Eloddie Goncalves Taborda & Anor v R [2026] EWCA Crim 627

[2026] EWCA Crim 627Case Nos: 202303996 B3 & 202503666 B3202302910 B3 & 202303953 B3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT CHELMSFORD
MRS JUSTICE FARBEY
URN: 42MZ1943920
T20227011
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20 May 2026
Before
LORD JUSTICE JEREMY BAKERMR JUSTICE CALVERHIS HONOUR JUDGE SIMONTHE RECORDER OF LUTON(Sitting as a Judge of the High Court)
Between
REXRespondent
Mr Roderick Johnson KC and Mr Nicholas Wayne (instructed by Gepp Solicitors) for ApplicantMr Trevor Siddle and Miss Lisa Bald (instructed by Finsbury Law Solicitors) for AppellantMr Karim Khalil KC and Miss Claire Matthews (instructed by Crown Prosecution Service) for RespondentHearing Hearing dates: 21 and 22 April 2026
Approved JudgmentThis judgment was handed down remotely at 2.00 pm on 20 May 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
[1]On 26 July 2023, in the Crown Court at Chelmsford, Eloddie Goncalves Taborda (“the applicant”) and Muritala Olaiya-Imam (“the appellant”) were convicted of the following offences: The applicant Count 1 – Murder. Count 4 – Cruelty to a person under 16 years, contrary to section 1(1) of the Children and Young Persons Act 1933. Count 6 – Assault on an emergency worker, contrary to section 39 of the Criminal Justice Act 1988 and section 1 of the Assaults on Emergency Workers (Offences) Act 2018. Count 7 – Doing an act tending and intended to pervert the course of public justice. The appellant Count 3 – Allowing the death of a child, contrary to section 5 of the Domestic Violence, Crime and Victims Act 2004. Count 5 – Cruelty to a person under 16 years, contrary to section 1(1) of the Children and Young Persons Act 1933. Count 7 – Doing an act tending and intended to pervert the course of public justice.

The appellant

[2]On 20 October 2023, they were sentenced as follows: The applicant Count 1 – life imprisonment with a minimum term, specified under section 322 of the Sentencing Act 2020, of 17 years less 639 days spent on remand in custody. Count 4 – 2 years’ concurrent imprisonment. Count 6 – 12 weeks’ concurrent imprisonment. . Count 7 – 10 months' concurrent imprisonment The appellant Count 3 – 10 years’ imprisonment. Count 5 – 18 months’ concurrent imprisonment. Count 7 – 10 months' concurrent imprisonment.

The appellant

[3]The appellant appeals with limited leave of the Single Judge against his conviction on count 3, and seeks to renew his application for leave to appeal against his conviction on count 5 following refusal by the Single Judge. The appellant also seeks to amend his grounds of appeal against conviction and to admit fresh evidence, pursuant to section 23 of the Criminal Appeal Act 1968. He appeals against sentence with leave of the Single Judge.[4]The applicant’s application for an extension of time in which to apply for leave to appeal against her conviction on count 4 and to admit fresh evidence has been referred to the Full Court by the Registrar. She renews her application for leave to appeal against sentence following refusal by the Single Judge.

Factual background

[5]In 2019, the appellant commenced a relationship with the applicant and moved in to live with her in about May 2020. At that time, the applicant was living at an address in Harlow, whilst the appellant maintained his address in Barking.[6]In 2019, the applicant, who had previously had two children removed from her care due to concerns about her mental health and excessive consumption of alcohol, became pregnant with twins. As a result, professional agencies became involved with the applicant from the early stages of her pregnancy.[7]Throughout the pregnancy the appellant presented himself as the father of the twins and was named as such on their birth certificates. However, subsequent DNA testing showed that he was not their biological father.[8]On 4 May 2020, prior to their birth, both the appellant and the applicant attended an initial child protection conference, at which the twins were made the subject of a child protection plan under the category of neglect.[9]On 1 June 2020, the twins, a brother and sister, were born by way of planned caesarean section, following which they were discharged from hospital care on 3 June 2020. Thereafter, they were made the subject of frequent home visits by midwives and health visitors.[10]On 24 June 2020, following reports from a neighbour that the applicant was intoxicated with alcohol while the twins were in her care, the police attended at her address. The applicant was found to be visibly drunk, and she was arrested for child neglect. The twins were initially taken into police protection but after contact was made with the appellant, it was agreed that the twins could be left in his care. However, later on, after the applicant was released from the police station, it was agreed with social services that the twins could be returned to the applicant’s care.[11]On 25 June 2020, the social services devised a safety plan for the care of the twins, which was signed by the applicant and the appellant. It provided for the applicant and the appellant to undertake the following: 1. [the applicant] not to drink any alcohol 2. [the applicant] is not to be left alone with [the twins] 3. [the appellant] to take the babies to Debbie in the first instance and then to [the appellant’s] mother if [the applicant] is under the influence of alcohol 4. [the appellant] to contact the police if [the applicant] is under the influence of alcohol 5. [the applicant] to contact Open Road to address her alcohol abuse 6. [the applicant and the appellant] to ensure that they follow all aspects of the child protection plan and allow professionals to visit at any time[12]Following these events, the frequency of the professional visits to the applicant’s home address increased, and no concerns were raised by them as to the safety or welfare of the twins.[13]Moreover, on 10 August 2020, the safety plan was modified to permit the appellant to leave the applicant alone with the twins for 2 hours each day.[14]However, subsequently obtained phone and CCTV evidence established that the appellant regularly left the applicant alone with the twins in breach of the safety plan.[15]Not only was there evidence from a neighbour who described having seen a man, said to be the appellant, on more than one occasion smoking cannabis with the applicant in August 2020, but a text message sent by the applicant to the appellant on 9 August 2020, read “Get my wine”.[16]CCTV evidence showed that the appellant had left the applicant’s home address at 17.52 on 18August 2020, leaving the applicant alone with the twins. He did not return until the following day, after paramedics had arrived at the address.[17]In the meantime, CCTV and financial transaction evidence showed that the applicant had left the twins alone in the flat twice that evening, after the appellant had left, in order that she could purchase alcohol.[18]At 9.51, the following morning, 19 August 2020, the applicant called for an ambulance in relation to her son Malik. The paramedics arrived at her home address at 9.58 and found Malik to be unresponsive. CPR was commenced, however at 10.26 Malik was formally pronounced life extinct.[19]Those in attendance noted that the applicant smelt of alcohol and later several empty wine bottles were found both inside the address and outside in the communal gardens.[20]The applicant told one of the paramedics that she had fed Malik earlier that morning and then she went back to sleep. When she woke up she found Malik not breathing in his cot and called 999. She also said that somebody had entered her address while she was sleeping.[21]Whilst present at the flat, the applicant assaulted one of the paramedics by beating and shaking him, causing him to suffer whiplash-type injuries.[22]Both the applicant and the appellant, who had arrived back at the address by then, were taken to the hospital, where the applicant was required to provide samples of blood and urine. Analysis of the blood sample showed the presence of alcohol and cannabis, whilst the urine sample was negative. Subsequently however, the urine sample was found to have been contaminated with the appellant’s urine.[23]Following a post-mortem examination of Malik’s body, the cause of death was determined to be a severe head injury, most likely involving a shaking-type mechanism with his head flexing forwards and backwards and/or side-to side, together with a forceful impact of his head against a hard surface, resulting in both fractures of his skull and internal damage to his brain.[24]In addition, 21 rib fractures were found together with fractures of both wrists. The majority of these injuries suggested that a traumatic assault occurred sometime between 2 – 12 hours before Malik’s death. However, the fracture to the left wrist was found to have occurred 3 – 6 days before his death.[25]The applicant was interviewed by the police, and her solicitor made a number of short statements on her behalf in which she denied having consumed alcohol that week, and stated that she had awoken to find Malik stiff. She denied having harmed Malik or having gone out leaving the twins in the flat.[26]The appellant provided a written statement during the course of his interviews with the police in which he denied being aware that Malik had any injuries and claimed that the applicant had not been drinking alcohol.

