England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SOUTHWARK CROWN COURT
HIS HONOUR JUDGE LORAINE-SMITH

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/03/2008

President of the Queen's Bench Division :

1. Talha Ikram was born on 13^th April 2005. He died on 6 September 2006, aged 16 months. He was the son of Abid Ikram and his former wife. The injury which caused his death was inflicted when he was living with his father and Sumaira Parveen. No other adult shared their home.
2. These are appeals by Abid Ikram and Sumaira Parveen against their convictions on 3^rd August 2007 at Southwark Crown Court before His Honour Judge Loraine-Smith and a jury of causing or allowing the death of a child contrary to section 5 of the Domestic Violence, Crime and Victims Act 2004 (the Act).
3. Count one alleged murder against both defendants. Counts two and three charged each separately with causing or allowing Talha's death, contrary to section 5 of the 2004 Act. In relation to each applicant the particulars were identical. They narrate the fact of Talha's death, asserting that it followed "as a result of the unlawful act of a person who was a member of the same household as him and who had frequent contact with him" "and there having been at that time a significant risk of serious physical harm caused to him by the unlawful act of such person" the individual defendant, "having been such a person at the time of the act, either (a) caused Talha Ikram's death by (her/his) own unlawful act or (b) was, or ought to have been, aware of the aforesaid risk, and failed to take such steps as ….could reasonably have been expected to take to protect Talha Ikram from the risk, the unlawful act having occurred in circumstances of the kind that (he/she) foresaw or ought to have foreseen". The particulars followed the terms of section 5 of the Act.
4. At the close of the evidence, rather than the end of the case for the prosecution, and in accordance with section 6(4) of the 2004 Act, the Crown decided not to proceed with murder/manslaughter against Ikram. Murder/manslaughter allegations continued against Parveen. At the end of the trial, she was acquitted of murder and manslaughter. Both however were convicted of causing or allowing Talha's death.
5. They were sentenced to 9 years' imprisonment, less time spent on remand, and made subject to appropriate disqualification orders. Parveen was recommended for deportation. Ikram was also convicted of perverting the course of justice. He was sentenced to 12 months' imprisonment, to run consecutively. Both appeal against sentence.

