R v SGQ [2026] EWCA Crim 649

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.This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.

[2026] EWCA Crim 649

Case No 202500704/B3

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT NORWICH

HHJ Andrew Shaw

T20217110

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 28 th April 2026

Before

LADY JUSTICE MAY DBE

MRS JUSTICE NORTON DBE

MRS JUSTICE OBI DBE

Between

RexCrown

SGQDefendant

Computer Aided Transcript of Epiq Europe Ltd,

Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE

Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

MR N RASIAH KC appeared for Appellant

MR D O’DONNELL appeared for Crown

J U D G M E N T

[1]The provisions of section 45 of the Youth Justice and Criminal Evidence Act 1999 are engaged in this case because the victim, whom we shall refer to as "V", is a child whose welfare the court is required to consider. Restrictions imposed under section 45 in respect of a victim, witness, or defendant apply only until that individual reaches the age of 18. Because of the nature of this case and the risk of jigsaw identification of V, the name of the appellant has been anonymised by the use of randomly generated initials in the listing of the case.

Introduction

[2]On 29 January 2025, following a trial in the Crown Court at Norwich, the appellant was convicted of causing or allowing a child to suffer serious physical harm, contrary to section 5 of the Domestic Violence, Crime and Victims Act 2004. On 28 March 2025 she was sentenced to nine months' imprisonment suspended for 24 months, with a rehabilitation activity of up to 15 days.

[3]The appellant now appeals against that conviction with limited leave of the single judge. In giving leave on certain of the grounds only, the single judge noted that additional and/or improved transcripts were required in order properly to consider part of the appellant's ground 2 as well as ground 4 and he referred the application for leave in respect of those grounds to the full court.

The facts of the Alleged Offending

[4]V is the appellant's son. At the time of the events we are dealing with V was a very young baby, just ten weeks old. He had been born by emergency Caesarean section in October 2018. The appellant also had an older son, aged around 18 months at the time.

[5]In the early hours of the morning on 29 December 2018, the appellant took V to hospital, having called 111 shortly before to report that his right leg seemed bent and that he cried when she touched it. Following examination, he was found to have a displaced spiral fracture of the mid shaft of his right femur (upper thigh bone). Social Services were called and further assessments of V were carried out. It was discovered that V had sustained other injuries: a metaphyseal fracture of the left distal femur (thigh bone towards the knee), a metaphyseal fracture of the left proximal tibia (shin bone towards the left knee), and a metaphyseal fracture of the right proximal tibia (shin bone towards the right knee).

[6]Paediatric radiologists reported that:(i) Spiral fractures required a twisting force to be applied – they did not occur from a direct blow or an uncomplicated short distance fall. Metaphyseal fractures resulted from a pulling and twisting force being applied to the limb – they did not result from a simple fall or direct blow.

(ii) The spiral fracture to V's right femur was most likely to have occurred between 21 and 28 December 2018.

(iii) The metaphyseal fractures to the left thigh bone towards the knee and shin bone towards the left knee were at least two weeks old on 31 December 2018 and were therefore likely to have been caused between 10 and 18 December 2018.

(iv) The fourth injury (fracture of the shin bone towards the right knee) was no more than four weeks old and was most likely to have been caused between 3 and 17 December 2019.

[7]The appellant and her partner, V's father, were subsequently arrested and interviewed. Both denied causing any injury to V. The appellant said that she had noted that V’s hip was swollen and that she had tried gently to straighten out his leg, which caused him to cry. She was interviewed again following receipt of the medical evidence. She maintained her denial that she had not caused V's injuries. She said that on 28 December she had left V alone for an hour or two with the co-accused and returned home to see that V's leg was swollen.

[8]At trial the prosecution relied on the following evidence:(i) Medical evidence from Dr Katherine Halliday and Dr Joanna Fairhurst (expert paediatric radiologists) as to the nature and causation of the injuries;

(ii) Evidence of text messages between the appellant and the co-accused – the prosecution suggested that these messages demonstrated that the appellant was struggling to cope with being the primary carer for both children and that the co-accused was aware of this;

(iii) Evidence from Detective Sergeant Lisa Allen in relation to a set of notes initially provided to her by the appellant, and details of the appellant's interview.