Prosecution and Defence cases

[27]The prosecution’s case was that it was the applicant who was responsible for having killed Malik on the night of 18/19 August 2020, when she was alone with the twins and under the influence of alcohol and cannabis, by violently shaking him and striking his head against a hard surface, intending either to kill him or cause him really serious harm (count 1).[28]It was alleged that the applicant was also responsible for having deliberately caused the earlier injury to Malik’s left wrist. It was pointed out that she was the principal carer for the twins and that she had continued to consume alcohol despite warnings to her not to do so (count 4).[29]It was alleged that the applicant had assaulted one of the paramedics who had attended the flat in response to the call to the emergency services (count 6), and thereafter both the applicant and the appellant had sought to hide the fact that the applicant had been consuming alcohol by substituting the appellant’s urine for that of the applicant (count 7).[30]In so far as the appellant was concerned, it was alleged that the infliction of the earlier injury to Malik’s left wrist would have caused a noticeable change in his behaviour, such that the appellant’s failure to take any steps to protect Malik from further harm from the applicant, by preventing her from consuming alcohol or otherwise, was evidence of his neglect (count 5) and that as he either was or ought to have been aware that the applicant had unlawfully caused serious harm to Malik, his failure to take reasonable steps to prevent the applicant from doing so again, had allowed Malik’s death (count 3).[31]The applicant denied having been responsible for causing any injury to her son, including the earlier injury to his left wrist and the subsequent injuries that led to his death.[32]It was suggested that a third party may have entered the flat to cause the injuries, or in the alternative the applicant sought to raise the partial defence of infanticide. In support of the latter defence, the consultant forensic psychiatrist, Dr Paula Murphy, gave evidence that it was possible that the applicant was suffering from a disturbance of the mind attributable in part to childbirth. Moreover, it was suggested that because of the shock arising from the death of her son, she may not have known what she was doing when she attacked the paramedic and contaminated her urine sample.[33]The appellant denied that there was sufficient evidence that it was the applicant who had caused the earlier injury (which may have been caused by a third-party) and/or that he had been aware of the earlier injury. It was pointed out that the concerns which had been raised by the social services were focused upon the applicant’s neglect of her children, and that there was no evidence that she had previously been violent to any of her children. In those circumstances, there was no evidence that prior to Malik’s death, the appellant was or ought to have been aware that there was any risk of the applicant causing any or any serious physical harm to her son.[34]It was denied that after 25 June 2020 the applicant had either consumed alcohol in his presence or that he was aware that she had done so when he was not in her company. He had not understood the safety plan and although he admitted that there had been occasions when he had left the applicant alone with the twins, he did not consider that there was any risk arising therefrom as the applicant appeared to be caring and loving towards the twins.

