R (Allen) (formerly Harris) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MITTING |
| Judgment Date | 10 December 2007 |
| Neutral Citation | [2007] EWHC 3218 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 December 2007 |
| Docket Number | CO/7183/2006 |
[2007] EWHC 3218 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Mitting
CO/7183/2006
Mr H Southey appeared on behalf of the Claimant
Mr H Keith appeared on behalf of the Defendant
At about 1 am on 5 December 1999 Lorraine Harris, the claimant, alerted her general practitioner that her 15-month old son was having difficulty breathing. Her general practitioner attended her home. He noticed that the claimant was calm and controlled; she seemed an experienced and sensible mother; that her son's eyes were normal and had all appropriate reflexes; his temperature was mildly raised; there were no signs of abuse or bruising. The doctor concluded that there was nothing wrong with him and left her house at 1.30 am.
Just over an hour later at 2.34 am the claimant made a 999 call to the emergency services and reported that her son would not wake up. An ambulance arrived seven minutes later. The crew found that her son did not have a pulse and was making no respiratory effort. He was noted as having fixed and dilated pupils and retinal haemorrhages. He was taken immediately to hospital and examined at about 4.30 am by a consultant paediatrician who noted widely dilated pupils, gross pre-retinal haemorrhages, but no external injuries. A subsequent test demonstrated marked hypofibronogenemia. Despite the best efforts of the medical team, the child died on 6 September.
In March 2000 the claimant was arrested and interviewed. She gave an account in interview which was entirely consistent with the evidence she gave at trial, which was to the effect that she had done nothing beyond shake her son moderately and bounce him up and down on her knee in an attempt to resuscitate him.
Dr Bouch, a pathologist, conducted a post mortem. He concluded that the child had died as a result of a shake which had caused bleeding into his skull around the brain. His post mortem report contained the following:
“The post mortem examination confirmed a markedly swollen and softened brain and 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 subarachhnoid haemorrhage over the surface of the spinal cord and medulla. Professor Green confirmed extensive haemorrhages through the retina and the vitreous of both eyes with some retinal detachment.”
In Dr Bouch's opinion, accepted medical opinion was that the force required to produce injuries from shaking was greater than that resulting from rough handling of an infant.
Dr Giangrande gave evidence that the low level of fibronogen in the boy's blood system was the result of an injury sustained by him and not a pre-existing condition. A consultant paediatric brain surgeon gave evidence 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 his death. In his opinion it was injury to the brain itself which caused death, caused either by shaking or impact or a combination of both. In his opinion the incident must have occurred after the general practitioner left at 1.30 am.
Medical evidence was called on behalf of the claimant at the trial which sought to explain the injuries in a way not suggestive of the use of excessive force by her. As I have noted, she gave evidence to the effect that she had not used excessive force on her son. She was nonetheless convicted of manslaughter —after a trial about which there is no criticism —and sentenced to three years' imprisonment.
Her case was one of four referred to the Court of Appeal after well known doubts had been ventilated about expert evidence in so-called shaken baby syndrome cases and after the trawl of such cases initiated by the Attorney General. Very extensive medical evidence was led before the Court of Appeal, both as to general issues and as to issues specific to this claimant's case. The general issue concerned a challenge to the accepted hypothesis concerning shaken baby syndrome to the effect that findings of a triad of intra-cranial injuries, consisting of encephalopathy, subdural haemorrhages and retinal haemorrhages, were either diagnostic of, or at the minimum very strongly suggestive of, the use of unlawful force.
A team led by Dr Geddes had subjected this hypothesis to critical analysis. An attempt was made by her team to postulate an alternative, unified cause of the triad of symptoms. But as she acknowledged to the Court of Appeal, that hypothesis did not ultimately withstand critical analysis.
The Court of Appeal's conclusion about that debate on the general issues was set out in paragraph 70 of its judgment as follows:
“Whilst a strong pointer to NAHI”
(non-accidental head injury, the Court of Appeal's preferred description of shaken baby syndrome)
“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 ….. ”
The court then turned to detailed medical evidence about the particular case. It heard from a large number of experts in their fields, the opinions of whom on some issues diverged widely. There was what the court described as “a head-on collision” between the two consultant neuro-pathologists, Dr Waney Squier and Dr Lucy Rorke-Adams. Their views differed not only as to their opinions but as to their findings of clinical signs. I give as an example the difference between them about photographs taken at post mortem which both examined:
“116 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 the 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 it 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.
117 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.
118 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 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.
119 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. 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...
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