- In these four appeals, which have been heard together, four carers, as
they have been described, appeal against convictions for manslaughter, Lorraine
Harris; murder, Raymond Charles Rock; manslaughter, Alan Barry Joseph Cherry;
and s.20 inflicting grievous bodily harm, Michael Ian Faulder. The victims
were Patrick McGuire, aged 4 months, in the case of Harris; Heidi Smith,
aged 13 months, in the case of Rock; Sarah Eburne-Day, aged 21 months, in
the case of Cherry; and N, aged 7 weeks, in the case of Faulder. Throughout
this judgment we shall refer to the victims by their christian names and
to the appellants by their surnames. Patrick was the son of Harris; Heidi
was the daughter of Rock´s partner; Sarah was the daughter of Cherry´s partner;
and N was Faulder´s son. At the time immediately before each of the victims
became seriously ill each was in the sole care respectively of Harris, Rock,
Cherry and Faulder.
- All of the appellants were convicted following trials. On 7 September 2000
at Nottingham Crown Court Harris was convicted of manslaughter and sentenced
to 3 years imprisonment. On 21 September 1999 at Chelmsford Crown Court Rock
was convicted of murder and sentenced to imprisonment for life. On 9 October
1995 at Birmingham Crown Court Cherry was convicted of manslaughter and sentenced
to 2 years imprisonment. On 28 April 1999 at Teesside Crown Court Faulder
was convicted of s.20 inflicting grievous bodily harm and sentenced to 30
months imprisonment.
- The common thread running through each of these four appeals is a submission
that since these convictions medical research has developed to the extent
that there is now "fresh evidence" which throws doubt on the safety
of each conviction.
- Following the judgment of this Court in R v Cannings [2004] 2Cr.App.R.7
the Law Officers set up an Interdepartmental Group to review convictions
of defendants in alleged "battered babies" cases. As a result of
that review letters were sent to Harris and Cherry advising that each might
feel it appropriate for the safety of her or his conviction to be considered
further by the Court of Appeal. Each lodged notices of appeal and sought
extensions of time in which to apply for leave. Each has been granted an
extension of time and leave to appeal. Rock had already lodged a notice of
appeal. He appeals with the leave of the Court. In the case of Faulder his
appeal comes to this Court by way of a reference from the Criminal Cases
Review Commission. Mr Michael Mansfield QC is leading counsel for all four
appellants. Mr Richard Horwell leads for the Crown in each appeal.
- These appeals have involved the court receiving (by agreement of the parties)
evidence from ten medical expert witnesses called on behalf of the appellants
and eleven called on behalf the Crown. We also received the written evidence
of four further witnesses. In general terms the issues between the two sets
of medical expert witnesses are as follows. First, the evidence called on
behalf of the appellants relied on recent research which it is said demonstrated
that long held medical opinion of the conventional signs giving rise to inferences
of unlawful assaults on infants and very young children is unreliable. The
basis of this challenge was a hypothesis based on recent research. However
there were also other associated medical issues. The Crown´s medical witnesses
do not accept that the hypothesis is correct or that it is supported by the
new research.
- Secondly the Crown do not accept that the fresh evidence in relation to
other specific issues in any way renders the convictions of these appellants
unsafe.
The trials
Harris
- Harris faced a single count of manslaughter. In summary the evidence was
as follows. Patrick was born on 13 August 1998. He was the son of Lorraine
Harris and Sean Maguire all of whom lived in the same house with two daughters
of Harris from a previous relationship. The evidence showed that, although
the pregnancy was not planned, both Harris and Maguire were happy about the
impending birth. After his birth, Patrick gave every indication of being
a thriving and much loved baby. Maguire described Harris as being as happy
as he had ever known her. Harris received support from Maguire´s mother and
her own mother. There were no financial difficulties and health professionals
said that the family gave the impression of perfection.
- On 4 December 1999 Harris took Patrick for his third immunisation. The
rest of the day passed without any significant event. Maguire was on night
shift and Harris remained in the house with Patrick. Shortly before 1.00
a.m. on 5 December 1999 Harris noticed that Patrick was having difficulty
breathing and called Dr Barber, the general practitioner. Whether or not
this was in evidence at the trial, it is agreed that in the telephone call
Harris said to Dr Barber:
"I woke up to give him his feed and he wasn´t breathing.
Not until I picked him up and sort of shook him. He seems as right as
rain now."
- Dr Barber stated that on arrival Harris appeared calm and controlled. Dr
Barber had formed the opinion that Harris was an experienced and sensible
mother. He examined Patrick. Patrick´s eyes were normal and he had all the
appropriate reflexes. He recorded Patrick´s temperature as 38.2, mildly raised.
There were no signs of abuse or bruising. Patrick´s chest was clear and although
he was a little "snuffly" Dr Barber concluded that there was nothing
wrong with him. He left the house at 1.30a.m.
- At 2.34am Harris made a 999 call to the emergency services and reported
that Patrick would not wake up. An ambulance arrived seven minutes later.
The crew endeavoured to resuscitate Patrick. They recorded that Patrick did
not have a pulse and was making no respiratory effort although he was still
warm. Patrick and Harris were taken to Derby Children´s Hospital arriving
at 3.15am Patrick was put on a life support machine. The evidence was that
Harris was "plainly in considerable stress and crying." Patrick
was noted as having fixed and dilated pupils and retinal haemorrhages.
- Patrick was seen by Dr Dodd a consultant paediatrician, who examined him
at approximately 4.30am He described Patrick as having widely dilated pupils
enabling him to make a clear examination of the retina. He found gross preretinal
haemorrhages which were so extensive that he could not recall seeing any
that were worse. There were no external injuries. He was so concerned about
Patrick´s condition that he arranged for him to be transferred to the specialist
unit at Nottingham. In Nottingham a blood sample test was taken. The test
showed that there was marked hypofibronogenemia. Despite the best efforts
of the medical team caring for him Patrick died on 6 December 1999.
- In late March 2000 Harris was arrested and interviewed about these events.
In the summing-up the judge described Harris´ answers at interview as entirely
consistent with the evidence which she gave at her trial.
- The prosecution called a number of expert medical witnesses both as to
fact and also opinion evidence. Those witnesses were Dr Bouch, a Pathologist,
who had conducted a post mortem on Patrick. He concluded that Patrick had
died as a result of a shake which caused bleeding into the skull around the
brain. He described what he meant by a "shake" as much more than
rough handling. Professor Green, a paediatric pathologist, with a special
interest in ophthalmic pathology gave evidence that there was extensive bleeding
in the vitreous of the left eye and extensive haemorrhaging of the retina.
The bleeding in the right eye was less extensive. His conclusion was that
his findings were those typically seen when shaking or, shaking and an impact
had occurred. A consultant haematologist, Dr Giangrande, who specialised
in blood diseases, gave evidence to the effect that the low level of fibrinogen
in the Patrick´s blood system, in his opinion, was the result of an injury
sustained by Patrick and not a pre-existing condition. However he was unable
to rule out the possibility that that condition was present before the brain
injury was caused. Finally, the prosecution called Mr Punt, a consultant
paediatric brain surgeon. His evidence was that the amount of blood over
the surface of the brain shown on the scan and the description of the amount
of blood over the surface of the brain at post mortem was not sufficient
to cause Patrick´s death. In his opinion it was injury to the brain itself
which caused death; and that the brain injury was caused either by shaking
or an impact or a combination of both. In his opinion whatever caused the
injury to the brain was likely to have been in consequence of an incident
after Dr Barber had left the home at 1.30a.m. In his view it was extremely
improbable that the injuries were the result of a bleeding disorder.
- Harris, a woman of good character, gave evidence in her own defence. Her
evidence was that on the evening of 4 December 1998 Patrick became "chesty
and grunty". Because he had difficulty in breathing she called out Dr
Barber. After his visit she put Patrick in his cot. He seemed to have settled
a bit. When she awoke approximately an hour later she checked him. His arms
were on the top of the covers; he was a bit pale and cold. When she picked
him up he was floppy. She said that she panicked and put him down in the
cot. She telephoned her mother and then the ambulance. She vaguely remembered
bouncing him on her knee whilst she was on the telephone. At interview she
had said that she had Patrick on her knee when she telephoned the ambulance
and that she remembered her knees "were going ten to the dozen." In
evidence she said that she found it difficult to remember the sequence of
events because she had tried to put it out of her mind. She accepted that
she had told the doctor on the telephone that Patrick had stopped breathing
in order to make him hurry. She said she was unable to offer any explanation
for his injuries.
- On her behalf three expert medical witnesses gave evidence. They were Dr
Batman, a consultant histopathologist; Dr Jones, a consultant paediatrician;
and Dr Macdonald, a consultant neuropathologist. Dr Batman thought that there
were three possible causes of Patrick´s death. They were (a) natural causes
such as bleeding from a blood disorder; (b) shaking with or without impact;
and (c) re-bleeding of an old blood clot. He regarded the latter as the least
likely of three. In evidence, Dr Jones stated that his conclusion was that
the findings were entirely consistent with a bleeding disorder. However he
conceded that one would have expected more blood than was present if there
was a blood disorder. He accepted that the findings were consistent with
Patrick having been shaken and he agreed that he had never seen a child with
fibrinogen deficiency which had died. Dr Macdonald concluded that Patrick´s
injuries were not the result of a severe non-accidental injury although he
conceded that the extent of the haemorrhages inside the vitreous jelly of
his eye equated to a quite severe shaking. But the fact that there was no
bleeding on the optic nerve of the right eye was a contra-indication.
- In a summing-up, about which there is and can be no criticism, the judge
described the issue for the jury as follows:
"The prosecution assert that she killed Patrick by
deliberately shaking him violently or by shaking him violently and then
throwing him down in his cot so as to cause bleeding inside his skull,
thus leading
to his collapse and death. The defendant denies that she did any such
thing. She cannot explain her son´s collapse and death, but maintains that
she did
nothing which might have brought about that death. If you are not sure
that the defendant killed Patrick, then you find her not guilty"
After deliberating for just short of three hours the jury
returned a verdict of guilty of manslaughter.
Rock
- Rock faced an indictment charging him with the murder of Heidi Smith. Heidi
Jane Smith was born on 10 May 1997 and was the daughter of Lisa Hudson and
James Smith. Lisa Hudson´s relationship with James Smith did not last long
and by March 1998 she was living at the home of Rock. Rock was aged 26 and
had previously been married with two children of his own. His children lived
with their mother.
- The evidence was that Heidi was a happy, healthy baby and hardly ever cried.
In general Rock was very good with and doted on Heidi. There was evidence
that he was concerned about her well-being and showed no hostility towards
her. However, Lisa Hudson said in evidence that Rock had a temper. She spoke
of an incident about two weeks before Heidi´s death when Heidi was grizzly
and would not settle. She said that on that occasion Rock held Heidi to his
face and said "shut up" in what she thought was a nasty fashion.
On another occasion Rock complained that "Its Heidi this and Heidi that".
- On 2 June 1998, Lisa´s mother, Thelma Hudson, was looking after Heidi.
At 6.30pm Thelma took Heidi back to Rock´s home after he had returned from
work. Lisa Hudson was still at work. Thelma Hudson placed Heidi in her cot
at 6.35pm. She said that when she left Heidi was asleep and breathing normally.
At 7.08pm Thelma Hudson telephoned Rock and spoke to him. From approximately
7.00pm Lisa Hudson could not get a response from the telephone at Rock´s
home. A next door neighbour, Gail Banham, said that some time between 7.05pm
and 7.10pm, from her kitchen, she could hear screaming coming from one of
the homes at the back of her house. She said that the screaming sounded like
a very sustained temper tantrum of a child aged between nine months to eighteen
months. She also heard someone shouting at the child. It was a male and youngish.