The evidence at trial

[35]In addition to evidence supporting the other matters set out in the course of its opening, the prosecution called evidence from the consultant paediatric pathologist, Professor Mangham, and the consultant paediatrician Dr Cleghorn, in relation to the existence of the earlier injury to Malik’s left wrist and his subsequent presentation to those who were caring for him.[36]Professor Mangham, gave evidence concerning the existence, causation and dating of the various fractures to Malik’s body which were found at post-mortem, which included not only the fractures to his skull and ribs, but also the fractures of his wrists, all of which, with the exception of the injury to the left wrist, were likely to have been caused by a traumatic event or events within the period of 2 – 12 hours prior to Malik’s death.[37]In relation to the left wrist, he told the jury that although the x-ray of the left distal ulna showed a diaphyseal periosteal reaction, it did not show any obvious fracture on naked-eye examination. However, once the bone had been dissected and subjected to microscopic examination, he found evidence of a classic metaphyseal lesion. He explained that this is a fracture between the growth plate, which is formed of cartilage, and the end of the bone, which is a relatively weak point because collagen fibres do not traverse from cartilage to bone, and is interpreted as having been caused by a traction or pulling mechanism in infants.[38]He said that the extent of the healing process in this area suggested that the injury had been caused some 3 – 6 days prior to Malik’s death. He explained that when a fracture occurs at this site, the cartilage continues to grow without being eaten back or dissolved into the bone, so that a cartilaginous growth or spur develops. He said that the normal growth rate is pretty slow, less than a millimetre a day, and that the recognition of a cartilaginous spur indicates that some time has elapsed. Moreover, in this case there was evidence of a cellular response, which is associated with new bone formation, (something which was not seen at any of the other fracture sites), which indicated that at the time of death, when the process stops, the healing process was already underway.[39]Professor Mangham said that he had been involved in the dating of fractures for getting on for 30 years, and agreed that, although he was in the process of training people to do so, there were very few others in his field in the UK, most notably Professor Freemont, and in the US Dr Rosenberg.[40]He explained that the reason why he considered that all of the fractures which he had found, with the exception of the fracture to Malik’s left wrist, had been caused in the period of 2 – 12 hours prior to his death, was essentially based on the lack of any cellular response in these areas. In contrast, the fracture of the left wrist stood out as being very different in its appearance and showed features that the healing process had been underway for several days.[41]Professor Mangham agreed that the fracture of the left ulna was only partial, in that it did not extend across the full width of the bone, whereas the fracture to the right wrist was complete, such that the lesion to the left wrist was smaller than the one to the right.[42]He stated that the most likely time when the fracture to the left wrist was caused was around the mid-point in the 3 – 6 day range, and that it was extremely unlikely that it could have occurred up to one or two days prior to Malik’s death, with zero-chance that it occurred in the period of 2 – 12 hours prior to his death.[43]Dr Cleghorn confirmed that classic metaphyseal lesions are not visible to the naked eye and that there may not have been external bruising, or deformation of the limb, visible, when looking at Malik with the naked eye.[44]However, she said that as soon as there is a break in a bone, the break will stimulate pain sensors along the bone, and an infant will cry out to signal pain and distress. A parent will hear and know something is wrong, even if they don’t know what is wrong.[45]After that, the movement of the ends of the fracture causes pain. Infants learn very quickly that moving a fractured limb is painful and they learn to keep the limb still while moving unaffected limbs. So, a fracture is painful when it happens and painful when the limb is moved. Infants have their limbs moved on a daily basis with dressing, bathing, playing. All these activities cause them to move their limbs and cause pain.[46]Dr Cleghorn expected that someone caring for Malik would notice his pain reaction. Crying was not the only way that Malik could demonstrate pain. There could be a facial grimace, a refusal to feed or not feeding well. Where a child is more fractious and prone to crying it’s more difficult for a parent to pick up on the child as being in pain.[47]She said that how long such a fracture takes to heal varies from child to child.[48]She was asked to comment on a video of the twins in their cot on the 16 August 2020 just before midnight, and it was put to her that Malik showed no sign of discomfort in his left wrist. She said that unless the limb was being actively mobilised or moved, she couldn’t comment. She said that the video footage did not take things forward because whilst she had seen Malik’s left arm briefly, most of the video concerned his right arm moving. Malik’s whole left arm was moving but she could not tell whether he was moving his left wrist independently of his arms.[49]She said that any injury from wriggling off the bed or having a flailing arm or being dropped by somebody was just speculation and had not been suggested to her as an explanation. There was no evidence in the medical records to suggest that Malik had a medical cause for any of his injuries, and it was more likely that his injuries were inflicted by someone.

Submission of no case to answer

[50]At the conclusion of the prosecution’s evidential case, a submission was made on behalf of the appellant that he had no case to answer in relation to counts 3 and 5.[51]It was submitted that in relation to count 3, there was no or insufficient evidence that at the time of Malik’s death there was a significant risk of serious physical harm being caused to him by the applicant’s unlawful act.[52]Moreover, that there was no or insufficient evidence of any of the matters which the prosecution was required to prove against him under section 5(1)(d) of the Domestic Violence, Crime and Victims Act 2004, (“the 2004 Act”), namely that he was or ought to have been aware of the risk, that he failed to take such steps as he could reasonably have been expected to take to protect Malik from the risk, and that Malik’s death occurred in circumstances of the kind that he foresaw or ought to have foreseen.[53]It was pointed out there was no direct evidence that the applicant had caused the earlier injury to Malik’s left wrist and that it would be unsafe to draw the inference that she had in view of the fact that other people had visited the flat.[54]Furthermore, even if the applicant had caused the earlier injury, it was submitted that the evidence of Dr Cleghorn was insufficient to establish that the appellant should have been aware that Malik had been seriously injured by the applicant.[55]There was no evidence that the appellant was present when the previous injury occurred, and the appellant was absent for extended periods in the time frame when the injury was caused. Moreover, not only was there evidence from a witness who saw Malik at the supermarket on 15 August 2020 that he was “cooing” in his buggy, but Dr Cleghorn agreed that a video clip of Malik recorded on the following day did not show signs of him having been injured.[56]It was pointed out that the focus of concern by the professionals was in relation to the risk of the applicant neglecting the twins, rather than assaulting them, and that they had been content to leave the twins in her care following the incident on 24 June 2020.[57]In relation to count 5, it was suggested that the prosecution’s case was limited to the appellant's alleged failure to seek medical attention for the earlier injury to Malik’s left wrist, in which case there was no or no sufficient evidence that the appellant either knew or ought to have been aware that Malik had been injured.[58]The applicant did not make a submission of no case to answer in relation to any of the counts which she faced.[59]The prosecution opposed the submission of no case made on behalf of the appellant in relation to counts 3 and 5.[60]It was submitted that there was sufficient evidence to enable the jury to be sure that it was the applicant who had caused the earlier injury to Malik, as she was his main carer and the nature of the injury was the same as one of the injuries inflicted upon Malik in the course of the fatal attack upon him.[61]Furthermore, that the evidence of Dr Cleghorn was sufficient to enable the jury to be sure that the appellant was aware that Malik had suffered the earlier serious injury to his left wrist.[62]In these circumstances, it was submitted that in view of the appellant’s failure to take any steps to protect Malik from the significant risk of serious physical harm caused to him from the applicant’s unlawful act, there was sufficient evidence for the jury to convict him on count 3.[63]In relation to count 5, it was submitted that the appellant had misunderstood the prosecution case, which was not limited to the appellant's failure to seek medical attention for Malik’s earlier injury, but encompassed his failure to be present with the applicant and to prevent her from consuming alcohol, in order to seek to prevent unnecessary suffering or injury to Malik’s health.

