- 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 10½ 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 ½ 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 convenient
to take Dr Gregson´s evidence first. He put the matter starkly; the significance
of the eye injuries was crucial to this case. The retinal injuries were at
the very top of the range or not far from it. There were in addition para-macular
retinal folds, a type of detached retina. In his evidence-in-chief, Dr Gregson
explained this matter as follows:
"Q. The retina is completely detached from the eye?
A. The retina is folded up very much like a rug would be
if you pushed it together. It is not detached in the same way as boxers
get retinal detachments, but the fact that it is folded means it is not
in the
place that it should be."
A little earlier, Dr Gregson had observed that in children
of Heidi´s age, he knew of no other cause for para-macular folds other than
trauma; this was so, regardless of when the para-macular folds had first
appeared. Moreover, the presence of para-macular folds was indicative of
severe injury "a lot of trauma" was required. His reason for
this view was as follows:
" ... the retina wants to stay attached; it does not want
to fold. It requires an effort to detach it."
- Turning to Professor Luthert, we begin with his written material. In his
report of 14 April 1999, he was of the opinion that, absent any alternative
explanation, severe trauma, such as shaking combined with impact, was the
most likely explanation for the pathological findings in Heidi´s eyes. In
his letter dated 12 January 2005, he maintained the view that such trauma
(i.e., shaking, impact or both) was the most likely cause of Heidi´s death
and the condition of her brain and eyes. He added this:
"I do not believe that the presence of retinal haemorrhages
necessarily implies a specific level of force although I think the level
of force is likely to be more than would be seen in even rough normal
play."
- In his oral evidence, Professor Luthert stated that it was difficult in
an individual case to extrapolate from the severity of a retinal haemorrhage
to any assumed degree of applied force. By contrast, in the generality of
cases, it was to be expected that there would be a (broad) correlation between
the degree of trauma and the seriousness of the injury suffered. That said,
there was "not necessarily a tight correspondence between level of trauma
and severity of outcome".
- Initially in his evidence, Professor Luthert said that it was difficult
to "exclude with total confidence" the possibility that the fall
described by Rock had caused the retinal injuries. Pressed, unsurprisingly,
on this point, he ultimately accepted that a fall onto her bottom would not
be expected to cause injuries of this nature. Although he said that he had
seen "more severe" retinal injuries, he further accepted that these
were "highly significant", a description which he later amplified
as meaning "extremely significant and abnormal pathology". While
he did not view the presence of para-macular folds as diagnostic of shaking,
he agreed that they could not "in their entirety" have been artefactual a necessary concession, as they had been noted during Heidi´s lifetime.
He agreed in cross-examination that the "most likely explanation" for
Heidi´s retinal injuries was shaking. In re-examination, Professor Luthert
said that a version of the facts, in effect based on Dr Geddes´ first two
scenarios, was not fanciful.
- Returning to his written report of the 2 June 2005, Professor Luthert explained
that since the original trial and following publications by Dr Geddes and
Dr Plunkett, he had reconsidered the minimum degree of force required to
generate the "triad". He went on to say this:
"The minimum level of force required to produce this
syndrome can not be defined, but the recent Royal College of Ophthalmologists
Working Party concluded ‘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.´ In
my opinion, it is now not possible to exclude the possibility that a well-intentioned
but ill-advised shake might cause the pattern of pathology seen in Heidi.
The same Working Party commented ‘It seems clear that minor falls can,
only exceptionally, give rise to subdural and retinal bleeding. In these
cases, it may well be that the biomechanics of the impact induce the rotational
forces necessary to produce the picture considered typical of SBS.´ So
it is difficult to exclude with total confidence the possibility that
the fall caused the injuries seen. Finally, it is also feasible that
Heidi was
assaulted."
In answer to questions from the Court as to this passage,
Professor Luthert asserted that he had relied on Geddes I and II but not
Geddes III. Professor Luthert said that he had been a member of the Working
Party and agreed with its conclusions. While he was (in effect) contemplating
the infliction of some force going beyond rough play, by itself that did
not determine the intention of the person inflicting the force.
- In a nutshell, the evidence given by Dr Adams was to the following effect:
- The fall as described by Rock was not the cause of Heidi´s retinal haemorrhages;
- The injuries to Heidi´s eyes were at the very top end of the scale;
- The cause of those injuries was shaking or shaking and an impact;
- Simply by looking at the retinal haemorrhages, it could not be said "definitively" what
level of force had been applied.
- For completeness, we note that in her reports Dr Adams had raised the question
of whether a lumbar puncture might have been the cause of the retinal damage.
Suffice to say that no evidence emerged to support this line of inquiry and
Mr. Richards gave cogent evidence, which we accept, as to its irrelevance;
we say no more of this point.
Conclusions
- At the outset, we should underline that this is not a case where
the expert medical evidence and the presence of the "triad" stand
alone. We accept of course that Rock was a man of good character and that
in general, he had been very good with Heidi. But there was also evidence
of some hostility towards her, prior to the events of the 2 June 1998. Perhaps
more tellingly, there was the evidence from the neighbour, Ms Banham, that,
on the night, she heard Heidi screaming for a significant period of time
and Rock shouting at her to "fucking shut up"; then it all went
quiet. For completeness, we do not think that the reliability of Ms Banham´s
evidence is called into question by the mere fact of there being some unused
and untested material from police officers, apparently saying that they could
not hear shouting between the two houses.
- Against that background, we come to the evidence in this case of the presence
of the "triad"; namely, encephalopathy, subdural haemorrhages and
retinal haemorrhages. There is, moreover, the bruise found at the back of
Heidi´s head.
- How were these injuries caused? Having regard to the evidence we have summarised,
it is plain that Rock´s explanation a fall in which Heidi did not strike
her head cannot account for them. We are, moreover, unable to accept that
Rock´s version of events was innocently mistaken, along the lines that he
had simply not seen her strike her head. As set out above, he was adamant
that he had prevented her hitting her head. We naturally have regard to the
burden of proof resting on the Crown throughout. That burden may however
be satisfied by reliance on such inferences which it is proper to draw from
Heidi´s injuries, taken together with Ms. Banham´s evidence and the absence
of an explanation from Rock, with whom Heidi was alone at the relevant time.
- We turn then to the inferences which it is proper to draw. We do so with
great caution, mindful both of the gravity of the matter and that (as already
underlined) the mere presence of the "triad" does not automatically
or necessarily lead to a diagnosis of NAHI and/or a conclusion of unlawful
killing. All the facts of the individual case must be taken into account.
- Given the assumptions that we have thought it right to make with regard
to the disputes between Dr Anslow and Dr Jaspan and between Dr Geddes and
Dr Rorke-Adams, encephalopathy does not take the matter further save for
the fact of its presence. The position is, however, very different with regard
to subdural haemorrhages and retinal haemorrhages.
- As has been seen, the presence of subdural haemorrhages was common ground
between the relevant experts. It was also indisputable that the subdural
haemorrhages preceded the development of brain swelling and that there was
no evidence of any increase in subdural bleeding notwithstanding the rise
in intracranial pressure following the swelling of the brain. Pausing there,
these features would themselves have gone a very long way to undermine the
credibility of Geddes III, had that hypothesis not in any event been withdrawn
in the manner already described. Matters do not end there. Without Geddes
III, Geddes I and II cannot suggest a mechanism to explain the subdural haemorrhages;
strikingly, as we have seen, Dr Geddes in her evidence could not explain
them. There is accordingly no realistic challenge here to the "traditional" mechanism
of the tearing of bridging veins. If so, it necessarily follows that Heidi
was subject to a degree of force sufficient to tear those veins.
- We return to the retinal injuries. On the totality of the evidence, we
are sure that these were at the top end of the scale (Dr Gregson and Dr Adams)
and we are not deterred from that conclusion by anything said by Professor
Luthert, if indeed he ultimately disagreed. We cannot necessarily infer from
the severity of those injuries, including the presence of the para-macular
folds, that any precise or specific degree of force was used; we are acutely
conscious both of "thin skull" cases on the one hand and of "lucky" victims
on the other. We have, however, no realistic doubt that the force used must
have been as even Professor Luthert was minded to agree in excess of
anything generated by a reasonable person in the course of rough play. We
further have no real doubt that the cause of those injuries was shaking or
shaking plus an impact; if anything, we favour the latter given the presence
of the bruise at the back of the head. In all the circumstances, we regard
as fanciful the notion that Heidi´s retinal injuries can be explained by
a fall in which she struck her head and was then the subject of a well-intentioned
resuscitative shake (Geddes, first and second scenarios).
