Neutral Citation Number: [2008] EWCA Crim 2360
Case No: 2007/01137/B3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT DERBY
His Honour Judge Hamilton

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 22/10/2008
Before :

LORD JUSTICE DYSON
MR JUSTICE MCCOMBE
and
MR JUSTICE CHRISTOPHER CLARKE
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Between :

	Regina	Respondent	
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	Joanna Ebun Sue Daniels	Appellant	

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Mark van der Zwart (instructed by Cartwright King Solicitors) for the Appellant
Jeremy Janes (instructed by Derbyshire CPS) for the Respondent

Hearing dates: 03/10/2008
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Judgment
Lord Justice Dyson:  this is the judgment of the court. 
1.	Steven and Joanna Daniels are husband and wife.  They were charged on an indictment containing 5 counts.  The counts were joint charges which arose out of the alleged abuse of their foster child F who was almost 2 and a half years of age at the time of the alleged offences.  Counts 1 and 2 were charges of assault of a child respectively by vaginal and anal penetration contrary to section 6(1) of the Sexual Offences Act 2003.  After a trial at Derby Crown Court, Steven Daniels was convicted on both counts.  Joanna Daniels was acquitted.  Joanna Daniels was convicted on Count 3, an alternative count of child cruelty contrary to section 1(1) of the Children and Young Persons Act 1933 (“the 1933 Act”) in neglecting F by failing to obtain medical treatment at a time when she must have been aware of the injuries sustained by the child.  
2.	Counts 4 and 5 were charges of offences contrary to section 1(1) of the 1933 Act.  These related to serious head injuries sustained by F.  Count 4 was concerned with the assault which it was alleged had caused the injuries.  Joanna Daniels was convicted and Steven Daniels acquitted on this count.  Count 5 was an alternative charge of failing to seek prompt medical attention.  
3.	They have both appealed against conviction on limited grounds with the leave of the full court.   We heard both appeals on 3 October.  On that day, we allowed the appeal of Steven Daniels of his convictions on counts 1 and 2 on the basis of fresh evidence and gave our reasons for doing so.  We reserved our judgment in relation to the appeal of Joanna Daniels.
4.	F was born in April 2003.  She was adopted by the appellants in September 2004.  On the morning of 6 August 2005, an ambulance was called to their home address.  The child was taken to hospital.  She was found to have serious genital and anal injuries.  Further investigations showed that she also had injuries to her forehead, lip and cheek.  A CT scan revealed subdural and sub-arachnoid haemorrhages.   Dr Stephen Chapman, a consultant paediatric radiologist, gave evidence about the head injuries and in particular about the cause of the haemorrhages.  He said that he could not rule out accidental injury, but he thought that the injuries were more likely to have been non-accidental and the most likely mechanism was shaking rather than some form of impact injury.  
5.	The prosecution case was that one or both of the appellants were responsible for the injuries; alternatively one of them was criminally responsible for failing to obtain medical attention for the child after she had been injured.  
6.	Both appellants gave evidence.   Steven Daniels was a man of previous good character.  He said that he had been in employment for a number of years.  His evidence was that on 6 August, he had gone to work without checking on F. She was fast asleep and did not appear to be in pain.  He received a telephone call from his wife at about 9.30 am that day.  She said that something was very wrong.  He went home and saw F on the floor.  Her eyes were rolling and her tongue hanging out.  He noticed a bad cut to her lip.  He immediately called an ambulance.  He said that he had not caused the head injuries and that his wife told him to say that F had fallen off a slide the previous day.  He had not caused any of the anal or vaginal injuries.
7.	Joanna Daniels was a person of previous good character.  She said that she had been adopted at a young age and had been in employment for 20 years working as a nursing assistant.  She married Steven Daniels in 1998 and they adopted F in September 2004.  She said that F had fallen over in the garden on 5 August and sustained a facial injury.  In the evening, Steven Daniels took the child upstairs for a bath.  Nothing unusual happened and there was nothing to suggest that she was in any discomfort.  The following morning, Joanna Daniels got F up and changed her nappy.  She left her in the bathroom while she went into the bedroom.  Suddenly, she heard a bang.  She found F lying by the radiator.  She realised that things were not right.  She telephoned her husband.  She had not caused the head injuries.  She had no knowledge of the anal or vaginal injuries until she saw them at the hospital.