He was swearing and told the child to "fucking shut up". The screaming
did not stop. She went to the front of her house where she could hear nothing
but then returned to her back kitchen. The screaming continued and she heard
the same voice telling the child to shut up. The screaming continued but
as she finished dishing up a meal it stopped and went completely silent.
Her evidence was that this occurred at 7.20pm. In the unused material there
were statements from police officers concerning an experiment conducted by
them to see if shouting in one house could be heard in the other. The result
of this experiment was inconclusive.
- However, Rock, in evidence, agreed that he had told Heidi to shut up but
it was in the context of a longer sentence in which he said "you heard
your mum, you´ve got to shut up". He said that after Thelma Hudson had
telephoned him he checked that Heidi was asleep and went downstairs to watch
a video. During this time he heard loud crying. He went upstairs and found
Heidi sitting up in her cot, red-faced and very upset. He said that he picked
her up by her armpits and placed her in the crook of his right arm with his
left hand under her bottom. He then rocked her from side to side at the same
time trying to wind up the mobile on the top of the wardrobe. Heidi slipped
through his arms onto the floor. He said that he saw Heidi hit the floor;
she did not bang her head but did not stop crying. He immediately picked
her up. She was completely still and not breathing. He patted her on the
back saying "come on Heidi sweetheart". He then held her in front
of him but did not violently shake her. He shook her lightly by placing her
on the floor where she was having the occasional spasm. He tried to give
her mouth to mouth resuscitation but on the fourth occasion she began to
vomit. He took her to the bathroom, held her face down over the sink and
banged her back to allow the sick to come out. His evidence was that she
began vomiting again. Seeing this he ran downstairs with Heidi and dialled
999. His telephone call was timed at 7.27pm. The paramedics arrived at 7.37pm.
They found Heidi lying on the floor in a dimly lit room. Rock told them that
he had dropped Heidi onto her bottom whilst he had been trying to wind up
a clockwork toy. He told them that Heidi had not hit her head on the floor
as he had been able to catch and support her head before it hit the floor.
He then picked her up and she had gone limp and stopped breathing. He told
them that he had tried mouth-to-mouth resuscitation and Heidi had vomited.
One of the paramedics saw signs of vomit around Heidi´s mouth. He said that
on the way to the hospital in the ambulance Rock had asked questions such
as "has she got brain damage?" "Has she got lung damage?" On
arrival at the hospital Heidi was taken straight to the resuscitation room.
She was subsequently transferred to the Intensive Treatment Unit as she was
having spasmodic fits; both her eyes were rolling to the left; she was pale
but breathing and unconscious.
- At the hospital, Rock gave an account of events to both Lisa and Thelma
Hudson and all of the medical staff. His explanation of the incident was
much the same as that which he gave in evidence. He maintained that Heidi
did not bang her head when she fell and he told no one that he had shaken
her. To Lisa Hudson he said "I am so sorry, I dropped her on her bum".
And later in the hospital chapel, "I killed her, I killed her. Please
God let her live, save her."
- The prosecution called a number of medical witnesses including expert witnesses.
A consultant ophthalmic surgeon said that he examined Heidi´s eyes when she
was comatose and on a ventilator. He found massive retinal haemorrhaging
at all layers on both retinas. There was also tenting/pulling forward of
the major retinal vessels or folds. He concluded that in the absence of any
specific medical condition the haemorrhages and tenting were the result of
severe acceleration and deceleration forces. He said that he had never seen
such severe damage to a person´s retina. Dr Jaspan, a consultant neuroradiologist
(one of the expert witnesses called by the Crown in these appeals) examined
a CT scan taken at 10.25pm on 2 June 1997. He found a thin layer of blood
lying along the falx and within the brain at the back of the head. In his
opinion these findings were consistent with trauma. In his view the disrupted
delicate blood vessels in the brain had been damaged and the damage was profound
and irreversible. He concluded that the trauma was so severe as to render
Heidi immediately unconscious and that the injuries were highly characteristic
of violent shaking. In his opinion dropping a child on its bottom was inconsistent
with Heidi´s injuries.
- Mr Jonathan Punt, a consultant paediatric neurosurgeon, also examined the
first CT scan of 2 June and agreed with Dr Jaspan´s conclusions. He concluded
that the degree of violence required to cause the injuries to Heidi was "extreme;
grossly in excess of any vigorous handling, even rough handling."
- Dr Cary, a pathologist, conducted the post mortem on the same day as the
life support machine had been discontinued. He found a number of superficial
bruises over Heidi´s body. In addition there was bruising within the scalp
over the back of head and bleeding around the optic nerve. The brain was
swollen and there was bleeding on the surface of the brain. There was no
skull fracture. He said that in his opinion the head injuries in conjunction
with the retinal detachment in both eyes were consistent with shaken baby
syndrome (SBS). In his view the cause was shaking or shaking plus an impact
which caused injuries to the brain. He said that the force required was "shaking
as hard as you can". Further, he concluded that the changes which had
occurred to Heidi´s eyes meant that there must have been several shakes back
and forth with acceleration and deceleration.
- A professor of forensic pathology, Professor Michael Green, gave evidence
that there were haemorrhages around both optic nerve roots and that the retina
had started to pull away. There was a detachment between the sclera and the
retina and extensive bleeding around the optic nerve. In his view the injuries
were typical of a serious shaking plus impact.
- Finally, Dr Christine Smith, a consultant neuropathologist, called by the
prosecution, described the brain as swollen and said that she had found on
the inner surface of the dura remnants of blood. There was also widespread
damage to nerve cells. She concluded that the injuries to the brain were
consistent with trauma which had caused the brain to move in relation to
the skull. She said that the most likely cause of the haemorrhaging to the
eyes was shaking. She said there was no evidence of natural diseases present
which could have lead to Heidi´s death.
- Rock gave evidence in his own defence. We have already referred to his
version as to how he came to drop Heidi on the floor. He denied shaking Heidi
but accepted that as a father he knew the consequences of shaking a baby
could be fatal. He accepted in cross-examination that he had not told the
doctors or the police that Heidi had become floppy after he had shaken her.
He said that feelings of guilt were the reason for him not telling the police.
He confessed that at the hospital it was obvious to him that Heidi was suffering
from brain damage but he did not tell the doctors about shaking Heidi.
- No expert witnesses were called on Rock´s behalf.
- In his summing-up the judge told the jury that Rock admitted shaking Heidi.
He said:
"It is for you to say, but you may think that, in the
end, the defendant was bound to admit that he had shaken Heidi, and shaken
her before she became floppy, because the evidence that she was shaken
is so strong, so overwhelming. How else were those injuries caused to
Heidi,
if it were not by the defendant shaking her, and shaking her with considerably
excessive force? That is a question you are entitled to ask yourself,
obviously. There is no question of accident here. It is not suggested
that what the
defendant did was done otherwise than deliberately."
- The judge went on to direct the jury that the difference between murder
and manslaughter was one of intention. Further, he told them that there was
a third possible verdict and that was not guilty of anything. He continued:
"So, I must leave it open for you to say whether the
defendant is not guilty of anything. I am allowed, however, to suggest
to you that not guilty of anything is not a realistic verdict in this
case.
As I say, you decide this case. If you think that the defendant´s account
that he did not shake Heidi violently so as to cause those injuries to
Heidi from which she died, that his account is true or may be true, then
he is
entitled to be acquitted both of murder and manslaughter."
After deliberating for a period of forty minutes the jury
returned a verdict of guilty of murder.
Cherry
- Cherry faced an indictment charging him with the manslaughter of his partner´s
daughter Sarah. Sarah´s mother, Mrs Shirley Eburne-Day, and her children
including Sarah and Cherry, at the time of the incident giving rise to the
charge, were all living together at Mrs Eburne-Day´s home. Sarah was the
youngest of Mrs Eburne-Day´s three children. Mrs Eburne-Day and Cherry had
lived together for some months. The evidence suggested that he was a good
step-father to the children. On Thursday, 3 February 1994, in the morning,
Sarah was left in the sole care of Cherry. Earlier in the week she had developed
a thumb infection for which a doctor had prescribed antibiotics. After taking
some medicine on 2 February Sarah was sick so different antibiotics were
prescribed.
- On the morning of 3 February 1994, at about 8.30am, Mrs Eburne-Day left
Sarah at home with Cherry whilst she drove her two older children and a neighbour´s
daughter to school. The plan was that Cherry would take Sarah to Mrs Eburne-Day´s
father´s home where, in the course of the morning, Cherry and Mrs Eburne-Day
would meet before both went to Birmingham for Cherry to attend a job interview.
- That morning Sarah was a little better than on the previous day and appeared
to be behaving perfectly ordinarily. Mrs Eburne-Day said that she had no
concerns about leaving her. She said that she and Cherry had discussed Sarah´s
health and decided that she was fit enough to be left with her grandparents.
In evidence, Cherry said that he disagreed. He said that Sarah was not very
well on Thursday morning. She was not in a bright condition and wanted to
sleep and be cuddled by her mother. He denied that he had any conversation
with Mrs Eburne-Day about Sarah´s health that morning.
- Lianne Osbourne, a next door neighbour, called that morning for a lift
to school. Before leaving with Mrs Eburne-Day she said that she saw Cherry
briefly. He was wearing dark trousers, a white striped shirt and a red brown
paisley patterned tie. Apart from his jacket he appeared almost ready to
go out. In evidence Cherry denied that when seen by Lianne Osbourne he had
been fully dressed for work.
- There was evidence that Cherry was next seen in the street in a distressed
state seeking assistance from various neighbours. Sarah´s grandfather, Mr
Eburne-Day, received a telephone call from Cherry at precisely 8.55am asking
him to call an ambulance, which he did. Mrs Redding, a neighbour and trained
nurse, saw Sarah just before the ambulance arrived. She said that Sarah appeared
to be dead or on the verge of death. She applied resuscitation techniques
until the ambulance arrived at approximately 9.20am. Sarah was taken first
to George Eliot Hospital in Nuneaton but was later transferred to the Intensive
Therapy Unit at Birmingham Children´s Hospital. In spite of all medical efforts
Sarah died about 48 hours later.
- On 4 February 1994 Cherry was arrested on suspicion of causing grievous
bodily harm with intent. This was before Sarah had been pronounced dead.
He was interviewed by police and explained that he had left Sarah standing
on a small yellow chair whilst he went upstairs briefly to put on a shirt
and tie. Apparently, it had been Sarah´s habit to stand on the yellow chair
in order to look out of the window at the front of the house. He explained
that when he returned he found Sarah lying on the floor motionless and making
gurgling noises. He said that he picked her up and described her body feeling
like a rag doll. She did not respond and therefore he telephoned her grandfather
to ask him to telephone for an ambulance. He explained that she must have
become suddenly ill and fallen from the chair. He denied shaking her or throwing
her around but said that she had fallen out of her sister´s bed at the weekend.
On 6 February 1994 he was charged with the murder of Sarah and after caution
replied "I´m not guilty. I´ve committed no offence". In the event,
the Crown proceeded with a charge of manslaughter rather than murder.
- At trial, giving evidence in his own defence, Cherry repeated what he had
said at interview. He said that after going upstairs to finish off dressing
for "only a few minutes" he returned to find Sarah "lying
on the floor, obviously badly injured." He said that when he picked
Sarah up and tried to pat her back he removed "some yellow stuff from
her mouth".
- At trial the prosecution called a number of medical witnesses. Doctor (now
Professor) Whitwell conducted the post mortem upon Sarah. Her finding was
that death had been caused by "cerebral swelling and subdural haematoma".