- We have not overlooked the evidence of Dr Plunkett but we are unable to
regard it as of assistance in this case. First, there is no proper factual
foundation for Dr Plunkett´s evidence; his opinion rests on a version of
events relying on Rock´s account of an accidental fall but departing from
it so as to account for Heidi striking her head when falling. Secondly, Dr
Plunkett´s suggestion that the bruise at the back of Heidi´s head caused
her death, lacks credibility. Quite apart from more general considerations
as to the relevance of Dr Plunkett´s study to cases such as these (see below,
when dealing with Cherry), his thesis here does not begin to address the
subdural haemorrhages and retinal injuries.
- We are accordingly left with a powerful Crown case for unlawful killing,
based on the surrounding circumstances (Rock´s shouting on the night), and
the nature and severity of Heidi´s injuries (the subdural haemorrhages and
retinal damage). All that there is to set against that case is the suggestion
of accident, based on a manifestly flawed account from Rock, the one person
who could have explained what happened, supplemented by a variety of speculative
suggestions from the experts necessarily lacking a sound factual base.
We remind ourselves that our task is not to retry Rock; our inquiry is as
to the safety of his conviction. On all the evidence, we are amply satisfied
as to the safety of his conviction for unlawful killing.
- For completeness, we are not deterred from that conclusion by the following
matters:
- On behalf of Rock, some play was made with the moderation in language
employed by Crown experts between the trial and the appeal; in this regard,
as we have seen, considerable emphasis was placed on the alleged "concession" made
by Dr Jaspan, an emphasis we have already indicated we regard as misplaced.
We think that the submission as to moderation of language is correct as
far as it goes; but we do not think it goes very far. Doubtless, as expert
thinking has evolved, so, rightly, the language has moderated and become
less graphic or emotive. Those are welcome developments. But when the totality
of the evidence is considered, there is nothing in any of this to suggest
that the safety of Rock´s conviction is undermined.
- Dr Geddes, as we have seen, was puzzled as to the absence of other injuries,
if indeed Heidi had been the subject of violent shaking. We have given
this matter anxious consideration but ultimately regard it as decisively
outweighed by the overwhelming evidence pointing to a degree of force (or
violence) at least going beyond even rough play. There is, as has frequently
been urged on us, no precise correlation between force inflicted and the
gravity of the injuries suffered.
- As seen in the passages set out earlier, the Judge summed up in robust
terms. On the evidence before him, no proper criticism could be made of
those passages. Given the totality of the evidence now before the Court,
even though an alteration in expression might have been warranted, we do
not think that any change to the substance of the summing-up would have
been such so as to undermine the safety of a conviction for unlawful killing
on this ground.
- What remains is whether Rock´s conviction for murder as distinct
from manslaughter is safe. In R v Stacey [2001] EWCA
Crim 2031, a "shaking" case, the Court said this:
" 48. Other grounds of appeal having been examined,
and in the end abandoned, that leaves only the question of whether the
jury was entitled to find that she intended to do really serious harm.
We are
troubled about that. One brief period of violent shaking by a frustrated
mother and child-minder was all that was required to explain this death.
Apart from the bruises to the neck, no other injuries were found. As
the judge said, an intent to do serious bodily harm may be quickly formed
and
soon regretted; but so may a less serious intent, simply to stop a child
crying by handling him in a way any responsible adult would realise would
cause serious damage or certainly might do so. That would only provide
the mental element necessary for manslaughter.
49. Even allowing for the jury´s obvious advantage in seeing
the appellant give evidence, we have been unable to discern anything
which, in our judgment, would have made it safe for the jury to convict
this appellant
of the more serious charge. In our judgment, the less serious charge
was the only safe verdict. If the jury had had the additional benefit
of hearing
the fresh medical evidence we have heard, they might well have come to
the same conclusion."
- Stacey was of course a case on its own facts but the reasoning of
the Court has, with respect, an undoubted resonance. As already foreshadowed,
the Crown´s stance, very fairly, was to accept that a verdict of murder was
unlikely ever to be justified on the basis of the "triad" standing
alone; it follows that the verdict of murder could be justified here, only,
if at all, on the basis of (i) the bruise at the back of the head and (ii)
Ms. Banham´s evidence.
- Elaboration is unnecessary. Those two additional features go in this case
to underpin the safety of the conviction as to unlawful killing; but they
do not assist on the question of murder or manslaughter. Necessarily therefore
the conviction of murder cannot be sustained. We are fortified in reaching
this conclusion by a consideration of the additional medical evidence we
have heard. A brief period of violence (going beyond even rough play) was
all that was required to cause Heidi´s fatal injuries; such violence undoubtedly
furnishes the mental element necessary for a conviction of manslaughter;
but it does not necessarily demonstrate an intention to cause grievous bodily
harm, the relevant intention if the conviction of murder was to be upheld.
- Accordingly, we set aside Rock´s conviction for murder and substitute a
conviction for manslaughter. To this extent only, this appeal is allowed.
We shall hear submissions on sentence for the offence of manslaughter.
Cherry
- We again do not repeat the facts of this matter, which have already been
set out. It will be recollected that on Cherry´s account, he left the child
alone for a matter of minutes downstairs while he went upstairs; when he
returned minutes later, she was, as the Judge put it in the summing-up, in
a "poor state" on the floor. Essentially the decision for the jury
was whether they could be sure that Sarah´s death was caused by an unlawful
act on the part of Cherry (a formulation to which we shall return, later)
or whether her death was or might have been attributable to an accidental
fall from a chair some 6-8 inches high ("the chair").
- On this appeal, Mr Mansfield QC´s submissions proceeded as follows:
- The Crown´s position had shifted between trial and appeal; at trial,
this was a case of impact; now it was a case of both shaking and impact;
but that was not how the matter had been placed before the jury.
- There was new evidence to the effect that death or serious injury from
low level falls could not be ruled out. In addition, there was a possibility
that Sarah had aspirated vomit. Death could have resulted from a combination
of the two. In any event, if this was a case of both shaking and impact,
the innocent combination of an accidental fall followed by a resuscitative
shake could not be ruled out.
- Great care had to be taken in approaching the bruising on Sarah´s head
and body, both in the light of the new evidence and the course which the
trial had taken.
- In all the circumstances, the conviction was unsafe.
- The Crown resists the appeal and contends that nothing has emerged to
undermine the safety of the conviction. In a nutshell, the evidence as to
low-level falls is inapplicable to a fall of the nature postulated here.
Upon analysis, there was no evidence capable of suggesting that aspiration
of vomit was a relevant consideration. As to the new evidence, it had all
to be taken into account; Cherry could not pick and choose; the introduction
of a shaking component did nothing to undermine the safety of the conviction.
Evidence of Sarah´s other injuries, properly and fairly considered, lent
support to the Crown´s case and suggested that the notion of an accidental
fall was fanciful.
The new evidence on the appeal
- We begin with the pathologists. As already observed, Professor
Whitwell conducted the post-mortem and was a prosecution witness at the trial;
on the appeal, she now gave evidence for Cherry.
- In her witness statement for the trial, Professor Whitwell attributed Sarah´s
injuries and brain damage, taken in conjunction with the scalp bruising (already
described), to "direct blunt trauma". She went on to say this:
"The degree of trauma necessary to produce such damage
is considerable and the findings are not consistent with a simple fall
onto a carpeted surface. They are consistent with the head being forcibly
propelled
against a hard surface or a blunt object contacting the head.
Apart from the brain injuries there are a number of bruises
on the body. The sighting of a number of these is highly suggestive of
non-accidental injury rather than being caused accidentally in particular
the bruises
to the buttock, face, thigh and arm. "
- Her report of 2 June 2005, prepared for the appeal, evidences her revised
views. She said that the possibility of Sarah suffering a fatal injury as
a result of falling from the chair had to be considered afresh in the light
of Dr Plunkett´s research. The "primary brain pathology" was due
to lack of oxygen; this hypoxic-ischaemic injury could have been caused as
a result of primary injury to the brain, causing Sarah to stop breathing
and/or as a result of "vomiting with inhalation of vomit into the lungs".
