Khan & Ors, R v [2009] EWCA Crim 2

[2009] EWCA Crim 2Case No 2008/01367/D2 (1)2008/02320/D2 (2)2008/02332/D2 (3)
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Venue ON APPEAL FROM THE CROWN COURT AT LEEDS
HIS HONOUR JUDGE STEWART QC
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/01/2009
Before
THE LORD CHIEF JUSTICE OF ENGLAND AND WALESMR JUSTICE FORBESMRS JUSTICE SLADE
Between
RCrownUzma Khan (1)DefendantNazia Naureen (2)DefendantMajid Hussain (3)Defendant
Mr M Harrison QC for Uzma Khan (1)Mr R.L. Marks QC for Nazia Naureen (2)Mr S. Bourne-Arton QC for Majid Hussain (3)Mr S, Myerson QC and Mr E. Patel for CrownHearing Hearing dates : 10 th December 2008
Judgment

The Lord Chief Justice of England and Wales :

[1]On 21st May 2006 a young married woman, Sabia Rani, aged 19 years, a stranger in a foreign country, was found dead at her home in Leeds. She had been beaten to death, the victim of at least three distinct episodes of serious violence.[2]In January 2007 her husband, Shazad Khan, was convicted of her murder and sentenced to life imprisonment.[3]In February 2008 in the Crown Court at Leeds, before His Honour Judge Stewart QC and a jury, Shazad Khan’s mother, who as we shall see, was also the deceased’s aunt, Phullan Bibi, two of Khan’s sisters, her cousins, Uzma Khan now aged 24, and Nazia Naureen, now aged 29, and Nazia’s husband, Majid Hussain, now 29, were convicted of allowing the death of Sabia Rani, a vulnerable adult, contrary to section 5(1) of the Domestic Violence, Crime and Victims Act 2004 (the 2004 Act).[4]Phullan Bibi was sentenced to 3 years’ imprisonment, Uzma Khan and Nazia Naureen to 2 years’ imprisonment, and Majid Hussain to 12 months’ imprisonment suspended for 2 years with orders that he carry out unpaid work. These are appeals against conviction by Uzma Khan, Nazia Naureen and Majid Hussain against their convictions, and by Uzma Khan and Nazia Naureen against sentence. The first ground of appeal is specific to this case. The others require analysis of the legislation. The single judge granted leave to appeal against conviction on the basis that the 2004 Act was a relatively untravelled and complex area of law. The Facts[5]Sabia was born and lived with her parents in a rural community in fairly abject circumstances in Kashmir. Her mother was Phullan’s sister. Phullan lived at an address in Roundhay in Leeds. The other occupants of the house were her husband, Pola Khan, two of their sons, Azad and Shazad, and these appellants. The two families met during a visit to Pakistan. In December 2005 Sabia came to this country to marry Shazad. She spoke no English. She never had a friend here. Initially she shared a room with Phullan and Uzma. In January 2006 she and Shazad were married. Thereafter they shared a bedroom. She virtually never left the house.[6]The family led busy lives. Phullan looked after the house and family. Pola spent a good deal of his time at the Mosque. Uzma and Nazia were highly educated, intelligent, young women. Uzma worked during the week and studied for her certificate of education during the evenings and at weekends. In due course she qualified as a teacher. Nazia, who had obtained a degree in computer studies, worked during the week. She had a baby, Adam, and was pregnant with her second child. Majid spoke very little English, and worked nights in a bakery. He and his mother in law looked after the baby during the day. Nazia looked after him at night, and she and Majid looked after him at weekends. Azad worked part time, and he went to the peersaab in Bradford with his mother two or three times each week.[7]During the night of 20/21 May 2006, in the garage of the house, Shazad severely beat and inflicted fatal injuries on Sabia. It was not the first occasion when he used very severe violence towards her. After the attack Shazad carried her out of the garage, along to the side entrance of the house into the hallway up the stairs and across the landing to the bathroom. He filled the bath with cold water, placed her in it, and locked the door from the outside. He sought to make it appear that she had drowned in the bath. He returned to the garage, changing his clothes, and leaving his wet and bloodstained gym clothes. They were later found in the garage, together with numerous spots of blood on the floor.