The facts

6. Ikram came to the United Kingdom in 1998. He met his future wife Habiba in 1999 and they married in 2001. Talha was born to them in April 2005. For reasons connected with his mother's health, on 30^th June 2005 Ikram was granted full time caring responsibilities for his son. He divorced Habiba in December 2005.
7. Parveen came to the United Kingdom on 30^th August 2005. She married, but owing to mistreatment at home, she left, and she then went to stay with friends, the Janjuas. She went to a refuge, and subsequently petitioned for a divorce from her husband. At the time she was pregnant.
8. Ikram was related to her and to her in-laws. On 4^th January 2006 she went to stay with him. They assumed care of Talha. However on 14^th March they went out together, leaving him alone, asleep at home. He was then 11 months old. This was reported by Ikram's former wife. Talha was placed in the care of foster parents, Mr and Mrs Khan on 23^rd March. Mrs Khan was Habiba Ikram's cousin. Ikram himself was cautioned for child neglect.
9. On 8^th June Parveen gave birth to her daughter, Meehak. With the agreement of Social Services, on 25^th June Talha returned to live with and be cared for by her father.
10. The appellants began a sexual relationship. Parveen became pregnant again in August 2006, and subsequently gave birth to another daughter in April 2007. They lived together, and apart from two very small children, no one else shared their home, until Talha's death.
11. In July when the appellant visited a couple known as Mr and Mrs Janjua, Parveen expressed hostility to Talha, saying that she hated him, that she did not want to stay in the same house and wanted to go to a refuge. By contrast it was suggested that Ikram was devoted to his son. There was however one occasion when he disciplined the child with a plastic bat, according to them, at Parveen's insistence. Ikram was advised by the Janjuas to let her go, but he said he wished to help her. Later, after Talha's death, Parveen was seen cheerfully playing with her own child, apparently expressing pleasure that her brother had "gone".
12. On 13^th August, when Mr and Mrs Khan visited the applicant at their home, they noticed something wrong with the little boy. Normally, he was an active toddler, but now he was out of sorts. He was not walking, appeared dazed, and had what appeared to be an old bruise on his left eye. According to the Khans Parveen told them that she had fallen down the stairs while carrying him, and fell on top of him. Ikram told Mrs Khan that Talha had fallen from a chair "the other day". Mr and Mrs Khan advised the appellants that Talha should be taken to the doctor.
13. On 14^th August Talha was taken to Ealing Hospital. The Health Centre where the family was known was much nearer, and Ealing hospital was not the nearest hospital. X-rays revealed a fracture of the proximal third of the left tibia. It was also noted that he had some bruising. The medical findings recorded that his injury was due to a fall from a chair. The leg was immobilised in a thigh to toe back slab plaster. An appointment was made for a return to the fracture clinic on 22^nd August. Although he was fine for the rest of 14^th August, Talha was unwilling to bear weight on his leg.
14. On 16^th August Talha was taken back to hospital because the back slab plaster had become loose. His temperature increased, and his leg was swollen. A full length plaster cast from the top of his thigh to the base of his foot was applied, and the front of the cast was left open to allow for swelling. The medical notes stated that the original injury had been sustained while Talha had been playing on a chair, and he fell off when the chair slipped. He cried, but was walking "OK". On the next day he refused to walk, so Ikram brought him to hospital. He was detained from 16^th-18^th August for investigation. No particular cause for concern was noted and he was discharged home on 18^th August with a diagnosis of a possible cyst in the bone. He was booked back into the fracture clinic for 22^nd August. Later events suggested that Talha was not suffering from such a cyst, or indeed any infection of the fracture, but that perhaps the fracture had occurred a little earlier than 13^th August.
15. On 20^th August Talha was returned to hospital. The plaster fitted on 16^th August had become loose again. A third back slab plaster was fitted.
16. Talha returned for his appointment on 22^nd August. The soft cast was loose and, noting the history of the plasters, the technician fitted a fibre glass cast to the left leg. Of itself this was not an unusual occurrence with a soft cast. No other injuries were noted. Talha did not seem to be in pain or discomfort. There was dispute at trial about the structure of the fibre glass cast, its hardness, its length, and whether it was below or above the knee.
17. Talha was asked to return to the fracture clinic on 24^th August. He was accompanied by his father. The cast was inspected and noted to be in good condition. Talha was due to be seen again on 7^th September.
18. On 30^th August Social Services visited Ikram, Parveen and Talha at their home. Ikram told the social worker that Talha had fallen off a chair sometime during mid-August and that he had taken him to Ealing Hospital. At that time she did not notice anything of particular concern.
19. At 3.55am on 2^nd September, Talha was again returned to hospital after Ikram noticed blood coming from behind the cast. On this occasion he was bleeding from the cast, which was removed. A 5cm long laceration at the back of the left knee, 3-4mm deep, was revealed. There was mild oozing from the laceration. The leg was swollen. There was no other sign of infection. The doctor suggested that the laceration was caused by the cast rubbing at the back of the knee. He advised that a new cast should be applied below the wound, and when this was done, the new cast would be in the right place to protect the fracture. In due course it was fitted below the wound at the back of the leg but above the knee at the front. During a general examination of Talha some bruising was discovered over his left eye. A review clinic was arranged for 4^th September.
20. Talha attended for the review. The cast was in place. There was no blood or dirt staining, or infection, bleeding or oozing. There was no indication of a fractured femur. Talha was smiling and seemed comfortable and was able to lift his leg. No other injuries were noted. He was discharged until 7^th September.
21. On 5^th September Talha was put to bed after 10.30pm. At the time his left femur was undamaged. At about 8am on the following morning he was found in his cot. He was cold, still and apparently lifeless. Ikram dialled 999 at 8.43am. He was told how to perform mouth to mouth resuscitation. During the course of the telephone conversation, a woman could be heard in the background crying and saying "please open your eyes". When the ambulance service arrived the victim was lying on the floor. His skin now was blue. There was no breathing, no pulse and no signs of life. Ikram appeared distressed, and Parveen was anxious to get Talha to hospital. After emergency treatment by the paramedics, he was taken to Central Middlesex Hospital. He was pronounced dead. At this stage the cause of death was not known.
22. On examination, the plaster cast was removed without causing any trauma to the leg. There was a deep hole to the back of the knee, which had been fully covered by the cast. Talha had 21 different injuries, which were not more than 48 hours old, including abrasions and bruises to various parts of his face and body and an injury to his thumb. There were 3 recently fractured ribs, and most seriously, a fracture of the left femur which had occurred within 12 hours of his death
23. The case of death was a pulmonary fat embolism resulting from the recent fracture to the left femur. This is a rare but well recognised complication of the fracture of the long bones.
