Where a defendant is sentenced for allowing the death of a child contrary to section 5 of the Domestic Violence, Crime and Victims Act 2004, there is a difference between cases of actual and constructive knowledge of the risk of serious harm being caused and the issue of constructive knowledge is a matter of fact and degree (paras 47–48).

Where, therefore, two defendants who ought to have been aware of the significant risk of serious harm being caused to the deceased child, as opposed to being subjectively aware of it, appealed against sentence—

Held, appeal allowed. There was a difference for the purpose of sentence, but not conviction, between cases of actual and constructive knowledge under section 5(1)(d) of the Domestic Violence, Crime and Victims Act 2004. The issue of constructive knowledge did not raise a unitary question because matters of fact and degree always arose. Whilst a doomed pathetic individual would be low down on the scale of culpability, there were other situations where a defendant, although he or she lacked the awareness required by the first limb of section 5(1)(d)(i), only just fell short of doing so, such as the present. The jury would have convicted both defendants because it was able to draw inferences applicable to all elements of the charge, on the subordinate premise that the death was allowed rather than caused, from all the available evidence, including what happened after the fatal injury was sustained and after the death. Although the recorder’s cautious approach had not been incorrect, he had given insufficient weight to his finding that the present had been a case of constructive knowledge, albeit at the upper end of the spectrum of gravity applicable to such cases. Having regard to all the relevant circumstances, including the nature of the relationship between the defendants and the victim, the nature of the breach of duty and the aggravating and mitigating factors, the sentences of 11 years’ imprisonment were manifestly excessive, and would be quashed and substituted with sentences of ten years’ imprisonment (paras 47–52).