She would "still to some extent be unhappy as regards the scalp bruises
arising in a fall but it has to be a considered possibility that Sarah´s
head impacted against some other surface as well as the ground".
- In her oral evidence at the appeal, she explained that her change of view
was based on Dr Plunkett´s work and her own experience. She had not found
diffuse axonal injury; such trauma as she found was associated with impact.
The need to explain Sarah´s scalp bruising (in two separate locations) led
to Professor Whitwell contemplating that Sarah might have struck her head both on
the window and then on the ground in the course of her fall; indeed, she
later underlined that two impacts were needed to explain this bruising.
- Professor Whitwell agreed that at post-mortem, there was no evidence of
vomit or aspiration. She agreed that Sarah had up to a maximum of 22 bruises;
she was "concerned" about that number of bruises. They were probably "more
than" fair wear and tear for a 21 month old. In the absence of proper
explanation, they were highly suggestive of abuse. There had been no developments
in science between the trial and the appeal to alter her view as to the relevance
of the two sites of scalp bruising. Her view at the trial (and she was the
person who had conducted the post-mortem) was that those two areas of bruising
had been caused at about the same time. She had herself identified traumatic
injury to the brain. She accepted that the subdural bleeding occurred because
of the tearing of bridging veins.
- Dr Rorke-Adams was firmly of the view that Sarah´s injuries were inconsistent
with a fall from the chair; she placed emphasis on the multiple areas of
injury and the extent of those injuries. Sarah´s injuries were caused by "trauma";
the "pattern of injury" was characteristic of both shaking and
impact; it was a combination of both. Although the degree of injury could
not be correlated with the degree of force, considering the injuries as a
whole, they must have been caused by "strong force".
- Pausing here, it will be apparent that there was agreement between Professor
Whitwell and Dr Rorke-Adams: (i) that there had been traumatic injury to
the brain; (ii) that there were subdural haemorrhages; (iii) that those haemorrhages
had been caused by the tearing of bridging veins. There was some dispute
between these two witnesses as to whether further injury to the brain, which
it is unnecessary to detail, was also attributable to trauma or was artefactual
in origin. Impressed as we were by Dr Rorke-Adams´ evidence in this regard
(the coincidence relied upon by Professor Whitwell seemed unlikely), this
is another of those areas where we do not think it would be right simply
to discount a reputable expert´s contrary views. We therefore proceed with
this appeal on the assumption (in favour of Cherry) that the brain damage
suffered by Sarah did not extend beyond the areas of agreement between Professor
Whitwell and Dr Rorke-Adams, summarised above.
- We move next to the evidence of Dr Plunkett, which it is helpful to consider
here in a little greater detail than in the preceding appeal of Rock. Dr
Plunkett said that there was nothing inevitable about a serious injury resulting
from a fall from the chair but "the potential for serious injury or
even death exists". The floor surface did not matter; it was immaterial
whether it was carpet over concrete or just concrete.
- Questioned as to his research, Dr Plunkett explained that he had worked
from a database for head and neck injuries involving playground equipment,
recorded by the United States Consumer Product Safety Commission ("CPSC").
Over 11 ½ years, he had identified 18 fatalities from head and neck injuries
involving falls. None of the children (or infants) in his study had formal
retinal examinations. These cases included falls from swings, which, he agreed
were complex or complicated falls. He further agreed that none of these cases
were similar to a shaken baby case. The distance of a fall is said to be
measured with reference to the closest part of the body to the ground at
the beginning of a fall.
- Case no. 5 in Dr Plunkett´s study was said to be closest to a fall from
a 6-8 inch chair; this was suggested on the basis that the child in question
had suffered the equivalent of a 12 inch fall. Dr Plunkett´s paper described
this fall as follows:
" A 23 month-old was playing on a plastic gym set in
the garage at her home ... She had climbed the attached ladder to the
top rail above the platform and was straddling the rail, with her feet
0.70 metres
(28 inches) above the floor. She lost her balance and fell headfirst
onto a 1-cm (3/8 inch) thick piece of plush carpet remnant covering the
concrete
floor. She struck the carpet first with her outstretched hands, then
with the right front side of her forehead, followed by her right shoulder.
Her
grandmother had been watching ... . And videotaped the fall. She cried
after the fall but was alert and talking ... However, approximately 5
minutes later
she vomited and became stuporous ... . A CT scan indicated a large right-sided
subdural haematoma ... . The haematoma was immediately evacuated. She
remained comatose postoperatively, developed cerebral oedema with herniation,
and
was removed from life support 36 hours after the fall ... .."
Dr Plunkett suggested that, as her head had been some 42
inches above the ground when the fall began and as her body length was some
30 inches, it was equivalent to her falling from a chair 12 inches high.
We confess some difficulty with this reasoning but we nonetheless continue
with our consideration of Dr Plunkett´s evidence. We do acknowledge that
we felt, as indeed Dr Anslow later expressed it, "shocked" that
a fall, as captured on the video (which was shown to the Court), could have
resulted in a fatality; this, indeed, may be the strength of Dr Plunkett´s
evidence, so far as it goes. Nonetheless, it is pertinent to record the following:
(i) It transpired, as explained by Dr Plunkett in his oral evidence following
the playing of the video, that the rail from which the child fell was in
fact 39 inches above the floor, not 28 inches; (ii) she fell a sufficient
distance for her to rotate and so as to fall onto her head with some 2/3
of her body weight contributing to the impact; (iii) there was a lucid interval
after the fall (unlike the cases before us); (iv) the haematoma was large
and lop-sided (again unlike the thin film haematomas encountered in cases
such as the present); Dr Plunkett agreed that the mass effect of this haematoma
caused the child´s death. Notwithstanding all these factors, Dr Plunkett
continued to maintain that the Case 5 fall was "exactly comparable" to
a 12 inch fall. The velocity was relevant and what was not known was the "minimal
impact velocity" required to cause these types of injuries.
- Closely cross-examined, Dr Plunkett agreed this:
"Q. ... your paper does not establish the proposition
that any impact, no matter how minor, can lead to fatal consequences,
does it?
A. That is correct."
After some questioning from the Court, Dr Plunkett acknowledged
the common sense proposition that the lesser the distance of the fall, the
less likely it was to cause an injury to a vulnerable part of the body. In
any event though for a time it seemed that Dr Plunkett was resistant to the
suggestion, the distance of a fall is a necessarily relevant consideration.
Dr Plunkett´s own formula for impact velocity was as follows: Velocity (V)
squared = 2 x Acceleration (A) x Distance (D). From this it must follow that,
all other things being equal, a reduction in D will result in a reduced V.
- Reverting to the individual case of Cherry, Dr Plunkett asserted that the
bruising on Sarah´s body amounted to "normal wear and tear". We
observe at once that this answer was manifestly unconvincing.
- Standing back from Dr Plunkett´s evidence, we do not say that his work
does not have utility. As recorded, we were ourselves very surprised by the
outcome in case no. 5, as shown on the video. However, we think that it is
important to look closely at both the limits of his study and its relevance
to any individual case; the true comparability of the falls he studied to
the cases before the Court merits careful scrutiny. We return to this theme
when indicating our conclusions on the Cherry appeal.
- Mr Richards gave evidence for the Crown in this case as well. In his opinion,
Sarah died as a result of a severe inflicted non-accidental head injury.
His oral evidence included the following passage:
"Q. You have used the word ‘severe´. Degree of force
required in this particular case?
A. Far in excess of anything we see in normal life with
children of this age. Children are toddling around at this age. They
fall over all the time. It they suffered severe head injury from little
falls,
the casualty departments would be inundated with them, the intensive
cares would be full of them, my operating theatres would be operating
or dealing
with them on a daily basis. I have not seen a child of this age suffer
a severe head injury in my 24-year neurosurgical career from a minor
injury
as described or ... .as considered. This very short 6-inch fall."
Other than being prepared to accept never to say never,
try as Mr Mansfield QC might, Mr Richards did not shift in substance from
this answer.