24. The first significant injury was the laceration beneath the cast. The cast itself was said by a consultant orthopaedic surgeon, to be absolutely and categorically "incapable of causing the laceration". On the other hand a consultant paediatric pathologist suggested that the initial laceration could have been caused by the cast, and the deeper laceration the result of a tearing open or re-opening of the initial laceration. He observed an indented blackened lesion, consistent with a burn from a lighted cigarette, which was a couple of days old.
25. The fracture of the tibia showed signs of healing. However in view of subsequent events, its possible cause was re-examined. The pathologist thought it extremely unlikely that the fracture of the tibia had been caused by a fall from a chair. When the X-rays were examined, it was concluded that the tibia had fractured some 3-5 days before 14^th August.
26. The left femur was completely broken into two separate halves. The best assessment was that the fracture occurred before 5.00am on 6^th September. The rib fractures were unlikely to have been caused by efforts at resuscitation.
27. A consultant pathologist confirmed the cause of death. In his opinion the fractured tibia, femur and rib injuries were non-accidental. A fall from a chair was unlikely to produce a long bone injury. There was no possibility that the fracture in the leg had occurred after death. The fracture of the femur had probably been caused when the femur was grabbed around the knee joint and exposed to an extensive range of movement. The snapping effect of the fracture could have opened the initial laceration behind the knee yet further. It was of course possible that the fracture was caused by a severe forceful blow. However this fracture had occurred when the child was still alive.
28. The injuries and abrasions on the face and under the chin were consistent with grappling and finger nails from either impact or gripping. In the opinion of this witness the child had been the victim of repetitive inflicted trauma.
29. A histopathologist explained that the fractured ribs were less than 12 hours old, and that a "fair degree of force" would have caused them. He expressed a common view that it was improbable that the rib fractures had been caused during efforts at resuscitation, and accidental rib fractures were extremely rare in infants. Metaphyseal injuries were caused by twisting or rotational force. It took considerable force to break the femur. Neither fracture of the left leg would have been caused by a 17 month old child falling from a chair. He had not been provided with any explanation which would have accounted for the fracture of the femur. He had difficulty in thinking how it could have been occasioned other than by a direct and severe blow or hard impact. The fracture to the tibia was not typical of a twisting injury. Again it looked as though the cause was a severe blow, possibly on a hard-edged area. The fracture of the femur was sustained within 12 hours or less before death.
30. A forensic pathologist called by the applicants at trial was prepared to accept that the rib fractures may reasonably have been caused by efforts at resuscitation. Although a broken tibia caused in an accidental fall was not common in a toddler, it would not be totally rare. However the laceration was an unusual injury, and he would put non-accidental injury high on his list of possible causes. The fracture to the femur required substantial force. He would expect it to be excruciatingly painful and for the child to exhibit evidence that he was in pain. All the injuries required an adequate explanation. In his view the overall analysis was that without adequate explanation, these injuries were non-accidental.
31. In summary, notwithstanding various differences of opinion, there was compelling evidence that Talha's multiple injuries were the result of deliberate and repeated violence. The child would have been in pain from the time when the fracture of the tibia occurred, but none of the other injuries was fatal in itself. Talha's death was exclusively the result of the fractured femur.
32. During at least part of the period when the injury occurred it was conclusively established that Ikram was shopping at a supermarket in Park Royal at about 4.00am. He said that he was away from the home for between 2 and 2½ hours, whereas Parveen thought it was no more than 1-1½ hours. In any event it was accepted that Parveen was in the house throughout the night, and in particular at the time when Talha's femur was fractured, whereas Ikram was away for at least part of that period. Until after the close of the evidence at trial both maintained that they knew nothing about how it had happened.
33. The appellants were arrested on 12^th September on suspicion of causing grievous bodily harm and interviewed under caution. They maintained that Talha had been well when he was put to bed at between 10.30-11.00pm on 5^th September. Neither offered any explanation for the fracture of the femur.
34. On 6^th October Ikram was re-arrested. In interview Ikram said that on the night before Talha's death everything was normal. He had woken at around 8am to make himself some tea. He asked Parveen to prepare Talha's feed. She returned and said that there was blood again on the victim, indicating that the blood was caused by the cut on the back of the leg.
35. When interviewed on 12^th September, Parveen said that on 13^th August Talha was standing on a chair and fell over. She checked that he was alright. It was not until next morning while he was having a bath, that it became apparent he could not stand. On the night when Talha died, she put him into his cot at around 10.30-11.00pm. She slept in the room with him, and Ikram slept in the room next door, with the door open. Ikram checked Talha's leg during the night to see that it was in the right position. She last saw him at 2am, with his face turned to his right side. The light was off.
36. The Family Liaison Officer gave evidence of a conversation with Ikram on 20^th September when he said that he wanted her to know the truth. Following an argument on the previous night, Parveen told him that in mid-August she had fallen down the stairs while carrying Talha. He then said she told him this 2 weeks earlier. He then said that she told him this on the day that Talha had fallen from the chair. He had been shopping at the time and came back, and she told him that she had fallen down stairs with Talha, and that he had fallen from a chair. He was angry and took the victim to hospital the next day. On 28^th September he telephoned her to say that Parveen had not returned home since 4.30. He was frantic, but she later returned. On 30^th September she spoke to him again. He said that he was worried that Parveen had not returned home. It subsequently emerged that she had bought a ticket to fly to Pakistan on 26^th September, and that on 30^th September Ikram took her to Heathrow Airport from where she flew to Lahore, to stay with Ikram's sister. He then contacted the police to report her missing.
37. Parveen was contacted on 1^st October. She told the police interpreter that Ikram had not known about her departure. She would return to the United Kingdom for her daughter once her innocence had been proved by the post-mortem. Ikram told the police that Parveen had telephoned him on 2^nd October to ask him how he felt about her departure to Pakistan. He said that he had not known that she was planning to go, and did not know where she would be staying. He would however try to find out.
38. On his re-arrest on 6^th October Ikram produced a prepared statement. He now said that he had taken Parveen to the airport, but did not believe that she would go to Pakistan. He did not want her to get into trouble and did not know what to do. He had not hit Talha with a bat nor told anyone that he had done so. Parveen said that the victim was a "manhoos", meaning an ill-fated bringer or bad luck.
39. Parveen returned to the United Kingdom on 10^th November. She was arrested at Heathrow Airport, but not re-interviewed.