In addition, she found two bruises at the back of the head (3.5cms and 1.5cms
in diameter and on opposite sides) and five small areas of bruising higher
up. In her opinion the five smaller bruises were consistent with pressure
from fingers. In cross-examination she did not accept that the injuries could
have been caused by falling from the yellow chair. She said that the injuries
were more consistent with Sarah´s head being forcibly put against something.
In her opinion it was highly unlikely that Sarah could have injured herself
by banging her head against the floor although that was not impossible. She
said it was unlikely the injuries could have been caused by a single fall
because there were two separate areas of impact and two separate bruises,
although she could not exclude this absolutely.
- A radiologist, Dr Chapman, stated that it was very rare for a child to
have this kind of bleeding from a domestic fall. In his opinion a fall from
the yellow chair had not caused Sarah´s injuries. Dr Akuba, a neurological
registrar, in a witness statement, said that she had inserted a tube into
Sarah´s skull as part of her treatment and recorded that "Cerebral spinal
fluid emerged under moderate pressure. It was yellow and looked like old
blood. Query, query".
- Dr Rylance, a consultant paediatrician, having seen Sarah at Birmingham
Children´s Hospital, took the view that her injuries were non-accidental.
He was asked about a previous statement which he had made and in which he
stated that the injury giving rise to blood inside the skull occurred almost
certainly more than 12 hours previously and probably more than 36 hours previously.
He said in evidence that he had since changed his opinion and in fact it
could have been 10˝ or 11 hours previously. He said that Sarah´s vomiting
the day before was more likely to have been caused by the medicine than a
previous brain injury because when she stopped taking the medicine she stopped
vomiting.
- Finally, the prosecution called Mr Flint, a surgeon, who described the
five small bruises on Sarah´s head which were, in his opinion, indicative
of her having been held. The two bruises on the back of her head suggested
at least two blows. In his opinion it was very unlikely that the bruises
were caused by her slipping backwards from the chair and hitting her head
on the floor. In his opinion a healthy child could not sustain such injuries
revealed by the post mortem by falling the short distance from the chair
onto the carpeted floor.
- In addition to his own evidence, there was called on Cherry´s behalf a
neurologist Dr West and a consultant pathologist, Dr Ackland. Dr West had
viewed films taken by Dr Whitwell. He said that what he saw was consistent
with a child having aspirated liquid which was a frequent complication of
head injuries. Dr Ackland did not rule out the possibility of abuse causing
the injuries but was of the opinion that an accidental fall from the chair
was a significant possibility. In his opinion there was a small possibility
that Sarah some earlier injury that was aggravated by the fall but he did
not regard that as a high possibility. He said that the five marks on Sarah´s
head may have been caused by a firm grip during the medical treatment.
- In his summing-up the judge described the issue for the jury to decide
in the following terms:
"The cause of her death was a swelling of the brain
caused by an impact of one sort or another. It is the prosecution case
that the impact was in consequence of an unlawful blow delivered by this
defendant.
Your task will be to decide whether that case is proved or not."
After deliberating for just over two and a half hours
the jury returned a unanimous verdict of guilty of manslaughter.
Faulder
- At trial Faulder faced an indictment containing 2 counts. They were count
1, a s.18 offence of causing grievous bodily harm with intent; and count
2 an alternative s.20 offence. He was convicted of the latter offence. The
evidence showed that at 10.30pm on Friday 13 February 1998, N then aged seven
weeks (but born two weeks premature) was admitted to the Dryburn Hospital
with severe injuries. On the following day N was transferred to a specialist
unit at the Newcastle General Hospital where his condition deteriorated over
the following week. Although there was concern that he might not survive
he recovered and was transferred back to Dryburn Hospital on 5 March 1998.
On 16 March 1998 he was discharged from hospital.
- The event which led to N´s admission to hospital occurred at the home occupied
by Faulder and his partner. It was common ground that at the time Faulder
was the sole carer of N. His case was that N´s injuries were caused entirely
accidentally. He said that he had dropped N and that in falling N struck
and injured his head. The case for the prosecution was that Faulder had caused
the injuries by a deliberate act or actions.
- The prosecution case was based on the assertion that the extensive brain
injuries sustained by N and revealed on x-ray and brain scans could not have
been occasioned in the manner described by Faulder. The prosecution relied
on the evidence of three expert witnesses for the proposition that Faulder
must have shaken N and thrown him onto the floor.
- Dr Camille de San Lazaro at the time a consultant paediatrician at the
Royal Victoria Infirmary gave evidence that the injuries sustained by N were
consistent with shaking and were not consistent with Faulder´s account. She
said that his version of the events could not account for the subdural haemorrhages.
She further stated that in relation to Faulder´s account of N making a sudden
arching movement which caused him to drop N that at that age the child would
have had insufficient muscle tone to achieve the movement described by Faulder.
Further Faulder´s description of N falling onto a pushchair and then a highchair
before hitting the floor would have had the effect of breaking N´s fall rather
than exacerbating it.
- Dr Alexander, a consultant paediatrician at the Newcastle General Hospital,
gave evidence that on examination of N on 14 February 1998 he found a triangular
bruise on the top of N´s head and two bruises on the forehead over the right
eye. He said that the child´s fontanelle was unusually tense, symptomatic
of swelling of the brain due to brain damage. In his opinion the CT scan
showed bilateral subdural haemorrhages. He conceded that the superficial
marks on N´s face and head were consistent with Faulder´s account but asserted
that this account did not provide an explanation for the bruise on the right
side of the forehead or the severity of the brain injuries. In his opinion
the brain injuries were such as were commonly caused by repeated shaking
with considerable force, and the clinical findings were more consistent with
non-accidental injury than with an accident.
- Mr Gholkar, a consultant neuroradiologist, having examined the brain scans
concluded that the evident changes in the appearance of the brain were due
to severe brain damage unlikely to have been occasioned in the manner described
by Faulder and were characteristic of shaking injuries.
- There was no evidence of retinal haemorrhages and there was some dispute
as to the extent to which retinal haemorrhages were to be found in babies
with "shaking" injuries. Dr de San Lazaro stated that her study
showed that 53% of children believed to have been shaken, had retinal haemorrhages.
- Faulder gave evidence in his own defence. He said that he did not deliberately
cause the injuries. He explained how he had dropped N by accident when attempting
to place him into his pushchair. He said that he had been holding him along
his arm with his hand supporting the baby´s head. The baby moved suddenly
and fell on to the edge of the pushchair. This caused him to bounce off the
pushchair and on to the concrete floor bouncing his head on the adjacent
highchair as he fell. Faulder conceded that the baby had been crying for
twenty minutes but said that he had not lost his temper. He maintained that
he did not shake nor forcibly place N into his pushchair. His answers at
interview were consistent with his evidence at trial.
- Dr Rushton a paediatric pathologist gave evidence for Faulder. He put forward
the possibility that N´s contact with the pushchair and highchair might have
lead to the production of rotary forces that accelerated the head and increased
the force of contact with the floor. He noted that the three external injuries
(bruises) found on the baby´s head were consistent with Faulder´s explanation
but were difficult to explain if the injuries were due to shaking or a single
impact injury. He also referred to the lack of retinal haemorrhages saying
that in his opinion the cause of retinal haemorrhages was not fully understood.
In his view subdural haemorrhages could be caused by shaking or impact but
they might also be consistent with injury caused in the manner described
by Faulder.
- The judge directed the jury in his summing-up that the first question for
it to decide was:
"Was this or may it have been accident or design? If
you come to the conclusion that this is or may have been a tragic accident
it follows that the defendant cannot be guilty of count 1 or count 2
and must be acquitted by you. That is the simple issue for you to decide."
- After deliberating for just less than two hours the jury returned a verdict
of guilty of count 2.
- On conviction Faulder applied for leave to appeal against conviction and
sentence and for an extension of time. His applications were refused by the
single judge.
The triad and the unified hypothesis
- At the heart of these appeals, as they were advanced in the notices of
appeal and the appellants´ skeleton arguments, was a challenge to the accepted
hypothesis concerning "shaken baby syndrome" (SBS); or, as we believe
it should be more properly called, non-accidental head injury (NAHI). The
accepted hypothesis depends on findings of a triad of intracranial injuries
consisting of encephalopathy (defined as disease of the brain affecting the
brain´s function); subdural haemorrhages (SDH); and retinal haemorrhages
(RH). For many years the coincidence of these injuries in infants (babies
aged between 1 month and 2 years) has been considered to be the hallmark
of NAHI. Not all three of the triad of injuries are necessary for NAHI to
be diagnosed, but most doctors who gave evidence to us in support of the
triad stated that no diagnosis of pure SBS (as contrasted with impact injuries
or impact and shaking) could be made without both encephalopathy and subdural
haemmorhages. Professor Carol Jenny, a paediatrician and consultant neuro-trauma
specialist called by the Crown, went further and said that she would be very
cautious about diagnosing SBS in the absence of retinal haemmorhages. In
addition, the Crown points to two further factors of circumstantial evidence,
namely that the injuries are invariably inflicted by a sole carer in the
absence of any witness; and that they are followed by an inadequate history,
incompatible with the severity of the injuries.
- Between 2000 and 2004 a team of distinguished doctors led by Dr Jennian
Geddes, a neuropathologist with a speciality in work with children, produced
three papers setting out the results of their research into the triad. In
the third paper "Geddes III", the team put forward a new hypothesis, "the
unified hypothesis", which challenged the supposed infallibility of
the triad. It was called the unified hypothesis because it relied on the
proposal that there was one unified cause of the three intracranial injuries
constituting the triad; that cause was not necessarily trauma. It is important
to note that the new hypothesis did not seek to show that the triad was inconsistent
with NAHI. It did, however, seek to show that it was not diagnostic.
- When Geddes III was published it was, and still is, very controversial.
It is not overstating the position to say that this paper generated a fierce
debate in the medical profession, both nationally and internationally. In
the course of the hearing of these appeals we have heard evidence from a
number of very distinguished medical experts with a range of different specialities
most of whom had in witness statements expressed views on one side or other
of the debate. However, early on in the hearing it became apparent that substantial
parts of the basis of the unified hypothesis could no longer stand. Dr Geddes,
at the beginning of her cross-examination, accepted that the unified hypothesis
was never advanced with a view to being proved in court. She said that it
was meant to stimulate debate. Further, she accepted that the hypothesis
might not be quite correct; or as she put it:
"I think we might not have the theory quite right.
I think possibly the emphasis on hypoxia - no, I think possibly we are
looking more at raised pressure being the critical event. "
And later in her evidence:
"Q. Dr Geddes, cases up and down the country are taking
place where Geddes III is cited by the defence time and time again as
the reason why the established theory is wrong.
A. That I am very sorry about. It is not fact; it is hypothesis
but, as I have already said, so is the traditional explanation. ... I would
be very unhappy to think that cases were being thrown out on the basis
that my theory was fact. We asked the editor if we could have "Hypothesis
Paper" put at the top and he did not, but we do use the word "hypothesis" throughout."
- Despite these frank admissions the triad and Geddes III have been a focus
of much of the medical issues in these appeals. We propose to set out the
salient features of each in a little more detail. We do so not only as a
backdrop to these appeals but in an effort to inform those involved in future
trials as to the current accepted state of medical science, as we understand
it from the evidence before us, on some of the very difficult issues which
are raised in criminal and civil trials involving allegations of NAHI.
The anatomy
- In order to explain the two hypotheses it is necessary to set out some
of the anatomy involved in terms which can be understood by laymen and which
from a medical viewpoint may seem somewhat simplistic. At the outset, in
order to assist the reader, we attach as annexes to this judgment a glossary
of medical terms (appendix A), and diagrams of the head (appendix B).