[8]Next morning, as the household woke, Shazad pretended that he did not know that Sabia’s body was in the bath. He forced the lock on the bathroom door. The ambulance was not called immediately. When the paramedics arrived they found Sabia’s body lying fully clothed on the floor. According to Phullan she was wearing the clothes she was wearing the previous night, and Nazia was purporting to carry out first aid. Shazad was with her. Majid was in the room next door looking after the baby. Azad was out running. Pola was at the Mosque. Shazad said he had not seen Sabia since 11.00pm the previous night, and that following an argument they had slept in separate beds. Both he and Nazia said they found Sabia in the bath of cold water, and drained the bath and refilled it with warm water. Medical Evidence – The First Ground of Appeal[9]At post mortem numerous injuries to the head and neck were found. These could have been caused during the fatal assault. There was external bruising on both sides of the chest above the left breast and below the right shoulder together with other areas of bruising about the body, arms and legs. However, these injuries would have been concealed by Sabia’s clothing. At trial it was accepted that the injuries caused during the final attack were not relevant to the allegations against the appellants. This was because there was no evidence that any of the appellants had come into contact with Sabia in the 12 hours immediately before her death or that any of them had witnessed or been aware of the final beating she suffered during that period. The prosecution case against each appellant was that Sabia’s condition during the 3 weeks before the final attack on her was such that it was and must have been apparent to each of the appellants that she had been and was being subjected to serious physical violence.[10]Internal examination revealed some 15 rib fractures. The fractures were sustained over an extended period in the course of three distinct attacks. One, some three weeks before Sabia’s death, caused fractures to right 7 and 8 ribs, and to left 1,6,10 and 11 ribs, involving the front and the back of the ribs. The second, two weeks before death, caused fractures to 6 and 9 right ribs, and left 8 and 9 ribs. Only the third group of fractures to the ribs were caused during the last 12 hours of life.[11]In addition to the fractures, extensive severe subcutaneous tissue damage had occurred. The bruising caused by the injuries produced fat necrosis in the muscles of all four limbs. In this process subcutaneous fat dies and liquefies. Moreover, in a process described as degloving, the fat separates from the surrounding structures. There was a high level of muscle protein (myoglobin) in the urine, and the process of blockage of the kidneys by myoglobin had begun. There was evidence of fat embolism in the lungs (indicative of the breakdown of tissue caused by soft tissue damage) a problem that could restrict circulation and cause breathing problems. Some breakdown of Sabia’s skeletal muscles, a condition known as rabdomyolysis, caused when trauma such as a severe beating applies pressure to the victim’s muscles, was identified. The fractures would have caused serious pain, and would have impeded movement. The soft tissue injuries too would have caused pain, and the degloving would have been excruciatingly painful and the victim would have become physically unwell. The cause of death was multiple injuries, namely rib fractures and soft tissue damage with its consequent effects.[12]That provides the context in which we must examine the first ground of appeal, which is essentially factual and amounts to criticism of the way in which the judge summed up the medical evidence of Professor Milroy (the pathologist) and Dr Simpson (a consultant anaesthetist and expert in pain management).[13]In the course of cross examination Professor Milroy accepted that the external bruising and degloving process could have occurred in the last 12 hours of Sabia’s life, although he stressed that the recent external bruising overlay older bruising/underlying tissue damage. He emphasised that the body’s inflammatory response to the soft tissue damage and the presence of haemosiderin in the damaged tissue indicated that the soft tissue damage was at least 3 days old. However Professor Milroy was not able to quantify the extent to which the soft tissue damage was established and evident prior to the final episode of violence. He gave evidence to the effect that the soft tissue damage suffered by Sabia before the last attack was not the most substantial cause of death, but a small contributory factor. He went on to state that he could not say that Sabia would have died of the injuries suffered prior to the attack to which she was subjected during the last 12 hours of her life.[14]At the time when she gave evidence, Dr Simpson was not aware of the concessions made by Professor Milroy during the course of his cross-examination. She stated that Sabia would have been very unwell and unable to function normally from some 4 days before her death. She would have had pain on movement and would have avoided certain activities, like heavy lifting. She would have felt feverish and would have experienced nausea and headaches. Parecetemol and codeine taken shortly before her death might have taken the edge off of these problems, but would not have restored her functions or prevented acute flare-ups of pain when coughing moving or breathing. Sabia would have been able to speak normally, but not to shout loudly.