[9]Prior to it being conclusively established, during the course of the defence evidence, that the appellant had gone to Tesco's with her mother on the afternoon of 28 December, the prosecution had sought to suggest that both defendants had lied about the appellant’s absence from the home for two hours that afternoon.

[10]The defence case for the appellant at trial was one of denial. It was submitted that there was no evidence that one parent or the other had caused the injury. There was, however, ample evidence of:(i) the co-accused having been alone with the victim; and

(ii) the co-accused having had the opportunity to cause the spiral fracture on 28 December as well as the metaphyseal fractures, without the appellant being aware of this.

[11]The appellant gave evidence that although the co-accused was not the biological father of her eldest son, they had resumed their relationship whilst she was pregnant, and he had been happy to raise the child as his own. They moved into their own flat and she had become pregnant with V. She said that she had struggled with the second pregnancy and that V had been born by emergency Caesarean section. The co-accused returned to work once V was around three weeks old and was out of the house from around 6 am to 6 pm. She said that V was a quiet baby who seemed to cry only when his nappy needed to be changed. Her evidence was that she did not see or notice anything prior to 28 December to suggest that V might have been injured.

[12]The appellant said that she had spent Christmas with the co-accused, the children and her family. She had spent most of the day on 28 December at home but had gone out in the afternoon with her mother to the Tesco supermarket. She was away from the house for around 90 minutes to two hours, during which time the children were left in the care of the co-accused. After returning home she noticed, at around 5.30 pm, that V was a little unsettled and was crying on and off. She thought that he was hot, so she undid his Babygro and noticed that his leg was in an unusual position. When she tried gently to straighten it out, he cried. She had taken a couple of photographs of him – the last of which was at 8.42 pm. She denied that she had hurt V that evening. She called her mother and the non-emergency number 111 at that time. Following their advice, she later took V to hospital. She had been shocked when she found out about the hip injury and asked nurses on the ward if it might have been caused at birth. She denied that she had been searching on the internet for the causation of unexplained fractures to babies because she knew that she had caused the injury. She said that she had no idea how the injury had been caused; and her internet searches were based on things that had been mentioned at the hospital or that she had overheard when the medical staff were discussing the incident. She denied that she had done anything to harm V at any stage from his birth until his admission into hospital. She stated that she had never seen the co-accused handle either child in a rough manner. She denied that the messages which she had sent to the co-accused demonstrated that she had been struggling to cope with caring for the children.

[13]The appellant also relied upon the following:(i) Medical evidence from Dr Olsen in relation to the injuries to V and his view that on 29 December 2018 the spiral fracture was up to three weeks old;

(ii) Evidence from her mother in relation to the appellant's temperament, her care for her children and the fact that her mother did not have any concerns in relation to the appellant or the co-accused's parenting skills; and

(iii) Character evidence from five of her friends.

[14]The issues for the jury in relation to the appellant were whether they were sure that:(i) At least one of the defendants had unlawfully caused the spiral fracture to V’s femur;

(ii) Before that injury there was a significant risk of serious physical harm to V being caused by an unlawful act by the appellant or by the co-accused; and

(iii) The appellant had either caused the injuries or was aware or ought to have been aware of the significant risk of serious physical harm and had failed to take reasonable steps to protect V from that risk.

Defence Submission of No Case to Answer and the Judge's Ruling

[15]At the close of the prosecution case the appellant and her co-accused applied to have the case dismissed for lack of evidence. Defence counsel submitted that the prosecution could not show which of the two defendants had caused the injuries and that both must therefore be considered as "allowers". As the prosecution's case was that all the fractures, spiral and metaphyseal, were serious injuries for the purposes of the charge, there was no evidence to demonstrate(i) that at the time serious harm was suffered, there was a significant risk of serious harm being caused to V by the unlawful act of another member of the household, or

(ii) that either defendant (on the basis that both were to be considered as "allowers" rather than "causers") was or ought to have been aware of the risk of serious harm to V.