- The brain is encased in three membranes. The one immediately surrounding
the brain is the pia mater. The next one is the arachnoid. Between the pia
and the arachnoid is an area known as the subarachnoid space. The third membrane,
which surrounds the brain and continues down the body surrounding and protecting
the spinal cord, is the dura. Between the dura and the arachnoid is the subdural
space. Between the dura and the arachnoid there are veins running between
the two membranes which are called bridging veins.
- The brain is divided into two halves or cerebral hemispheres. The two hemispheres
are separated by the falx which itself is part of the dura. Below the cerebral
hemispheres the brain is joined to the spinal cord at the craniocervical
junction, which, as its name implies, is situated in the neck. The spinal
cord extends down from the brain, through the foramen magnum and into the
spine.
The triad
- As already stated when the three elements of the triad coincide for some
years conventional medical opinion has been that this is diagnostic of NAHI.
Typically the brain is found to be encephalopathic; bleeding is found in
the subdural space between the dura and the arachnoid subdural haemmorhages;
and there are retinal haemorrhages. There may also be other pathological
signs such as subarachnoid bleeding and injuries at the cranio-cervical junction.
Further, there may be injuries to nerve tissue (axonal injuries) and external
signs of broken bones, bruising and other obvious injuries such as extradural
oedema (bruising). Determining these findings requires medical experts from
a number of different disciplines interpreting often very small signs within
the complex structures of an infant´s brain and surrounding tissue.
- The mechanism for these injuries is said to be the shaking of the infant,
with or without impact on a solid surface, which moves the brain within the
skull damaging the brain and shearing the bridging veins between the dura
and the arachnoid. The shaking may also cause retinal haemorrhages. In the
sense that the explanation for the triad is said to be caused by shaking
and/or impact it also is a unified hypothesis, albeit that each element is
said to be caused individually by trauma.
- The triad of injuries becomes central to a diagnosis of NAHI when there
are no other signs or symptoms of trauma such as bruises or fractures.
The unified hypothesis ("Geddes III")
- Dr Geddes and her colleagues, following research into almost fifty paediatric
cases without head injury, proposed that the same triad of injuries could
be caused by severe hypoxia (lack of oxygen in the tissues) which in turn
led to brain swelling. The hypothesis was that brain swelling combined with
raised intracranial pressure (ICP) could cause both subdural haemorrhages
and retinal haemmorhages. Thus, it was argued that any incidents of apnoea
(cessation of breathing) could set in motion a cascade of events which could
cause the same injuries as seen in the triad. It will be appreciated that
there are many events which could accidentally cause an episode of apnoea.
- In Geddes III the unfied hypothesis was summarised as follows:
"Our observations in the present series indicate that,
in the immature brain, hypoxia both alone and in combination with infection
is sufficient to activate the pathophysiological cascade which culminates
in altered vascular permeability and extravasation of blood within and
under the dura. In the presence of brain swelling and raised intracranial
pressure,
vascular fragility and bleeding would be exacerbated by additional hemodynamic
forces such as venous hypertension, and the effects of both sustained
systemic arterial hypertension and episodic surges in blood pressure. "
Thus, it was suggested that all the injuries constituting
the triad could be attributed to a cause other than NAHI. We understand that
this paper has been much cited in both criminal and civil trials since its
publication.
- The criticism of Geddes III is that it is not hypoxia and/or brain swelling
which causes subdural haemorrhages and retinal haemorrhages but trauma. As
an example of why the hypothesis is not correct Dr Jaspan, giving evidence
in the appeal of Rock, demonstrated that CT scans taken of Heidi´s brain
showed that there was little or no brain swelling at a time when subdural
haemorrhages and retinal haemorrhages were shown to be present. As a result
of critical papers published in the medical journals, as we have already
stated, Dr Geddes when cross-examined frankly admitted that the unified hypothesis
could no longer credibly be put forward. In cross-examination she accepted
that she could no longer support the hypothesis that brain swelling was the
cause of subdural haemorrhages and retinal haemmorhages. She did, however,
state that she believed that raised intracranial pressure (ICP) might prove
to be an independent cause of both lesions. When asked by Mr Horwell if she
had published a paper on this hypothesis she said that she had not and that
her research was still incomplete. It was clear from subsequent questions
in cross-examination that this work was still in its early stages and that
many questions remain, as yet, unresolved.
- In our judgment, it follows that the unified hypothesis can no longer be
regarded as a credible or alternative cause of the triad of injuries. This
conclusion, however, is not determinative of the four appeals before us.
There are many other medical issues involved in cases of alleged NAHI. Further,
there remains a body of medical opinion which does not accept that the triad
is an infallible tool for diagnosis. This body of opinion, whilst recognising
that the triad is consistent with NAHI, cautions against its use as a certain
diagnosis in the absence of other evidence. These four appeals raise different
medical issues and do not necessarily fail because the unified hypothesis
has not been validated. But it does mean that the triad, itself a hypothesis,
has not been undermined in the way envisaged by the authors of Geddes III.
- Mr Horwell, in his final submissions invited the Court to find that the
triad was proved as a fact and not just a hypothesis. On the evidence before
us we do not think it possible for us to do so. Whilst a strong pointer to
NAHI on its own we do not think it possible to find that it must automatically
and necessarily lead to a diagnosis of NAHI. All the circumstances, including
the clinical picture, must be taken into account. In any event, on general
issues of this nature, where there is a genuine difference between two reputable
medical opinions, in our judgment, the Court of Criminal Appeal will not
usually be the appropriate forum for these issues to be resolved. The focus
of this Court will be (as ours has been) to decide the safety of the conviction
bearing in mind the test in fresh evidence appeals which we set out below.
That is not to say that such differences cannot be resolved at trial. At
trial, when such issues arise, it will be for the jury (in a criminal trial)
and the judge (in a civil trial) to resolve them as issues of fact on all
the available evidence in the case (see R v Kai-Whitewind [2005] EWCA
1092).
- Before we leave Geddes III we must mention some evidence given by the first
witness we heard, Dr Waney Squier, a consultant neuropathologist, which was
the subject of some further investigation by the Crown´s witnesses and further
oral evidence. Dr Squier produced a slide taken from the brain of a four
week old baby which she said demonstrated blood oozing from the dura into
the subdural space. In her opinion this showed that intradural haemorrhages
could leak into the subdural space and could be mistaken for subdural haemorrhages
caused by shearing of the bridging veins. In that respect it challenged the
diagnostic value placed on subdural haemmorhages by the triad. Mr Horwell
asked for the slide and other slides made in respect of the same brain to
be released for examination by the Crown´s experts. We heard evidence in
respect of this discrete issue on the last day of evidence.
- In summary, two paediatric neuropathologists, Dr Rorke-Adams and Dr Harding,
said that the slide did not show intradural bleeding but was an example of
the process of organisation of an earlier subdural haemorrhage.
- It is unnecessary for us to go into the detail of this dispute. It is sufficient
to say that having heard both sides forcefully express their views we are
unable to resolve this issue and find, as Mr Horwell invited us to, that
Dr Squier´s evidence on it cannot be accepted. We content ourselves with
the observation that even on the interpretation of objective evidence there
can be two views expressed by highly experienced and distinguished medical
experts.
Geddes I and II
- Although, for the reasons already explained, the unified hypothesis can
no longer stand as a credible alternative to the triad, a number of issues
of general importance in respect of the triad remain. So far we have made
no mention of the first two papers produced by Dr Geddes and her co-authors,
which we will refer to as Geddes I and Geddes II. These papers represent
conclusions reached in respect of research into a cohort of infants all of
whom died from inflicted head injuries. Using a technique pioneered by Dr
Geddes, the authors sought to identify axonal damage (damage to the nerve
tissues) in the brains of these infants. The technique involved detecting
the presence of beta-amyloid precursor protein (β-APP)
(a protein that builds up where axons have been damaged). The research showed
that widespread axonal damage, interpreted as vascular rather than traumatic,
was present in 13 of the 37 cases. Conversely, widespread traumatic axonal
damage was found in only 2 cases and in both cases there were other very
clear signs of trauma (for example bilateral skull fractures). The authors
concluded that their findings strongly suggested that severe traumatic axonal
damage is a rarity in infant NAHI unless there is considerable impact, and
that the diffuse brain damage which was responsible for loss of consciousness
in the majority of cases was caused by starvation of oxygen (hypoxic) rather
than direct trauma to the brain.
- The principle conclusion of Geddes II was that shaking an infant might
cause a stretching injury at the cranio-cervical junction to nerves which
control the child´s cardio-respiratory system. In all the cases analysed
the stretch injury itself was survivable, what was life-threatening was the
consequent hypoxic injury and brain swelling that followed as a result of
the damaged cardio-respiratory nerves failing to function. The minimum degree
of shaking force required to produce such a stretch injury is unknown and
a death may be caused in the manner suggested by much less force than hitherto
supposed. Although the results of this research, as we understand it, are
not challenged by those who criticise the unified hypothesis, Mr Horwell
submitted that its effect was limited. For instance he submitted that it
had no application to, and could not explain, cases involving subdural bleeding
and/or retinal haemmorhages.
Degree of force
- This leads on to a very important issue which arises in these appeals and
will no doubt arise in many cases where the triad of injuries are present.
It is the question of how much force is necessary to cause those injuries.
There is a measure of common ground between the doctors on this issue. Generally
it is agreed that there is no scientific method of correlating the amount
of force used and the severity of the damage caused. To state the obvious,
it is not possible to carry out experiments on living children. Further,
experience shows that the human frame reacts differently in different infants
to the same degree of force. However the medical opinion on this issue appears
to be divided into those who maintain that severe injuries can confidently
be ascribed to a traumatic cause, for example (but not only) Dr Rorke-Adams,
a very experienced paediatric neuropathologist, and those who maintain that
very little force may cause very serious injuries, for example Dr John Plunkett,
a distinguished anatomical, clinical and forensic pathologist.
- It is quite impossible for this court to make any finding on this issue
beyond referring to some general propositions with which both counsel agreed.
First, common sense suggests that the more severe the injuries the more probable
they will have been caused by greater force than mere "rough handling".
We note that the most recent Update from the Ophthalmology Child Abuse
Working Party; Royal College of Ophthalmologists (2004) concludes:
" It is highly unlikely that the forces required to
produce retinal haemorrhage in a child less than 2 years of age would
be generated by a reasonable person during the course of (even rough) play
or
an attempt to arouse a sleeping or apparently unconscious child."
- Secondly, as Mr Peter Richards, a very experienced neurosurgeon with a
speciality in paediatrics, pointed out, if rough handling of an infant or
something less than rough handling, commonly caused the sort of injuries
which resulted in death, the hospitals would be full of such cases. In our
view this points to the fact that cases of serious injuries caused by very
minor force such as might occur in normal handling or rough handling of an
infant, are likely to be rare or even extremely rare.
- But, thirdly, as Dr Plunkett demonstrated by his research and in particular
by reference to an amateur video of a child falling from a 3 foot high railing,
described as part of a play tree-house, which resulted in catastrophic injuries,
there will be cases where a small degree of force or a minor fall will cause
very severe injuries. We shall have more to say about Dr Plunkett´s research
later in this judgment, but at this stage we repeat that the evidence suggests
that cases where this occurs are likely to be very rare.