[15]On behalf of the appellants it was submitted that the judge’s summing-up of the evidence of Professor Milroy and Dr Simpson was deficient in the following significant respects:(i) he failed to sum up the evidence so that the jury was able to determine accurately Sabia’s injured condition and how that condition presented in the period before the last beating;(ii) he misdirected the jury by incorrectly stating that the process of death had begun about three days before death occurred; and(iii) he failed to direct the jury adequately with regard to the extent to which Dr Simpson’s evidence required modification to take account of Professor Milroy’s uncertainty about the extent to which the process of fat necrosis was established prior to the attack that took place in the last twelve hours of Sabia’s life.[16]All three criticisms can conveniently dealt with together. In essence, and taken cumulatively, the suggestion is that the judge simply failed to sum up the medical evidence with the clarity and accuracy required to ensure that the jury reached soundly based conclusions about the true state of Sabia’s condition as it would have manifested itself in the period before the last twelve hours of her life. Accordingly, the jury was unable to reach proper and soundly based conclusions about what might and might not have been apparent to the appellants during the time that they were in contact with her. In short, in the light of the concessions made in cross-examination by Professor Milroy, the jury was or may have been left with the impression that Sabia’s condition prior to the final twelve hours was much graver than it might in fact have been. This inaccurate impression was, in effect, reinforced and amplified by what is said to be the judge’s error in stating that the process of Sabia’s death, on the medical evidence, had begun about three days before she was found dead and his failure to give appropriate directions to the jury necessary to modify the impact of Dr Simpson’s evidence in order to take account of Professor Milroy’s concessions.[17]It is quite apparent that the judge summed up the medical evidence in detail and with great care. Given that some soft tissue damage was at least three days old and that this was one of the factors that contributed to Sabia’s death, and considering the way in which the evidence of these issues was actually given, we can readily understand how the judge came to describe the process of death as beginning about 3 days before death. In any event, however, as soon as defence Counsel expressed concern about this aspect of the summing-up, the judge immediately took appropriate steps. What he said first was “Now, the next matter I want to clarify is this. To the best of my recollection I made it clear that Professor Milroy’s evidence was not that the fat necrosis would have been visible during the last three days, but that the process began within the last three days which ultimately was a contributory factor to the death.”[18]Following this short and immediate response to Counsel’s expressions of concern, it is apparent that the judge gave further thought to the matter, because he returned to the subject at a later stage of his summing-up, where he said this (see p. 52 line 30 to p. 54 line17):
“…first can I clarify what Professor Milroy said …, lest I have given you the wrong impression. He did not say this girl would have died but for the last attack. What he did say was that what happened before the last attack was a contributory factor in her death. I shall remind you of what he said. “It’s correct to say that the rib fractures did not contribute to death before the last 12 hours. It is different with the soft tissue injury. That process was an ongoing process. The only positive evidence is that it started about three days before the death. The inflammatory process, that is the healing process, is at least three days old. The degloving process could be in the last 12 hours only, although the only positive evidence is that the soft tissue damage is at least three days old. The microscopic evidence is that the soft tissue damage had been there for at least three days. I cannot be sure that the degloving element did not occur during the last 12 hours. You can identify tissue damage at least three days old. It may have been a small contributory factor but, in my judgment, it was more than trivial, a material contributory factor, because I noticed on microscopy the changes. This death could be over at least three days.”
