Neutral Citation Number: [2009] EWCA Crim 2376

Case No: 2009/02794/C5
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Tuesday 10 November 2009

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)

MRS  JUSTICE  RAFFERTY  DBE

and

MR  JUSTICE  HENRIQUES
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R E G I N A

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Miss S Howes QC appeared on behalf of the Appellant

Mr A Houston appeared on behalf of the Crown
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J U D G M E N T

THE LORD CHIEF JUSTICE:  I shall ask Mrs Justice Rafferty to give the judgment of the court.

MRS JUSTICE RAFFERTY:
1.  On 30 April 2009 in the Crown Court sitting at Portsmouth this 30 year old Appellant was convicted of inflicting grievous bodily harm contrary to section 20 of the Offences against the Person Act 1861 and on 5 June sentenced to 16 months' imprisonment and disqualified from working with children.  By leave of the Single Judge he appeals against conviction.

2.  He was the father of twin girls born on 21 December 2006.  Their parents took turns nightly feeding each baby.  The twins slept in a cot in the same room as their parents.  In the early hours of 18 January 2007 it was the Appellant's turn to feed them.  At about 2am he fed K who only took about half her bottle before she went back to sleep.  At about 5am both parents were woken by her high-pitched scream.  The Appellant got up.  The babies' mother went back to sleep.  She next woke a little before 6.15am, the Appellant saying to her anxiously that K had stopped breathing.  An ambulance came.  K was very quickly in hospital where the results of a number of investigations was severe damage to the brain, retinal haemorrhages and an 11th rib fracture posteriorly.

3.  Both parents were interviewed.  It was quickly evident that K had collapsed whilst in the sole care of her father, the Appellant.  The opinion of many doctors was that this was that this was a non-accidental injury.  

4.  The case for the Crown was that for a reason it could not specify, briefly the Appellant had lost his self-control in the small hours of 18 January and injured K severely.  His case was that he had been trying as usual to feed her and he noticed milk dribbling down his leg and that she was flopping.  Some two weeks before 18/19 January K had been making strange cycling movements with both upper and lower limbs.  The defence advanced as possibilities: that there had been congenital brain malfunction either from birth or as a consequence of a slow haemorrhage with its genesis at birth, where there was hypoxia; that as a consequence accumulating pressure in the brain led to the insult at the time the Appellant was feeding her; that the retinal haemorrhages were both related; and that the rib injury was potentially caused when the Appellant picked her up in a panic.  The issue therefore for the jury was whether it could be sure that the Appellant had done something deliberately which seriously harmed K and, were it sure as to that, whether he did so reckless as to whether she would be hurt.

5.  Little of the background evidence was in issue and much was sensibly by agreement read.  Health professionals consequent on the mother's discharge from hospital and return home with the twins were content throughout their visits with all they saw and heard both of the twins and of their parents.  Because of the mother's prolonged labour, foetal distress and a consequent Caesarian section, albeit APGAR scores, were an encouraging 9 out of a potential 10 at one minute and 10 out of 10 at five minutes, the professionals were on alert and attention was specifically addressed to the early progress of both babies.  No problems were identified.

6.  As to 18 January 2007, K's mother gave evidence that the Appellant had told her he thought the baby whilst he fed her had choked on a bottle.  She explained that two-and-a-half weeks earlier she noticed K making strange movements which her mother described as "kicking with her legs and pedalling with her arms".  There was also a suggestion of snuffles which perhaps indicated that K was developing a cold.  The paramedic attending when the ambulance was called spoke of the parental response appearing him to be normal and that the Appellant seemed appropriately upset and distressed. 