- Fourthly, although the younger the infant or child, the more vulnerable
it is likely to be, it is not possible to conclude that age is necessarily
a factor in deciding whether injuries are caused by strong force or a minimal
degree of force or impact. The balance of the evidence is that, although
an infant´s skull is more pliable than that of an older child, the internal
organs and vessels are as robust as those of an older child. The vulnerability
of an infant arises from the fact that its head is generally larger in proportion
to its body than in an older child and its neck muscles are weaker and not
as well developed as in older children, hence the significance of injuries
at the site of the craniocervical junction.
Biomechanics
- In simple terms "biomechanics" is the application of traditional
engineering principles to living organisms.
- Many of the experts who gave evidence before us made reference to research
in the field of biomechanics. The following extracts from the evidence demonstrate
how the ‘biomechanics´ argument was deployed by both sides.
- Dr Squier referred to the "huge amount of evidence about the biomechanics" of
shaking which had caused her to revise her views on the diagnosis of shaking.
- Dr Geddes stated that belief that thin film subdural haemorrhages were
caused by the rupture of bridging veins was "biomechanically exceptionally
unlikely". She relied upon biomechanical research to support the view
that shaking on its own cannot cause subdural haemorrhages and retinal haemorrhages
without also significant structural damage to the neck and probably also
a degree of axonal injury.
- Dr Plunkett stressed the importance of understanding the mechanics of injury.
- Dr Adams, referring to biomechanical research by Ommaya, considered that
shaking was an improbable direct cause of retinal haemorrhage.
- Mr Richards warned that, however good the biomechanical calculations may
be, they do not always appear to give an answer that is common sense. He
went on to stress that limits of current knowledge and understanding:
"Nobody really knows whether, when you shake a child,
it is just back and forth or there is rotation as well. What does the
head do? Does it decelerate against the back? Does it decelerate against
the chin?
When you put the child down, there must be an element of deceleration.
It is a complex problem."
- Of course none of the witnesses who gave evidence in the appeal was themselves
an expert in biomechanics. Such were the number of references to biomechanics
during the early days of the hearing that it became inevitable that some
direct expert evidence on the subject was required. To that end the appellants
filed a report by Dr Thibault and the Crown filed a report by Dr Gina Bertocci
(dealing specifically with the case of Cherry). Because of the logistics
involved, not least the constraints of time, it was not possible for either
of these witnesses to give oral evidence. Consequently we are left to evaluate
this important area by comparing and contrasting the views expressed on paper
by Dr Thibault and Dr Bertocci.
- Dr Thibault is a biomechanical engineer whose work has a particular emphasis
on "Paediatric Head Injury Mechanics". Dr Thibault is not a doctor
of medicine and holds a PhD in mechanical engineering. He has apparently
performed experiments that have sought to mirror the age-dependant mechanical
behaviour of the infant skull, sutures and brain. Part of the work in this
field is to determine the amount of physical force that a living system can
tolerate and thereby identify the "injury threshold" or "injury
tolerance criteria". When the relevant threshold or criteria is exceeded
the system or tissue will fail; for example stress on a bone will cause the
bone to fracture if the stress exceeds the injury threshold.
- Dr Thibault explained that whereas there is a substantial body of research
into the mechanics of adult head injury, until recently there has been relatively
little similar work in relation to paediatric head injury. He reported:
"It has been demonstrated experimentally and validated
through real-world accident analysis that various intracranial pathologies
result from excessive angular acceleration of the head. In general, angular
acceleration of the head creates relative motion between the brain and
the skull, causing potentially injurious strain within the intracranial
neural
and vascular tissues (bridging vessels, deep central white matter). The
nature, distribution and severity of the resulting pathology depend not
only on the
angular acceleration magnitude, but also on its direction, onset rate
and duration."
- Like Dr Plunkett, Dr Thibault (relying on the research of Prange and others)
drew attention to the ability of the skull of an infant to react to force
by deforming itself and thereby causing internal injury to the brain substance
and/or cranial vascular system.
- In general terms, Dr Thibault joined issue with the conventional view that
short falls are a frequent occurrence for young children and serious or fatal
injuries from such falls are rare. Recourse is also typically made to information
about high speed traffic accidents or falls from two storey buildings. Dr
Thibault considered such an approach to be simply "arbitrary, unscientific
and meaningless" in that there is no attempt to evaluate the actual
loads and forces at play in each individual case, which would need to include
data regarding the child´s orientation at impact, kinematics (motion) of
the body, impact surface and anatomical impact locations. Dr Thibault is
clear that impacts arising from falls can result in serious and fatal brain
injuries.
- The appellants rely upon the report of Dr Thibault for the following submissions:
- Shaking only could not produce the documented pathologies seen in these
children;
- If "violent shaking" of the sort required to produce the
documented injuries had taken place one would have expected cervico-medullary
injury, cervical spine and spinal cord injury.
- The Crown´s expert, Dr Bertocci, is also a mechanical engineer by training
and is Associate Professor of Biomechanics and Director of the Injury Risk
Assessment and Prevention Laboratory in the University of Louisville, Kentucky,
USA. Her primary area of research is injury biomechanics in cases of child
abuse and paediatric falls. Dr Bertocci´s report is very largely focussed
upon the Cherry case and is not intended to be a comprehensive analysis of
the biomechanical factors in play in each of these cases.
- One general observation that Dr Bertocci, however, made is based upon her
research into falls either from ground level or from 9 inches above ground.
Her conclusion in this regard is that the forces involved in such falls are
well below the threshold said to be required to produce diffuse axonal injury
in an infant, suggesting that there is a very low risk of DAI in such falls.
- In this section of our judgment we have done no more than summarise this
evidence. Where such evidence is called by one or other party or both in
future litigation it will be for the jury (in a criminal trial) or the judge
(in a civil trial) to evaluate it in the light of the cross-examination and
all the other evidence.
Retinal haemorrhages
- Retinal haemorrhage is the third limb of the triad. It will be recalled
that Professor Carol Jenny told us that in her view in a case of pure shaking
extreme caution should be exercised before a diagnosis of NAHI is made in
the absence of retinal haemmorhage. We see the force of this evidence. In
cases of injuries alleged to have been caused by an impact or impacts, the
evidence suggests that it is not a prerequisite for retinal haemorrhages
to be found. Again, we understand the logic of this proposition.
- It is agreed between the expert ophthalmologists and ophthalmic surgeons
that a rapid rise in intracranial pressure can cause retinal haemorrhages
although the amount and type of pressure required to cause such haemorrhages
is a matter of debate. The appellants´ expert ophthalmic surgeon, Dr Gillian
Adams, said that retinal haemorrhages could be caused by a spike or surge
of venous pressure. Mr Peter Richards said that in his experience of carrying
out brain surgery artificially induced very high venous pressure did not
cause retinal haemorrhages.
- Some of the ophthalmic experts stated that retinal haemorrhages caused
by shaking or impact demonstrate entirely different characteristics from
retinal haemorrhages arising from other causes. Others said that no distinction
can be made between retinal haemorrhages arising from different causes.
- Again, in the context of these appeals, we make no findings in respect
of these differences of opinion. In future cases before a criminal or civil
court, the type and extent of retinal haemorrhage and its place in the constellations
of symptoms will be a matter for the court to evaluate in each individual
case. We bear them in mind when reaching our conclusions in these four appeals.
We also bear in mind Mr Horwell´s submission that the real question in these
appeals is how much force is necessary to cause not just one element of the
triad but all three.
The Law
- The principles on which this Court should act in appeals involving fresh
evidence are not in dispute. They were clearly set out in R v Pendleton [2002]
1Cr App. R. 441 by Lord Bingham of Cornhill (see in particular paragraphs
18 and 19). They were repeated by Lord Brown of Heaton-under-Heywood in a
recent case in the Privy Council: Dial and another v State of Trinidad
and Tobago [2005] 1WLR 1660. Lord Brown said (see paragraphs 31 and 32):
"31 In the board´s view the law is now clearly established
and can be simply stated as follows. Where fresh evidence is adduced on a
criminal appeal it is for the Court of Appeal, assuming always that it accepts
it, to evaluate its importance in the context of the remainder of the evidence
in the case. If the court concludes that the fresh evidence raises no reasonable
doubt as to the guilt of the accused it will dismiss the appeal. The primary
question is for the court itself and is not what effect the fresh evidence
would have had on the mind of the jury. That said, if the court regards the
case as a difficult one, it may find it helpful to test its view "by
asking whether the evidence, if given at the trial, might reasonably have
affected the decision of the trial jury to convict": R v Pendleton[2002]
1 WLR 72, 83, para 19. The guiding principle nevertheless remains
that stated by Viscount Dilhorne in Staffords case [1974] AC 878,
906, and affirmed by the House in R v Pendleton:
"While ... the Court of Appeal and this House may
find it a convenient approach to consider what a jury might have done
if they had heard the fresh evidence, the ultimate responsibility rest
with
them and them alone for deciding the question [ whether or not the verdict
is unsafe]"
32 That is the principle correctly and consistently applied
nowadays by the criminal division of the Court of Appeal in England see,
for example, R v Hakala [2002] EWCA Crim 730, R v Hanratty, decd [2002]
3 ALL ER 534 and R v Ishtiaq Ahmed [2002] EWCA Crim 2781. It
was neatly expressed by Judge LJ in R v Hakala, at para 11, thus:
"However the safety of the appellant´s conviction is
examined, the essential question, and ultimately the only question for
this court, is whether, in the light of the fresh evidence, the convictions
are
unsafe."
- Mr Mansfield QC also drew our attention to passages in the judgments of
this court in R v Cannings [2004] 2Cr. App. R.7 and R v Kai-Whitewind [2005]
EWCA 1092. In particular in opening he referred to paragraph 22 of Cannings:
"These observations serve to highlight the second problem
which can arise in this case, and case like Sally Clark and Trupti Patel.
We have read bundles of reports from numerous experts of great distinction
in this field, together with transcripts of their evidence. If we have derived
an overwhelming and abiding impression from studying this material, it is
that a great deal about death in infancy, and its causes, remain as yet unknown
and undiscovered. That impression is confirmed by counsel on both sides.
Much work by dedicated men and women is devoted to this problem. No doubt
one urgent objective is to reduce to an irreducible minimum the tragic waste
of life and consequent life-scarring grief suffered by parents. In the process
however much will also be learned about those deaths which are not natural,
and are indeed the consequence of harmful parental activity. We cannot avoid
the thought that some of the honest views expressed with reasonable confidence
in the present case (on both sides of the argument) will have to be revised
in years to come, when the fruits of continuing medical research, both hear
and internationally, become available. What may be unexplained today may
be perfectly well understood tomorrow. Until then, any tendency to dogmatise
should be met with an answering challenge".
But as the court was careful to point out later in the
judgment at paragraph 178 this does not mean that fanciful doubts are a basis
for rejecting expert evidence. With the general observations, referred to
above and the legal principles in mind, we turn to the individual appeals.
Furthermore, the limits of Cannings and its proper use were carefully
explored in Kai-Whitewind, at [73] [92], in observations with which
we wholeheartedly agree.
Harris
- Mr Mansfield QC submits that there is a body of fresh evidence which is
sufficient to cause this court on a review to quash the conviction. Mr Horwell
submits that the fresh evidence has not in any way undermined the safety
of the conviction.
- Before we outline and discuss the fresh evidence we must refer in a little
more detail to the evidence given at trial. Although Harris said that Patrick
had been showing signs of some infection before 4 December 1998, on that
day he was seen by a health visitor, Margaret Savill, and a doctor, Dr Michael
Tory, at Boulton Clinic in Alvaston both of whom pronounced him fit to be
given his third immunisation against diphtheria, tetanus, whooping cough,
polio and HIB. Statements of their evidence to that effect were read at trial.
