not met: administering glimepiride was a wholly different set of circumstances from applying a caustic substance.
What section 5 requires
Section 5 was created to meet a familiar difficulty. Where a child or vulnerable adult is seriously harmed in a household and the prosecution cannot prove which member caused the harm, or that the members acted together, both may have to be acquitted even though at least one is guilty. The offence can be committed by causing the death or serious physical harm, or by allowing it. On the allowing route, the prosecution must prove that the defendant was, or ought to have been, aware of a significant risk of serious physical harm from an unlawful act by a member of the same household; failed to take the protective steps reasonably to be expected; and that the act occurred in circumstances of the kind that the defendant foresaw or ought to have foreseen.
Awareness and foresight include what the defendant ought to have appreciated, so the jury makes an objective assessment as well as considering actual knowledge. An act includes a course of conduct and an omission, and an unlawful act is one that constitutes an offence.
The ruling and the Court of Appeal
Lambert J held that the evidence was sufficient to go to the jury. She distinguished foresight of the circumstances from foresight of the precise act. The jury convicted the four respondents; a fifth defendant, Sakalyne Sheikh, was acquitted of the section 5 offence.
The Court of Appeal quashed the convictions. It accepted that different kinds of injury were possible but treated the difference between a caustic burn and the administration of a drug as decisive in this case. The Director of Public Prosecutions appealed.
The Supreme Court’s decision
Lord Lloyd-Jones, with whom Lord Reed, Lord Burrows, Lady Rose and Lady Simler agreed, held that Lambert J’s construction was correct and that the Court of Appeal departed from it when applying the facts.
The focus is the circumstances in which the act occurred, not foresight of the act or type of act. Parliament could have required foresight of the act, but did not. The circumstances need not be identical. Sometimes the foreseeable risk may be limited to particular situations, such as intoxication or a distressed infant crying for a long time. Sometimes it may exist whenever the victim is alone with a member of the household. There is no requirement of a link or likeness between the circumstances that created awareness of the risk and the later unlawful act. Because these offences occur in private, and explanations may be absent or identical, demanding precise correspondence would unduly limit the offence.
That does not make the subsection redundant. It is an additional protection. Once awareness of a significant risk and a failure to take reasonable protective steps are proved, it does not follow that every later unlawful act in the household was foreseeable other than in exceptional cases. General domestic violence is not enough to make any unlawful act causing serious injury one that ought to have been foreseen. The nature of the act and the mechanism of harm may be considered as part of the circumstances, and the boundary between act and circumstances may be difficult to draw, but the question remains the foreseeability of the circumstances. A different mechanism is not necessarily decisive.
The jury could consider the hostility towards Ambreen, the earlier injury, the failure to get medical attention and the evidence of neglect. It was entitled to consider the drug allegation in that setting. By treating the different mechanism as decisive, the Court of Appeal substituted its own assessment for an evaluation properly left to the jury.
The summing-up was not defective. The statutory words bear their ordinary meaning, and it was for the jury, not the judge, to apply them to the facts. Lambert J directed the jury in the language of the statute, required them to be sure that the sacral injury came first, and told them to decide the circumstances from all the evidence and then ask whether the defendant foresaw circumstances of that kind or ought to have done so. Paraphrase or hypothetical examples would have been unhelpful.
Verdict: The Supreme Court unanimously allowed the prosecution’s appeal and reinstated the four respondents’ convictions on counts 1 to 3 and 5. A different method of causing harm is not necessarily fatal to proof of foreseeable circumstances under section 5(1)(d)(iii).