7.  Medical evidence began chronologically with that of Dr Wickranasuriya, Consultant Paediatrician.  He had been in to St Mary's hospital, Portsmouth, once K was admitted.  He had seen her in the resuscitation unit where her breathing became more regular but he noticed that she was "fitting" for which she was given medicine.  To him the behaviour of her parents seemed appropriate.  The Appellant had mentioned to Dr Wickranasuriya that perhaps K had had a mild respiratory infection.  The doctor referred to a note from his own registrar which recorded "posturing movements in arm, cycling, jerky, rhythmical movements of legs, full fontanel".  The doctor agreed that were the fontanel full, that might imply pressure in the skull being slightly raised.  He agreed that unusual movements could have been the result of fitting, not obvious to the non-medically qualified.  In the context of her condition on admission those movements would have had significance to a doctor had the baby some two-and-a-half weeks before been making them. 

8.  His colleague, Dr Wosniak, was concerned about increased pressure as a result of the bleeding in her brain and as a consequence she was transferred to the Southampton Paediatric Intensive Care Unit.  There among the doctors who saw her was Dr MacKintosh, the Paediatric Intensive Care Specialist.  He reviewed an MRI scan which had revealed swelling and blood in and around the brain.  K required surgical evacuation.  Later scans and observation during surgery showed a brain haemorrhage.  It was Dr MacKintosh who first contacted, as he was bound to do, Social Services and the police.

9.  Dr Wilson, Consultant Paediatrician, took over K's care from Dr MacKintosh.  Professor Gray, Neurosurgeon, made a diagnosis of raised intracranial pressure and inserted a pressure monitor.  Raised pressure with considerable brain swelling on the left, as well as multiple intracerebral haemorrhage prompted a craniotomy (removal of part of the baby's skill).  The brain swelling was so severe that Professor Gray could evacuate blood clots only through slits in the brain covering.  He could visualise only small areas of the brain surface and as a consequence could not confidently exclude an underlying malformation of the brain surface.

10.  Experts gave evidence as to K's eyes.  The first, Mr Thompson, supported by his colleague Mr Hodgkins, explained to the jury multiple retinal bruising and bleeding within the retina, "blot haemorrhages" widespread across the retina, at least in one eye.  In the other, blot haemorrhages were of a different shape.  He concluded that K had a brain injury and possible causes were non-accidental injury, to include shaking, or a problem with the baby's blood, which blood sampling was later to exclude.  He told the jury that about a third of babies endured retinal haemorrhages due to the trauma of their birth, and about 7% of Caesarian births (as was K's) endured retinal haemorrhaging, but it usually cleared within a few weeks of birth.  It was possible that lack of resolution within four weeks could not be excluded.  Foetal distress, he agreed, could lead to hypoxia (lack of oxygen) which could weaken the capillaries in the eyes, which could then become increasingly susceptible to bleeding.  Research with which he was familiar at the very least suggested that the more traumatic the birth, the greater the likelihood of retinal haemorrhage.  The difference in the haemorrhaging as between her left and her right eye had prompted him to conclude they could be of a different age and a different type.  

11.  A third Ophthalmic Specialist, Mr Gregson, described the haemorrhages as moderately severe, unlikely to be caused by birth trauma.  In an infant of K's age haemorrhaging of this type was more usually caused by a car crash or by a fall from a great height.  A shaking injury was capable of causing it.  In K's case it was in his opinion likely to be as a consequence of an episode of shaking.  He based that on the blot haemorrhages and the time since birth.  He noted that her eleventh rib posteriorly was broken on the left side, where a rib would give way had she been compressed very forcibly.  Having said that, he conceded immediately that he was not a radiologist.  He could not be sure that her retinal haemorrhages were as a result of non-accidental injury.  Cycling movements two-and-a-half weeks before the 18th might have been indicative of a disease such as to prompt both fitting and to explain her retinal haemorrhages.  