Ruling

[64]In her ruling, the judge, having carefully reviewed the evidence available to the jury at that stage, refused the appellant’s submission of no case in relation to counts 3 and 5.[65]The judge noted that in relation to the identity of the perpetrator of the earlier injury to Malik’s left wrist, the prosecution relied on circumstantial evidence. She considered that there was sufficient evidence to enable the jury to be sure that it was the applicant who inflicted this injury, and to suggest that one of the visitors to the flat had done so amounted to speculation.[66]In relation to the question as to whether there was sufficient evidence that the appellant knew or ought to have known of the earlier injury to Malik’s left wrist, the judge said that this had to be assessed on the basis of the whole of the evidence from Dr Cleghorn, rather than just “cherry pick” those parts in favour of the appellant.[67]The judge stated that on that basis there was sufficient evidence to enable the jury to be sure that the appellant knew that the applicant had inflicted the earlier non-accidental injury to Malik, and that from that point onwards he was aware or ought to have been aware that there was a significant risk of serious physical harm being caused to Malik by the applicant’s unlawful act.[68]The judge noted that the appellant accepted that he took no steps to protect Malik from that risk, because on his own case nothing had caused him to be aware of the risk.[69]Moreover, given the evidence as to the appellant’s awareness of the applicant’s continued consumption of alcohol, and that, “…violence can be of the same kind as that foreseen even if it is more extreme than violence previously inflicted on the same victim”, the jury would be entitled to find that Malik died as a result of the applicant’s unlawful act which occurred in circumstances of the kind that he foresaw or ought to have foreseen.[70]Similarly, in relation to count 5, given the evidence available to establish the appellant’s knowledge of the earlier injury, his failure to take any steps to protect Malik from further injury, was sufficient to establish that he had wilfully neglected or exposed Malik in a manner likely to cause him unnecessary suffering or injury to health.[71]Thereafter, the appellant gave evidence to the jury in accordance with his Defence Statement, including his denial of any knowledge of the earlier injury to Malik’s left wrist.[72]The applicant did not give evidence to the jury but relied upon the evidence of Dr Murphy.

Summing-up

[73]The judge provided written legal directions to the jury, concerning their approach to certain aspects of the evidence and the legal elements of the offence which required to be proved by the prosecution.[74]Save in one respect, there is no challenge to the accuracy of these directions. The exception is the judge’s direction as to their approach to the potential relevance of the safety plan in relation to counts 3 and 5. In that regard

the judge directed the jury as follows:

“I should explain a little more about the safety plan in relation to this count. You have seen the safety plan in relation to this count because it is some part of the prosecution evidence that [the appellant] knew that [the applicant] should not be left alone with the twins but nevertheless he did leave her alone with them and knew that he was leaving her alone with them. The prosecution say that this means that the exposure was wilful. In considering whether [the appellant] exposed Malik wilfully you must consider all the evidence. You must not convict him wholly or mainly on the basis that he breached the safety plan.”

Original grounds of appeal against conviction

[75]The appellant sought to raise three grounds of appeal against his convictions on counts 3 and 5.[76]In the first ground it was submitted that the judge had erred in deciding that the appellant had a case to answer in relation to count 3, in that there was no or insufficient evidence to go before the jury that the applicant had caused the earlier injury to Malik and/or that the appellant was aware that she had done so. In these circumstances, there was no or insufficient evidence that there was a significant risk of serious physical harm being caused to Malik by the applicant by means of a deliberate assault upon him, as opposed to his neglect, nor indeed was there any or any sufficient evidence concerning the remainder of the elements of the offence.[77]In the second ground it was submitted that the judge had erred in widening her consideration as to whether the appellant had a case to answer on count 5, by relying upon evidence outside the time frame of the indictment, namely 10 – 18 August 2020, and in particular failed to limit her consideration as to whether there was sufficient evidence as to the wilful nature of his actions arising from the extent of his knowledge of the earlier injury to Malik.[78]The third ground concerned the judge’s legal direction as to the potential relevance of the Safety Plan, and that the jury should have been directed to ignore these as they could not support a conviction on count 3 or 5.[79]The Single Judge granted the appellant leave to appeal against his conviction on count 3, limited to the first ground. He refused leave in relation to the second and third grounds in respect of which the appellant has sought to renew his application for leave.

Further grounds of appeal

[80]Shortly before the hearing of the original appeal on 12 December 2024, the prosecution served a post-trial disclosure note, to the effect that Professor Mangham had been the subject of adverse judicial comment in a Family Division judgment dated 23 August 2024, namely London Borough of Hammersmith and Fulham v G & others [2024] EWHC 2200 (Fam), “LB Hammersmith and Fulham v G & others”).[81]On 12 December 2024, the Full Court (Macur LJ, Garnham J and HHJ Dean KC) adjourned the hearing of the appeal for the appellant to instruct his own expert and made certain directions as to the service of further evidence and the progress of the appeal.[82]Since then, those instructed on behalf of the appellant have provided three reports from the osteoarticular pathologist, Professor Freemont, dated 23 May 2025, 26 September 2025 and 30 March 2026.[83]In addition to his earlier reports dated 26 September 2021 and 15 March 2022, Professor Mangham has provided a further report dated 30 August 2025.[84]The prosecution also instructed two other expert pathologists, Dr Annavarapu, who has provided a report dated 15 September 2025, and Dr Rosenberg, who has provided a report dated 24 February 2026.[85]A joint meeting of the experts had been directed which took place on 5 March 2026, following which a joint report dated 30 March 2026 was provided on behalf of Professor Mangham, Dr Annavarapu and Dr Rosenburg. Professor Freemont declined to associate himself with that report, and therefore provided his own further report dated 30 March 2026.[86]The appellant has applied for leave to call fresh evidence from Professor Freemont and to amend his grounds of appeal to add a fourth ground, in which it is submitted that Professor Freemont’s evidence, to the effect that Malik did not suffer any fractures which had been caused beyond the timeframe of 2 – 12 hours prior to his death, renders his convictions on count 3 and 5 unsafe.[87]Furthermore, the applicant who had not previously applied for leave to appeal against conviction, seeks an extension of time in which to do so, and to call fresh evidence, on the basis that the evidence from Professor Freemont, also renders unsafe her conviction on count 4.

Hearing of the appeal

[88]At the commencement of the adjourned hearing of the appeal, various submissions were made as to the admissibility of the fresh evidence and that of the adverse judicial comments, which extends beyond that directed towards Professor Mangham and now includes Professor Freemont in a Queens Bench Division judgment dated 21 May 2018, namely Gee & others v Deputy International Limited [2018] EWHC 1208 (QB), (“Gee & others v DI Ltd”) and Dr Cleghorn in a Family Division judgment, namely London Borough of Croydon v D & others [2024] EWFC 438, (“LB Croydon v D & others”). This was despite the fact that arrangements had been made for all four expert pathologists to attend the hearing in order to provide their evidence and be cross-examined.[89]These matters were resolved by our decision to consider all of this material de bene esse, which we have done. We have also heard evidence from these four experts in person and have considered counsels’ further submissions.