He was then cross-examined about it by Mr Harrison. “I cannot quantify necrosis to a mathematical degree. I took multiple areas of the arms and legs, that is samples from them, a lot more than usual. All showed the same change. On that basis the changes are extensive in both arms and legs, and were diffusely present. This was at least three days old in all areas. The last 12 hours could account for all degloving. It could account for some of the soft tissue damage, but the inflammatory response is at least three days old. I cannot say that but for the last 12 hours she would have died. Some soft tissue damage could have been caused in the last 12 hours. I cannot say that she would have died but for the last attack…..” “The presence of haemosiderin in tissue gives indication of timing. It takes at least three days to appear. I would not expect to see this necrosis in the last 12 hours, if only caused in the last 12 hours. There is no evidence that the muscle damage was only caused in the last 12 hours. You cannot quantify the muscle damage as a percentage of the whole. What happened before the last attack was not the most substantial cause of this death.” “So, as I understand it, what he was saying was that he could not say that the girl would have died, in any event, even if the last attack did not take place; and, secondly, he was saying that what happened before the last 12 hours so far as fat necrosis was concerned was a small percentage contributory factor in this death. He was therefore saying that acts before the last 12 hours were a contributory factor, albeit a small one, in this death. That is my clear understanding of his evidence. If what I said earlier was contrary to that, disregard it and only regard what I have referred to now.”[19]In these passages the judge dealt fully and carefully with the concerns expressed by Counsel about his summary of the evidence relating to the commencement of the process of death in the earlier passages in his summing-up, and in the context of what Professor Milroy had said in cross-examination. In our judgment, taking these passages in conjunction with the remainder of his summing-up, the judge provided the jury with a clear, detailed and accurate account of the pathological evidence, and the jury was enabled to come to appropriate conclusions about Sabia’s state in the period prior to the last twelve hours of her life and, thus, whether, and if so, the extent to which, her injuries or her injured condition would have been manifest to the other members of the household.[20]The judge also addressed the problem arising from Dr Simpson’s ignorance of Professor Milroy’s evidence in cross examination. He said “I wish to say two other things about Dr Simpson’s evidence, which may not have been entirely clear from my summing up yesterday. … … You will remember that we in your absence had Professor Milroy back to clarify certain of his answers, but by the time that was done Dr Simpson had already given evidence. Now, when she gave evidence in answer to the Prosecution, talking about the 12 hour period, she was not aware that Professor Milroy was to say afterwards that he was unable to quantify the precise amount of necrosis which had begun before the final assault, because there was an overlay in the pre-existing necrosis and that during the final assault, and therefore in expressing her opinion as to how Sabia would have appeared before the 12 hour assault she was not allowing for the need to distinguish the necrosis that occurred before 12 hours and that which occurred after 12 hours. So you must take that into account when remembering the evidence which I reminded you of yesterday about what the position would have been before 12 hours before the final assault, which was within the last 12 hours.”[21]The judge did not specifically refer to the degloving process in the course of that direction, but as the jury knew, degloving is a condition consequent upon subcutaneous fat necrosis, and the judge had already reminded them of concession that it was not possible to quantify the amount of fat necrosis prior to the last twelve hours, and that the degloving process could have occurred in the course of those final twelve hours. We are therefore satisfied that, when considered in its full context, the directions given by the judge about the proper approach they should take to the evidence of Dr Simpson following Professor Milroy’s concessions were adequate and appropriate. The Legislation – The Remaining Grounds of Appeal[22]One purpose of the Act is well understood. It addressed evidential and procedural problems which arose when a child was injured or killed by one or other of the only individuals who had access to it at the relevant time. The difficulty was summarised by the Law Commission Report:
“Children: Their Non-Accidental Death, or Serious Injury(Criminal Trials)”: “…if it cannot be proved which of two or more defendants was directly responsible for the offence and it cannot be proved that whichever defendant was directly responsible must have been guilty as an accomplice…the present law is that there is no prima facie case against either and therefore both defendants must be acquitted at the conclusion of the prosecution case”
. However, in addition to what we may describe as important changes to the evidential principles which applied in this type of case, the Act created a new offence based on a positive duty on members of the same household to protect children or vulnerable adults from serious physical harm. The extent of this protective duty, and the circumstances in which criminal liability for its non performance may arise are defined by section 5 of the Act.[23]Section 5 provides:
“The offence (1) 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) either D was the person whose act caused V’s death or – (i) D was, or ought to have been, aware of the risk mentioned in paragraph ( c), (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. ……… (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) either D was the person whose act caused V’s death or – (i) D was, or ought to have been, aware of the risk mentioned in paragraph ( c), (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. ……… (a). a person is to be regarded as a “member” of a particular household, even if he does not live in that household, if he visits it so often and for such periods of time that it is reasonable to regard him as a member of it; (b). where V lived in different households at different times, “the same household as V” refers to the household in which V was living at the time of the act that caused V’s death. (5). For the purposes of this section an “unlawful” act is one that – (a) constitutes an offence, or (b) would constitute an offence but for being the act of – (i) a person under the age of ten, or (ii) a person entitled to rely on a defence of insanity. 27. Paragraph (b) does not apply to an act of D. (6). In this section – 29. “act” includes a course of conduct and also includes omission; 30. “child” means a person under the age of 16 31. “serious” harm means harm that amounts to grievous bodily harm for the purposes of the Offences against the Person Act 1861; 32. “vulnerable adult” means a person aged 16 or over whose ability to protect himself from violence, abuse or neglect is significantly impaired through physical or mental disability or illness, through old age or otherwise.”