In his statement, Dr Tory said that a child would not be given this injection
unless he was satisfied that it was not suffering from a raised temperature,
vomiting or diarrhoea. A mild cold or snuffle would not have prevented the
injection being given.
- On arrival at Harris´ home at 2.41am the paramedic crew noted that Patrick
was unconscious, cold, not moving, pulseless and not breathing. At 2.55am
the crew diagnosed that he was suffering from cardio-respiratory arrest.
Dr Adams, an ophthalmic surgeon called on behalf of Harris, interpreted diagrams
of the eyes made by the crew as showing that the pupils were fixed and dilated.
In any event this finding was made by Dr Bertenshaw who examined Patrick
at 03.15am at the Derby Children´ Hospital.
- After being transferred from Derby to the Queens Medical Centre in Nottingham
a CT scan was carried out at 11.50am. The findings were recorded by the radiologist
and his conclusion was:
"Diffuse cerebral swelling and oedema secondary to
hypoxia/ischaemia. Thin subdural haematoma in the para-falsine region.
The appearances are suspicious of shaking or shaking - impact injury"
- Following Patrick´s death a post-mortem was carried out by Dr Bouch with
Dr McKeever, a paediatric pathologist, in attendance. The findings relevant
to this appeal are set out in Dr Bouch´s witness statement of 22 March 1999.
Paragraph 5 reads:
"The post-mortem examination confirmed a markedly swollen
and softened brain and softened spinal cord with small amounts of subdural
haemorrhage around the tentorium cerebelli at the foramen magnum and
in the subdural space along the length of the spinal cord. Detailed examination
by Professor Lowe confirmed widespread hypoxic (anoxic or ischaemic)
changes
within the brain resulting in marked swelling, necrosis of the cerebellum,
haemorrhage into the left lateral ventricle and subarachnoid haemorrhage
over the surface of the spinal chord and medulla. Professor Green confirmed
extensive haemorrhages through the retina and the vitreous of both eyes
with some retinal detachment"
Dr Bouch recorded the cause of death as cerebral hypoxia/ischaemia;
intracranial haemorrhage; shaken baby syndrome. In his witness statement
Dr Bouch said he had been advised that Patrick may have been shaken as part
of an attempt to revive him. He said that he could not exclude such a shake
as having caused the injuries but commented "accepted medical opinion
is that the force required to produce injuries from shaking is greater than
that resulting from rough handling of an infant". As already noted,
Dr Punt said that the blood on the surface of the brain was not sufficient
to cause Patrick´s death. In his opinion it was the injury to the brain,
caused by shaking, which caused his death.
The new evidence on the appeal
- In this appeal we have heard evidence from the following witnesses called
on behalf of Harris: Dr Waney Squier, a consultant neuropathologist, with
a speciality in examining children´s brains; Dr Jennian Geddes, although
her evidence was primarily confined to general matters; Professor Philip
Luthert, a consultant ophthalmic pathologist and neuropathologist; Dr Gillian
Adams, a consultant ophthalmic surgeon; Professor James Morris, a consultant
pathologist; Dr Robert Sunderland, a consultant paediatrician; and Dr Philip
Anslow, a consultant neuroradiologist.
- The Crown called the following witnesses: Dr Lucy Rorke-Adams, a consultant
paediatric neuropathologist; Mr Peter Richards, a consultant neurosurgeon;
Dr Richard Bonshek, a consultant ophthalmic pathologist; Mr R Gregson, a
consultant ophthalmic surgeon; Dr William Lawler, a forensic pathologist;
Dr Carole Jenny, a consultant paediatrician and consultant neuro trauma specialist;
Professor Klein, a consultant physician; Dr Timothy Jaspan, a consultant
radiologist; Dr Paul Giangrande, a consultant haematologist; and Dr Mark
Peters, a consultant paediatric intensivist. We have also read statements
submitted from the following experts on behalf of the Crown: Dr Harish Vyas,
a consultant in paediatric intensive care and respiratory medicine; and Dr
Angie Wade a senior lecturer in medical statistics.
- All these witnesses are clearly very experienced doctors in their own field.
We shall summarise the evidence which they gave according to their respective
specialities and only so far as is necessary to explain the important issues
in this appeal.
The neuropathologists
- The reports provided by Dr Waney Squier and Dr Rorke-Adams disclosed a
head-on collision between these two experts on the pathological findings
and on the cause of death. In our judgment they are the two of the most important
witnesses in this appeal. Much of the debate has been focussed on the pathological
findings and their interpretation.
- Dr Waney Squier is a consultant and clinical lecturer at the Department
of Neuropathology at the Radcliffe Infirmary, Oxford. Dr Rorke-Adams is the
clinical professor of paediatrics at the University of Pennsylvania. She
is clearly a very experienced and well respected member of her profession.
- Dr Waney Squier started with the forensic disadvantage of having provided
a report dated 10 February 2000 for Harris´s trial solicitors in which she
concluded that Patrick´s injuries were non-accidental and consistent with
shaking. Unsurprisingly, she was not called at trial to give evidence on
Harris´ behalf. She explained that, influenced by the research carried out
by Dr Geddes since the trial, she had re-examined her own work in the light
of the Geddes research. As a result in this case she had changed her mind
and now concluded that the brain findings were of severe swelling and hypoxic/ischaemic
injury; and that there was no incontrovertible evidence of trauma. She relied
upon the history given by Harris and the clinical evidence as support for
her conclusions.
- Dr Rorke-Adams, having examined all the pathological evidence, the history
and the clinical history concluded that the injuries to the brain, the subdural
haemorrhages and retinal haemorrhages, were all clear evidence of traumatic
injuries caused by strong force.
- In the course of their evidence each of these witnesses commented on brain
slices and photographs taken at the post mortem. Their evidence in respect
of the findings demonstrated by the photographs and slices was in sharp conflict
in a number of instances.
- Photographs, G-H 1, 2 and 3, were said by Dr Rorke-Adams to show clear
evidence of brain injury caused by trauma. She said that there could be no
other cause. Dr Squier was of the opinion that the injuries shown in the
photographs 1 and 3 and damage to nerve tissue at the cervicocranial junction
were probably not caused by trauma and were consistent with herniation of
the brain at the foramen magnum. She said herniation was caused by the pressure
of the swelling brain when it impacted with the narrowing channel of the
foramen magnum. As to the blood shown in photograph 2 Dr Squier said this
was intrafalcine bleeding (bruising) within the membrane, seen at post mortem
which was an extremely common finding in babies who have suffered from failure
from blood or oxygen supply.
- There was no dispute that photographs G-H 4 and 5 showed subdural haemorrhages
in the areas of the spinal cord. However, Dr Rorke-Adams gave as the explanation
for these that the vertebral arteries must have been ruptured causing massive
subarachnoid bleeding and subdural haemorrhages. She accepted that the post
mortem revealed no soft tissue injuries to the neck but pointed out this
explanation fitted with the combination of findings.
- Dr Squier described the subdural haemorrhages of the spine as probably
caused by blood seeping down from the haemorrhage at the craniocervical junction.
She said it was a common finding. Further, she did not accept that such subdural
haemorrhages as were found at post mortem were caused by trauma. She said
that it was local tissue necrosis causing bleeding exacerbated by a clotting
disorder (DIC). In addition she said that she had seen cases where bleeding
had seeped from the dura into the subdural space. As an example of this she
provided her findings in the case to which we have referred in paragraphs
71 to 73.
- In our judgment there are difficulties with the evidence of both these
doctors in respect of their findings. The problem so far as Dr Squier is
concerned is three-fold. First her explanation of herniation as the cause
of haemorrhages in the area of the foramen magnum is, on the evidence we
have heard, to say the least controversial. Dr Rorke-Adams dismissed this
explanation as impossible. Mr Peter Richards said that in his 20 years experience
as a surgeon he had never seen a case of herniation of the brain causing
haemorrhaging at this site. He described Dr Squier´s evidence on this point
as astonishing. Secondly, Dr Squier can provide no explanation for the mechanism
that triggered these injuries. All she can say is that the primary source
of the injuries was some form of brain swelling, but she was unable to give
any precise cause for the swelling. In her view the most likely explanation
was sepsis or infection; and the least likely was trauma. Beyond that she
frankly admitted she did not know. Thirdly, Dr Giangrande, whose evidence
was not challenged, said that there was no question of DIC playing any part
in any of these injuries.
- So far as Dr Rorke-Adams is concerned, in our judgment, there are also
difficulties in respect of her evidence. First, the injury to the brain which
she described by reference to photographs G-H 1, 2 and 3 are not referred
to in the post mortem report of Dr Bouch. Secondly, her explanation of a
rupture of the vertebral artery may not be entirely consistent with there
being no evidence of a soft tissue injury to the neck. But, as she pointed
out, at post mortem the vertebral arteries were not dissected. Thirdly, subdural
haemorrhages of the spine would appear to be very rare. Fourthly, the subdural
haemorrhages described by her are neither thin-film nor situated in the classic
position for SBS namely at the top of the head.
- Before leaving the evidence of the two neuropathologists it is convenient
to refer to the evidence given in this appeal by the neuroradiologists, Dr
Anslow and Dr Jaspan. And we should also refer to the evidence of Mr Peter
Richards. Dr Anslow and Dr Jaspan agreed that the CT scan taken at 11.50am
on 5 December at the Queens Medical Centre showed a swollen brain. The sole
issue between them was whether the scan showed subdural haemorrhages in the
area of the posterior falx (photograph G-H 2). Dr Jaspan concluded that it
was subdural; Dr Anslow that it was intradural. In the end this dispute was
resolved by Dr Rorke-Adams stating that the photograph taken at post mortem,
rather than the scan, showed interdural bleeding or interfalcine bleeding
that is bleeding between the two dural layers in and either side of the falx.
- Mr Richards, an obviously very experienced neurosurgeon, had no doubt that
a finding that the triad of injuries was present was correct. He was equally
not in doubt that the force used to cause these injuries must have been more
than rough handling. In cross-examination he agreed that he was unable to
say what was the minimum force which could give rise to similar injuries.
The ophthalmic witnesses
- The measure of agreement between the witnesses in this area of expertise
was a little greater than that between Dr Squier and Dr Rorke-Adams. There
was no dispute that the retinal haemorrhages were quite severe injuries and
that they could have been caused by shaking. Dr Rorke-Adams had described
the retinal haemorrhages as severe and towards the top end of the scale.
This description was similar to descriptions given by other witnesses. There
was also no dispute that on their own retinal haemorrhages findings were
not diagnostic of SBS. Next, it was agreed that a sharp surge in ICP could
cause retinal haemorrhages although the degree of raised ICP necessary to
cause such injuries was not agreed. We have already referred to Mr Richards´
experience of carrying out brain surgery procedures designed to increase
venous pressure substantially, but which had not caused retinal haemorrhages
(see paragraph 99).
- On the question of the force required to produce retinal haemorrhages by
shaking we have referred to the 2004 paper produced by the working party
of the Royal College of Ophthalmologists. No witness was able to provide
a measure of the force required. Mr Mansfield QC asked each witness what
was the minimum force required. For obvious reasons no witness was able to
provide an answer to this question.
- Dr Adams expressed the opinion that the fact that the ambulance crew noted
Patrick´s pupils to be fixed and dilated at 2.41am on 5 December was a sign
that the brain was swollen at that stage. She said fixed and dilated pupils
were a clinical sign of brain swelling. Brain swelling caused stretching
of the third nerve which in turn affected the pupils of the eyes. In her
opinion the retinal haemorrhages were caused by raised intercranial pressure,
a more probable cause than shaking. However, she said that in the absence
of evidence of brain swelling the cause of retinal haemorrhages may well
be shaking. On the question of the force necessary to cause retinal haemorrhages
she said that the fact that the injuries were at the top end of the scale
did not provide any information as to their aetiology and "You have
to look at the whole picture."