Further expert evidence

[90]Professor Mangham maintained his view that on histological examination of the left distal ulna, Malik had suffered a classic metaphyseal lesion between 3 – 6 days prior to his birth.[91]He said that if the fracture had been a fresh one, then there would have been no cartilaginous spur, which develops over the next 5 days, due the non-absorption of the cartilage by the bone at the fracture site. He said that the premium time to view the spur is about a week post-fracture, as after that the healing process commences and eats into the spur. He said that although there was an absence of de novo bone arising from the healing process, which only develops after 5 days, there were diagnostic signs of healing, as some of the fibrinoid material was being accessed by the healing process.[92]He considered that if the fracture had been caused at an earlier date, say 8 – 13 days prior to Malik’s death, then the spur would have been well on its way to being resolved, by being eaten into, and de novo bone would have been present.[93]He agreed that the fracture to the left ulna was a relatively small fracture. However, he disagreed that the cartilaginous spur could have been a normal anatomical variant, as it was comprised of a pure population of hypertrophic cells, whereas if it had been a natural occurrence, it would have been comprised of mixed hypertrophic cells. Moreover, as he was not a clinician, he was unable to provide his professional opinion as to the extent to which a classic metaphyseal lesion would be symptomatic.[94]Professor Freemont has over 30 years’ experience as a specialist in the diagnosis and pathobiology of bone fracture and fracture healing.[95]In his first report, Professor Freemont considered that the histological examination of Malik’s left ulna did not show the changes required to make a diagnosis of classic metaphyseal lesion. He agreed that there was some fibrinoid material present in the area which could have been caused by the same traumatic event which caused the other fractures to Malik’s body but was insufficient to cause a fracture in this area. Therefore, he disagreed with Professor Mangham that there were any fractures other than those which had been identified as having been caused between 2 – 12 hours prior to his death.[96]Professor Freemont acknowledged the existence of the cartilaginous spur which, whilst unusual, are recorded in infant metaphyses, and probably represented a localised form of growth arrest.[97]In his second report, Professor Freemont went on to acknowledge that cartilaginous spurs are a hallmark of healing classic metaphyseal lesions. However, he considered that they were not restricted to this and can be seen in other settings including injury from various sources such as falls, twists and overuse.[98]In the course of giving evidence, Professor Freemont maintained his view that histological examination of the left ulna did not reveal changes which were diagnostic of a classic metaphyseal lesion; a term which he considered was associated with inflicted trauma.[99]However, he agreed that the presence of the cartilaginous spur did represent the presence of a healing injury in this area, which he considered had been caused about 13 days prior to Malik’s death. He agreed that it was traumatic in origin, and could not have been caused by Malik’s own actions. He could not say whether the trauma was intended to cause injury, but it did or may have required the same type of shearing forces which cause classic metaphyseal lesions, although, it could also include compression of the area or a pulling type of force.[100]Dr Annavarapu considered that histology is the gold standard for diagnosis and that as far as he was concerned, the pattern of evidence present in this case indicated that Malik had suffered a classic metaphyseal lesion of his left ulna between 3 – 6 days prior to his death.[101]He stated that the cartilaginous spur was the consequence of the fracture, and that if it had not been it would have been composed of different types of hypertrophic cells. Moreover, the presence of fibro cellular material indicated that the fracture must have been caused at least 3 days prior to Malik’s death, whilst the absence of de novo bone meant it had not been caused 7 days prior to his death. Therefore, the timescale for the cause of the fracture of the left ulna was between 3 – 6 days prior to Malik’s death.[102]Dr Annavarapu agreed that he had been trained by Professor Mangham, but he does not work for him, and his opinion was completely independent. He agreed that the majority of cases where classic metaphyseal lesions are diagnosed are seen radiologically. However, he has experience of 5 or 6 cases where they have only been seen histologically, and these have all been associated with traumatic abuse.[103]Dr Rosenberg provided his evidence via CVP from the US where he has specialised in musculoskeletal pathology for over 40 years. He has published over 400 peer-reviewed articles and written over 90 chapters in related textbooks, including two in Dr Kleinman’s publication entitled the Diagnostic Imaging of Child Abuse.[104]Having examined the histological slides of material taken from Malik’s left ulna, he considered that they showed two injuries of different age.[105]Firstly, there was an older injury indicated by the presence of the cartilaginous spur, together with areas of thickened growth plate and the replacement of bone with fibro active tissue. This was a classic metaphyseal lesion which had been caused approximately 4 days prior to Malik’s death and is highly associated with non-accidental injury to the area.[106]Secondly, there was a more recent injury indicated by the presence of fibrin along the course of the cartilaginous spur, which represents a further significant traumatic injury to this area which was caused between 2 – 12 hours prior to Malik’s death.[107]Dr Rosenberg said that there was no underlying bone abnormality which would have rendered Malik more susceptible to trauma and that although trauma can be accidental, the type of mechanism which was required to cause a classic metaphyseal lesion, including the older injury, was torsional traction, and did not include compression.