8.	The single ground of appeal relates to Joanna Daniels’ conviction on count 4, the count relating to the head injuries.  She was charged with causing or procuring F to be wilfully assaulted or ill-treated in a manner likely to cause her unnecessary suffering to or injury to her health.  The appeal concerns the adequacy of the direction that the judge gave to the jury as to the elements of this offence.  The judge said: 
“So, in relation to count 4, which is cruelty to a person under 16, this is different from Count 3, because this has the different words – again the second line up from the bottom of the particulars – “wilfully assaulted or ill-treated”. So this is an assault, and the Prosecution say that one or other of them assaulted this child in such a way as to cause that brain injury. Again, you go through the same process. If you think it might have been an accident, well then they are not guilty. If you are sure that it wasn’t an accident, which one of them did it, and was the other one complicit? For example, was it the male Defendant shaking the child, and the mother stood by and was happy for him to do that and didn’t try and intervene – didn’t try and stop and indeed perhaps encouraged him to shake the child more to stop the child crying – well then they would both, as it were, be in it together. If you think it was just simply him, having sexually abused the child earlier he shook it to try and stop it making a noise and then left it in the cot, well then he would be guilty, if you are sure that that is what happened. If, on the other hand, she woke up and the child was her normal self, or perhaps the child screaming when she woke up, having been sexually assaulted earlier, and she shook the child because the child wouldn’t be quiet, well then she would be guilty of Count 4. He would be guilty of nothing, because he couldn’t be guilty of Count 4 if it occurred when he had gone to work.”
9.	The submission of Mr van der Zwart is short and simple.  The judge failed (i) to direct the jury that any wilful assault had to be carried out in a manner which likely to cause unnecessary suffering or injury to her health and (ii) to give any or any sufficient direction to the jury on the issue of whether the acts relied on were “wilful” as that word was explained by the House of Lords in R v Sheppard [1981] AC 394.  
10.	For the prosecution, Mr Janes submits that, although short, the direction was adequate in the context of this case.  The issues in relation to count 4 were (i) whether the head injuries were or may have been accidental in which case the appellants were entitled to be acquitted; and (ii) if the injuries were not accidental, whether they were caused by a blunt instrument or by shaking, and whether one or both of the appellants had caused the injuries.  The suggestion that this was not an accident, but that one or both of the appellants had caused the injuries without the necessary state of mind or mens rea was not seriously advanced.  Joanna Daniels’ evidence was that she believed that F had fallen over in the bathroom and she had changed her nappy before hearing a bang.  She did not suggest that she had handled the child in any way thereafter that may have caused the head injuries.  
Discussion
11.	So far as material, section 1(1) of the 1933 Act provides:
“If any person….wilfully assaults, ill-treats, neglects, abandons or exposes [a child] or causes or procures him to be assaulted, ill-treated, neglected, abandoned or exposed, in a manner likely to cause him unnecessary suffering or injury to health…..he shall be liable…”
12.	The appellants were charged on count 4 that they caused or procured F to be wilfully assaulted or ill-treated in a manner likely to cause F unnecessary suffering or injury to her health.  The act or actus reus that the prosecution had to prove, therefore, was that the appellants assaulted or ill-treated F and that they did so in a manner likely to cause her unnecessary suffering or injury to her health.  The question whether an assault or ill-treatment of F was in a manner likely to cause her unnecessary suffering was an objective one.  The actus reus is an important element of any offence.  There was no justification for the judge’s failure to direct the jury as to the need to be sure that the prosecution had proved the actus reus in this case.  We shall consider later whether this omission renders the conviction of Joanna Daniels unsafe.
13.	The reason why we reserved judgment was that we needed more assistance than counsel were able to give us as to the meaning of “wilfully” in section 1(1) of the 1933 Act.  The mens rea is an important element of any offence which is not one of strict liability.  The requirement that the actus reus should be “wilfully” shows that this is not an offence of strict liability.   In our view, the judge should have directed the jury as to the need for them to be sure that any assault or ill-treatment was done “wilfully” and he should have explained the meaning of that word.  We shall consider later whether this omission renders the conviction unsafe.  Before we can decide this question, we need to elucidate precisely what “wilfully” means”.  