- We turn next to the issue of aspiration of vomit. Given that, for very
good reason to which we shall come, it played an ever diminishing role on
the appeal, we shall take it very shortly indeed.
- Mr Wrightson, a neurosurgeon, whose evidence on behalf of Cherry we heard
by way of video-link from New Zealand, said this, in his report for the appeal:
" ... there is no doubt that Sarah vomited and aspirated
material into her lungs. The vomiting was described by Mr. Cherry and
was confirmed by those who arrived to help. A chest X-ray later in the
day of
injury showed ‘widespread airspace shadowing throughout both lungs´.
The hypoxia which this would have caused is likely to have resulted in
or at
least contributed to the gross cerebral swelling that was present. "
In his oral evidence, Mr Wrightson said, early on, that
this was "the key to the whole situation". There was no reason
for Cherry to have invented the evidence he gave. As to aspiration, the ambulance
personnel described a "bubbly" chest. At the hospital, copious
bloodstained fluid came out from the lungs; the chest x-ray and the findings
on post-mortem were likewise said to support these conclusions.
- Under cross-examination, Mr Wrightson agreed that there was no sign of
vomit at the scene; that the neighbours who attended (one of whom was a nurse)
did not suggest that Sarah had vomited; that one of the paramedics had said
that he did not see any signs of vomiting; that, at the post-mortem, no sign
of aspiration pneumonia was found.
- Dr Peters, a consultant paediatric intensivist, was called by the Crown.
His impressively clear evidence may be summarised as follows:
- Neurogenic pulmonary oedema ("NPO") was a condition involving
fluid in the lungs as a result of something catastrophic happening to the
brain. It is characteristically immediate. The description given by the
para-medics was "almost a text-book" description of NPO:
"A combination of the noisy chest, with obvious fluid,
with pink frothy secretions coming out of the mouth and the child making
respiratory effort to overcome this fluid in the chest are all typical.
It could read like a text-book description."
- At no stage was there any evidence of aspirated vomit. The most relevant
evidence was that of Sarah´s appearance at intubation. Had aspiration been
a major cause of respiratory failure then, typically, when the tube was
placed into the lungs there would be a "welling up" from the
chest of whatever was aspirated. No suggestion of aspirated vomit was made
by the intensive care staff; to the contrary the fluid seen remained pink
and frothy and became more blood-stained as time passed. This was a typical
pattern of NPO. Had the fluid been erythromycin (a very common child´s
antibiotic which Sarah had been given), Dr Peters would have expected the
paediatric staff to recognise the difference between it and blood-staining.
- To cause respiratory distress suddenly, massive aspiration was necessary.
If so, however, it would have been apparent on intubation and subsequent
care. Conversely, unless it was massive, it would not be a "credible
cause" of this respiratory distress of this severity.
- The ophthalmic evidence can be disposed of summarily. Dr Gregson, called
by the Crown, fairly conceded that the retinal haemorrhages in this case
were superficial only and were not typical of those discussed in the other
appeals before the Court. They were not typical of shaking. In the circumstances,
we do not think that the Crown case derives any support from the retinal
haemorrhages. Conversely, however, we were not in any way persuaded that
the absence of "typical" retinal haemorrhages somehow assisted
Cherry´s case on the appeal.
- For our part, this being a case where impact as well as shaking is alleged
we regard the absence of "typical" retinal haemorrhages as neutral.
We say no more of this point. In the event, it is unnecessary to consider
the otherwise interesting (sub-) issue as to when the retinal haemorrhages
in truth first appeared.
- Finally in this case we have considered detailed written reports from two
experts in biomechanics: Dr Thibault and Dr Bertocci for Cherry and for the
Crown respectively. Dr Thibault, whose approach to ‘injury thresholds´ we
have described earlier, considered that the forces applied to the head in
a 3 foot impact fall onto carpet represented approximately 50,000 radians
per second squared, whereas the injury threshold associated with subdural
haemorrhage and diffuse axonal haemorrhage were between 8,000 and 12,000
radians per second squared. A 3 foot fall therefore, in Dr Thibault´s view,
is well within the physical context in which subdural bleeding and DAI may
occur. Dr Thibault identified the primary point of impact to be the occipital
region. The cause of subdural bleeding is accepted to be rupture of bridging
veins, but such a rupture could occur, in Dr Thibault´s opinion, as a result
of the substantial internal rotational forces that arise when a child falls
and impacts her head. He concluded that whilst deliberate inflicted injury
cannot be ruled out, the injuries were entirely consistent with the mechanics
of the speculated accidental fall.
- Dr Bertocci explained that her habitual starting point when asked to determine
whether a given account fits the resulting injuries is to begin with an assessment
of any bruising found on the child: ‘bruising represents points of force
application and a roadmap to the child´s exposure´ to force. Dr Thibault
considered that the two apparently separate sites of impact could be explained
by a fall inducing a well-distributed contact load across the occipital region
resulting in dynamic in-bending of the skull and contusion to the outer left
and right margins of the total contact area. The presence of bruising on
two opposite sides of the head indicated to Dr Bertocci two very different
lines of force applied from differing directions, and is not consistent with
a fall from a chair. Further, Dr Bertocci observed that the size of the scalp
bruises at 2.5cm and 3.5cm are much larger than bruises found in children
injured through accidents. Finally, Dr Bertocci summarised published research
and her own unit´s experiments with an automotive "12 month old" crash
test dummy. Her conclusion, which is again in total contrast to that of Dr
Thibault, was that a 12 month old falling from a 9 inch vertical position
impacting their head on a padded carpet surface would produce head accelerations
that are well below published biomechanical injury thresholds. She concluded
that Sarah´s injuries are not attributable to a fall from a 9 inch chair.
Conclusions
- As is apparent, encephalopathy and subdural haemorrhages are present in
this case. With regard to the latter, there is no dispute here that they
were caused by the tearing of bridging veins. Two elements of the "triad" are
thus present. For reasons already set out, although there were retinal haemorrhages
(the third element of the triad), these are neutral and do not advance the
argument of either party on the appeal.
- Next it is convenient to mention the issue of aspiration of vomit, essentially
to dispose of it. We found Dr Peters´ analysis of the evidence on this issue
compelling. Mr Wrightson´s views to the contrary do not survive this analysis.
We accept Dr Peters´ evidence and dismiss aspiration of vomit as a credible
cause or contributory cause of Sarah´s death.
- We turn to the topic of low-level falls. We have already indicated our
general views with regard to Dr Plunkett´s evidence. Having given the matter
anxious consideration, we are not persuaded that the postulated fall from
the 6-8 inch chair was a credible cause or contributory cause of Sarah´s
death. Our reasons are these:
- On any realistic view, the fall here (if fall there was or might have
been) was of a very different type and nature from those forming the subject
of Dr Plunkett´s study. The factual differences between any fall here and
Dr Plunkett´s Case 5 (said to be the closest comparable) are marked indeed,
not least with regard to the nature of the subdural bleeding found.
- Even if the reservations in i) above are put to one side, notwithstanding
the extent of Dr Plunkett´s research, there is no example of a 6-8
inch fall, from a static object, causing death or serious injury to a 21
month old child. As he himself agreed in cross-examination (see above),
it does not follow from Dr. Plunkett´s study that any impact, no
matter how minor, can lead to fatal consequences.
- Even if (contrary to the above) it was thought that Dr Plunkett´s study
did mean that a fall from the chair here was capable of furnishing a realistically
possible innocent explanation for Sarah´s death, it remains necessary to
address the two separate sites of scalp bruising. Professor Whitwell conducted
the post-mortem; as she agreed in her oral evidence, her impression (at
least at the time of the trial) was that the two separate areas of scalp
bruising had been caused at about the same time. Inevitably and as Professor
Whitwell further agreed, no scientific developments since the trial could
alter the relevance of these two separate sites of bruising. Accordingly,
for the fall to be capable of providing an innocent explanation of these
injuries, it was necessary to postulate two impacts (window and floor)
in the course of the same fall. As it seems to us, this is pure speculation
and stretches credibility altogether too far.