Discussion

[108]Section 5 of the 2004 Act provides as follows: “(1) A person (“D”) is guilty of an offence if—(a) a child or vulnerable adult (“V”) dies or suffers serious physical `harm 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 the death or serious physical harm 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. (2) The prosecution does not have to prove whether it is the first alternative in subsection (1)(d) or the second (sub-paragraphs (i) to (iii)) that applies. ….” (a) a child or vulnerable adult (“V”) dies or suffers serious physical `harm 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 the death or serious physical harm 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.[109]The legal elements of the offence of causing or allowing the death of a child, contrary to section 5 of the 2004 Act, have recently been considered by this court in R v Jamal [2026] EWCA Crim 135, which held that section 5(1)(c) only required the establishment of a risk of serious physical harm which existed coterminous with the unlawful act, and therefore may include both a pre-existing risk and a present risk arising from the act or omission itself.[110]However, in the case of someone accused of such an offence who is not the person whose act caused the death of the child, they will only be guilty of the offence, as someone who has allowed the death, if the prosecution are able to establish the matters set out in section 5(1)(d)(i) – (iii).[111]Therefore, as the court observed in that case, at [38], “…In practice, in most cases where liability is sought to be attached to a person as an allower, the prosecution will need to demonstrate a pre-existing risk in order for (i) – (iii) to be satisfied (though see below for a course of conduct involving omissions). It will depend on the facts of each case….”[112]Moreover, in R v Sheikh & others [2025] EWCA Crim 38, this court provided guidance as to the court’s approach to the issue as to whether, as required under section 5(1)(d)(iii), the act occurred in circumstances of the kind that the accused foresaw or ought to have foreseen.[113]The court considered that it was not enough that the act comprised the infliction of serious physical harm by any unlawful means, rather the focus must be on the circumstances in which the death occurred, and whether they were of the kind that the accused foresaw or ought to have foreseen. As Macur LJ explained between [32] – [35], “32. Our view happens to accord with the view expressed in the 17th edition of Smith, Hogan and Ormerod’s Criminal Law, and which we specifically endorse, namely:
“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).” 33. We are satisfied that the offence contrary to section 5 of the DVACA was not, and must not, be so widely interpreted as to undermine the safeguards in section 5(1)(d)(iii), all of which must be given due weight. 34. Our view is corroborated by the changed commentary in the 17th edition of Smith, Hogan, and Ormerod’s Criminal Law and which now, correctly in our view, poses the questions: “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)
35. However, in this latter regard, we cavil at the example given in chapter 15.4.7 of the 17th edition suggesting that a non-perpetrating D “who is aware that X has previously shaken D’s baby, V, violently when X is drunk, might not be guilty if X caused V’s death or serious injury by, for example, dipping V’s dummy in methadone to stop V’s incessant crying when X was sober and trying to work”. It appears to us that it is liable to be seized upon by defendants and relied upon as an argument that ‘circumstances of the kind’ are to be interpreted dependent only upon the situation which existed at the time of the previous insult, namely X’s sobriety, rather than, for example the extent of his previous maladaptive behaviour towards an infant who would not be soothed. That is, though the act be different in nature, they were committed with the same desired outcome in mind. This is not to interpret ‘the circumstances’ too loosely. It will, of course, be a matter for the jury, or the judge on a submission of no case to answer, to have regard to all the evidence and all the circumstances.” “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).”[114]Turning to the present case, we see nothing in the approach of the judge to the question as to whether the appellant had a case to answer in relation to count 3, which in any way conflicts with the interpretation and approach set out in these authorities. Moreover, we are satisfied that on the basis of the evidence available at the close of the prosecution’s evidential case, the judge was correct to refuse the appellant’s application of no case in relation to both counts 3 and 5.[115]In relation to count 3, Professor Mangham’s evidence was sufficient to establish that Malik had suffered serious physical harm as a result of someone’s unlawful act in the period of 3 – 6 days prior to his death, and, bearing in mind the fact that the applicant was his main carer at that time and that the nature of the previous injury was almost identical to the injury which the applicant inflicted to Malik’s right wrist during the course of the fatal attack on him, there was sufficient evidence for the jury to be sure that the applicant was also responsible for having inflicted the previous injury.[116]Indeed, we note that, understandably, no submission to the contrary had been made on behalf of the applicant in relation to count 4.[117]Moreover, despite the evidential matters pointed out by Mr Siddle, including the video recording of Malik on 16 August 2020, the evidence from Dr Cleghorn was sufficient to enable the jury to be satisfied that, after the infliction of the previous injury and prior to the fatal attack, the appellant was or ought to have been aware that there was a significant risk of serious physical harm being caused to Malik by the unlawful act of the applicant.[118]As the judge rightly pointed out, it was common ground that the appellant had taken no steps to protect Malik from that risk, because on his case nothing caused him to be aware of the need to take any steps, which would have included not only seeking medical attention for Malik and/or reporting his change in behaviour to the authorities, but also taking the various steps which he had undertaken to seek to prevent the applicant from consuming alcohol.[119]Moreover, in view of the fact that the previous injury had been caused by the deliberate infliction of unlawful force to Malik’s body, against a background of the heightened risk factor of the applicant’s continuing consumption of alcohol, the jury could be satisfied that the fatal act occurred in circumstances of the kind that the appellant foresaw or ought to have foreseen.[120]Likewise in relation to count 5, these matters were sufficient to enable a jury to be sure that the appellant had, following the infliction of the previous injury, wilfully exposed or neglected Malik in a manner likely to cause him unnecessary suffering or injury to health.[121]In so far as the appellant seeks to criticise the direction which the judge provided to the jury as to the potential relevance of the appellant’s breaches of the safety plan, we consider that such criticism is unfounded. The safety plan was specifically designed to seek to ensure the twins’ safety, not just from neglect but from the heightened risks of physical harm arising from the applicant’s consumption of alcohol. There was evidence that despite having signed the safety plan, not only was the applicant continuing to consume alcohol, and indeed cannabis, but that the appellant was aware of this and took none of the preventative steps which he had undertaken.[122]In these circumstances, the judge’s direction to the jury not only assisted the jury with the potential relevance of this aspect of the evidence but appropriately warned the jury that it was only part of the evidence in the case and that they must not convict the appellant on count 3 or 5, either wholly or mainly on the basis that he had breached the safety plan.