14.	The leading authority on the meaning of section 1(1) is Sheppard.  The parents of a 16 month old child were charged with wilfully neglecting the child contrary to section 1(1).  Their defence was that they did not realise that the child was so ill as to require medical attention.  The trial judge directed the jury that the parents’ state of mind was irrelevant.  This was because the test for “wilful neglect” was objective, the question being whether a reasonable parent, with knowledge of the facts known to these parents, would appreciate that the failure to have the child medically examined was likely to cause him unnecessary suffering or injury to health.  The issue before the House of Lords was defined by Lord Fraser at p 413E in these terms: 
“The word "wilfully" in this context is ambiguous. It may mean that the parent neglects his child intending, or at least foreseeing, that the probable consequence of neglect is that the child will suffer injury to his health. Or it may have the more restricted meaning that the parents' neglect was conduct which was deliberate, in the sense of being conscious and free from outside pressure, without necessarily intending or foreseeing the consequences.”
15.	The majority of their lordships (Lord Scarman and Lord Fraser dissenting) favoured the first and broader approach.  Lord Diplock noted that the adverb “wilfully” qualifies all 5 verbs “assaults, ill-treats, neglects, abandons or exposes”.  Since Sheppard concerned a failure to act, he said at p 403E that he would confine himself to considering what is meant by wilfully neglecting a child in a manner likely to cause unnecessary suffering or injury to health.  Nevertheless, he started by considering the meaning of “wilfully” in relation to a positive act (assault, ill-treat, abandon or expose) and at p 404D said: 
“In the context of doing to a child a positive act (assault, ill-treat, abandon or expose) that is likely to have specified consequences (to cause him unnecessary suffering or injury to health), "wilfully," which must describe the state of mind of the actual doer of the act, may be capable of bearing the narrow meaning that the wilfulness required extends only to the doing of the physical act itself which in fact results in the consequences described, even though the doer thought that it would not and would not have acted as he did had he foreseen a risk that those consequences might follow. Although this is a possible meaning of "wilfully," it is not the natural meaning even in relation to positive acts defined by reference to the consequences to which they are likely to give rise; and, in the context of the section, if this were all the adverb "wilfully" meant it would be otiose. Section 1(1) would have the same effect if it were omitted; for even in absolute offences (unless vicarious liability is involved) the physical act relied upon as constituting the offence, must be wilful in this limited sense, for which the synonym in the field of criminal liability that has now become the common term of legal art is "voluntary.”
16.	Lord Diplock then turned to consider the meaning of “wilfully” in relation to a neglect to act.  At p 404G, he said: 
“The actus reus in a case of wilful neglect is simply a failure, for whatever reason, to provide the child whenever it in fact needs medical aid with the medical aid it needs. Such a failure as it seems to me could not be properly described as "wilful" unless the parent either (1) had directed his mind to the question whether there was some risk (though it might fall far short of a probability) that the child's health might suffer unless he were examined by a doctor and provided with such curative treatment as the examination might reveal as necessary, and had made a conscious decision, for whatever reason, to refrain from arranging for such medical examination; or (2) had so refrained because he did not care whether the child might be in need of medical treatment or not.”
17.	In the light of this, he said at p 408E that the proper direction to be given to a jury on charge of wilful neglect was: 
“The jury must be satisfied (1) that the child did in fact need medical aid at the time at which the parent is charged with failing to provide it (the actus reus) and (2) either that the parent was aware at that time that the child's health might be at risk if it were not provided with medical aid, or that the parent's unawareness of this fact was due to his not caring whether his child's health were at risk or not (the mens rea).”
18.	Lord Edmund-Davies agreed with the reasoning of Lord Diplock: see p 410D and 412D-H.  He specifically agreed with Lord Diplock’s proposed jury direction.  At p 418C, Lord Keith said: 
“I turn now to consider the meaning of the adverb "wilfully" which governs and qualifies "neglects" and all the other verbs in section 1 (1). This is a word which ordinarily carries a pejorative sense. It is used here to describe the mental element, which, in addition to the fact of neglect, must be proved in order to establish an offence under the subsection. The primary meaning of "wilful" is "deliberate." So a parent who knows that his child needs medical care and deliberately, that is by conscious decision, refrains from calling a doctor, is guilty under the subsection. As a matter of general principle, recklessness is to be equiparated with deliberation. A parent who fails to provide medical care which his child needs because he does not care whether it is needed or not is reckless of his child's welfare. He too is guilty of an offence. But a parent who has genuinely failed to appreciate that his child needs medical care, through personal inadequacy or stupidity or both, is not guilty.”