- We have set out earlier Mr Richards´ observations (i) that if such falls
did generate severe injuries, casualty departments and the like would be
inundated; but (ii) that in more than 20 years of practice he had never
encountered a severe head injury in a child of this age arising from a
6 inch fall. Some caution is necessary in approaching these observations;
first, there is no claim that serious injury is the inevitable result of
falls of this nature; secondly, "never" is an unfortunate word.
Nonetheless, when this evidence based on practical experience is considered
cumulatively with reasons i) iii) above, it furnishes powerful support
for the conclusion that the notion of an accidental fall in this case,
causing or contributing to Sarah´s death, is simply fanciful.
- We are not swayed from our view by the evidence of biomechanics summarised
earlier. This is a complex, developing and (as yet) necessarily uncertain
area of scince, as illustrated by the stark divergence of opinion between
Dr Bertocci and Dr Thibault. Be that as it may, Dr Thibault´s views are
altogether too difficult to reconcile with evidence of primary fact in
this case, for the conviction to be regarded as unsafe by reason of the
biomechanical evidence.
- Pulling the threads together, this is a case of a sudden collapse of a
21 month old child. Cherry was alone at home with her. His factual account
cannot explain her injuries and death. Upon analysis, the possible explanations
advanced on his behalf on the appeal do not carry credibility. The case cannot
be one of SIDS, given, as is undisputed, her traumatically caused subdural
haemorrhaging. As it seems to us, in the light of those subdural haemorrhages
and the separate sites of scalp bruising, the inference can properly be made
that her injuries and death were attributable to a combination of shaking
and impact. On any realistic view (and in this case we are of course only
concerned with a count of manslaughter), the force involved must have been
such that the risk of some harm to Sarah would have been foreseeable to all
sober and reasonable people. In the circumstances, unless there is anything
in the argument as to the shift in the Crown´s case between trial and appeal
rendering the conviction unsafe (see below), we are amply satisfied of the
safety of Cherry´s conviction for manslaughter.
- We are fortified in this conclusion by the evidence as to up to 22 bruises
on Sarah´s body. As Professor Whitwell was driven to agree, these were highly
suggestive of abuse, in the absence of proper explanation of which there
was and has been none. In approaching this evidence, we have thought it right
to proceed with caution; as the summing-up suggests, at the trial, Cherry
was treated as a good stepfather and there had been no suggestion of any
improper behaviour towards Sarah or any of the other children. But on the
state of the evidence at the trial, there may have been no need for the Crown
to explore this wider area. Cherry, having introduced new lines of inquiry
on the appeal, cannot, we think, complain at all the evidence being revisited.
While even then we would have hesitated long and hard before treating this
question of bruising as determinative of the appeal, in this appeal we see
no unfairness in taking it into account as an additional reason pointing
towards the safety of the conviction.
- Finally, we turn to Mr Mansfield´s submission that the conviction was unsafe
because of the shift in the Crown´s position between trial and appeal; at
trial, this had been a case of impact; now it was one of both shaking and
impact. Cherry did not have a fair opportunity to deal with the "new" case;
nor did the jury consider it. With respect, we cannot agree.
- First, as a matter of principle and as already foreshadowed in dealing
with the evidence of bruising to Sarah´s body, once an appellant has introduced
new evidence on the appeal, he can hardly complain if such evidence is answered
or rebutted by the Crown. Unavoidably, in such a process, the nature of the
case may take on a different hue and there may be some change in the manner
in which the Crown puts its case. But it cannot be, that on this ground alone,
a conviction must be regarded as unsafe; fresh evidence, once admitted, may
serve to confirm, not only to undermine, the safety of a conviction. Accordingly,
if on all the evidence before this Court, the only reasonable conclusion
is that, considered in the round, the conviction is safe, the Court should
give effect to that conclusion: R v Hanratty (Dec´d) [2002] 2 Cr.
App. R. 30, at [101] [104].
- Secondly, however, this principle is qualified by consideration of fact
and degree. In an individual case where an issue of this kind arises, it
may be that the Crown´s change of position between trial and appeal is such
that the conviction cannot be considered safe. Whether it does or not will
necessarily depend on the facts of the particular case. Here, we see nothing
in the development of the Crown´s case on the appeal that renders Cherry´s
conviction unsafe. The essential question for the jury was whether Sarah´s
death was accidental or the result of some unlawful act on the part of Cherry.
That was the fundamental divide; in this case, given the nature of Cherry´s
evidence, the mechanism was necessarily of secondary importance. It is true
that the mechanism favoured by the Crown at trial was one of impact. It is
further true that on appeal the Crown´s case as to mechanism has evolved
to one of a combination of shaking and impact. That evolution, however, cannot
have caused Cherry any prejudice. Moreover, any suggestion here that a well-intentioned
shake was capable of giving rise to a possible defence depended on the credibility
of the explanations we have already dismissed, namely those relating to the
low-level fall and/or the aspiration of vomit.
- In all the circumstances, we are fully satisfied as to the safety of the
conviction. This appeal must be dismissed.
Faulder
Appeal
- Faulder´s Notice of Appeal relies upon two post-trial developments. Firstly
the publication of Geddes I and II which, it is said, provides a basis for
questioning the explanations previously advanced for N´s injuries, and, secondly,
a judgment given by Mr Justice Eady in a libel case, Reed and Lillee v
Newcastle City Council [2002] EWHC 1600 (QBD) in which Dr San Lazaro,
a key prosecution expert witness in the Faulder case, had been severely criticised.
In addition the Notice of Appeal relies upon a new explanation, the MORO
reflex, which might explain N´s sudden movement and subsequent fall from
Faulder´s outstretched arm. Finally, the Notice relies upon fresh expert
evidence from Professor Whitwell, which calls into question the Crown´s view
at trial that this was primarily a shaking injury, her opinion being that
there was evidence of a number impacts (which might fit Faulder´s account)
and that the primary cause of collapse was likely to be cessation of breathing
and consequent brain damage, rather than primary brain damage due to direct
trauma.
- The ‘Statement of Reasons´ supporting the Criminal Cases Review Commission
decision in Faulder´s case refers to the trial evidence given by Dr San Lazaro
and Dr Alexander to the effect that N´s primary injury was as a result of
direct impact between the brain and the skull, which would require massive
and violent force comparable to a child being hit by a car travelling at
40 mph. As the Commission´s statement observes, "within this paradigm,
Mr Faulder´s explanation is inadequate." The Commission refers to Geddes
I and II and postulates that Faulder´s explanation becomes more plausible
if the cause of N´s collapse is cessation of breathing. The Commission concludes
that:
- had the jury been aware of the new evidence they might not have been
certain that Faulder´s account was untrue; and
- the medical evidence now available provides a possible alternative
explanation for N´s injuries and challenges the prosecution case that
the injuries must have been caused by shaking.
The Injuries
- In Faulder´s case the injuries and symptoms relating to N that require
consideration are:
Bruises
- Area of erythema (ill defined flushing of the skin) that was ‘grazed/bruised´
located directly on top of the head;
- A triangular fresh bruise 2cm by 2cm above the forehead;
- A 2cm linear bruise on the left side of the head above the ear;
- A small deep blue bruise over the right forehead;
- A second small deep blue bruise over the right forehead but more centrally
sited;
- Marked swelling over the top of the occipital bone in the midline.
Subdural haemorrhage
- Thin fresh subdural haemorrhage along the falx with a thin layer of subdural
blood over the surface of the brain (seen on the first CT scan at 7.44
am on the morning after admission, it remained largely unchanged in subsequent
scans);
Brain swelling and HII
- In the first scan (12 hours after the 999 call) there is no significant
brain swelling or injury. Subsequent scans over the following three days
show developing brain swelling and hypoxic-ischaemic injury in both cerebral
hemispheres.
- It is of note that in Faulder´s case there is no evidence of retinal haemorrhaging
or primary brain injury.
- In the course of Faulder´s appeal we have considered evidence from the
following experts on behalf of the appellant: Professor Whitwell, Dr Plunkett
and Dr Sunderland. In response the Crown have particularly relied upon evidence
from Dr Jaspan, Mr Richards, Professor Jenny, Dr Lawler and Dr Rorke-Adams.
