R v Angela Cannings

JurisdictionEngland & Wales
CourtCourt of Appeal (Criminal Division)
JudgeLord Justice Judge
Judgment Date19 January 2004
Neutral Citation[2004] EWCA Crim 1
Date19 January 2004
Docket NumberCase No: 200201711 D3

[2004] EWCA Crim 1

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM CROWN COURT AT WINCHESTER

MRS JUSTICE HALLETT AND A JURY

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before:

Lord Justice Judge

Mrs Justice Rafferty and

Mr Justice Pitchers

Case No: 200201711 D3

Between:
Regina
Respondent
and
Angela Cannings
Appellant

Mr M. Mansfield QC and Miss J. Briggs for the Appellant

Mr P. Dunkels QC and Mr S. Brunton for the Crown

Lord Justice Judge
1

Angela Cannings was born in May 1963, the daughter of Stephen Connolly. After her marriage to Terry Cannings, they had four children, Gemma, born on 14th August 1989, Jason, born on 25th April 1991, Jade, born on 15th January 1996 and Matthew, born on 5th July 1999. Three of these children, Gemma, Jason, and Matthew died in infancy.

2

On 16th April 2002 in the Crown Court at Winchester, before Mrs Justice Hallett and a jury, after a conspicuously fair and balanced summing up, the appellant was convicted of two counts of murder, count one relating to Jason and count two relating to Matthew. It was elicited at trial that the appellant had also been charged with Gemma's murder, but that allegation did not proceed. Before his death Jason, and the surviving child, Jade, too, suffered an "Acute" or "Apparent Life Threatening Event" (ALTE). Before his death, Matthew was thought to have suffered an ALTE, but the preponderance of specialist evidence suggested that this was no more than a troublesome and worrying "episode" rather than a true ALTE.

3

The relevant chronology is straightforward. Gemma died on 14th November 1989. She was then aged 13 weeks. Jason suffered an ALTE when aged 6 weeks, but he died a week or so after discharge from hospital, on 13th June 1991. Jade suffered an ALTE on 1st April 1996, when aged 11 weeks. She made a full recovery. On 3rd November 1999 Matthew, aged 17 weeks, suffered his episode. He was discharged from hospital, but died some nine days later.

4

The Crown's case was that the appellant had smothered both Jason and Matthew, intending to kill or do them really serious bodily harm by obstructing their upper airways. To support that allegation it was suggested that Gemma's death, and each of the ALTEs, were also consequent on smothering by the appellant, and that the deaths of Jason and Matthew formed part of an overall "pattern". The appellant, a woman of good character, described as a loving mother, apparently free of personality disorder or psychiatric condition, consistently denied harming any of her children. It was not suggested that they had been harmed by anyone else. Her case was that the deaths were disastrous, but natural, even if unexplained incidents, to be classified as Sudden Infant Death Syndrome (SIDS), known colloquially as cot death. In expressing the issue in this way we do not overlook the comforting ease of applying such a description to an extremely complicated subject, nor that specialists do not treat SIDS and cot death as synonymous.

5

Without medical evidence about the appellant's mental state, a verdict of infanticide was not open to the jury. Following conviction of murder, sentences of life imprisonment on each count were mandatory. Hallett J expressed her concern at the "kind of injustice that can be caused by mandatory sentences". Honouring, as she had to, the verdicts of the jury, and acknowledging the absence of any medical evidence relevant to the appellant's state of mind, she observed:

"I have no doubt that for a woman like you to have committed the terrible acts of suffocating your own babies there must have been something seriously wrong with you. All the evidence indicates you wanted the children, and apart from these terrible incidents you cherished them, so in my layman's view, it is no coincidence that these events took place within weeks of your giving birth. It can, in my view, be the only explanation for why someone like you could have committed these acts when you have such a loving and supportive family."

6

This is an appeal against both convictions. On 10th December 2003 we quashed them. We shall now give our reasons.

