Supreme Court: Father’s appeal against child abuse convictions founded on common design dismissed

About this case:

• Citation:
  [2024] IESC 33
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Peter Charleton

Delivering the lead judgment for the Supreme Court, Mr Justice Peter Charleton concluded that “purpose is to be inferred through shrewdness and common sense as against each alleged participant. Where the crime is one of recklessness, that element may be defined as the conscious taking of a real and unjustified risk that the external elements of the crime will be brought to pass. Each accused must be proven to have taken such a conscious risk.”

Background

In October 2021, the accused, A, and his wife, W, were jointly tried for violent crimes and child cruelty against their daughter, V, in 2019. A and W asserted that V was possessed by a “djinn” or devil and had attempted to exorcise her.

A was convicted on two counts of causing serious harm to V contrary to s.4 of the Non-Fatal Offences Against the Person Act 1997 and three counts of child cruelty contrary to s.246 of the Children Act 2001, by the application of the doctrine of common design by the trial judge.

Two counts concerned serious blunt force trauma perpetrated upon V by W in A’s absence, which caused a traumatic brain injury and rendered her permanently disabled (count 6), and the burning by W of the child on a hot electric hob also in A’s absence (count 7). A also challenged the trial judge’s charge to the jury.

The accused’s conviction was upheld by the Court of Appeal.

On appeal to the Supreme Court, the questions for consideration were:

1. How does one participate in a criminal offence where they absent from the scene and did not commit the physical act constituting the crime?
2. Can liability based on foresight of the possible commission of an offence amount to sufficient participation or encouragement to the principal offender and encompass the mental element in committing that offence?
3. Is foresight of the commission of an offence based on prior participation in similar offences, participation in itself or is it an element of evidence from which liability may be proven?
4. How is a jury to be properly instructed?

The Supreme Court

Mr Justice Charleton considered that where criminal liability is at issue, the starting point is the legislation itself. Having set out the relevant provisions of the 1997 Act and the 2001 Act, the court considered inter alia A’s testimony that he played no part in counts 6 and 7, and his assertion that to be liable for cruelty or for assault causing serious harm, he had to participate in each such crime.

It was also submitted on A’s behalf that there was no doctrine known to criminal law whereby merely foreseeing that prior cruel and violent actions against a child might, or probably would, continue in his absence could render him liable for such actions.

The court considered the testimony from V’s sibling, X, which evidenced a prior “pattern of events in which the accused not only participated fully but was a main actor”, noting: “Parents have a positive duty towards their children. That includes a duty to intervene reasonably when a child is ill or has been injured.”

Mr Justice Charleton continued: “What is important here is the pattern of involvement, the conscious taking of serious risks with the health of V and the interweaving of the actions of the accused and W in chastising and brutalising V to the extent that the argument of the accused that the bashing of V’s head and the burning of V cannot be regarded as outside the common design of these parents.”

The court considered the prosecution’s argument that there was “ample evidence for the accused and W forming a plan to attack V and that this was an ‘ongoing enterprise that preceded 28th of June 2019, and continued until the 2nd of July 2019.’ That this is not constructive liability, the prosecuting authority contends, but actual participation in a plan.”

Noting that the mental element of the offence of causing serious harm had not been engaged with, Mr Justice Charleton observed that both intent and recklessness were relevant. The judge expressed that foresight is the key element of culpability in recklessness and “involves the accused being conscious of a risk and notwithstanding foresight of consequences, engaging in the culpable conduct that brings about the wrong defined in the charge”.

Accordingly, the judge found that in circumstances where A failed to intervene to stop W’s conduct and affirmed it “through beatings and strangulation and in not intervening where severe burns and bite marks and bruises are apparent, as here on V when examined in hospital, there can be no doubt of foresight and of a continuing course of affairs”.

Finding that the judge in his direction to the jury showed a clear appreciation of the need to find a culpable state of mind which embraced consciousness of a substantial risk through following through on a course of conduct that was already established, the Supreme Court determined that “the direction of the trial judge was as to advertent recklessness as to the point to which the joint actions pursuant to the joint plan of the accused and of W might lead. That was correct.”

The court observed that most authorities on common design derive from crimes of intention, recognising that in none of the cases from this jurisdiction has foresight been equated with an automatic finding of intention, which was the analysis in England and Wales up to R v Jogee [2016] UKSC 8.

Holding that “[n]othing changes on the basis of a case being made of common design as opposed to one based on secondary liability of someone who supplies aid to the commission of a crime or who encourages others in the act of perpetration”, Mr Justice Charleton considered: “Where mis-turnings have been made in the law in other jurisdictions it has thus been on the basis of equating foresight with purpose. There must be evidence of the mental element, be that intention or, as in this charge of causing serious harm, recklessness.”

The judge continued: “The assessment of the mental element and the participation through encouragement or assistance by the party charged who did not actually perpetrate the physical action is by the application of common sense. Aiding an enterprise while knowing what is to happen can be equated with an intention that this happen. In other words, that is evidence from which intention may be inferred. Making oneself blind while being conscious of what is being driven from one’s mind does not absolve the accused from foresight, from which intention may be inferred.”

Finding that intent could have been proven on the facts but that same was unnecessary as the judge’s charge was based on recklessness, the court confirmed that “purpose is not a necessary element of the crime”. Causing harm requires that each accused in a joint enterprise “intentionally or recklessly causes serious harm to another” and so liability was established.

As to the trial judge’s charge, the court concluded: “It is of the essence of criminal law that directions to juries be kept simple. A jury direction is not to be overturned where the essence of the elements of an offence or the basis of liability is correctly explained. Nor is it necessary to dictate particular words… It is not wrong to tell a jury that mere presence at the scene of a crime is not an offence. Nor is the bank robbery example given above to be disdained. It is a good summary of a potentially complex analysis through means of an example.”

Conclusion

Accordingly, the Supreme Court dismissed the appeal.

Director of Public Prosecutions v MB [2024] IESC 33