Appellant´s Experts
- For the appellant Professor Whitwell, relying upon the Geddes I and II
research, considered that the hypoxic-ischaemic injury to the brain could
arise as a result of oxygen starvation caused by a sudden bending and stretching
of the nerve tracts in the cranio-cervical region. As N survived, there was
obviously no opportunity to use the βAPP
test for axonal damage to confirm this opinion. In N´s case the damage may
have been ischaemic and localised, but the mechanism was the same as in the
case of hypoxia. The Professor, who is a pathologist, rightly conceded that
in this case, which did not result in death, her expertise did not permit
her to comment upon the interpretation of the radiological evidence.
- Professor Whitwell considered that the findings were all consistent with
some form of impact. The injuries to the head indicated a number of impacts,
the multiplicity of which gave rise to concern, but in cross examination
she also questioned whether all of the external injuries were clearly present
at the time of admission, or, in relation to two, arose as a result of therapeutic
intervention. She advised that the forces required to produce subdural haemorrhages
in a child of this young age are unknown.
- Dr John Plunkett´s evidence was based upon his own research into young
children and low level falls. He drew attention to the fact that the skull
of a 7 week old infant differs fundamentally from that of an older infant
or adult. A scalp impact to a 7 week old would cause the skull to bend inwards
or deform, with a consequent deformation or movement within the brain itself.
This movement, Dr Plunkett advised, could cause subdural haemorrhages and
functional brain damage, for example breathing difficulties. Both Dr Plunkett
and Professor Whitwell accepted that the subdural haemorrhages were assumed
to have been caused by tearing of bridging veins. The minimal impact velocity
needed to cause these injuries is not known, but as N did not have any skull
fracture or brain contusion, Dr Plunkett postulated that the impact velocity
was extremely low. In this manner, Dr Plunkett considered that all of N´s
injuries could be explained by the account of the fall given by Faulder.
Dr Plunkett did not however accept that N had as many as 6 external head
injuries believing that there were only three. In particular Dr Plunkett
considered that marked swelling seen on the scans was a manifestation of
the triangular shaped bruise seen earlier over the top of the occipital bone
which, he explained, had migrated to the back of the head by reason of gravity.
This explanation and the further explanation proffered by Professor Whitwell
that the two forehead bruises were caused during treatment, were rejected
by each of the relevant experts for the Crown. In so far as may be necessary
we were not persuaded by Dr Plunkett or Professor Whitwell on these issues
and, having seen the relevant photographs, scans and medical notes, have
no difficulty in finding that there were indeed six separate sites of external
head injury as listed above at paragraph 219.
- Dr Sunderland´s written report to the CCRC introduced the "MORO Reflex" (a
recognised automatic response seen in babies under 8 weeks old) as an explanation
for N arching his back or throwing his arms out. It was therefore surprising
that it was only after a substantial number of questions in cross examination
that Dr Sunderland responded to junior counsel for the Crown by saying "I
am allowing you to develop your proposition. At some point I must help you.
I do not think the MORO reflex is relevant to Faulder. But I am cutting in,
you develop your proposition." We found Dr Sunderland´s contribution
in this regard fell short of that which is required by the court from an
expert witness.
- Dr Sunderland, having had Faulder´s detailed account put to him, stated
that a baby of N´s age could have behaved in the manner described.
- Dr Thibault, an expert in biomechanics who was, as we have said, not available
to give oral evidence, produced an analysis of the evidence which concluded
that Faulder´s account accorded with a biomechanical analysis of the injuries.
Dr Thibault´s opinion is however upon the basis that there were only two
impacts: one being the linear bruise above the left ear (number (iii) in
our list) and the other which caused both of the marks above the right eye
(numbers (iv) and (v)). Dr Thibault discounted the swelling on the back of
the head (number (vi)) which is only visible on the scan on the basis that
if this had been traumatic one would have expected the treating clinicians
to have noted it and, further, there is no note of any surface marking at
the same location indicating an impact. The report does not consider the
area of erythema located directly on top of the head ((i)) or the triangular
fresh bruise 2cm by 2cm above the forehead ((ii)), these marks are shown
in the photographs, however the photographs were not made available to Dr
Thibault.
- Dr Thibault considered that the linear bruise was consistent with contact
with part of the high chair, whereas the two marks on the forehead were consistent
with impact on a flat surface, for example the floor. The fall as described
by Faulder would, according to Dr Thibault, have been sufficient in magnitude
to deform the skull and cause shifting and deformation of the underlying
bridging veins and neural tissue thereby producing acute SDH. He also postulated
the temporary deformation causing a temporary herniation at the cranio-cervical
junction leading to consequent interference with the respiratory system and
thereby hypoxic-ischaemic injury.
Crown´s Experts
- For the prosecution Dr Jaspan described the existence of the subdural haemorrhages
and the development of what became extensive hypoxic-ischaemic injury in
both cerebral hemispheres. He considered that the most substantial impact
was that which caused swelling to the right parietal region, with the other
bruises resulting from injuries of lesser magnitude. Dr Jaspan, in a balanced
report, drew attention to the fact that only four of the eight elements that
would normally constitute a diagnostic ‘full house´ for inflicted injury
were present in this case, namely: unexplained encephalopathy, scalp bruising,
subdural haemorrhages and secondary hypoxic-ischaemic injury. He therefore
considered that accidental trauma could not be entirely excluded, but some
form of inflicted injury was the most likely cause.
- Mr Richards, who in his written evidence questioned whether a 7 week old
baby would have come to fall in the manner described by Faulder, in oral
evidence came to accept that N may have fallen from Faulder´s arm in an ordinary
‘gravity roll´, which did not depend upon any overt momentum from the child
himself other than throwing his arms up because he felt unstable. If such
a fall took place, Mr Richards would have anticipated a hairline skull fracture
or a fractured clavicle. On the other hand, such a fall was unlikely to cause
such severe brain substance injury and subdural haemorrhages. He concluded
that it was highly likely that N suffered inflicted NAHI.
- Professor Jenny clearly identified the six external head injuries found
on N. Her evidence on this point, which we accept, was confirmed by Dr Lawlor.
Professor Jenny´s opinion was that N had sustained multiple blunt injuries
to the head which were not accounted for by the history of a fall given by
his father. Professor Jenny disagreed with the prosecution experts at trial,
who had concentrated upon shaking rather than some form of impact causing
the injuries.
- When considering the triad as a diagnostic tool Professor Jenny regarded
the presence of characteristic retinal haemorrhaging as being particularly
important in identifying shaking as the mechanism of trauma. She explained
that "you really have difficulty diagnosing Shaken Baby Syndrome, as
opposed to abusive head trauma, if you do not have those retinal haemorrhages,
because they seem to be very characteristic of that particular biomechanical
event".
- Dr Rorke-Adams´ conclusion was to the same effect, namely that N was subjected
to blunt force trauma to the head. She too expressly disagreed with the crown´s
experts at trial. Dr Rorke-Adams considered that there was discordance between
Faulder´s account and the severity of the injuries to N.
- Dr Rorke-Adams, relying firstly upon her interpretation of the CT scans
and secondly upon the fact that N experienced a left-sided paralysis after
the incident, considered that the primary injury was to the right side of
the brain, and therefore was focussed on a particular location rather than
being diffuse and evenly distributed throughout the brain. Dr Rorke-Adams
was the only witness to put forward this interpretation of the evidence.
As a pathologist Dr Rorke-Adams was at a similar disadvantage to Professor
Whitwell in this case. Equally, Dr Rorke-Adams is not a radiologist. Dr Jaspan
in a very thorough report on the series of scans does not identify any particular
difference in presentation between the two sides of the brain. We are therefore
cautious about placing undue weight about Dr Rorke-Adams´s conclusion that
there was a focal (as opposed to a diffuse) brain injury.
- Dr Rorke-Adams conclusion in favour of a focal injury to one part of the
brain is the main reason for her dismissing Professor Whitwell´s proposition
that the brain injury may be secondary to a stretching injury at the cranio-cervical
junction. Given our caution about Dr Rorke-Adams´ view on this point, it
follows that we do not feel able to dismiss Professor Whitwell´s opinion
on that basis as being untenable.
- The prosecution expert on biomechanics, Dr Bertocci, due to the short notice
available to her, did not make observations about this case.
Changes in the Crown´s Case
- The appellant asserts that the Crown´s case against him at trial has now
been changed in three significant respects relating to (1) his account of
the fall, (2) whether there was a primary injury to the brain itself and
(3) whether the injury was caused by shaking or impact.
