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R v Tohel Uddin

Consideration of the scope of the words “or otherwise” under section 5(6) of the Domestic Violence, Crimes and Victims Act 2004

http://www.bailii.org/ew/cases/EWCA/Crim/2017/1072.html

Shahena Uddin suffered severe abuse within her family home which resulted in her death. The Appellant, who was Ms Uddin's brother, alongside other members of her family were convicted of causing or allowing the death of a vulnerable adult contrary to section 5(6) of the Domestic Violence, Crimes and Victims Act 2004 ("the Act").

The only ground of appeal was that the trial judge was wrong to find that there was evidence from which the jury could conclude that Ms Uddin was a "vulnerable adult" within the meaning of section 5(6) of the Act and therefore wrong to reject a submission of no case to answer in respect of this offence.

Under section 5(6), a "vulnerable adult" is a person aged 16 or over whose ability to protect himself from violence, abuse or neglect is significantly impaired through physical or mental disability or illness, through old age or otherwise. It was argued that because Ms Uddin did not have a physical or mental disability, nor was she elderly, the only way she could be described as a vulnerable adult under section 5(6) would be to interpret the words "or otherwise" widely. The Appellant submitted that the third category of "or otherwise" was too broad and it could not have been Parliament's intention to allow this category to cover any set of circumstances or conditions which could lead to a significant impairment of a person's ability to protect themselves. Further, because the words "or otherwise" are so wide, they are subject to the ejusdem generis principle of construction, which means that wide words associated in the text with more limited words are taken to be restricted by implication to matters of the same limited character.

Held:

It is of significance that the words "or otherwise" have been chosen to follow two identifiable categories of substantial impairment. The word "or" creates an alternative scenario and distinguishes the circumstances in question from the categories which precede them. These words leave open the possibility for other sets of circumstances or conditions to feature as the background to the requirement that the individual's ability to protect himself from violence, abuse or neglect is significantly impaired. Further, unlike the first two categories, the use of the term "otherwise" suggests that the cause of the condition which significantly impaired the victim's ability to protect himself can be intrinsic or extrinsic.

It is for the jury to determine whether a victim falls into the categories set out in section 5(6) and this is an exercise which is fact and context sensitive. In this case, there was ample evidence for the jury to decide whether or not Ms Uddin fell into the third category and this case falls squarely into the circumstances Parliament intended to cover in creating the new duty.

Appeal dismissed.

8 September 2017

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