12.  Dr Johnson, Paediatric Radiologist, said that the X-rays indicated to him that the broken eleventh rib posteriorly was by the end of January no older than about two weeks.  He conceded that it may have occurred around or a little before the 18th.  An isolated fracture could be a consequence of a blow or an impact to the side of her rib.  A significant amount of force would have been needed.  Cardio pulmonary resuscitative compression rarely caused damage such as this.  Even if it did, he would expect the damage to be bilateral and not to the back of the infant as was the case in K.  He considered that cardio pulmonary resuscitation could be excluded as the cause of the damage.  Absent any other explanation, this to him was a non-accidental injury.  He excluded as a cause of the fracture birth trauma.  In cross-examination he agreed it was possible that the injury occurred on 18 January.  It could have occurred a day or two earlier.

13.  Dr Fairhurst, another Paediatric Radiologist, unlike her colleague Dr Johnson, estimated that whilst the rib fracture would have occurred on or about 18 January, it was certainly no more than four days older (although timings could only ever be approximate).  She was familiar with a research paper in the mid-nineties which demonstrated that only one per cent of infants sustained a rib fracture after cardio pulmonary resuscitation -- none of them posterior.  Dr Fairhurst considered it highly likely that the cause of the damaged rib was non-accidental.  Most likely it was the squeezing of K's chest in a shaking episode.  She conceded that the rib could have been broken by pressure along.  Shaking would not then have been necessary.  She could not discount the possibility that a panicking parent holding K in a vice-like grip had been the cause of the injury.  However, the force needed to do that damage she thought would have difficult to exert.

14.  As to the brain, Dr Gawne-Cain, Consultant Neuroradiologist, described the abnormal amount of blood on the surface of the left side of K's brain.  She considered that there had been trauma caused by a mechanical injury involving an impact to the brain or from distortion of the brain by a squeezing or by a rotational injury.  She could not be 100 per cent certain but it was her belief that some impact, possibly a blow to the head, was the culprit.  Shaking injuries were more likely to be symmetric, whereas what she saw on K was not.  There was more blood than she would have expected to see were the mechanism a shaking injury, which would have been unlikely to result in the tears within the brain which she could also see.  Were shaking the mechanism, it would have been very energetic.  She was confident that the damage to the brain was less than two weeks old and likely to be less than one week old.  She conceded in cross-examination that damage to K's brain could have masked a radiological indication of hypoxia at birth.  Very severe neonatal damage because of hypoxia she would have expected to see on the scans, despite subsequent brain damage.  More subtle damage might have been masked.  Even had she known (and she did not) of the cycling movements some two-and-a-half weeks before 18 January, she would not have been assisted.  She agreed that some subdural fluids might have been old  blood from an earlier haemorrhage and it could have dated back to K's birth.  She agreed that hypoxia at birth can weaken blood vessels which can result in the leakage of cerebrospinal fluid.  She agreed that there could at birth have been a subdural haemorrhage, that damage to the brain could have been distorted by squeezing, but any such could not have been caused by internal pressure as a result of a haemorrhage.  She could be confident of this because such a haemorrhage would not have accounted for the tears she could see in the brain tissue.  She conceded too that radiology did not sit comfortably with a shaking injury as the mechanism because the damage was unilateral and for a shaking injury one would expect the damage to be bilateral.  

15.  Dr McConachie, Consultant Neuroradiologist, thought the likeliest cause trauma with part of the brain literally burst at three places.  A spontaneous, non-traumatic bleed would not have been the cause.  He was not able with precision to identify the mechanism of the trauma, but it was likely to have been shaking or an impact or a combination of both.  Any impact would have been against a soft surface, albeit a severe impact.  He could deduce this because he could see subdural haematomas elsewhere, not simply at the point of impact.  The age of the damage was consistent with its having occurred on 18 January and it was inconceivable that after the insult K would have behaved normally.  He conceded that the disruption to K's brain substance was much more severe than that in a usual shaking injury, and the force used more akin to that of a road traffic accident.  Swinging her onto a soft bed may have caused the injuries.  Research into subdural haematomas showed other causes, mechanisms of which were unknown to medical science.  He knew of K's decelerating heart rate at birth due to hypoxia.  He could not exclude as possible that one of the haemorrhages occurred at birth.  He did not think there had been disruption of K's brain function at birth or in the first few days of her life.  Finally, he was sceptical that the tears in her brain had been caused by internal pressure, although he could not completely rule it out.