(1) The appellant´s account of the fall
- The appellant has consistently given an account of N´s fall from his outstretched
arm to the effect that N´s head was cupped in his hand and N´s body ran along
his forearm. At some stage N arched his back, slipped off the arm and fell,
catching his back on a push-chair and his head on the bar of a high-chair
before hitting the floor headfirst. At trial, Dr San Lazaro did not accept
that a 7 week old child could make sufficient jerking, arching or rolling
movement to propel itself from a carer´s arm. That was also the position
of a number of the Crown´s experts on paper at the start of this appeal.
During oral evidence, as we have already noted, Mr Richards came to accept
that N may have fallen in the manner described by Faulder simply as a result
of a gravity roll from his insecure position lying along Faulder´s arm. It
follows that the prosecution expert testimony is no longer entirely at odds
with Faulder´s account on this point.
(2) Causation of brain injury
- At trial, Dr Alexander considered that the fall described by Faulder bore
no relationship to the severity of the brain injury. His opinion was that
the subdural haemorrhages and brain injury were the result of shaking and
were the sort of injuries seen "in older children who have been hit
by a car at 40 mph, spun round and eventually hit the floor". He described
the mechanism for the brain injury by imagining that the brain was similar
in substance to porridge, with the shaking causing the brain to accelerate
and decelerate many times causing a spinning effect which was "just
like putting a food mixer inside the brain." He further postulated that
the trauma to the brain may have interfered with breathing, thereby causing
further brain damage. Dr San Lazaro, at trial, explained that only "very
severe forces" or "severe massive deceleration forces" would
account for the brain injuries which were caused by "violent shaking
and slamming down". In the CCRC report for this appeal, Dr Lazaro and
Dr Alexander are quoted as stating in letters written to the CCRC in 2001
that N´s injuries included "brain contusions".
- At trial, Dr Gholkal, a consultant radiologist, did not positively identify
any primary brain injury.
- Before us, with the exception of Dr Rorke-Adams, whose opinion relating
to a localised focal brain injury we have already described, none of the
Crown´s experts suggested that there was evidence of direct trauma to the
brain. Dr Jaspan identifies secondary hypoxic-ischaemic injury and asserts
that there is no evidence of primary brain injury or brain contusions.
- N survived these events and thus the only direct evidence of the condition
of his brain is radiological. Given the careful and clear evidence of the
prosecution radiologist, Dr Jaspan, on this point we consider that the opinion
of both Dr San Lazaro and Dr Alexander that there was primary brain injury
is not tenable.
Shaking or Impact
- At trial both Dr Alexander and Dr San Lazaro advised that these injuries
were caused by very severe shaking. We have already observed that a number
of the Crown´s experts on appeal have expressly disagreed with this conclusion.
They regard this as a case of N being the victim of a number of blunt impact
blows to the head.
- This significant change in the case being put against Faulder is of consequence
in at least two respects. Firstly, he has never been required to consider,
and neither was the jury required to consider, the allegation that he hit
N at least 5 or 6 times around the head. Secondly, the degree and type of
force now relied upon must differ from the "hit by a car at 40 mph" description
put forward at trial.
- Whilst we note that the judge in describing the central issue in the case
to the jury focused upon the defendant´s intention ("did the defendant
deliberately injure the child?") rather than upon any particular mechanism
for injury. The expert evidence presented to the jury was that the severity
of primary brain injury could not be explained by Faulder´s account. Before
us the position is different in that the injury to the brain substance is
broadly accepted to be secondary hypoxic-ischaemic injury. The primary injuries
being the external bruising and swelling, the subdural haemorrhages and unexplained
encephalopathy (brain failure). Whilst Faulder´s account is not accepted
by the Crown, it is nevertheless an account of a series of impacts and is
therefore significantly closer to the case now put by the Crown than was
the position at the trial.
- An essential question raised in Faulder´s appeal is therefore what effect,
if any, this change of mechanism and force has upon the central issue of
the defendant´s intention.
- In summary the prosecution´s position at the conclusion of the appeal differed
from the Crown case at trial in the following material respects:
- Faulder´s account of N falling from his outstretched arm is now accepted
as a possible event;
- The brain injury is now seen to be a secondary hypoxic-ischaemia rather
than as a result of primary intra-cranial trauma;
- The mechanism for injury is now stated to be a number of blunt force
impacts to the head, rather than the massive violent shaking mechanism
put forward at trial.
Dr San Lazaro
- The Amended Grounds of Appeal rely in part upon the fact that Dr San Lazaro´s
credibility and impartiality have subsequently been seriously challenged
in the case of Lilley and Reed v Newcastle City Council (above). It
is indeed the case that Mr Justice Eady considered Dr San Lazaro´s role in
a substantial child sexual abuse investigation and, having heard her give
evidence, found that, in order to meet what she perceived to be the needs
of the children she examined, she was prepared to throw "objectivity
and scientific rigour to the winds in a highly emotional misrepresentation
of the facts". She was, according to Eady J´s findings, "unbalanced,
obsessive and lacking in judgment".
- In the event this point was not raised in the appellant´s Skeleton Argument
filed at the start of the appeal hearing and did not feature in the written
closing submissions. Mr Mansfield QC told us that he was effectively not
relying upon this ground in support of Faulder´s appeal. We consider that
this was a realistic concession. There is no challenge to the primary evidence
of fact given by Dr San Lazaro. If Dr San Lazaro had remained the leading
Crown expert in the case, there might well have been some concern arising
from Eady J´s findings, however the wealth of medical evidence that has now
been acquired indicates that even were her evidence to be totally ignored
there is a substantial body of expert opinion that supports the Crown´s case
as it is now cast.
Overview of Faulder´s case
- We now seek to draw together the various central issues in Faulder´s appeal.
Before doing so, it is helpful to highlight the fact that there are now no
less than five different explanations for N´s injuries that have been put
forward by experts either at trial or on appeal, they are:
- Shaking and slamming down involving very severe force (Dr San Lazaro
and Dr Alexander at trial);
- Non-specific inflicted head injury (Dr Jaspan and Mr Richards) involving
secondary, but not primary, brain injury (Dr Jaspan);
- Multiple (at least six) blows to the head (Professor Jenny and Dr Rorke-Adams)
causing primary localised brain injury (Dr Rorke-Adams);
- A bending and stretching injury to the respiratory nerves in the cranio-cervical
junction causing a secondary brain damage. On the basis that the minimum
degree of force required to cause subdural haemorrhages is unknown, all
the symptoms could have been caused in the fall described by Faulder
(Professor Whitwell);
- A blow to the skull during the fall from Faulder´s arm, causing the
baby´s skull temporarily to deform and directly injure the underlying
brain substance, which may then hinder respiration and cause secondary
brain damage (Dr Plunkett).
- On the evidence that is now before the court, there is unanimity that what
occurred was primarily an impact injury. The central questions remaining
are:
- What is the minimum degree of force required to cause these injuries?
and
- Might the injuries have been incurred by a fall as described by Faulder?
- For the reasons that we have already given, we conclude that there were
six separate sites of injury found on N´s head when he was examined at hospital.
This is an important finding as whilst three or possibly four impacts could
conceivable fit with Mr Faulder´s account, it is not possible to stretch
the sequence of events he describes to explain all six injuries.
- Coming to a conclusion about the external head injuries is, however, a
very much more straightforward task compared to consideration of the internal
injuries. Having heard all of the evidence we are not in a position to reject
Professor Whitwell´s opinion that the key event was a nerve injury at the
cranio-cervical junction. That opinion is based on the Geddes I and II research,
which has been largely accepted by the scientific community. If that opinion
is correct, then the severity of the brain injury does not arise from the
degree of force used, but from the extent to which the brain is starved of
oxygen and/or blood. Questions of degree of force, on the Whitwell basis,
are confined to the minimum force needed (a) to cause the cranio cervical
junction nerve damage and (b) the subdural haemorrhage.
- We have already expressed our overall conclusions upon the necessary degree
of force in triad cases by stating four general propositions (paragraphs
72 80). Applying those propositions to Faulder´s case we are therefore
mindful that there will be rare cases where comparatively minor falls may
generate serious injuries and that an infant may be particularly vulnerable
to injury at the site of the craniocervical junction as postulated by Professor
Whitwell in this case.