The trial

40. The Crown's primary case at trial was that Parveen was directly responsible for the injury to Talha's leg because she wanted him out of the house, but that they were jointly involved. In any event Ikram did not do enough to stop her when he realised what could happen, and he allowed the death to occur. Alternatively, the death was caused by the direct action of one or other of them. Whoever it was, the other should have appreciated the danger to which Talha was exposed at the hands of the other, and should have done something about it. The various accounts of Talha falling downstairs or falling from a chair were deliberate lies. Something much worse had happened.
41. Parveen's evidence was that she had not injured Talha nor twisted his leg. She had a good relationship with him. On 13^th August, he had fallen from his chair. Ikram had been at home at the time, but he told her to tell the Khans that she had fallen down the stairs while holding Talha. As to the fracture of the femur she had no reason to suspect that he had sustained this injury, and she had no idea how it had happened. The thumb injury was due to sucking. The abrasions to his eyelids were caused when he rubbed them. She did not interfere with Talha's cast. She went to Pakistan because Ikram pressurised her to do so. He took her to buy a one-way ticket to Lahore. She returned because she was innocent. She lied in her police interview because Ikram had asked her to and because she was embarrassed. She lied to the police interpreter on 1^st October because she was worried and could not decide what to say.
42. Ikram's evidence was that he had not injured the victim, nor suspected that Praveen was injuring him. If he had suspected that she was, he would have protected his son. On 13^th August he was not at home when Talha was injured. She told him that Talha had fallen from a chair. The laceration on Talha's leg was due to his cast. He did not interfere with the cast. He had no explanation for the broken femur. The thumb injury was due to the victim chewing his thumb. The scratches on his face were self-inflicted, and the bruising to his eyes was due to rubbing. He only found out about Parveen's explanation that Talha had fallen down the stairs a week before his death. He did not tell the police that Parveen had gone to Pakistan because he was scared that she might get into trouble. He did not pressurise her to go, nor assist her in going. She purchased her own ticket without his knowledge. He drove her to Heathrow, but he thought this was a joke. He did not really think that she would go.
43. At the end of the defence case and having reviewed the totality of the evidence, the Crown decided that it would proceed no further on the count on murder/manslaughter against Ikram. It was submitted on Parveen's behalf that the count of murder/manslaughter, must fail against her too because there was insufficient evidence that it was she rather than Ikram who had broken Talha's leg. There was no proper way of distinguishing between the two defendants. It was also suggested that the Crown's decision not to proceed further against Ikram amounted to an abuse of the process against Parveen.
44. The judge accepted the Crown's decision in relation to Ikram, and rejected the argument that the course taken by the Crown amounted to an abuse of process. Counsel for Parveen applied to recall her. She had provided her legal advisers with a new account of her relationship with Ikram and the circumstances of the leg fractures in August and September. The judge rejected the application. After closing speeches and a summing up, the jury retired and in due course returned their verdicts

