“31. The defendants make two submissions arising from their construction of section 5. Both arise from the fact that the antecedent injury putting the defendants on notice of the risk to Ambreen of serious physical injury was the infliction of the caustic burn to her sacral region which was a wholly different type of unlawful act to that which caused the serious physical injury, the administration of anti-diabetic medication. It is submitted that the difference in nature between those two acts leads to difficulties for the Crown at this stage. 32. Mr Green, who argued this point on behalf of all defendants, focussed initially on section 5(1)(d)(iii) and the need for the act to occur in “circumstances of the kind” that the defendants foresaw or ought to have foreseen. He argued that the application of a caustic substance to Ambreen’s lower back amounted to a wholly different set of circumstances to those relevant to the administration of anti-diabetic medication. When pressed as to the meaning of “circumstances” in this context, he referred to the preparations for the unlawful acts: the obtaining or mixing of the poison compared with the application of a toxic burning substance to Ambreen’s back. 33. Having had the opportunity to reflect upon Mr Smith’s submissions, he revised his argument to focus upon subsections 5(1)(a) and 5(1)(c) and, in particular, the use of the phrase: “the unlawful act.”
“50. I do not accept Mr Green’s construction of the subsection. Had Parliament intended to limit liability by prohibiting the charging of a person over the age of 16 with an intellectual function equivalent to a child under that age then the provision would have been drafted to reflect this intention in clear terms. As it is, the rationale for the prohibition on charging young people under the age of 16 years is set out in 3(b): such a person under the age of 16 could not be expected to take steps to protect the victim even from a known risk of harm. This is perfectly explicable as a child aged under 16 years living in the same household as the perpetrator and victim would not be likely to have the influence within the household nor the physical nor moral nor possibly legal capacity to take action to protect the victim. The provision is perfectly intelligible, and it does not bear the meaning attributed to it by Mr Green.”
“Care must be taken to avoid the circumstances being interpreted too loosely. It is not, it is submitted, enough that the prosecution can say that the circumstances are of a ‘kind’ which involves general violence towards V in the domestic context such that any unlawful act that causes serious injury to V in that setting is capable of being one that D2 ought to have foreseen (even if the act itself was of a wholly unforeseeable kind). ”
“But what of cases in which D2 foresaw D1 might punch, but D1 poisons? What of the situation where D1 usually kicks V but, on this occasion, caused GBH by dangerous driving at V. It is submitted that the focus must remain on the circumstances in which the death or GBH arose and not on the precise nature of the injury. It may be, for example, that the ‘circumstances’ that are relevant are that D1 usually inflicts injury when D1 is drunk, or when V refuses to do as they are told.” (Emphasis provided)