- Dr Jaspan and Mr Richards did not accept that there could have been brain
swelling at 2.41am. Dr Jaspan, in his report, said that if a CT scan had
been carried out at the time when retinal haemorrhages was first seen at
Derby Children´s Hospital little brain swelling would have been evident.
In evidence, Dr Jaspan said one to two hours after an apnoeic incident one
can start to see mild and subtle signs of swelling. The swelling may then
progress swiftly in relatively few hours; or in other cases it could take
twenty-four to forty-eight hours. Mr Richards said that ICP is normal for
some hours after an apnoeic incident, possibly four to five hours before
it starts to rise slowly. Mr Gregson also disagreed with Dr Adams on this
point. He said that the more likely explanation was at that time, in a period
of cardio-arrest, the part of the brain which controls the pupils had become
hypoxic (Patrick was noted as pulseless). This would have caused the pupils
to become fixed and dilated. This explanation was put to Dr Adams, she said
her explanation was more probable and that the explanation given by Mr Gregson
was one which only occurred when the infant was near death.
- The impact of this issue is that, if Dr Adams may be correct, brain swelling
may have taken place sooner than supposed by the Crown´s witnesses making
it possible that there was a cause for the retinal haemorrhage findings other
than shaking.
- Professor Luthert described the critical issue of the retinal haemorrhage
findings in this appeal as whether it was feasible that there had been a
significant and rapid increase in intracranial pressure so as to cause them.
When asked whether subdural haemorrhages and retinal haemorrhages were associated
with cardiac arrest, he said it was not in the context of events in hospital
but the possibility of low brainstem damage might be important and might
well produce a pattern of cardio-respiratory arrest which is rather different
from that seen in other contexts. Although he described the retinal haemorrhages
findings in Patrick´s case as typical of those found in cases of alleged
NAHI, Professor Luthert was one of those doctors who was concerned that the
triad was a hypothesis and that the full aetiology of the injuries comprising
the triad was not "necessarily known."
- Mr Gregson described the retinal haemorrhages findings as very severe and
was of the opinion that they could only have been caused by a severe degree
of trauma. Dr Bonshek agreed with this opinion. In his report he described
the injuries as highly suggestive of non-accidental injury. Both Mr Gregson
and Dr Bonshek agreed that the degree of injury was not necessarily commensurate
with the degree of force used to create it.
Evidence of a possible infection
- One of the difficulties faced by Harris at trial and in this appeal is
to suggest what was the cause of Patrick´s collapse, if it was not shaking.
Of course, as Mr Mansfield QC properly pointed out, a defendant faced with
an allegation of unlawfully shaking an infant so as to cause injury or death,
does not have to provide evidence of, let alone prove, an alternative cause.
Nevertheless in cases such as this both prosecution and defence will seek
to prove respectively either that there was no alternative cause or that
there was one. Not surprisingly we have heard a good deal of evidence on
the issue of whether or not Patrick´s condition might have been caused by
some form of infection. We have already noted Dr Squier´s opinion that the
primary cause of brain swelling in this case was or may have been infection.
To deal with this issue we heard evidence principally, but not exclusively,
from Professor Morris and Dr Sunderland called on behalf of Harris; and Dr
Carole Jenny, Professor Klein and Dr Mark Peters called on behalf of the
Crown.
- We shall deal with this issue comparatively shortly for the reason that
in his final submissions Mr Mansfield QC accepted that every possible infection
suggested by Professor Morris and Dr Sunderland as a possible cause of Patrick´s
collapse was effectively disproved by the evidence called on behalf of the
Crown.
- Apart from the fact that there is some evidence that Patrick had, at worst,
an upper respiratory chest infection, probably a cold, for a day or two before
4 December 1998 there was no evidence at all to suggest that he had any other
infection, let alone one which might have been sufficiently severe as to
cause his death. In the end Professor Morris was driven to suggest that there
was a possibility that the ambulance crew arrived at the precise moment when
Patrick was suffering an unexplained episode from which he would not have
recovered. Professor Morris suggested that it was the resuscitative procedures
which had kept him alive thereby giving his brain time to swell. We regard
this suggestion as speculative and fanciful.
- Dr Sunderland suggested that the history given by Harris of Patrick grunting
and having difficulty breathing might have been bronchilitis caused by respiratory
syncital virus (RSV). In our judgment this suggestion was effectively demolished
by the evidence of Dr Mark Peters.
- There is however one matter which cannot be disposed of so summarily. Professor
Morris advanced the theory that although Patrick´s death could not be categorised
as a SIDS (sudden infant death syndrome), it could be akin to SUDI: that
is a sudden unexplained death from a natural cause or natural disease. His
report prepared for this appeal sets out statistics relating to SIDS and
SUDIs. These statistics have been comprehensively criticised in a statement
made by Dr Angie Wade. Further, she points out that Professor Morris is a
pathologist not a statistician.
- In our judgment, leaving aside Professor Morris´ statistics, the general
point being made by him is the obvious point that the science relating to
infant deaths remains incomplete. As Mr Richards said when asked a question
in the context of the amount of force necessary to cause injuries, he agreed
that the assessment of injuries is open to a great deal of further experimentation
and information. He assented to the proposition "We don´t know all we
should". Similarly, Professor Luthert in his evidence said:
"My reason for making that statement is simply that
there are many cases where questions are raised as to how the child died
and, because there is a big question mark over the circumstances, it
is rather tempting to assume that ways of causing death in this fashion
that we do
know about are the only reasonable explanations. But in fact I think
we have had examples of this I have heard already. There are areas of
ignorance.
It is very easy to try and fill those areas of ignorance with what we
know, but I think it is very important to accept that we do not necessarily
have
a sufficient understanding to explain every case."
As noted by the Court in Cannings and Kai-Whitewind these
observations apply generally to infant deaths.
Professor Whitwell
- We have left Professor Whitwell´s evidence until last when dealing with
the evidence in this appeal. She was one of the team of doctors who co-authored
Geddes III with Dr Geddes. In our judgment her view must necessarily be considered
in the light of Dr Geddes´ concessions in respect of Geddes III.
- In this case having examined all the material, Professor Whitwell produced
a report in which she referred to the fact that the major pathology was of
hypoxic-ischaemic trauma damage which she said might be secondary to trauma
or other cause of cardio-respiratory arrest. She went on to raise the question
of the degree of force necessary to produce localised neck injuries. Her
opinion expressed in the final paragraph of her report was that the injuries
to the brain may have arisen in the background of a "shaking" incident
but there was a possibility of an underlying natural cause of the collapse.
She said the neuropathological findings may be open to several interpretations.
- In evidence she gave some support to Dr Squier´s opinion that bleeding
and injuries to the nerve roots could have been caused by herniation. But
she agreed in cross-examination that the most significant factor in her opinion
was a stretching injury to the nerve roots.
The submissions
- Mr Horwell submitted that the new evidence did not undermine the conviction.
He asked the Court to accept that the triad had survived intact. He pointed
to the fact that at 1.00am on 5 December 1998 Dr Barber examined Patrick
and found him to be well. At 2.30am Patrick was found to be suffering cardio-respiratory
arrest. Mr Horwell submitted that the only credible explanation for this
sudden collapse was shaking by Harris. The triad of injuries was established
and there was no credible alternative cause of these injuries. In addition,
Dr Rorke-Adams´ evidence of injuries to the brain should be accepted. He
submitted that her evidence together with the evidence of the doctors dealing
with the ocular injuries demonstrated that unlawful force had been used.
He argued that Harris was asking the court to accept that the cause of death
was a series of coincidences involving two unlikely syndromes. He invited
the Court to find that all suggested causes of Patrick´s collapse and death
other than the triad had been disproved. The conviction was therefore safe.
- Mr Mansfield QC submitted that there were disagreements between the experts
as to the cause of death. He rightly pointed out that it was not for Harris
to prove an alternative cause of Patrick´s death. He submitted that this
Court could not decide matters which a jury should decide such as the differences
of opinion expressed by Dr Squier and Dr Rorke-Adams. Finally, he submitted
that in a case such as this, where the clinical evidence and the history
given by the mother, ran completely contrary to a finding of unlawful force,
the Court was entitled to accept that this was one of those cases where the
explanation for Patrick´s injuries and his death was just not known; and/or
that the amount of force used by her was no more than any mother might use
to revive her baby and therefore not unlawful.
Conclusion in this appeal
- In considering all the evidence in this appeal we have kept well in mind
that our task is to decide whether the conviction is safe. We also bear in
mind Lord Bingham´s test in Pendleton in a case of any difficulty
(which in our view this is) of "asking whether the evidence, if given
at the trial might reasonably have affected the decision of the trial jury
to convict." This approach, in our judgment, merits careful consideration
in this appeal.
- We have already stated that so far as the evidence relating to an alternative
cause of death based on a possible infection is concerned, in our judgment,
this evidence does not form any basis for holding that the conviction is
unsafe.
- So far as the other issues are concerned, the evidence at trial and the
evidence adduced by the Crown in this appeal, provide a strong case against
Harris. Mr Horwell´s submission that the triad is established and that any
attempt to undermine it is based on speculation is a powerful one. Nevertheless
strong as is the case against Harris we have concerns about the safety of
the conviction.
- First, in order to dismiss the appeal, we would have to accede to Mr Horwell´s
submission that we should reject Dr Squier´s evidence in its entirety. If
Dr Squier may be right, such evidence of subdural bleeding as she accepts
was present was small; untypical of the usual thin-film subdural haemorrhages
found in triad cases; in the sense that it was not found at the top of the
head and probably not caused by trauma. Secondly, if Dr Squier is, or may
be, right there is no pathological evidence of trauma. At one stage Mr Horwell
in cross-examination, suggested to Dr Squier that she had lost objectivity
in her evidence in this appeal. This was a bold assertion and one which we
find difficult to accept. It was put at the end of her evidence when Dr Squier
was describing subdural haemorrhages in another case which she said represented
bleeding seeping from the dura into the subdural space (see paragraph 71
to 73 above). As we have said already we find it impossible to conclude that
on this issue Dr Squier´s evidence is plainly wrong and that Dr Rorke-Adams
must be correct.
- The importance of Dr Squier´s evidence is that it throws doubt on the significance
of such subdural haemorrhages as there are; and it throws doubt on the evidence
of injuries to the brain described by Dr Rorke-Adams. We are far from saying
that we accept Dr Squier´s evidence in preference to that of Dr Rorke-Adams.
Indeed, in view of the weight of evidence disputing her opinions we have
reservations about whether Dr Squier can be right. But equally, in all the
circumstances of this case, the differences between them are ones which the
jury would have had to have assessed in the light of all the evidence in
the case.
- Secondly, although the evidence of the findings of retinal haemorrhages
is powerful supporting evidence of shaking, on its own it is not diagnostic
of shaking. If the subdural haemorrhages are undermined, the retinal haemorrhages
findings will not fill the gap although we recognise that both can be considered
together. There is also the issue of whether Dr Adams may be correct in her
view that fixed and dilated pupils seen by the ambulance crew was a sign
of brain swelling at that time.
- Thirdly, although as we have already stated the amount of force required
to cause the triad of injuries will in most case be more than just rough
handling, the evidence suggests that there will be rare cases when injuries
will not correspond to the amount of force used. It is at least possible
that in such rare cases (maybe very rare cases) very little force will cause
catastrophic injuries.