Conviction

Section 6 of the 2004 Act

45. Section 6(1) provides that subsections (2)-(4) apply where the defendant is charged in the same proceedings "with an offence of murder or manslaughter and with an offence under section 5 in respect of the same death". Where this arises, significant changes to evidence and procedure have been made. Thus, under section 6(2) express provision is made for drawing adverse inferences against the defendant from his failure to give evidence or refusal to answer a question, and this applies even when there is insufficient evidence to provide a case for him to answer. Section 6(3) provides that the charge of murder or manslaughter must not be dismissed under the Crime and Disorder Act 1998 unless the section 5 offence is itself dismissed. Most significant for present purposes, section 6(4) provides:

"At the defendant's trial the question whether there is a case for the defendant to answer on the charge of murder or manslaughter is not to be considered before the close of all the evidence (or, if at some earlier time he ceases to be charged with the section 5 offence, before that earlier time)".

46. The purpose of section 6(4) is well known. It addressed the problem in paragraph 2.2 of the Law Commission Report: "Children: their Non-Accidental Death or Serious Injury (Criminal Trials)" which observed:

"…it cannot be proved which of two or more defendants was directly responsible for the offence and it cannot be proved that whichever defendant was not directly responsible must have been guilty as an accomplice…. The present law is that there is no prima facie case against either and therefore both defendants must be acquitted at the conclusion of the prosecution case".

The consequences were illustrated in a number of well known decisions, such as R v Lane and Lane [1986] 82 CAR 5, where it was alleged that two defendants, jointly indicted, unlawfully killed a child in their household, without the evidence showing anything more than that one or other must have been responsible. Both had to be acquitted.

47. Section 6(4) addressed this problem by providing that in cases like Lane, where murder/manslaughter was charged, any submission of "no case to answer" must postponed until the close of all the evidence. The object was to improve the prospect of discovering the truth which was almost certainly known by both or all the defendants, but which so frequently remained concealed on forensic grounds.
48. In accordance with these new provisions, at the close of the evidence as a whole, after both defendants had given evidence, and called such evidence as they wished, submissions were due to be advanced on their behalf that there was no direct evidence that either caused the fracture of the femur which resulted in Talha's death. Anticipating this submission, the Crown decided that the court should be informed that it proposed to withdraw the allegation of murder/manslaughter against Ikram. Complaint is made by Mr Davis on behalf of Parveen about the fact that the Crown acted in anticipation of the submission of no case to answer, and indeed that the judge played no direct part in the decision. This was unfair, as the prosecution were substituting their own view of the culpability of the defendants for that of the jury.
49. We disagree with the fundamental premise of the submissions. Section 6(4) does not prohibit a submission of no case to answer where this is appropriate: it merely postpones it. If successfully made on behalf of one defendant, it will inevitably mean that the view of the judge, or the Crown, will prevent the jury from considering the case of that particular individual. In short, the provision simply changes the stage in the process at which it is appropriate to make this submission and for the judge to decide it. No other change is made. On the whole of the evidence, including that of both defendants, the prosecution reflected whether there was a case for either defendant to answer. Once it concluded that the case should be withdrawn against one or other defendant, it was obliged to say so. This was not an abuse of process. Rather it was the process working as it should, with the prosecution acting responsibly in its venerable and still contemporaneously valid role as a minister of justice. The judge agreed with the Crown's view. The result was that the case against Ikram of causing or allowing Talha's death and the allegation against Parveen and the murder/manslaughter count would continue.
50. Towards the end of the evidence we were told that Parveen began to have second thoughts about her evidence, and gradually intimated a change of instructions. After the decision that the charge of murder/manslaughter against Ikram should not continue, her leading counsel made an application to recall her. The application was opposed by the Crown and Ikram. The judge was informed that Parveen's new instructions asserted that she was an abused partner of Ikram, subjected to violence herself, and a witness to incidents of violent ill-treatment perpetrated by him on the child. On the evening before Talha's death, she heard a violent incident involving Ikram and the child. She was too frightened to interfere. Indeed she was so alarmed that she left Talha alone with the defendant, taking her new baby out of the flat for about 20 minutes. This was a complete change of story. We were told by Mr Davis that this new account made much more sense of the expert evidence and filled some of the gaps in it.
51. The application was rejected. Mr Davis submits that the decision was wrong, essentially on the basis that the interests of justice required that once Parveen had fully appreciated the implications of Ikram's evidence, she had been moved to tell the truth, and should be allowed to do so.
52. Again, we disagree. Although the defendant cannot be deprived of the opportunity to give evidence in her own defence, and to advance whatever case she wishes, the opportunity to give her full and complete account of relevant events is only available once. It is difficult to imagine circumstances – unless bizarre in the extreme - in which the defendant should be granted the privilege of giving evidence twice in order to advance contradictory defences at the same trial. Naturally, a judge may be inclined, as a matter of discretion and in the interest of justice, to allow a defendant to be recalled to clarify some feature of his evidence or to address a possible source of misunderstanding, or for example, to allow the first defendant, faced with new allegations by the second defendant which for one reason or another were not put to him when he was cross-examined, to be given the opportunity to answer such allegations. However the defendant cannot seek to be recalled after the conclusion of the evidence of the other defendant, or indeed after the close of the evidence, in order to give evidence in support of a new defence which contradicts the evidence he has already given. That would normally constitute an abuse of process.
53. In R v Hakala [2002] Crim LR 578, [2002] EWCA Crim 730, addressing a reference by the Criminal Cases Review Commission, this court was in effect invited to assume that the appellant's evidence at trial "was perjured, to avoid the potential tactical disadvantage created by his previous conviction". The Court observed:

"the trial process is not a tactical game. Under the rules which govern every trial at any given stage in the evolution of the criminal justice process, forensic steps taken by one side, or the other, carry forensic consequences. None of the tactical decisions appropriate to meet contemporary rules are predicated on the basis that any witness, and in particular any defendant who chooses to exercise his right to give evidence, is somehow entitled to depart from the fundamental requirement that his evidence should be truthful evidence. As a corollary, the opportunity for the defendant to give his evidence is provided at his trial, and that is where he must take it. It follows that this court will only permit an appellant to present a factual case inconsistent with his instructions and sworn testimony at the trial at which he was convicted in the most exceptional circumstances"."

54. The situation here was analogous. Parveen gave one account of the facts: she was not permitted to give a second, contradictory account. Hakala gave one account at trial: the court was being invited to admit a contradictory account at the hearing of his appeal. The attention of the judge, and our attention, was drawn to R v Cook [2005] EWCA Crim 2011 where a situation indistinguishable from the present arose. Smith LJ summarised the principles relating to the discretionary power of the judge to allow the recall of a witness or a defendant after the conclusion of his evidence, and before the summing up, adding

"3. A judge will permit a defendant to be recalled only to deal with matters which have arisen since he gave evidence if he could not reasonably have anticipated them and if it appears to be in the interests of justice that he should be recalled.

4. A judge should never permit a defendant to be recalled so that he may resile from evidence already given and advance a new version of events where that version was available to him when he was first in the witness box".

55. With one small reservation, we respectfully agree. In the light of Hakala, and similar cases to which the attention of the Court was not apparently drawn, we doubt whether the judicial discretion identified in the passage cited in Cook can be subject to quite such an absolute and immutable fetter. Never is a long time, and when the exercise of a judicial discretion in a criminal trial is under consideration, "never say never" is a valuable working principle. That is what the court had in mind in Hakala when expressing itself as it did on the question whether a defendant should be allowed, in the language used in argument before us, a second bite at the cherry. In short, although like the court in Cook, we cannot presently imagine of a situation in which the interests of justice would permit a defendant to be recalled at his own trial, to advance a new account of the facts, contradicting his earlier evidence, it is impossible to be sure that a situation in which the interests of justice may require such an unusual course could never arise. However that may be, it certainly did not arise in this one.
56. We should perhaps add that the purpose of the procedural changes introduced by section 6 of the 2004 Act, and in particular section 6(4), is that all the evidence should be completed before the question whether there is a case to answer comes to be addressed. Parveen's application to be recalled, if permitted, would have allowed her to give a new account, inculpating her co-defendant as the individual responsible for the death of the child after it had become inevitable that he would be acquitted of murder/manslaughter. If it is indeed possible to envisage any special situation in which the defendant should not be allowed to offer two contradictory defences in the same trial, one of the least likely would be a trial to which the provisions of section 6(4) applied. To allow it would effectively negative the entire purpose of this particular and specific legislation.
57. We must next address the grounds of appeal based on criticisms of the summing up. They arise in part from the structure of the language which creates an offence which, in many of the factual situations in which it might arise, are already covered by different limbs of the law of murder and manslaughter, that is, taking it in shorthand, causing death by an unlawful act or, through negligence allowing death to occur. Moreover, as this prosecution demonstrates, the statutory offence may well be included in an indictment in which the death of the child is also charged as murder/manslaughter.
58. The starting point is that section 5 of the 2004 Act creates a new, self-contained offence. The judge directed the jury that the statutory offence meant that it was not necessary for the prosecution to prove which of the two potential culprits were responsible for the physical actions which culminated in this child's death. He also rightly pointed out that whatever the position of the Crown in relation to the count of murder/manslaughter against Ikram, if the jury thought it possible that he, rather than Parveen, was in fact responsible for the fatal injury, she was to be acquitted of murder/manslaughter. He then directed the jury about the possible alternative routes to conviction for causing or allowing the death of a child.
59. It is submitted that in relation to the second possible route to conviction, that is allowing the death to happen, the judge failed to direct the jury that the defendant whose case was being considered could not be convicted unless the prosecution established that the statutory ingredients for the offence obtained at the time when the unlawful act which occasioned the child's death took place. The judge is criticised by Mr Mendelle QC, in an argument adopted by Mr Davis, for failing to address critical evidential issues, in that he failed to identify when the significant risk of serious physical harm first arose, how the applicant whose case was being considered by the jury should have been aware of the risk of serious physical harm from the unlawful act, and what reasonable steps the appellant in question failed to take.
60. These criticisms are not well founded. It is true that some judges might have sought to assist the jury by dividing the summing up so that each of these issues, the evidence and the relevant arguments, were addressed in different compartments. What Judge Loraine-Smith did was to provide the jury with very clear directions in writing entitled "steps to verdict". Having dealt with murder and manslaughter as it affected Parveen, the text came to the count of causing or allowing the death of the child. It reads:

" 10. To establish this offence against a particular defendant, the prosecution must prove so that you are sure the following elements.

i. Talha died as a result of the unlawful act of the defendant who

ii. was a member of the same household as Talha when this act occurred, and

iii. had frequent contact with Talha, and

iv. at that time there was a significant risk of serious physical hard being caused to Talha by that unlawful act.

OR

v. Talha died as a result of an unlawful act of the other defendant

vi. that both defendants were members of the same household as Talha, when this act occurred, and

vii. both defendants had frequent contact with Talha and

viii. at that time there was a significant risk of serious physical harm being caused to Talha by that unlawful act and

ix. a defendant failed to take such steps as he/she could reasonably have been expected to take to protect Talha from the risk and

x. the unlawful act occurred in circumstances that a defendant foresaw or ought to have foreseen."

61. This analysis of the ingredients of the offence was accurate. The "steps to verdict" then continued by pointing out that for this purpose the prosecution asserted that either defendant caused Talha's death and that the other allowed it to happen, but that the prosecution was not required to prove which way round this was. The text ended:

"…The following questions arise:

i. did Talha die as a result of the unlawful act of at least one of the defendants?

ii. at that time was there a significant risk of serious physical harm being caused to him by the unlawful act of at least one of them?

iii. would the other have been aware of the risk in (ii) above or ought he/she to have been aware of it?

iv. did the other fail to take such steps as he/she could reasonably have been expected to take to protect Talha from the risk?

v. did the act causing death occur in circumstances that the other foresaw or ought to have foreseen?"

62. In short, the judge broke down the essential ingredients of the offence as they applied to each defendant, stage by stage, and by doing so, he avoided simply reading out all the applicable words in section 5 which, even if read out slowly, or provided in writing, would almost certainly have been less clear. In our view this was a helpful way of directing the jury about the ingredients of the offence.
63. It was implicit in the submissions that this approach did not really bring home to the jury the possible significance of some of the features of the case. Thus, for example, it was argued that he should have pointed out to the jury that evidence of what Parveen said in July about her hatred for the boy did not, of itself, demonstrate that there was a significant risk of her inflicting serious physical harm. Expostulations of this kind usually amount to nothing. Even if that is right, the problem would then arise how the fracture of the tibia, and Parveen's explanation for it, should be viewed. Neither could be taken in isolation. In the course of the summing-up Mr Mendelle courteously invited the judge to explain that there could not "in law be a significant risk of serious physical harm prior to the injury of the 13^th, or whenever that was" (a reference to the tibia fracture). The judge indicated that he would be happy to add such an observation. In the result, at the end of a meticulously detailed summing up, he omitted to do so. It was a Homeric nod, better avoided, but not significant. Much the same approach was adopted in relation to Parveen, where it was submitted that the judge never pointed out that, on the basis that she had not caused the fatal injury, when she should have been aware of the significant risk of serious physical harm. That, however, was pre-eminently a question for the jury. Indeed on analysis, provided the judge gave the jury accurate directions in law (and we have concluded that he did) the different limbs of the submission on behalf of the appellants were truly jury questions, and indeed at one stage in the argument, we were being addressed with great eloquence on precisely the issues which the jury had to decide.
64. Our conclusion is simple. The jury was accurately directed in law about the ingredients necessary to be proved by the prosecution before either appellant could be convicted. The evidence, and the respective defences, were fully summarised. The issue was left fairly and squarely to the jury. We can find no basis for interfering with the verdicts, or for questioning their safety. Indeed on these issues, leave to appeal would have been refused.
65. The appeals against conviction are dismissed.