[16]There was a discussion between counsel and the judge prior to his ruling in which the judge pointed out that the difficulty appeared to be in the way the prosecution had advanced its case, by relying on all the injuries as serious injury for the purposes of the single count. If the case were to be advanced on the basis that the most recent (and most serious) injury, being the spiral fracture of the right femur, was the serious injury then the earlier metaphyseal injuries would constitute evidence of pre-existing risk. The judge also suggested to prosecuting counsel that there was good evidence which indicated that it was the appellant who had caused the injuries, and he allowed the prosecution time to consider amending the indictment to add a section 20 charge against the appellant in respect of the spiral fracture.

[17]We have seen the transcript of the further discussion prior to the judge's ruling. The prosecution applied to amend the indictment, to add a count of inflicting grievous bodily harm against the appellant, which Mr Rasiah KC, for the appellant, firmly resisted, essentially on the basis that it was prejudicial to the appellant for the case to be altered by including a charge of assault at this stage of proceedings.

[18]In his ruling the judge refused to allow the amendment and dismissed both defence applications, holding that there was sufficient evidence to establish the necessary elements of the section 5 offence, whether as "causer" or "allower", for both defendants.

The Grounds of Appeal

[19]Mr Rasiah KC, who appeared for the appellant at trial, advances four grounds of appeal: first, that there was insufficient evidence and that the judge should have stopped the case (grounds 1 and 3); next, that the judge entered the arena by inviting the prosecution to change their case (ground 2); and lastly, that the summing up was imbalanced (ground 4).

[20]In relation to the first ground, Mr Rasiah submitted that the prosecution, in opening, had "properly conceded" that the evidence did not prove which of the two defendants inflicted the fractures which V had sustained. The defendants could only have been convicted as "allowers" and, as such, there was insufficient evidence to prove that either the appellant or the co-defendant knew or ought to have known of a significant risk of serious harm being caused to V at the hand of the other. Given the expert evidence as to the likely effect on V of any of the metaphyseal fractures (short-lived fractiousness or "grizzling") a non-perpetrator could not have been expected to have realised that the baby had been injured. On this basis there was no case to answer against either defendant, and the judge had been wrong to invite the prosecution to change its case to allege that the appellant had been responsible for all of the injuries. Moreover, the judge had done so at the time when the prosecution were relying on what it said was a false account of the appellant going with her mother to Tesco for two hours on the afternoon of 28 December. Yet when this was demonstrated to be a true account, the judge had not re-visited his earlier decision.

Discussion and Decision

[21]The section 5 offence was introduced in order to deal with the situation where a child is killed or seriously injured in a home where two or more adult care-givers are present and it is impossible to say which has caused the death or serious injury. For present purposes, the relevant parts of section 5 of the 2004 Act are:

"5. The offence (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."

[22]For simplicity, in this judgment we have referred to a person who has caused the death or serious injury as a "causer", and a person who has allowed it to happen as an "allower".

[23]There are two aspects of these provisions that are particularly germane to the case before us. First, there is the requirement under section 5(1)(c) for the risk of serious physical harm to be present at the time of the act causing death or serious injury. The risk might arise from a pre-existing circumstance or a circumstance occurring at or shortly before the time of the act causing death or injury. The act itself may create the significant risk, for example a parent assaulting a baby by twisting and pulling on the baby's leg would be risking a serious injury to the baby. It is not necessary, in respect of a perpetrator, for the prosecution to prove a pre-existing risk: see R v Jamal

[2026] EWCA Crim 135

[24]The second point of note arises from sub-section (2): the prosecution does not have to prove whether a particular defendant is a "causer" or an "allower". There are additional elements of which the jury needs to be satisfied in order to convict a defendant as an "allower" (the requirements under sub-section 5(1)(d)(i) – (iii)), but the prosecution does not have to prove whether a particular defendant caused the death or injury or allowed it. The fact that the prosecution in this case charged the appellant (and her partner, the co-accused) with the section 5 offence, rather than a substantive assault, did not preclude the jury from concluding that the appellant caused the spiral fracture to V (if that is what they did).

