| CRIME — Homicide — Causing or allowing death of child or vulnerable person — Defendant’s child killed by unlawful act of partner in same household — Judge directing jury that “significant” risk of harm by unlawful act meaning “more than minimal” risk — Whether judge wrong to direct jury on meaning of word “significant” — Whether “significant” bearing ordinary meaning — Domestic Violence, Crime and Victims Act 2004, s 5(1)(c)
R v Mujuru and another [2007] EWCA Crim 1249
CA: Moore-Bick LJ, David Clarke and Swift JJ: 25 May 2007
Where a jury was considering whether a person was guilty of an offence under s 5 of the Domestic Violence, Crime and Victims Act 2004 of causing or allowing the death of a child or vulnerable adult by the unlawful act of a person in the same household, when he was or ought to have been aware of a “significant” risk of serious physical harm, the term “significant” bore its ordinary, normal meaning.
The Court of Appeal (Criminal Division) so held when dismissing an appeal by Sandra Mujuru against her conviction at the Central Criminal Court (Judge Moss QC and a jury) on 11 April 2006 for an offence of causing or allowing the death of a child, namely her daughter, A, contrary to s 5 of the 2004 Act. She was also convicted of cruelty to a person under 16 by wilful neglect arising out of her failure to obtain treatment for A.
The defendant lived with her four-month-old daughter A and partner Jerry Stephens. Stephens committed a serious assault on A, resulting in serious injury for which neither he nor the defendant sought medical treatment. Some weeks later, Stephens inflicted a severe blow to A’s head resulting in her death.
S 5(1) of the 2004 Act provides: “A person (‘D’) is guilty of an offence if—(a) a child or vulnerable adult (‘V’) dies as a result of the unlawful act of a person who—(i) was a member of the same household as V, and (ii) had frequent contact with him, (b) D was such a person at the time of that act, (c) at that time there was a significant risk of serious physical harm being caused to V by the unlawful act of such a person, and (d) … (i) D was, or ought to have been, aware of the risk … (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.”
MOORE-BICK LJ, giving the reserved judgment of the court, said that the prosecution alleged that the defendant was aware that Stephens posed a significant risk of serious physical harm to A and failed to take such steps to prevent it. The defendant submitted that there was no case to answer, as there was no evidence of a significant risk of serious harm under s 5(1)(c) of the 2004 Act, or that she was or ought to have been aware of any such risk, and “significant” in that context bore its ordinary meaning. The judge rejected those submissions and directed the jury that “significant” in s 5(1)(c) of the 2004 Act meant simply “more than minimal”. His Lordship, applying the principles laid down in Brutus v Cozens [1973] AC 854, said that the wor “significant” was an ordinary English word in common general use and there was no reason to think that Parliament intended it to bear anything other than its normal meaning in s 5 of the 2004 Act. The decision as to whether the risk was significant was one of fact for the jury applying their collective understanding of the word significant. For those reasons the judge should not have sought to define it when directing the jury. However, as there was powerful evidence that Stephens represented a considerable risk to A, the judge was right to leave the case to the jury and his misdirection did not create a real danger of their convicting the defendant when they would not otherwise have done so. In the light of the evidence as a whole the conviction was safe and the appeal would be dismissed.
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