R v Henderson and Others

JurisdictionEngland & Wales
JudgeLord Justice Moses,LORD JUSTICE MOSES
Judgment Date29 July 2010
Neutral Citation[2010] EWCA Crim 1269,[2010] EWCA Crim 2431
Docket NumberCase No: 2007/6546/D4,No: 200702024 B5
CourtCourt of Appeal (Criminal Division)
Date29 July 2010

[2010] EWCA Crim 1269




The Hon. Mr Justice Keith

Before: Lord Justice Moses

Mrs Justice Rafferty


Mr Justice Hedley

Case No: 2007/6546/D4


Keran Louise Henderson
The Crown

Mr M Topolski QC and Mr A Scott (instructed by William Bache & Co) for the Appellant

Miss J Glynn QC and Miss S Campbell (instructed by the Crown Prosecution Service) for the Respondent

Hearing dates: 3 rd-5 th March 2010

Lord Justice Moses

Lord Justice Moses:



There are few types of case which arouse greater anxiety and controversy than those in which it is alleged that a baby has died as a result of being shaken. It is of note that when the Attorney General undertook a review of 297 cases over a ten year period following the case of R v Cannings [2004] 2 Cr App R 63, 97 were cases of what is known as “shaken baby syndrome”. The controversy to which such cases gives rise should come as no surprise. A young baby dies whilst under the sole care of a parent or childminder. That child can give no clue to clinicians as to what has happened. Experts, prosecuting authorities and juries must reconstruct as best they can what has happened. There remains a temptation to believe that it is always possible to identify the cause of injury to a child. Where the prosecution is able, by advancing an array of experts, to identify a non-accidental injury and the defence can identify no alternative cause, it is tempting to conclude that the prosecution has proved its case. Such a temptation must be resisted. In this, as in so many fields of medicine, the evidence may be insufficient to exclude, beyond reasonable doubt, an unknown cause. As Cannings [177] teaches, even where on examination of all the evidence, every possible known cause has been excluded, the cause may still remain unknown.


This court has heard, over a period of three weeks, three appeals concerning three babies, two of whom died, whilst in the care of a single adult. During the course of the trials a large number of medical experts were called. In two of the appeals what was asserted to be ‘fresh’ medical expert evidence was called. These three cases highlight a particular feature of cases where it is alleged a baby has been shaken in the care of a single adult. The evidence to prove guilt may consist only of expert evidence. It must never be forgotten that that expert evidence is relied upon to prove that the individual defendant is lying in the account he gives, either at the time or at trial. The correct management of such evidence is, therefore, of crucial importance in cases such as these. The correct approach to such evidence must be identified. If a conviction is to be based merely on the evidence of experts then that conviction can only be regarded as safe if the case proceeds on a logically justifiable basis. That entails a logically justifiable basis for accepting or rejecting the expert evidence (see R v Kai-Whitewind [2005] 2 Cr App R 31 [90]). Hearing these three appeals in succession affords an opportunity to make observations on the correct approach and the management of such expert evidence.


We should draw attention to the principles we have applied in relation to the admission of fresh evidence pursuant to s.23 of the Criminal Appeal Act 1968. In all three appeals the appellants sought to adduce fresh expert medical witnesses, although it was not necessary to hear the expert evidence in Butler. As is apparent in a trilogy of cases ( R v Stephen Jones [1997] 1 Cr App R 86, R v Meechan [2009] EWCA Crim 1701 and Kai-Whitewind) it is difficult to apply the provisions of that section to expert evidence. Where medical evidence is adduced before the Court of Appeal by an appellant from witnesses who were not called at trial and that evidence appears cogent and relevant, it is difficult for this court to exclude it on the basis that that evidence should have been called at trial. There is a danger, therefore, of overlooking the importance of the principle identified by Lord Bingham CJ in Stephen Jones and repeated by Sir Anthony May P in Meechan that it would subvert the trial process if a defendant were to be generally free to mount on appeal an expert case which, if sound, could and should have been advanced before the jury ( Stephen Jones at [93], Meechan at [1] and [23]). In Kai-Whitewind Judge LJ observed that the court would only in the rarest of circumstances permit repetition or near-repetition of “evidence of the same effect by some other expert”. Trials should not be a “dry run” for experts. Hearings of appeals should not present an opportunity to call new experts in the hope that they might do better than those whose evidence had previously been rejected [97]. We have sought to apply those principles, particularly in the light of the fact that expert reports were obtained for the trial by the defence in Henderson and the defence chose not to call those experts because, in part, they assisted the prosecution. In such a case, an appellant should not be in any better position than an appellant who had called evidence at trial.