[25]Looking at the prosecution Opening Note and comparing it to the way in which the case was summarised by the judge in his summing up, there does not appear to us to be a great difference. The prosecution did not tell the jury in their opening that "the evidence was insufficient to prove that the appellant caused serious harm to V", as Mr Rasiah submitted. Paragraph 2 of the Opening Note reads:

"In a nutshell the Prosecution Case is that during his short life up to 29 December 2018, [V] suffered multiple fractures of significant bones. That these fractures occurred on at least two separate occasions but would have required multiple applications of force. That the injuries were inflicted non-accidentally by one or both of these defendants and in any event any carer ought to have been aware that [V] was at risk of serious injury and failed to take such steps as he or she could reasonably have been expected to take to protect [V]."

[26]There was nothing in that passage about there being insufficient evidence to say who had caused the injuries.

[27]What does appear to have happened is that the prosecution initially sought to suggest to the jury that all of the fractures were to be considered as serious injury for the purposes of the section 5 offence. However, by the time of the summing up the position had changed, such that the prosecution relied on the last, most serious, spiral fracture as the serious injury for the purposes of the offence, pointing to the earlier metaphyseal fractures as putting either defendant (if the jury thought she (or he) were not the causer) on notice of a significant risk as required by the provisions of section 5(d)(i) – (iii).

The judge summarised the prosecution case to the jury in this way:

"So, what are the competing arguments in this case? Well, on behalf of the Crown, Mr O'Donnell submits really that you should keep your feet on the ground because, he says, someone inflicted that very serious fracture to [V]'s right femur likely on the 28th of December. Furthermore, Mr O'Donnell submits, there was at the time a significant risk that [V] would suffer some serious harm because on at least one and likely two earlier occasions someone had inflicted the metaphyseal fractures to both of [V]'s legs and in circumstances where that pre-existing significant risk was or is present, he argues, one of the two defendants caused the right femoral fracture and the other was aware or ought to have been aware that there was a significant risk of the non-coping parent causing serious physical harm to [V], and that parent fails to take reasonable steps to protect [V] from that risk, resulting in [V] being injured in precisely the sort of circumstances that the allowing parent must have envisaged. And finally, Mr O'Donnell reminds you, he does not have to prove which of the two caused and which allowed, he only has to prove in the case of both parents that he or she either caused or allowed."

The judge's route to verdict, which we commend for its clarity, followed the same approach:

"Question 1 Has the prosecution made you sure that the right femoral fracture was caused by at least one of the defendants deliberately and unlawfully applying force to [V] realising that some physical harm would be done to [V] yet taking the risk of it? If the answer is yes, then you will be sure that the fracture injury you are considering resulted from an unlawful act by one of the defendants and you should go to question 2. If the answer is no, then your verdict in respect of each defendant must be NOT GUILTY. Question 2 Has the prosecution made you sure, before [V] sustained that fracture, that there was a significant risk of serious physical harm being caused to him by such an unlawful act committed by one of the defendants? If the answer is yes, go to question 3. If the answer is no, your verdict in respect of each defendant must be NOT GUILTY. Question 3 TAKING EACH DEFENDANT IN TURN Has the prosecution made you sure that the defendant you are considering was either (i) the person whose act caused the serious physical harm; or (ii) that he or she was aware or ought to have been aware of the significant risk of serious physical harm being caused to [V] by the unlawful act of the other defendant; and (iii) failed to take such steps as he/she could reasonably have been expected to take to protect [V] from the risk; and (iv) the unlawful act occurred in circumstances that the defendant you are considering foresaw or ought to have foreseen? If your answer to (i) is yes in respect of either defendant, your verdict in respect of that defendant must be GUILTY; OR if your answers to all of (ii), (iii) and (iv) are yes in respect of either defendant, your verdict in respect of that defendant must be GUILTY. If in respect of either or both defendants your answers to (i) and (ii), (iii) and (iv) are no, your verdict in respect of that defendant or those defendants must be NOT GUILTY."