Sentence

66. Judge Loraine-Smith was provided by the Crown with a helpful note addressing the sentencing issue and providing him with a careful analysis of recent sentencing decisions in which the defendant had been convicted of manslaughter in circumstances which were broadly similar to the present case. The note was included in our papers. The decisions included R v Johnson [1990] 12 CAR (S) 271; R v White [1995] 16 CAR (S) 705; R v Staynor [1996] 1 CAR (S) 376; R v Yates [2001] 1 CAR (S) 428 and R v Fletcher [2006] 2 CAR (S) 57. Mr Mendelle also drew our attention to R v Bennett [2004] 1CAR (S) 396.
67. We repeat that section 5 of the Act created a new offence. It provides a route to conviction whenever the jury are unable to say which of two (or sometimes more) defendants, caused or allowed the death of a child or vulnerable adult. Even if the identity of the person responsible for the fatal injuries cannot be established, the possible range of culpability, both in relation to the circumstances in which death occurred and as between the different defendants, is very wide. The victim may have been killed in circumstances which amount to murder. Culpability for the death may also encompass all the levels of manslaughter, both at the higher and towards the lower end of the scale. In the present case for example, it is difficult to imagine the state of mind which impelled the deliberate forced fracturing of the left femur on the leg which had only recently been subjected to a fracture of the tibia which was less than an intention to cause really serious bodily harm. At the same time the defendant who allows the fatal injury to be inflicted may on the evidence be very close to an accomplice to virtually but not quite the full extent of that violence, or a doomed pathetic individual, so dominated by the other defendant, that notwithstanding his awareness of the risk that really serious bodily harm might be inflicted on the victim, lacked a will of his own. Wherever the case may fall in terms of the culpability of the perpetrator, a conviction of the section 5 offence means that it has been established that the defendant who failed to protect the victim either appreciated or ought to have appreciated that there was a significant risk that the victim would endure serious harm at the hands of the ultimate perpetrator, in circumstances which that defendant foresaw or ought to have foreseen. Although section 5 of the 2004 Act created a new offence, its link with manslaughter is clear, and the general approach to sentencing in manslaughter cases provides useful assistance to the court considering the sentencing decision after conviction of the section 5 offence.
68. In the present case, one of these appellants inflected grievous bodily harm on Talha which resulted in his death, while the other, knowing of the risk that grievous bodily harm would be inflicted on him, failed to take any steps to prevent it. However the identity of the defendant responsible for causing his death (whether by a guilty plea or jury verdict) was not established. The judge rightly decided that when neither defendant was convicted of either manslaughter or murder he could not second guess these verdicts and decide for himself which of them caused the fatal injury, and he did not allow himself to make the mistake of approaching the sentencing decision on the basis that as one or other of them had caused Talha's death, they were both to be sentenced as if they had.
69. Judge Loraine-Smith recognised those features of the sentencing decision which were totally dependant on the verdicts reached by the jury, and he then carefully examined the questions he was required to address. Both appellants had to be sentenced for allowing the death to occur in the circumstances specified in section 5 itself. Whichever of them broke Talha's femur, Talha was the victim of what the judge rightly described as a "brutal attack", and even if the possible fatal consequences of this violence would have been unlikely to have been present in the mind of the assailant, the death occurred in circumstances which were close to murder, or manslaughter of the most serious kind. The attack, or something like it, was or should have been foreseen, and prevented. Whichever defendant deliberately fractured Talha's femur, the other allowed it to occur without taking steps to give Talha appropriate protection from awful, foreseeable violence. Neither was to be sentenced as the perpetrator; both were to be sentenced for allowing the perpetrator to act as he did.
70. Judge Loraine-Smith then addressed the personalities of the appellants as well as their relationship with each other. He adopted as his own analysis Ikram's failure to make any reference to Talha's suffering and that he primarily focussed on "how the loss of his son had affected him and his own dreams for the future", and Parveen's demonstrated capacity" to be highly manipulative and intent of getting what she wants by whatever means…untrustworthy, with a need to distort the truth". In short, as between the appellants, the judge was not able to discern any meaningful distinction between them. This conclusion is critical to any sentencing decision in cases as sensitive as these, and must always be regarded as case specific.
71. For a case that lacked any possible allowance for a guilty plea, the eventual sentence at the end of the trial, although severe, was not manifestly excessive or wrong in principle. Accordingly the appeal against sentence is also dismissed.