16.  Mr Peter Richards, a vastly experienced Consultant Paediatric Neurosurgeon, gave evidence.  He could not be certain as to the mechanism of injury.  If a child fell from a chair or went through a windscreen or fell out of a first floor window, he could make some attempt at assessing the force needed.  In K he thought somewhere between a fall from a chair or projection through a windscreen or a fall from a high window was indicative of the level of force she had endured.  Some features to Mr Richards suggested that she had been shaken; some would normally be seen in an impact.  Having said that, he conceded that some features he would expect to see from an impact on a firm or hard surface were missing.  It was likely that impact on a soft surface would have produced the damage as shown.  He told the jury that K had been a grossly normal baby at birth who had suddenly become grossly abnormal.  Either something happened to her which her carer did not appreciate was serious, or someone injured her.  He conceded in cross-examination that her dipping heart rate at birth showed hypoxia and that could have caused leaks in the small blood vessels.  As a result internal bleeding into the subarachnoid space would not surprise him.  Her cycling movements were indicative of infantile seizure and a full fontanel.  If they had occurred two-and-a-half weeks previously, it might have indicated that she was severely brain-disturbed at that juncture, but had that been the position he would have expected evidence of other concerns.  He could not exclude the possibility that on 18 January her brain was not functioning properly and had been subject to a malfunction, although he reminded himself and the jury that until the 18th she had taken her feed.  The pattern of injuries was not what he would normally associate with shaking.  It was not entirely consistent with impact onto a hard surface.  He was candid: it was not clear to him how the injuries were caused and he had some doubts that their cause was trauma.  He could not exclude the possibility that K's high-pitched cry at about 5am on the 18th was the moment when something occurred within her brain.  He could not exclude her subsequent inability to take her feed and her choking as a consequence of something having happened at that moment.  
17.  The single Ground of Appeal is that the Judge's failure to warn the jury of circumstantial evidence, coupled with his failing to highlight the case for the defence, renders this conviction unsafe.  The summing-up is acknowledged to have been balanced and fair, but simply telling the jury not to speculate and to draw inferences based solely on the evidence, provided they were the only reasonable conclusions properly to be drawn, nevertheless fell short of what was required.  It was important, it is said by Miss Howes QC who represented the Appellant below and appears here today, that the Judge should spell out the weaknesses which cut across the case for the Crown. 

18.  Miss Howes has helpfully divided into sub-sets her submission on circumstantial evidence as follows:

	(a)  This was a case in which, whatever the damage, were it inflicted by a person, it was inflicted on the appellant's watch.  It was therefore especially important for the jury to be invited to consider anything which might undermine the expertise for the Crown.

	(b)  There existed a small but significant piece of evidence, that of the high-pitched cry and the time at which it was heard.  If that were a possible signpost to the true cause of the injury, then it followed it could not also be the case that the appellant injured her.  The Judge missed the opportunity to remind the jury after he had dealt with the high-pitched cry that both parents were abed at that time.

19.  It is worth reminding ourselves of how, in part, the Judicial Studies Board specimen direction on circumstantial evidence reads:

		".... it is often the case that direct evidence of crime is not available, and the Crown relies upon circumstantial evidence to prove guilt.  That simply means that the Crown is relying upon evidence of various circumstances relating to the crime and the defendant which they say when taken together will lead to the sure conclusion that it was the defendant who committed the crime.  

		It is not necessary for the evidence to provide an answer to all the questions raised in a case. .... the evidence must lead [a jury] to the sure conclusion that the charge which the defendant faces is proved against  him.  