[24]The significant risk against which the victim is to be protected is serious physical harm. This is synonymous with grievous bodily harm for the purposes of the familiar Offences Against the Person Act 1861. The “act” extends to a course of violent conduct, and would indeed also include omissions to act which caused grievous bodily harm. It is therefore possible to envisage cases of death resulting from gross negligent manslaughter in which a defendant may be convicted of causing or allowing the death.[25]Children under the age of 16 expressly fall within the protective provisions of the Act. Adults, or near adults who are over the age of 16, are vulnerable if their ability to protect themselves from “violence, abuse or neglect” is significantly impaired. There was some discussion whether the words “or otherwise” found in section 5(6) extended to an individual like this unfortunate deceased, lonely and friendless in this, to her, utterly strange country, and consequently, totally dependent on her husband and his family.[26]The Act is not embarking on the impossible task of dissipating misery and unhappiness. Its objective is to protect those whose ability to protect themselves is impaired. In agreement with the judge, however, we do not rule out the possibility that an adult who is utterly dependent on others, even if physically young and apparently fit, may fall within the protective ambit of the Act. The case here proceeded on the basis that the protective provisions of the Act did not arise for consideration before the major attack on the deceased some three weeks before her death. The issue whether she was indeed vulnerable after that attack was rightly left to the jury, but if the facts had been different, we should not have ruled out the possibility that the jury might have inferred that she was already a vulnerable adult for the purposes of the Act before she sustained the violent injuries inflicted on her in the first violent attack three weeks before her death. However, in this particular case the prosecution would, on the evidence, have faced difficulty in establishing that the deceased was exposed to a significant risk of serious physical harm before that attack, and in demonstrating that any one of these appellants fell within the ambit of awareness and foresight prescribed by section 5(1)(d). The case was exclusively concerned with direct physical violence sustained by the deceased. In another case, the question whether the victim could protect himself or herself from “abuse or neglect” might well arise in relation to an individual in Sabia’s situation.[27]We should add that in any event the state of vulnerability envisaged by the Act does not need to be long-standing. It may be short, or temporary. A fit adult may become vulnerable as a result of accident, or injury, or illness. The anticipation of a full recovery may not diminish the individual’s temporary vulnerability.[28]The pool of potential defendants is defined by section 5(1)(a) and (b). Membership of a household is explained in terms which make it a question of fact. For present purposes every adult living in Phullan’s household was a member of it, including her husband and her younger son. Interestingly the protective duty does not extend to individuals who have general “responsibility” for the relevant child. Section 1 of the Children and Young Persons Act 1933 covers a wider spectrum of individuals than the present Act. Thus this legislation does not apply to visitors to the household who have caring responsibilities for the eventual victim, and have frequent contact with him or her, but who are not, and cannot begin to be described as members of the same household. There is a further condition that, in any event, even when membership of the same household is established, frequent contact between the defendant and the eventual victim is also required.[29]The judge provided the jury with a structured series of questions to be addressed sequentially. The first criticism of his directions arises in the context of his observations that the “frequent contact” required by the Act were ordinary English words requiring no further elucidation. It was submitted at trial, and the submissions were in effect repeated before us, that the Act made plain that mere membership of the same household was insufficient to give rise to potential liability. Frequent contact by the relevant defendant with the victim is an essential pre-condition. Thus far we agree, and the judge so directed the jury. It was argued that the judge failed to direct the jury that it was necessary for membership of the household and frequency of contact to coincide with the facts or circumstances which would give rise to criminal liability, including the defendant’s awareness of a significant risk of serious physical harm, and foresight of the circumstances in which the fatal beating occurred. In other words, the frequency of contact has to be examined in the context of the risk against which the victim required protection, and the defendant’s awareness of that risk, in accordance with section 5(1)(d)(i) and (iii).