R v Fartun Jamal: Court of Appeal clarifies section 5 risk requirement in child death cases

In R v Fartun Jamal [2026] EWCA Crim 135, the Court of Appeal (Criminal Division) dismissed an appeal against conviction for causing the death of a child contrary to section 5 of the Domestic Violence, Crime and Victims Act 2004, whilst departing from the interpretation of that provision adopted two years earlier in R v ATT and BWY [2024] EWCA Crim 460.

Fartun Jamal had been convicted in March 2022 of causing the death of her 11-month-old daughter, A, by wilfully failing to obtain medical aid during a period of neglect in early March 2019. A had been suffering from a treatable bacterial infection; medical intervention up to the night before her death would have saved her. Jamal was also convicted of three counts of child cruelty. The appeal, referred to the full court by the Registrar, concerned only the section 5 conviction.

The central question was whether section 5(1)(c) of the 2004 Act requires proof of a risk of serious physical harm that pre-existed the unlawful act causing death, or whether it is sufficient that the risk existed contemporaneously with that act. In ATT, a case involving an infant who died from a single episode of severe shaking where neither parent could be identified as the perpetrator, the Court of Appeal held that a pre-existing risk was required. The court in ATT reasoned that, since both defendants could only be convicted as "allowers" under section 5(1)(d), the risk mentioned in paragraph (c) necessarily had to have existed before the fatal act — otherwise the allower could never have been aware of it, nor taken steps to guard against it.

In the present case, Lady Justice May, giving the judgement of the court, concluded that ATT's broader statement on section 5(1)(c) was obiter. The facts of ATT had confined the analysis to allowers, and the court's observations regarding causers were not necessary to the outcome. R v Ikram [2009] 1 WLR 1419, in which a strong court had approved jury directions treating the risk as arising from the unlawful act itself, pointed in a different direction and had not been analysed in ATT.

The court's reasoning rests on the plain language of section 5(1)(c), which requires only that "at that time" — meaning the time of the unlawful act — a significant risk of serious physical harm existed. Nothing in the provision demands that the risk must have pre-dated the act. Where a defendant is established to be the causer, the additional requirements of section 5(1)(d)(i) to (iii) — awareness of risk, failure to take protective steps, and foreseeability of circumstances — do not apply. Those sub-paragraphs are the mechanism through which allowers face a de facto pre-existing risk requirement; they operate independently of paragraph (c).

The court also addressed the practical consequences of the contrary interpretation. Where death results from a continuous course of neglect amounting to child cruelty, requiring proof of a pre-existing risk would permit a causer to escape liability entirely if no prior history of neglect could be shown. Neither gross negligence manslaughter nor unlawful act manslaughter would ordinarily be available on such facts. Parliament, in setting a 14-year maximum sentence for the section 5 offence — aligned with the Law Commission's recommendation for an aggravated child cruelty offence — could not sensibly be taken to have left such a gap in the law.

The appeal was dismissed. The judge's directions at trial, including the route-to-verdict questions which had directed the jury to consider risk arising from the failure to obtain medical aid rather than any pre-existing risk, were held to have been correct.

The judgement narrows the reach of ATT to cases where only the "allower" route is in issue — typically two-defendant cases involving a single discrete act where neither party can be identified as the perpetrator. Where the prosecution can prove that a defendant's unlawful course of conduct caused death, section 5(1)(c) is satisfied by the risk inherent in that conduct at the time it occurred.

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