		Circumstantial evidence can be powerful evidence, but it is important that [a jury] examine it with care, and consider whether the evidence upon which the [Crown] relies in proof of its case is reliable and whether does prove guilt.  Furthermore, before convicting on circumstantial evidence [a jury] should consider whether [that evidence] reveals any other circumstances which are or may be sufficient reliability and strength to weaken or destroy the prosecution case.  

		Finally, [a jury] should be careful to distinguish between arriving at conclusions based on reliable circumstantial evidence, and mere speculation."

20.  The Ground of Appeal advanced is linked to the direction given to the jury that it was entitled to draw from the Appellant's silence at trial an adverse inference.  As we understand it, the suggestion is that though there could be no criticism of the inclusion of the direction, since the Appellant could add nothing to his full interviews under caution and was as a layman unable to assist on expert evidence upon which the trial turned, he was prejudiced by the omission of the circumstantial evidence direction.  The Judge should, it is said, have explained to the jury in the context of the adverse inference direction the difficulties the Appellant would have in assisting it with its task.  The circumstantial direction would have obliged him to list as "other circumstances" of sufficient reliability to weaken or destroy the case for the Crown those matters which had emerged from the totality of the expert evidence, particularly after cross-examination.  These include the internal conflict between shaking as a mechanism for an injury, excluded both for want of external injury and by virtue of the damage being too great, the infant's cycling movements, her 5am high-pitched cry, hypoxia, her emergency Caesarian birth, old blood in her brain, and the possibility that the retinal haemorrhages were related to her birth.

21.  When the Judge told the jury to consider the whole picture he did not, it is said, go on as he should have done to draw that picture for it.  The defence case, it is submitted, was not put.

22.  The defence case was in the negative.  In other words, the Crown was put to proof and the defence maintained that it had not cleared that hurdle.  No expert was called for the defence to advance a positive case as to the mechanism of injury.  Rather, a number of concessions during cross-examination was such that evidence from the available expert for the defence was no longer necessary.  This is not the same as the advancing of a particular mechanism as reliably the cause.  It is merely the erosion of the case for the Crown to such degree as in the professional judgment of counsel to found a strong closing speech to the jury, or a closing speech stronger than would be likely had the Appellant given evidence and been tested in cross-examination.  There was no positive defence case to put, other than that alternative mechanism or mechanisms existed.  It is difficult to see why a direction on circumstantial evidence was needed.  This case turned on expertise and it required what the Judge gave, that is a clear direction on the status and effect of such.  Of that there is, nor could there be, any criticism.  The jury did not need directions other than those it heard.  It needed to understand that expertise had the potential to help it decide whether the Crown had made it sure of guilt, but that it (the jury) was the final arbiter of the evidence.  That the directions given were adequate is doubtless why in dialogue counsel for the appellant at no stage suggested that one dealing with circumstantial evidence should be considered.  A distillation of the facts capable of coming within such a direction reveals as the only candidate the infant being after a particular time in the exclusive care of the appellant -- not of her mother and not of the two of them jointly.  This was not enough to trigger a direction.  It was clearly part of the case for the Crown and, dispositively of this point, not in issue.

The Adverse Inference Direction
23.  It will be remembered that the position of the defence was that the Appellant could add nothing to his interviews under caution and was unable to assist on expert evidence.  Cross-examination as to the rib injury went to whether a panicky, frightened father picking up the infant, holding her too hard and performing inexpertly cardio pulmonary resuscitation were feasible explanations.  In interview, however, the Appellant did not recall doing anything in panic or squeezing K such as to found those suggestions.  It was inevitable that had he given evidence cross-examination would have taken him to this.  The rib, as Miss Howes has candidly conceded today, was always the problem.  Expert opinion in respect of the brain and the retinal haemorrhages could not be artificially ring-fenced from the radiology.  The injury to the eleventh rib posteriorly would have been one obvious starting point for cross-examination and it would have featured large.  
24.  The alleged failure to put the Appellant's case during the summing-up can be best considered in this way.  It is instructive to consider (albeit not exhaustively) how the judge structured his assistance to the jury when he came to consider with it the facts.  The first doctor relevant for these purposes to whom he turned was Dr MacKintosh.  Having rehearsed the doctor's evidence he specifically identified "some matters arising out of Dr MacKintosh's cross-examination" and then went on to deal with the doctor's views on antibiotics, with viral drugs and so forth.