The issue

7

The issue before the jury is easily defined. The deaths of Jason and Matthew were either natural sudden infant deaths, or unnatural sudden infant deaths. In the vast majority of cases of murder, there is no doubt that someone has caused or contributed to the death of the deceased in some way, for example by gunshot wound, or knife, or repeated blows, or indeed a single blow. In a few cases issues may arise whether the defendant's actions caused the death, or whether some other underlying or intervening cause contributed to or was responsible for it. Unusually, but not uniquely, the primary and stark question in the present case was whether either of these children was killed at all, their deaths resulting from deliberate actions by their mother to deprive them of breath, and successfully achieved without revealing any obvious physical manifestation of a killing. We are not blind to the fact that, sadly, these catastrophes happen: mothers, and fathers also, do sometimes kill their infant children. Nevertheless the crucial question here remains whether the deaths of either of these two baby boys were indeed the result of crime.

8

The unavoidable reality is that some infant deaths remain "unexplained" or "unascertained". Professor Berry, a consultant pathologist called by the Crown, identified three categories of death which were encompassed within this last word, "unascertained". It includes deaths which are natural and explained (i.e. a similar mechanism to sudden infant death syndrome, but not fitting the strict case definition), natural and explicable (but the cause was not found) or unnatural (accidental or deliberate). Whatever form of categorisation, and there are several, we must emphasise what is self-evident, that only proof of a death falling within the second half of the last of Professor Berry's categories, an unnatural death resulting from deliberate action, can justify a conviction for murder.

9

The convenient acronym SIDS requires a little amplification, particularly in relation to the last "S", which stands for syndrome. Treating the problem as a syndrome tends to obscure the fact that sudden unexplained infant deaths occur in different circumstances, and some may be multi-factorial, the result of a coincidence of processes which, taken in isolation, would not necessarily cause death. No underlying condition for every death categorised as SIDS has been identified. The critical point of each such death is that it is indeed unexplained, and that its cause or causes, although natural, is or are as yet unknown. SIDS does not apply to deaths, or if already attributed to SIDS, ceases to apply to deaths which are clinically explicable or consequent on demonstrable trauma. In each SIDS case the mechanism of death is the same, apnoea, loss of breath or cessation of breathing. In the true SIDS case we do not know why the particular infant's breathing stopped. All we know is that for some unexplained reason it did. One obvious reason for loss of breath is smothering or some deliberate interference with the infant's normal breathing process. However the same process, with the same result, also occurs naturally. In the present context ALTEs are SIDS in which no death has actually resulted. Again, approaching the issue in layman's terms, ALTEs may be described with reasonable accuracy as sudden infant acute or apparent life threatening events. They represent the consequence of an unexpected and unexplained temporary loss or cessation of breathing, which has occurred naturally. Whether the cause is natural or harmful interference, the body of the infant undergoes great stress. If the event is the result of deliberate interference with the infant's breathing it is not a true ALTE: it is attempted murder or attempted grievous bodily harm.

Two critical problems

10

It would probably be helpful at the outset to encapsulate different possible approaches to cases where three infant deaths have occurred in the same family, each apparently unexplained, and for each of which there is no evidence extraneous to the expert evidence that harm was or must have been inflicted (for example, indications or admissions of violence, or a pattern of ill-treatment). Nowadays such events in the same family are rare, very rare. One approach is to examine each death to see whether it is possible to identify one or other of the known natural causes of infant death. If this cannot be done, the rarity of such incidents in the same family is thought to raise a very powerful inference that the deaths must have resulted from deliberate harm. The alternative approach is to start with the same fact, that three unexplained deaths in the same family are indeed rare, but thereafter to proceed on the basis that if there is nothing to explain them, in our current state of knowledge at any rate, they remain unexplained, and still, despite the known fact that some parents do smother their infant children, possible natural deaths.

11

It will immediately be apparent that much depends on the starting point which is adopted. The first approach is, putting it colloquially, that lightning does not strike three times in the same place. If so, the route to a finding of guilt is wide open. Almost any other piece of evidence can reasonably be interpreted to fit this conclusion. For example, if a mother who has lost three babies behaved or responded oddly, or strangely, or not in accordance with some theoretically "normal" way of behaving when faced with such a disaster, her behaviour might be thought to confirm the...

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