[123]Therefore, on the basis of the evidence that was provided during the course of the trial, we are satisfied that there is no merit in any of the appellant’s grounds of appeal against conviction.[124]However, in view of the criticism levelled at Professor Mangham and Dr Cleghorn in previous cases, and in the light of the further medical evidence which we have heard, we have given careful consideration as to the safety of these convictions and indeed that of the applicant in relation to count 4.[125]In relation to the judicial criticism levelled at Professor Mangham, these were dealt with between [74] – [75] of Keehan J’s judgment in LB Hammersmith and Fulham v G & others. Whilst not underestimating what was said in that case, and in particular the notion that Professor Mangham had closed his mind to certain aspects of the evidence, we note that Keehan J considered that these errors were largely borne out of his being overburdened with work, such that he had fallen below his own high standards as a forensic witness.[126]Moreover, whilst again not underestimating the serious concerns which the Deputy High Court Judge had in relation to the evidence of Dr Cleghorn in LB Croydon v D & others, which also included a closed-mind approach, we note that the “fundamental error” upon which many of those criticisms was based arose from her misidentification of the individual to whom the primary medical evidence was attributed.[127]As we observed during the course of the hearing, some of the difficulties which arise in cases such as the present, and indeed in other similar cases in the Family Division and elsewhere, arise from the paucity of appropriately qualified and experienced pathologists who are available to provide expert forensic evidence concerning the identification and dating of fractures and other lesions in cases involving infants and young children.[128]Indeed, we note that in the UK, whilst Professor Mangham has now been joined by Dr Annavarapu, Professor Freemont has understandably felt some obligation to continue to provide his expertise in this area.[129]However, in addition to these experts, we have also had the very considerable benefit of hearing from Dr Rosenberg during the course of the appeal, who has very extensive experience in this area, and is considered to be one of the leading experts in the diagnosis of classic metaphyseal lesions.[130]His opinion was unequivocal, namely that, based on the histological evidence with which he had been provided, including the presence of the cartilaginous spur, together with areas of thickened growth plate and the replacement of bone with fibro active tissue, Malik had suffered a classic metaphyseal lesion to his left wrist, which had been caused approximately 4 days prior to his death. Moreover, that not only are such lesions highly associated with non-accidental injury, but that the type of mechanism which was required to cause them is torsional traction and would not include compression.[131]This evidence was entirely in line with that provided by Professor Mangham, not only at trial but in the course of the hearing of the appeal and was also fully supportive of the evidence provided by Dr Annavarapu. In this regard, we detected no sign during the course of the hearing before us that Professor Mangham was not open to consider other explanations for the presence of the histological findings, or that he, or indeed Dr Rosenberg or Dr Annavarapu had a closed-mind attitude towards their opinions.[132]In contrast, we regret that during the course of the evidence which was provided by Professor Freemont, we did detect an unwillingness by him to diagnose the presence of a classic metaphyseal lesion in Malik’s left wrist, borne almost entirely out of its association with inflicted trauma.[133]Indeed, as is clear from the summary of his evidence which we have provided earlier in this judgment, although he now acknowledges the presence of an older injury to Malik’s left wrist, albeit one which he dates back to having been caused about 13 days prior to his death, there was no mention of this in his first report, which only referred to the presence of fractures which had been caused between 2 – 12 hours prior to Malik’s death.[134]Indeed, although in his second report Professor Freemont acknowledged that the presence of cartilaginous spurs are a hallmark of healing classic metaphyseal lesions, he posited other causes such as falls, twists and overuse, which in his subsequent evidence he accepted could not have been caused by Malik as a result of his very young age.[135]When the nature of the older injury to Malik’s left wrist was explored with Professor Freemont at the hearing, he maintained his reluctance to diagnose that it was a classic metaphyseal lesion, albeit he agreed that the injury would have been traumatic in origin. Moreover, although he accepted that the injury either was or may have been caused by the same type of mechanism which results in classic metaphyseal lesions, he suggested that compression might also account for it, which was something which was specifically discounted by Professor Rosenberg.[136]Indeed, although Professor Freemont’s aging of the earlier injury does not appear to assist either the appellant or the applicant in the pursuit of their appeals, even this is open to very serious doubt in the light of the other evidence in this case and in particular the lack of presence of de novo bone formation and/or the resolution of the cartilaginous spur.[137]We regret that by the end of his evidence, we were wholly unpersuaded that it reflected the type of open impartiality that was evident in the evidence which we heard from the other expert pathologists , and indeed was more characteristic of some of the observations which Andrews J (as she then was) described in her judgment at [597] in Gee & others v DI Ltd.[138]In relation to the evidence of Dr Cleghorn, as we have already observed, we do not underestimate the criticism made of her evidence in the judgment from the Family Division. However, in the present case there was no question of her misattributing evidence of the presence of injuries, rather she had been asked to provide her professional opinion on the effects of an injury which had been diagnosed and aged by others. As an experienced paediatrician she was eminently well-qualified to provide such clinical evidence. Moreover, it was not suggested to us that she had closed her mind to other possibilities more favourable to the appellant’s case, and we do not detect that she did. Accordingly, we do not consider that the judicial criticism of her evidence in that case affects the value of her evidence to the jury in this case.[139]In those circumstances, we do not consider that the evidence from Professor Freemont causes us to have any concerns as to the reliability of the evidence which Professor Mangham provided in the course of the trial. Moreover, as Professor Freemont now accepts that Malik did suffer an earlier traumatic injury to his left wrist, indeed of an age which would not assist in advancing any of the grounds of appeal in this case, the only issue which his evidence could go to, is whether this was a classic metaphyseal lesion and the nature of the mechanism which caused it. In our judgment, for the reasons which we have already set out, we are wholly unpersuaded that his opinion on either of these intertwined issues has sufficient credibility for it to cause us any concern as to the safety of any of the convictions in this case.[140]Accordingly, we refuse the application to admit his evidence, and we dismiss the appellant’s appeal against convictions on counts 3 and 5, and refuse the applicant’s application for an extension in which to apply for leave to appeal against conviction on count 4.