19.	The speech of Lord Keith can be read as saying that all that is required is that the act or omission is deliberate and not that the actor should have had foresight of the consequences of his or her action or inaction or be reckless as to those consequences.  But we do not consider that this is the correct interpretation.  We refer in particular to the reference by Lord Keith to a parent being guilty of the offence who fails to provide medical care which he knows the child needs or who does not care whether the medical care is needed and is reckless of the child’s welfare.   Further, like Lord Edmund-Davies, Lord Keith agreed with Lord Diplock’s proposed jury direction.  
20.	This interpretation of Lord Keith’s speech accords with that given by this court in RT v W (Emma) [2006] EWCA Crim 2723: see paras 38, 54-56 and 63.  This was another case of wilfully causing a child to be neglected, and not a case of wilfully assaulting or ill-treating a child.  It is sufficient to refer to what Sir Igor Judge P, giving the judgment of the court, said at para 63: 
“We are, of course, troubled at the absence of any clear and specific direction based on Sheppard. We have made our observations about that omission. The question which we have asked ourselves, however, is: at the end of the summing-up, reading it as a whole in the context of the trial which had taken place before Judge Rucker, is there any possible risk that the jury will have convicted the appellant unless they were sure that she knew that her child needed appropriate medical attention and that she was at risk of injury? ”
21.	Although Lord Diplock said in Sheppard that he would confine himself to the meaning of “wilfully” in relation to a failure to act, it seems to us that his interpretation of the meaning of the word in relation to a positive act formed part of the reasoning that led to his conclusion as to its meaning in relation to a failure to act.  This is despite the fact that at p 403D he counselled that the judicial explanation of the state of mind denoted by the statutory expression “wilfully” in relation to the doing of a positive act was not necessarily wholly apt in relation to a failure to act at all.  At all events, the word “wilfully” governs all 5 verbs in section 1(1) and we can see no good reason for supposing that Parliament intended its meaning to vary according to which verb it governs.    
Is the conviction on count 4 safe?
22.	We start with the actus reus.  If the judge had directed the jury that, even if they were sure that Joanna Daniels had assaulted F, they could not convict her unless they were also satisfied that the assault was committed in a manner likely to cause F unnecessary suffering or injury to her health, we have no doubt that they would have been so satisfied.  The gravity of the injuries was such that, if they were sure that they were caused by an assault by Joanna Daniels (as they were), they must also have been sure that the assault was done in a manner likely to cause F unnecessary suffering or injury to her health.   
23.	As regards mens rea, it was accepted in argument by Mr van der Zwart that by their verdict the jury showed that they rejected the defence case of accident.  But he suggested that Joanna Daniels might have shaken F in circumstances which did not indicate either that she intended the child to undergo unnecessary suffering or injury to her health or that she was reckless as to whether F was subjected to such suffering or injury to her health.  For example, she might have believed that F was unconscious and have shaken her in order to resuscitate her.  
24.	We accept that if such a view of the facts had been a realistic possibility, then the failure by the judge to direct the jury as to the meaning of “wilfully” would have rendered the conviction unsafe.  If the jury had considered that Joanna Daniels was or may have been acting in an innocent but misguided way, with no intention to cause F unnecessary suffering or injury to her health, then in the absence of a direction by the judge as to the meaning of “wilfully”, they might nevertheless have convicted her on count 4, because they might have thought that it was sufficient for the prosecution to prove that she had caused the injuries by her deliberate acts.
25.	But we accept the submission of Mr Janes that such a view of the facts was not a realistic possibility.  Joanna Daniels’ case was that the injuries had been caused when F fell in an accident.  We accept that they could have accepted the evidence of Dr Chapman and concluded that she had shaken F.  But there was no direct evidence that she had shaken F in an innocent but misguided attempt to help her; and there was no evidence from which such a conclusion could reasonably be inferred.  
26.	We are, therefore, satisfied that the failure to direct the jury as to the meaning of “wilfully” did not render this conviction unsafe.
27.	For these reasons, we dismiss the appeal of Joanna Daniels.