[30]In our judgment, the question whether contact between the defendant and the victim was frequent or not, is free-standing. Although “member of the same household” is defined in section 5(6), there is no further definition of “frequent contact”. The reason is clear. None is needed. Unless the contact was frequent, the prosecution would fail. Assuming, however, that it was indeed frequent, the defendant would nevertheless be entitled to be acquitted unless the criteria in section 5(1)(i)(d) and (iii) were also established. The submission by the appellants seeks to import into the words “frequent contact” the criteria found in section 5(1)(d). They are irrelevant to the determination of the simple question of fact whether the individual appellant’s contact with Sabia was or was not frequent for the purposes of identifying him or her as a potential defendant.[31]The judge directed the jury to consider “did the defendant whose case you are concerned with have frequent contact with Sabia Rani?” If not that would be, “end of story, not guilty”. If however the jury were sure of frequency of contact, they would then go on to address, among other considerations, the applicability of section 5(1)(d) to the case of each defendant. This direction was accurate both in relation to the question of frequency of contact, and, if the jury so found, the further questions which would then arise.[32]Section 5(1)(d)(i) and (iii) defines the subjective elements which must be established by the prosecution. It applies when the defendant was aware of the risk of serious physical harm and foresaw the occurrence of the unlawful act or course of conduct which resulted in death. It applies, however, when the defendant was unaware of the risk, but ought to have been aware of it, and when he did not foresee, but ought to have foreseen the occurrence of the act. The objective therefore is to bring within the ambit of the offence, not only those who are actually aware of the risk and foresaw the unlawful act, but those who chose to close their eyes to a risk of which they ought to have been aware, and which they ought to have foreseen.[33]These apparently broad routes to criminal liability are narrowed by the requirement that, even if the necessary level of awareness and foresight are established, the defendant cannot be convicted unless he or she failed to take the steps which could reasonably have been expected. In our judgment, this pre-condition requires close analysis of the defendant’s personal position. We note the concern expressed by Jonathan Herring in Familial Homicide, Failure to Protect and Domestic Violence: Who’s the Victim [2007] Crim LR 923 that abused women, for example, may be prosecuted for allowing their violent partners to kill their child. However, section 5(1)(d)(ii) makes clear that the protective steps which could have been expected of the defendant depend on what reasonably have been expected of him or her. In the present case, for example, if either of the female appellants had herself been subjected by her brother, Shazad, to serious violence of the kind which engulfed Sabina, the jury might have concluded that it would not have been reasonable to expect her to take any protective steps, or that any protective steps she might have taken, even if relatively minor, and although in the end unsuccessful to save the deceased, were reasonable in the circumstances. We are not attempting to lay down principles of law on what are questions exclusively of fact, but seeking merely to illustrate the ambit of this paragraph, and its potential importance to an individual defendant, and to put the submissions on behalf of these appellants into context.[34]This leads us to the directions actually given by the judge. They were encompassed in simple language. He directed the jury to consider, “Did the defendant fail to take such steps as he or she could reasonably have been expected to take to protect Sabia Rani from that risk?”, that is, a significant risk that Shazad would again beat his wife severely. He went on “if no, such a defendant is not guilty.” The judge suggested that this particular question would not be difficult of answer. This comment fairly reflected the evidence. Each appellant had said in turn that if she, and this extends to the male appellant, had been aware of the violence being shown by Shazad to his wife, everything possible to help would have been done, including telephoning the doctor or the police. None suggested that there was any reason not to take these elementary protective steps.[35]It was submitted that the direction was defective and that the jury should have been directed to identify the steps that each individual defendant could reasonably have been expected to take. Naturally, in the case of any defendant who had suggested that she had taken some steps, or that her ability to take any or any steps had been circumscribed by the situation in which she found herself, the judge would have given different supplementary directions to the jury. On the evidence none of these questions arose. Nothing could have been gained by judicial speculation on the topic.[36]We must now address the final ground of appeal. As section 5(2)(d)(iii) underlines, criminal liability will only arise where the act or conduct resulting in death occurred in circumstances of the kind which were foreseen or ought to have been foreseen by the defendant. The judge directed the jury, “did the unlawful act of Shazad of beating Sabia and causing her death occur in circumstances of the kind that the defendant should have foreseen?” In other words, he followed the terms of section 5(2)(d)(iii). Generally speaking a direction framed in accordance with the statute pre-empts any criticism.