The important observation of Lord Bingham CJ in R v Pendleton [2002] 1 Cr App R 441 [17] that trial by jury does not mean trial by jury in the first instance and trial by judges in the Court of Appeal in the second, applies no less to cases which depend upon expert evidence than to those which do not. But the difficulty of applying s.23 in cases which depend entirely on expert evidence is more acute.


Since the appeal depends upon an assessment of the expert evidence, just as at trial, the preparation and marshalling of that expert evidence is of the utmost importance in achieving just resolution. The appeal requires presentation by counsel experienced and expert in the field of what is contended to be the unexplained death of or injury to a child. Such counsel need to be able to identify focussed issues upon which this court can concentrate and to identify the evidence, whether it be evidence at trial or which it is sought to call, on which resolution of those issues will depend. All counsel we heard in these cases were able to assist due to their experience in cases such as these and to the skill with which they deployed that experience. It is no criticism of other counsel if we highlight the manner in which counsel for the prosecution, Joanna Glynn QC and Sarah Campbell, and for the defence, Mr Topolski QC and Andrew Scott, in Henderson, prepared their appeal. The skeleton arguments were focussed upon the particular medical evidence. Different features of that evidence were clearly identified and when any medical proposition was advanced, it was explained and its source clearly identified. A number of different disciplines were involved, all of which were clearly distinguished by separate files, separately coloured and with the underlying evidence and literature upon which that evidence was based, identified and collated. A core literature file, prepared by Mr Topolski, enabled the court to find and weigh the underlying literature upon which controversial evidence was based. The Vice-President conducted a detailed case management hearing providing timetables and giving directions as to how the evidence was to be prepared. Importantly, meetings were held between the experts so as to identify clearly those issues upon which agreement had been reached and those issues which remained a matter of debate. Without such preparation and obedience to the directions given by the Vice-President it would have been difficult properly to resolve the appeal. The example of the preparation in that case should, we suggest, be followed in future appeals. We shall return to the theme of management and preparation in relation to the conduct of trials when we have considered the individual appeals before this court.


There is a further problem to which we should draw attention. Cases such as R v Harris and Others [2006] 1 Cr App R 5 contain detailed analysis of medical evidence and the conclusions of this court on that evidence. In particular, in that case, the court commented upon the cogency of the “triad”: widespread bilateral retinal haemorrhages, thin film subdural haemorrhage and encephalopathy [63] and [69]. The court rejected the unified hypothesis that the same triad of injuries could be caused by lack of oxygen in the tissues leading to brain swelling, a hypothesis which Dr Geddes herself accepted could no longer credibly be put forward [66–68]. These conclusions have inevitably informed the basis of the approach taken by the police and prosecution and have been relied on in argument either at trial or before this court. But it is trite to observe that the conclusion of any court as to the medical evidence, whether at first instance or on appeal, is dependent upon the evidence before that court. No appellate jurisprudence could provide authority for a medical proposition. The strength of a proposition in medicine depends upon the strength of the medical evidence on which it is based. The quality and extent of the evidence will inevitably vary from case to case. Whilst it is now commonly accepted that the triad is strong prima facie evidence of shaking, that depends upon the common acceptance of experts in the field and not upon the conclusion of courts which are only able to weigh the evidence presented before them. Previous legal authority cannot determine whether the conclusion of a medical report should be accepted or rejected. The most...

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