25.  Next the judge turned to Dr Wickranasuriya.  Once again, after putting in context the doctor's conclusion the judge turned to "cross-examination on a variety of matters" before going through a number of the doctor's concession.  For example, he reminded the jury that the doctor agreed in cross-examination that a full fontanel may suggest raised intracranial pressure.  He reminded it of the doctor's evidence about fitting.  He turned to the ophthalmologist, Mr Thompson, and using the same pattern reviewed the facts and said, "In cross-examination he said he was aware ...." before setting out a number of concessions.  He returned to cross-examination of Mr Thompson at least twice more.  He dealt more briefly with the evidence of Mr Hodgkins, Mr Thompson's colleague, for obvious reasons, the two being in agreement.  He reached Dr Johnson and once again identified concessions made in cross-examination.  He did exactly the same with Dr Gawne-Cain, who helped the jury with the brain.  He did exactly the same with Dr McConachie and with considerable attention to detail followed the same pattern in respect of Mr Richards, the Consultant Paediatric Neurosurgeon.  The jury could have been left in no doubt from the judge's rehearsal of Mr Richards' evidence that the contention of the defence was as we have earlier rehearsed it.  For the avoidance of all doubt, the judge repeated to the jury:

		"He was asked by counsel for the defence, 'And so we are left, despite the fact that this is the second worst [episode] someone of your experience has seen, we are left with a number of question marks as to how on earth this happens?'  'Yes', said Mr Richards, 'It does not quite add up'."

The judge maintained that pattern of approach for the balance of any expertise.

26.  The shape and form of a summing-up is the business of the judge.  So long as he directs the jury on the law, tells it coherently the story, and where appropriate rehearses the way counsel put their cases, his approach may properly take differing forms.  Some judges move chronologically through the witnesses, rehearsing, one by one. examination in-chief and then cross-examination.  Some marshal facts into chapters within which the witnesses tell the jury what happened.  Some, as here, pull together the evidence in examination in-chief and in cross-examination so as to provide a seamless account of the factual issues before the jury.  None of these is necessarily an approach superior to another.  What is essential is clarity, coherence and fairness.  Each of these is readily apparent from His Honour Judge Price's summing-up.  He had worked to ensure the jury had the best help he could offer it in identifying first the topic of the expertise, then the expert speaking as to it, then the opinion of each expert and, where he needed to do it, the origin of the evidence, that is examination in-chief or cross-examination.  What the jury made of the evidence was a matter for it but it is difficult to see how it was in any way denied a review of how the appellant put his case, which was, we should remind ourselves, the securing of concessions from experts.  It is certainly difficult to see that the summing-up left the jury floundering as to what was the defence case, as Miss Howes QC submitted.  The effect of the successful cross-examination across many fronts was to allow Miss Howes to dispense with her own expert and to make a closing speech in which, to use the language of the Bar, she had a lot to say.

27.  A counsel of perfection might include at the conclusion of the Judge's review of the evidence a final section perhaps headed "How do parties put their cases?"  Advantages include the avoidance of all doubt that the jury has been referred to parties' differing interpretations of the evidence and a of concern.  That said, here the defence case as advanced was reviewed as the Judge moved through the expertise, and reviewed at points during which the jury could be expected to be concentrating topic by topic.

28.  Grateful as we are to Miss Howes for her submissions, nothing we have heard comes anywhere near convincing us that this conviction is unsafe and this appeal is dismissed.