[37]Nevertheless in essence, the argument on behalf of the appellants is that the structure of the section required the judge to provide a more informative direction than he did. It is submitted that the direction failed to address the obvious relationship between the foresight of the circumstances in which the fatal act occurred and the steps which the defendant might reasonably have been expected to take to protect Sabia from the risk. In some cases violent behaviour which culminates in the infliction of fatal injury may be the last in a series of near fatal attacks, and equally, there will be other cases where steadily increasing violence, demonstrating the presence of a significant risk of serious physical harm, is followed by death in utterly different circumstances. The example given in argument was death by poisoning. On the basis of these contentions about the legislative structure, it was submitted that, on the available evidence, first, that the fatal attack on Sabia occurred in the garage, that is outside the house, at night, when the appellants were asleep, and second, that the scale and degree of violence displayed by Shazad towards her was markedly different and more extreme than the violence inflicted on her during the previous three weeks. The circumstances, it is said, were utterly different and none of the individual appellants foresaw or ought to have foreseen such an attack.[38]The criticisms of the direction have to be seen in context. By this stage of their deliberations the jury would have been satisfied that at the time when the fatal act occurred each appellant was or ought to have been aware that Sabia was at significant risk of serious physical harm from Shazad. The jury were reminded that, in all the episodes of violence, the injuries suffered by Sabia were inflicted with Shazad’s fist or boot, and that it was not suggested that the fatal incident involved the use of a gun or a knife. In this context the judge indicated to the jury that the defendant would not be guilty if the circumstances of the final assault differed from the earlier assaults and the circumstances in which the final assault took place in the garage were not and could not be foreseen. It was suggested that this direction circumscribed the way in which the jury should approach the question. We disagree.[39]The act or conduct resulting in death must occur in circumstances of the kind which were foreseen or ought to have been foreseen by the defendants. They need not be identical. The violence to which Sabia was subjected on the night she was killed was of the same kind but it was violence of an even more extreme degree than the violence to which her husband had subjected her on earlier occasions. The place where the fatal attack took place was irrelevant. Although ultimately a jury question, the circumstances would probably have been the same kind, if not identical, if the fatal attack had occurred while the couple were on holiday, away from their home.[40]Without importing any of the problems about the nature of the criminal liability of participants in a violent assault which culminates in the death of the victim, the judge distinguished between personal violence represented by a course of violent conduct, and death caused by a lethal weapon, such as a knife or gun, when neither had been used or threatened in the course of earlier violence. For the purposes of this trial, he sufficiently linked the violent incident on the night when Sabia died with the earlier violent occasions in the context of the risk of serious physical harm of which the jury had to be satisfied. To underline the importance attached to foresight of the kind of violence which resulted in death, he was further entitled to explain the distinction between direct personal violence as opposed to violence inflicted with a potentially fatal weapon. If that was too restrictive a direction, it was to the advantage of the appellants, and we can anticipate cases in which such a direction would indeed be over advantageous to a defendant. We need not address that question further in this judgment. In any event, by following the language of the statute as he did, the judge produced an impeccable direction of law.[41]For these reasons, all three appeals against conviction are dismissed. Sentence[42]The seriousness of the offence requires no repetition. The mitigation too, was obvious. Both female appellants are young, intelligent and well educated and without previous convictions. Both had extremely promising prospects ahead of them. One, Nazia, was a mother. She and her husband have now separated. We acknowledge how desperately she must be missing her children and the opportunity to bond with them.[43]Judge Stewart fairly reflected the personal mitigation available to these appellants and set it against their criminal culpability. It was a significant feature of this case that neither appellant suggested or demonstrated any sense of remorse or concern for their murdered cousin and sister in law. In our judgment these sentences are not open to criticism, and the appeals are dismissed.

Cited in 4 later judgments