[29]As is apparent from the summing up and from the judge's directions, it was not the prosecution case to the jury that it was the appellant who had caused the injuries, nor did the judge make any such suggestion to them. The directions which he gave applied to both defendants equally. It was for the jury to determine whether they were satisfied that one or other, or both of the defendants had either caused or allowed the infliction of the spiral fracture to V's right femur.

[30]There appears to us to have been ample evidence from which a properly directed jury could find the appellant guilty whether as "causer" or as "allower":(i) The expert evidence was that the metaphyseal fractures were non-accidental and were inflicted on at least one, or probably two, occasions prior to the occasion upon which the spiral fracture to the femur was inflicted;

(ii) The spiral fracture to the femur was recent ("acute") at the time that V was X-rayed at the hospital on 29 December;

(iii) Ageing of fractures was accepted to be difficult radiology. Clinical evidence (symptoms) were at least as important. The fracture would have been extremely painful. V would have screamed and cried for ten to fifteen minutes, would become distressed if his leg was touched, and the leg would be tender and swollen:

(iv) There was evidence of such symptoms, upon which the jury could have concluded that the spiral fracture occurred between 8.42 pm, when photographs were taken of V, and 10.32 pm, when the appellant called 111 stating that V had been crying for two hours. This was consistent with the snapchat message to "Darionhorn" at 11.33 pm that V was "nonstop screaming", and to the NHS call-line at 11.36 pm, that V had been crying for nearly three hours.

(v) The appellant's own evidence was that V showed no signs of distress upon her return from Tesco's (during which time V had been left in the care of the co-accused). She had returned home at around five o'clock and V was in a bouncy chair. On her evidence she noticed that there was something wrong with his leg when she put him into a different Babygro at 8.40 pm.

(vi) The combination of evidence above (radiological signs, clinical signs, messages to others, and description of length of time screaming) would be ample evidence from which the jury could conclude that the injury was inflicted at some point after the appellant's return from Tesco's, most likely around 8.40 pm.

(vii) On all the evidence, the appellant was the primary carer. Whilst that does not preclude another person from causing the injuries, she had by far the greater opportunity. Moreover, if she was not the causer, then as the primary carer and if – as the evidence demonstrated – injuries had been inflicted on two previous occasions, a jury could conclude that she must have been aware of that.

(viii) There were phone messages showing that the appellant was struggling to care for the two children, and that she was frustrated.

[31]The shopping trip to Tesco's on the afternoon of 28 December does not alter the position, since there was plainly an evidential basis for the jury to conclude that the spiral fracture occurred after the return from that trip (see above). After the appellant's return there was no suggestion that the co-accused had been alone with V, rather it was the appellant who took him and changed him, straightening his leg and causing him to cry.

[32]The comments made by the judge when considering the defence submission of no case to answer were in the course of a discussion about the evidence and the state of the case. Such discussions are common, particularly in cases such as this. We can understand why what the judge said could have been seen as an invitation to the prosecution to amend the indictment to charge the appellant with assault; likewise the concern that, in doing so, he had strayed from a strictly neutral role. But in the event the judge refused the application to amend, and the prosecution case remained a section 5 case against the appellant and her co-accused equally as "causer" or "allower". As we have said, the change was in how the spiral or metaphyseal fractures were relied upon to make that case.

[33]We turn to the final ground, in which Mr Rasiah criticises the summing up as imbalanced. Having now obtained a more complete transcript, we simply cannot see any justification for such a criticism. Mr Rasiah made one correction at the start of the factual summing up, which the judge accepted. Neither defence counsel sought to make any further comments or suggestions for correction or amendment at the time. We are quite sure that Mr Rasiah would have drawn the jury's attention to all the key defence points, including the prosecution change of position on the trip to Tesco's, in his closing address. There was no need for the judge to repeat all of those points to the jury in his summing up, as long as he fairly summarised the defence case, which in our view he did.

[34]We grant leave for the remainder of ground 2, as it was appropriate for us to hear all of the arguments on ground 2 together. However, having now obtaining a full transcript of the judge's summing up, we refuse leave on ground 4.

Conclusion

[35]For the reasons we have given, we conclude that the appellant's conviction is safe. The appeal is dismissed. _____________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk 36. ______________________________