Sentence

[141]In the course of her sentencing remarks, the judge observed that when the applicant became pregnant in 2019, because she did not want a relationship with the biological father, she had an incentive to form a relationship with the appellant, as she feared that unless she gave the appearance to social services that she was part of a settled household, the twins would be removed from her care. Moreover, as a long-term overstayer in the UK and working illegally under a false name, the appellant had an incentive to form a relationship with the applicant, in order to give the appearance to the immigration authorities that he was part of a settled household in order to increase his chances of regularising his immigration status.[142]However, the judge accepted that despite these matters, when the twins were born, both the applicant and the appellant loved them, and expressed grief at Malik’s death, albeit she noted, “neither of you has shown remorse or insight into your actions.”[143]In so far as count 1 was concerned, the judge accepted that the appropriate starting point for the determination of the minimum term in relation to the mandatory life sentence for murder was 15 years.[144]Thereafter, the judge determined that an upward adjustment was required to take into account the aggravating factors which were present, namely that Malik was particularly vulnerable due to being less than 3 months old and completely dependent upon her care, the fact that the applicant has consumed a significant amount of alcohol at the time of the killing, the previous injury which she had inflicted upon Malik and the criminality arising from the other offences of which she had been convicted at counts 6 and 7.[145]The judge indicated that a downward adjustment would be required to take into account the mitigating factors which were present. In this regard, the judge noted that the applicant had no previous convictions. She accepted that the murder was not premeditated and that the applicant intended to cause serious bodily harm rather than to kill Malik, albeit the judge considered that “..this is a narrow distinction given the number of injuries that you inflicted to his brain, head, ribs and wrist and the force that would have been required to inflict them. So your intention is little mitigation.”[146]The judge noted that the applicant had had an unstable childhood and had suffered domestic violence from previous partners. Moreover, that there was a history of mental health problems, albeit the judge accepted the evidence of Professor Rix who had been called to give evidence on behalf of the prosecution, that following the birth of the twins, the applicant was not suffering from the effects of mental illness, such that her culpability for the murder was not reduced. Rather the applicant had chosen to drink alcohol and had admitted to the author of the pre-sentence report that she and the appellant had maintained an outward pretence of adhering to the safety plan for fear the twins would be taken into care. In these circumstances, the judge determined that “Other than your immense grief and present mental disorder, your personal situation and background provides little mitigation.”[147]In these circumstances, the judge concluded that the aggravating factors outweighed the mitigating factors, “such that there should be an upward adjustment from the starting point for murder.”[148]In relation to the appellant, the judge was sure that the appellant not only knew that the applicant had injured Malik’s left wrist but that she continued to drink alcohol. Moreover, that although he had ample opportunity to take steps to report these matters to the authorities, “Your own selfishness stopped you from doing so.”[149]In so far as the categorisation of count 3 was concerned, the judge noted that as Malik had died, the level of harm was within category 1, under the offence-specific guideline. In relation to culpability, the judge considered that this was within category B, due to the prolonged incidents of serious neglect, the deliberate disregard for Malik’s welfare and the failure to take any steps to protect Malik from offences in which these factors were present.[150]Therefore, the appropriate starting point was 9 years’ custody with a category range of between 7 – 14 years.[151]The judge determined that there were no aggravating factors under the guideline, although an upward adjustment from the starting point would be required to take into account the seriousness of the appellant’s criminality arising from count 7.[152]In so far as mitigation was concerned, the judge concluded that, “The fact that you have no previous convictions provides little mitigation when you have not only overstayed your visa but have worked in the UK in a false name.” Moreover, “In circumstances where you had an arrangement with Eloddie that was born from your calculated selfishness, your grief after the events provides only limited mitigation.” Submissions[153]On behalf of the applicant, Mr Roderick Johnson KC, to whom we are grateful for his clearly expressed submissions, accepts that Malik’s murder was a horrifying incident, and that some upward adjustment from the 15 year starting point was required to take into account the criminality arising from the other counts of which the applicant was convicted. Albeit he notes that, out of humanity, the paramedic did not wish to complain about being assaulted, and it was contended that it had not been the applicant’s idea to contaminate the urine sample.[154]Mr Johnson submits that these matters would have justified an upward adjustment of no more than two years, and that thereafter the mitigation available to the applicant would have required a downward adjustment to the original starting point. In this regard, he points out that the applicant had had a difficult childhood and had struggled with her mental health. She loved the twins and had sought some assistance from a friend. Moreover, the murder was not premediated, there was no intent to kill and the applicant lacked previous convictions.[155]On behalf of the appellant, Ms Lisa Bald, to whom we are also grateful, submits that the judge was in error in her categorisation of count 3 under the sentencing guideline. It is pointed out that the appellant was not the perpetrator of the violence inflicted upon Malik. Moreover, it is submitted that the neglect in this case was not prolonged, nor borne out of a deliberate disregard for the welfare of the victim. In those circumstances, it is submitted that the appellant’s level of culpability fell within category C, such that the appropriate starting point was 5 years’ custody, from which some downward adjustment was required to take into account the mitigation available to the appellant.

Discussion and conclusions

[156]We consider that Mr Johnson was correct to describe Malik’s murder as a horrifying incident, involving as it did the forceful gripping and shaking of an 11-week-old baby, whose head was struck against a hard surface resulting in multiple fractures of his body and skull, together with fatal injury to his brain.[157]Moreover, although the appropriate starting point for the determination of the minimum term in relation to the mandatory life sentence for murder was 15 years, a substantial uplift was justified to reflect both the aggravating factors identified by the judge and the further criminality arising from the applicant’s criminality in relation to counts 4, 6 and 7.[158]We of course accept that the applicant had had a difficult childhood and, we have read the various medical reports concerning the difficulties which she has experienced with her mental health over the years and more recently. However, the judge, having heard the psychiatric evidence which was provided during the trial, was entitled to conclude that such difficulties did not reduce the applicant's culpability for the murder. Moreover, that given the circumstances giving rise to Malik’s death, the applicant’s lack of intent to kill Malik, as opposed to causing him serious bodily harm, provided little mitigation, beyond her lack of premeditation and of previous convictions.[159]In these circumstances, we agree with the view of the Single Judge, that the judge was particularly well-placed to consider the extent of the applicant’s criminality arising from her convictions and that the minimum term of 17 years was not arguably manifestly excessive.[160]Accordingly, the applicant’s renewed application for leave to appeal against sentence is refused. However, in accordance with what this court said in R v Sesay [2024] EWCA Crim 483, we will order that the record of the sentence be corrected to reflect the minimum term, less the 639 days spent on remand in custody, as being 15 years and 91 days.[161]In relation to the appellant, we have given careful consideration as to whether the judge was justified in determining that his culpability in respect of count 3 fell within category B. In this regard, although we accept that the appellant’s failure to take appropriate steps in relation to the applicant’s consumption of alcohol persisted over a longer period of time, his awareness of the significant risk of serious physical harm being caused to Malik by the applicant’s unlawful act, arose from the infliction of the earlier injury to Malik’s left wrist, which occurred in the period of 3 – 6 days prior to his death.[162]In these circumstances, we consider that it cannot properly be said that there was a prolonged period of serious cruelty or neglect. Moreover, although there was some evidence of a deliberate disregard for the welfare of the victim, given the relatively short period to which we have referred, we consider that the extent of the appellant’s culpability is more appropriately within category C, which has a starting point of 5 years’ custody. However, we are equally of the view that given the other aspects of the appellant’s default, including his failure to take appropriate steps in relation to the applicant’s consumption of alcohol, a substantial uplift within the category range of between 3 – 8 years was justified, prior to any reduction to reflect the mitigation available to the appellant.[163]In reality, as the judge correctly determined there was little mitigation available to the appellant. Moreover, as the period of imprisonment imposed upon the appellant in relation to count 7 was ordered to run concurrently with the period imposed in relation to count 3, a further upward adjustment was required to reflect the principle of totality, so as to ensure that the overall sentence was just and proportionate to the offending as a whole.[164]In our judgment, the appellant’s overall criminality arising from his convictions justified a period of 7 years’ imprisonment. Therefore, we will quash the sentence of 10 years’ imprisonment imposed upon the appellant in relation to count 3, and substitute a sentence of 7 years’ imprisonment. The sentences on the remaining counts will remain unaltered, resulting in a total sentence of 7 years’ imprisonment and to that extent the appellant’s appeal against sentence succeeds.