- In this connection the evidence shows that in recent years the medical
profession has become more aware of the degree of force necessary to cause
injuries by the growing science of biomechanics. This knowledge, and to an
extent Geddes I and II, in our judgment, have had the effect of moderating
to some extent the conventional view that strong force is required to cause
the triad of injuries. In this case Dr Bouch rejected as an explanation for
the injuries he found, shaking by Harris to revive Patrick. Today he might
have taken a less firm stance. This knowledge might also have acted as a
counter-balance to the evidence given at trial by Professor Green on the
amount of force necessary to cause the retinal haemorrhages.
- The above factors, which have all arisen out of post-trial material have
to be assessed against the background of the clinical evidence which in our
judgment is significant and important. As Dr Anslow said in his report of
3 June 2005:
"The clinical history is perhaps the most important
clinical tool available to the clinician and to reject the carer´s version
of events in favour of another requires the highest possible level of
medical evidence. After all, the Doctor is effectively accusing the carer
of lying."
Dr Anslow is not a clinician but in our judgment his
words of caution are apt in cases of this sort.
- At the outset of this judgment we have set out the clinical history. In
summary, Harris was described as a careful and caring mother. She called
out Dr Barber late at night because of her concerns for Patrick. Dr Barber
described her as being calm and controlled at that time. The prosecution´s
case at trial was that in the interval between Dr Barber leaving the house
and 2.30am when Harris telephoned the emergency services she must have violently
and unlawfully shaken Patrick. In our judgment this history combined with
the absence of findings of bruises to any part of the head, face or body;
and the absence of fractures or any other sign apart from the triad of injuries,
does not fit easily with the Crown´s case of an unlawful assault based on
the triad of injuries, itself a hypothesis.
- The Crown relies upon the fact that Patrick was in the sole care of Harris
throughout the evening of 4/5 December. It is also correct that Harris admitted
shaking Patrick in an effort to revive him; and bouncing him on her knee
when she was telephoning the emergency services. But, those actions are not
suggestive of unlawful force being used by her although it is possible that
a jury might now find them to be sufficient to cause the injuries seen by
Dr Bouch albeit not unlawful.
- As we have said the Crown´s evidence and arguments are powerful. We are
conscious that the witnesses called on behalf of Harris have not identified
to our satisfaction a specific alternative cause of Patrick´s injuries. But,
in this appeal the triad stands alone and in our judgment the clinical evidence
points away from NAHI. Here the triad itself may be uncertain for the reasons
already expressed. In any event, on our view of the evidence in these appeals,
the mere presence of the triad on its own cannot automatically or necessarily
lead to a diagnosis of NAHI.
- The central issue at trial was whether Harris caused the death of her
son, Patrick by the use of unlawful force. We ask ourselves whether the fresh
evidence, which we have heard as to the cause of death and the amount force
necessary to cause the triad, might reasonably have affected the jury´s decision
to convict. For all the reasons referred to we have concluded that it might.
Accordingly the conviction is unsafe and this appeal must be allowed. The
conviction will be quashed.
Rock
The focus of the appeal
- The history of this matter has already been set out; we turn directly to
the appeal. Certain matters are common ground. First, there is no dispute
that Rock did shake Heidi; there is likewise no dispute (given the full thickness
bruise to the back of the head) that she suffered an impact. Secondly, there
is no realistic suggestion that disease or infection could possibly have
played a role in Heidi´s death. The thrust of the appeal was instead that
the conviction was unsafe in the light of research subsequent to the trial,
calling into question the minimum degree of force necessary to cause the
pathology in this case. Rock, it was submitted, was not safely convicted
of any offence; at the very least, his conviction of murder was unsafe and
a conviction of manslaughter should be substituted.
- For its part, the Crown vigorously resisted the notion that there was any
real alternative to unlawful killing. Here, as elsewhere, it was to be borne
in mind that the minimum degree of force in question was the degree of force
necessary to cause all the injuries suffered; Geddes I and II did
not address the minimum degree of force necessary to tear bridging veins
and cause retinal haemorrhages; the "unified hypothesis" (i.e.,
Geddes III) which might have done so, has of course gone. The surrounding
circumstances and the injuries suffered amply supported the safety of the
conviction. While conceding in terms that if there had been the "triad" and
no more, "that was unlikely ever in itself to be sufficient" to
support a charge of murder (as distinct from manslaughter), here it was contended
that there were additional features which justified the jury´s verdict
bearing in mind that the intention to cause grievous bodily harm could be
both rapidly formed and almost instantly regretted.
The new evidence on the appeal
- In the view which we take of this appeal, it is unnecessary to review the
new evidence at length; it suffices to summarise the position reached on
the totality of the new material.
- As to radiology, save for one area (to be mentioned shortly) there was
no or no real dispute between Dr Anslow (called by Rock) and Dr Jaspan (called
by the Crown). The first CT scan, taken on the 2 June 1998 at about 10.21
pm, some 2 ˝ hours after Heidi´s admission into hospital, showed a minimally
swollen brain but the presence of subdural blood. On the 4 June, some 39
hours later, the second CT scan revealed a very different picture. This showed,
apart from cerebellar tonsillar herniation and established hypoxic ischaemic
brain damage, a grossly swollen brain but the same small amount of subdural
bleeding notwithstanding a "huge" (Dr Jaspan´s word) increase
in pressure. Dr Anslow accepted that subdural bleeding at a time when there
was no evidence of raised intra-cranial pressure ("ICP"), was a "very
strong indicator" of trauma. On the assumption that Geddes III did not
apply, he could think of no cause other than trauma to account for the subdural
bleeding.
- The only area of dispute between Dr Anslow and Dr Jaspan was whether a
lesion in the corpus callosum revealed by MRI scans was caused by trauma;
Dr Jaspan was firmly of the opinion that it was; Dr Anslow said that it might
be an artefact. As we have already indicated such disputes between reputable
experts potentially give rise to difficult issues on an appeal of this nature.
In the event, notwithstanding the powerful nature of Dr Jaspan´s evidence
in this regard, it is unnecessary for us to resolve this dispute. We proceed
on the assumption that Dr Anslow might be correct.
- In cross-examination, Mr. Mansfield QC put to Dr Jaspan one of the "scenarios" developed
by Dr Geddes (see below), involving a departure from the evidence given by
Rock at trial. This set of facts assumed that Heidi had struck her
head when falling and was subsequently the subject of two well-intentioned
shakes by Rock. Asked whether this was a possible scenario capable of explaining
the injuries sustained by Heidi, Dr Jaspan´s initial (and firm) answer was "no".
He based this answer on his views as to the cause of the corpus callosum
lesion. If wrong about that, he accepted that the scenario "might just
be feasible". Immediately thereafter, Dr Jaspan was re-examined by Mr
Horwell as follows:
"Q. If you leave the corpus callosum out of the equation,
when you say it just might be feasible, what do you mean?
A. Because in medicine there is never a hundred per cent
certainty. So, if I was asked is there a hundred per cent certainty that
it could happen, I would have to be honest and say no, there must be almost
the freak situation where that could happen.
Q. What are the chances from your clinical experience?
A. By inference, 99 per cent unlikely."
In his final submissions, Mr Mansfield QC sought to suggest
that these answers disclosed a major concession on Dr Jaspan´s part. Having
seen and heard Dr Jaspan give evidence and having reviewed the transcript
of his answers, we respectfully disagree. The essence of Dr Jaspan´s views
remained plain and unaltered, albeit couched in rather more moderate and
less graphic language than apparently deployed at trial.
- Turning to the neuropathologists, in her report dated 14 April 1999, prepared
for the trial (but which remained understandably unused by the defence),
Dr Geddes said this:
"I believe that both the intracranial and the intraocular
bleeding are likely to have been the result of vigorous to-and-fro movements
of the brain inside the skull, of the type that occurs in a shaking injury."
Subsequently, Dr Geddes has (as is well-known) revised her
thinking. That said, in her evidence at trial, Dr Geddes accepted the presence
of subdural haemorrhages but was unable to provide an explanation for them.
She remained of the view that for violent shaking to have produced the subdural
and retinal haemorrhages here, she would have expected some form of widespread
diffuse axonal injury and damage to the muscles in the neck and spinal column.
She accepted, however, in answer to questions from the Court, that, on any
view, Heidi must have had some insult to the brain, not explained by Rock´s
account of events. She could not rule out impact plus shaking.
- In her report of 24 May 2005, Dr Geddes posited three "scenarios" (to
which reference has already been made) which might have caused the pathological
findings in this case. She could not be certain which of the three actually
happened. The first scenario involved a low-level fall in which Heidi, among
other things, knocked the back of her head, resulting in hyperflexion
of the neck which damaged her brain stem. The second, also involved a fall,
followed by a resuscitative (i.e., well-intentioned) shake by Rock, causing
damage to her brain stem. In both these scenarios, damage to the brain stem
resulted in Heidi´s breathing stopping, her brain swelling rapidly and consequential
subdural and retinal bleeding. The third scenario involved an assault on
Heidi. We are bound to observe that the suggested sequence of the first two
scenarios is troubling, given the apparent conflict with the radiology evidence
(see above). Moreover, Dr Geddes was closely cross-examined as to the factual
basis for the first scenario, involving a departure from Rock´s own account
of events in which he was adamant that Heidi had not struck her
head. Pressed on this point, Dr Geddes said that she was duty bound to point
out that there was impact (given the bruise at the back of Heidi´s head);
she thought that Rock must have been wrong in his account but had not given
the matter attention when writing her 1999 report; she was (notwithstanding
the factual evidence) prepared to speculate to this degree in now giving
her evidence to the Court.
- Dr Rorke-Adams and Dr Geddes disagreed as to (i) the extent of subarachnoid
bleeding in this case; and (ii) the cause of a "hole" or "tear" in
the corpus callosum (in a location different from that which formed the subject
of the disagreement between the radiologists, already referred to). Once
again, it is not necessary to resolve this dispute and, we proceed on the
assumption that Dr Geddes might be correct. For our part, we find the agreement
between Dr Rorke-Adams and Dr Geddes that there were here subdural haemorrhages
considerably more significant than the areas in which they disagreed. As
Dr Rorke-Adams put it:
"Subdural haemorrhage is essentially always traumatic
in origin except under very unusual circumstances ... ."
In itself, of course, that answer cannot resolve the source
of the trauma nor, insofar as it was inflicted by another, the intention
with which it was inflicted.
- On the appeals, evidence was given by Dr Plunkett, who has undertaken research
into "low-level" infant falls i.e., falls of less than 10´. The
conclusions which Dr Plunkett drew from his study were that (i) low-level
falls were capable of causing serious injury or death; but (ii) that there
was no inevitability about it; as he expressed it:
" ... I do not know either an upper limit or a lower limit
of impact velocity below which there is no injury and above which there
is always injury."
Dr Plunkett´s evidence related to the cases of Rock, Cherry
and Faulder. We shall have more to say of his evidence, in particular with
regard to the Cherry case.
- For the moment, we confine ourselves to Dr Plunkett´s evidence with regard
to the appeal of Rock. Here, basing himself on the bruise on the back of
Heidi´s scalp, Dr Plunkett expressed the opinion that her death was the result
of an impact injury; this was an instance of a "low-velocity impact
event with a bad outcome". Plainly therefore, Dr Plunkett´s evidence
entailed a departure from the evidence, as given by Rock; on no view, could
a fall onto her bottom (as described by Rock) have explained this fatality.
In Dr Plunkett´s view, Heidi´s head must have struck something, a matter
unexplained on Rock´s account.
- We come next to the evidence of the ophthalmic experts, Professor Luthert
and Dr Adams, called by Rock and Dr Gregson, called by the Crown. It is