- In not rejecting Professor Whitwell´s opinion, we have particularly borne
in mind Dr Jaspan´s cautious analysis ("an unequivocal stance cannot
be taken"). Dr Jaspan considered that only four of a possible eight
signs for NAHI were present. We would add that of those four, only two are
direct evidence of a primary event involving force (scalp bruising and subdural
haemmorhage) whereas the other two are, or could be, secondary consequences
of the primary event (unexplained encephalopathy and secondary hypoixic-ischaemic
injury).
- There are no retinal haemorrhages in this case. On Professor Jenny´s evidence,
that would be a cause for concern were the Crown´s case to have remained
one of pure shaking, but is a lesser matter of note in the context of an
impact injury.
- We have already considered Dr Plunkett´s evidence in relation to the appeals
of Rock and Cherry (in particular we summarise our view at paragraph 201).
It is, as we have said, important to look closely at the relevance of Dr
Plunkett´s research to each individual case. In relation to Faulder´s appeal
we are troubled by Dr Plunkett declining to accept that N had more than three
sites of injury. Our approach has been to evaluate each case by considering
all of the symptoms as a whole, as well as individually. Dr Plunkett´s inability
to include and account for the six sites of injury must devalue, but not
eliminate, the importance of his evidence in this particular case.
- The jury were directed to treat Faulder as a man of good character and
that is a factor that we too bear in mind. We also have particular regard
to the fact that, unlike the Crown case, his account of the key event has
been consistent throughout.
- If the number of external marks of impact had been four or less we would
have little hesitation in holding that there is sufficient within the evidence
of Professor Whitwell, when set against the conflicting and contradictory
evidence that has, when looked at as a whole, been presented by the Crown,
to render this conviction unsafe.
- We have approached each of these cases by attempting to look at the evidence
as a whole. Do the two or three external marks that fall outside Mr Faulder´s
account tip the balance in favour of dismissing the appeal?
- In considering this question we are conscious of the fact that this was
not a matter that the jury were ever asked to contemplate in this case. In
the same regard we consider it is relevant to question how fair it is for
the Crown to change its case so radically from "very severe shaking" to "at
least six blows to the head" in an attempt to uphold the conviction.
- In conclusion we are struck in this appeal by the very radical change in
the Crown case; the jury considered one case, shaking, yet that case is now
rejected and we have been asked to consider a totally different allegation
of multiple blows to the head. During the summing up at trial the jury were
told that Dr San Lazaro was "very, very experienced" and "specialises
in child protection and abuse" cases. They were also reminded that Dr
San Lazaro had said "I am as certain as you can be in medicine" in
her opinion that this was a shaking injury. This "certain" opinion
from the Crown´s principal witness is now rejected by Crown experts who are
equally firm in their own opinion. We have to consider the evidence in its
totality, both at trial and before us. There are, as we have observed, now
five different explanations put forward by experts for N´s injuries.
- In relation to Cherry´s appeal we have stressed that the mere fact that
there has been some change in the manner in which the Crown puts its case
will not automatically lead to a conclusion that the conviction is unsafe.
It will be a matter of fact and degree to be considered in each individual
case. In contrast to Cherry´s case, the turnaround in the Crown´s case in
Faulder could hardly be more substantial. This factor, coupled with the introduction
of potentially credible alternative explanations presented by the defence
experts, drives us to the conclusion that, despite the number of bruises
found, this conviction must now be considered unsafe. We therefore allow
the appeal and quash the conviction.
Final Comments
- In earlier sections of this judgment we have made comments on the triad
of injuries, the "unified hypothesis" Geddes I, II, III, and
some general issues. We do not think it possible or desirable to add anything
further to those observations. In our judgment, these appeals demonstrate
that cases of alleged NAHI are fact-specific and will be determined on their
individual facts.
- We have been asked by Mr Horwell to give some guidance in respect of expert
witnesses in cases such as these. In his final submissions Mr Horwell submitted
that these appeals demonstrated that there had been a significant failure
within the criminal justice system to control and manage expert evidence.
He argued that there must be a change in approach and invited the court to
consider giving guidance.
- Whether or not there has been a failure by the criminal justice system
to control and manage expert evidence we are reluctant to give any new guidance
on expert evidence arising from the facts of these cases. It may, however,
be helpful to re-iterate current guidance.
- As to expert evidence generally, the evidential rules as to admissibility
are clear (see for example R v Bonython [1984] 38 SASR 45 and R
v Clarke (RL) [1995] 2 Cr. App. R. 425 (facial mapping)). We see no reason
for special rules where medical experts are involved. There is no single
test which can provide a threshold for admissibility in all cases. As Clarke demonstrates
developments in scientific thinking and techniques should not be kept from
the Court. Further, in our judgment, developments in scientific thinking
should not be kept from the Court, simply because they remain at the stage
of a hypothesis. Obviously, it is of the first importance that the true status
of the expert´s evidence is frankly indicated to the court.
- It may be helpful for judges, practitioners and experts to be reminded
of the obligations of an expert witness summarised by Cresswell J in the Ikerian
Reefer [1993] 2 Lloyds Rep. 68 at p 81. Cresswell J pointed out amongst
other factors the following, which we summarise as follows:
(1) Expert evidence presented to the court should be and
seen to be the independent product of the expert uninfluenced as to form
or content by the exigencies of litigation.
(2) An expert witness should provide independent assistance
to the court by way of objective unbiased opinion in relation to matters
within his expertise. An expert witness in the High Court should never assume
the role of advocate.
(3) An expert witness should state the facts or assumptions
on which his opinion is based. He should not omit to consider material facts
which detract from his concluded opinions.
(4) An expert should make it clear when a particular question
or issue falls outside his expertise.
(5) If an expert´s opinion is not properly researched because
he considers that insufficient data is available then this must be stated
with an indication that the opinion is no more than a provisional one.
(6) If after exchange of reports, an expert witness changes
his view on material matters, such change of view should be communicated
to the other side without delay and when appropriate to the court.
- Wall J, as he then was, sitting in the Family Division also gave helpful
guidance for experts giving evidence involving children (see Re AB (Child
Abuse: Expert Witnesses) 1995 1 FLR 181). Wall J pointed out that there
will be cases in which there is a genuine disagreement on a scientific or
medical issue, or where it is necessary for a party to advance a particular
hypothesis to explain a given set of facts. He added (see page 192):
"Where that occurs, the jury will have to resolve
the issue which is raised. Two points must be made. In my view, the expert
who advances such a hypothesis owes a very heavy duty to explain to the court
that what he is advancing is a hypothesis, that it is controversial (if it
is) and placed before the court all material which contradicts the hypothesis.
Secondly, he must make all his material available to the other experts in
the case. It is the common experience of the courts that the better the experts
the more limited their areas of disagreement, and in the forensic context
of a contested case relating to children, the objective of the lawyers and
the experts should always be to limit the ambit of disagreement on medical
issues to the minimum."
We have substituted the word jury for judge in
the above passage.
- In our judgment the guidance given by both Cresswell J and Wall J are very
relevant to criminal proceedings and should be kept well in mind by both
prosecution and defence. The new Criminal Procedure Rules provide wide powers
of case management to the Court. Rule 24 and Paragraph 15 of the Plea and
Case Management form make provision for experts to consult together and,
if possible, agree points of agreement or disagreement with a summary of
reasons. In cases involving allegations of child abuse the judge should be
prepared to give directions in respect of expert evidence taking into account
the guidance to which we have just referred. If this guidance is borne in
mind and the directions made are clear and adhered to, it ought to be possible
to narrow the areas of dispute before trial and limit the volume of expert
evidence which the jury will have to consider.
- We see nothing new in the above observations.
- Lastly, we wish to express our gratitude to all counsel, solicitors and
the many expert witnesses for the prodigious amount of work and time which
they have given to these appeals. Cases of this sort raise difficult and
complex medical issues. The Court is very dependent upon the skill of the
advocates and the ability of the witnesses to elucidate the evidence and
inform the court on the issues involved. We have received enormous assistance
from all concerned and pay tribute to their efforts.