SL, R. v

This is an appeal against conviction by SL.

On 3^rd February 2006, in the Crown Court at St Albans, before Beatson J and a jury, the appellant was acquitted of murder (count 1), but convicted of manslaughter (count 2), and attempting to choke, suffocate or strangle with intent to cause grievous bodily harm (count 3) He was also acquitted of causing grievous bodily harm with intent to do so (count 4), but convicted of causing grievous bodily harm (count 5A), an alternative to inflicting grievous bodily harm with intent. On 2^nd March he was sentenced to six years’ imprisonment for manslaughter, with concurrent sentences of 30 months imprisonment on count 3 and 12 months imprisonment on count 5A.

The victim of these offences was EL. E was born on 11 June 2003, and found dead in the family home on 26^th September 2003. The appellant was his father. His mother was TS (the mother). Both parents were arrested and interviewed in the months following E’s death.

The mother had another child, a boy called J. He was four years old when E died. Shortly after E’s death, J was taken into care. Based on the possible risk of harm to him suggested by E’s death, care proceedings under the Children Act 1989 begun. They were heard and decided by Hedley J in the Family Division in February 2005. The local authority presented the case to him. Both parents were present and gave evidence. In the meantime, on 4^th December 2004, as Hedley J appreciated when he heard the care proceedings, the appellant was charged with E’s murder.

We shall immediately record some of the crucial findings made by Hedley J.

(a)“The local authority in their closing submissions have accepted that the evidence will not allow the court to determine which of the two parents has inflicted all or any of these injuries. For reasons I will develop in just a moment, I regard that concession as properly made and representing the reality of the position on a fair analysis of the evidence”.

(b)

“What then, finally, is the picture with which the court is left? It is an alarming picture. He is a picture of a child who has died at three months, has been found to have a whole series of injuries, some of those, some of them not, but many of them obvious, coupled with evidence of parents who say, “we know nothing of any injury, we know nothing of any discomfort or difficulty arising from any injury, we know nothing of how any of this might have happened”.

(c)

“I am quite unable to say, on the evidence whether one parent is more likely to have inflicted these injuries than the other. This was overall a grave failure of parenting for which both must bear responsibility, and it is clear that the responsibility belongs to them alone.”

Nearly a year after this judgment, the appellant’s trial began. He was the only defendant. The mother gave evidence for the prosecution. The appellant did not give evidence. The judge directed the jury not to hold that fact against him. The jury was not aware of any of the findings made by Hedley J. The verdicts reflected their conclusions after an impeccable summing up by Beatson J.

It was submitted to Beatson J that in the light of Hedley J’s decision, the indictment against the appellant should be stayed as an abuse of process. Beatson J rejected the submission: hence the substantial ground of this appeal, in which we are required to decide between the conflicting views of experienced judges on an issue of principle which has not yet been considered in this court.

The defence submission before Beatson J, effectively renewed before us, was that the criminal trial should not proceed. Hedley J had intended his judgment to affect the criminal proceedings. He referred to the fact that he himself had stayed criminal proceedings in the past on the basis of findings in civil proceedings. In a discussion after judgment, Hedley J suggested that, well in advance of the trial, the Crown should carefully consider how properly his judgment should impact on the criminal proceedings.

It was argued that in view of Hedley J’s judgment and findings, the Crown was wrong to assume that the mother did not cause E’s injury or death, or that they were solely attributable to the appellant. She should not or could not be put forward as a witness of truth. It was not even possible to be sure that E’s death resulted from homicide.

It was contrary to public policy for a competent court to make a finding which was factually contrary to the finding of another competent court on the same facts. Where a civil court had made a finding of fact on the balance of probabilities, it was repugnant for a criminal court, on the application of a higher standard of proof, to reach the opposite conclusion. Hedley J made findings on all the matters which were central to the criminal proceedings, and at trial the Crown would be inviting the jury to reach directly contradictory findings. The risk of, and as turned out in this particular case, the fact of inconsistent findings, would undermine public confidence in the judicial process.

Before Beatson J there was a further, distinct submission that it was unreasonable in the Wednesbury sense for the Crown to proceed with the prosecution. By ignoring or disregarding the findings of fact made by a judge in a competent court, article 5(1)(c) and 5(4) of the European Convention on Human Rights were contravened. This submission was rejected by Beatson J. We were invited to re-examine the reasonableness, or otherwise, of the Crown’s position, and to conclude that it was so deficient that it provided a further basis Beatson J to intervene.

In essence, the Crown’s submission was that the proceedings before Hedley J could not, even remotely, be treated as criminal proceedings. The Crown was not party to them. Their purpose was to decide where J should live, and what arrangements should be made for his upbringing. J’s welfare was the paramount consideration and therefore, if they were addressed at all, questions of guilt or innocence were secondary. Although the circumstances of E’s injuries and death had, inevitably, to be addressed, no one was seeking positively to establish that the appellant was responsible for them. Hedley J’s conclusions did not constitute an acquittal. His factual findings did not amount to autrefois acquit, and had no more relevance at the trial than his adverse finding against the appellant. As to the engagement of the ECHR, the relevant article was article 6, and the trial process afforded the appellant all necessary and appropriate protection to the appellant.

These were the essential lines of argument deployed before us. Before examining them, however, we must summarise the facts.

J Lovell was born on 20^th August 1998. He lived with his mother throughout his life until, after E’s death, he started to live with his maternal grandparents and his father, with whom he had always enjoyed a normal family relationship. After his parents separated, from about early 2002, his mother and the appellant began their own relationship. They did not co-habit until about the time when E was born. Both parents were habitual abusers of Class A drugs. The appellant had a number of criminal convictions, typical of those who misuse drugs.

Immediately after E’s birth, because of concerns about the possible affect on him of the drugs taken by his mother, he remained in a special care baby unit. However within a fortnight he was discharged to his parents’ home, and he lived with them until his death. Sadly, during his short life E was very badly ill-treated.

At the time when E was conceived, it was possible that the appellant was not his father. Notes (CDAT notes) kept at the drug counselling centre showed that before the child’s birth, the appellant was rather pre-occupied about the child’s paternity. He was heard to say that he did not wish to bring up another man’s child. According to the mother, after E’s birth, the suspicion that E was not his child appeared to have disappeared, taking it briefly, because the only other possible candidate for paternity was not white. However there was an occasion after E’s birth when the appellant told her that he was upset and concerned that E was not his child, and she had re-assured him that he must be because he was white. The CDAT notes kept at the drug counselling centre revealed that on 22^nd September, shortly before E’s death, the appellant had spoken of feelings of jealousy about the mother’s ex-partner, and her friends, and that he had found it difficult to speak to her at times, and was troubled by the fact that he had not fathered her first child. All these factors have no doubt to be seen in the context of continued drug misuse by both the appellant and the mother. The CDAT notes were not available to or deployed before Hedley J.

E was seen in the usual way by health visitors and doctors. No apparent causes for concern were noted. He appeared to be well cared for, and a number of people, apart from his mother and father, looked after him. These included the appellant’s mother and sister. Generally both parents cared for him although his mother, having already nurtured J, was the more experienced of the two.

E had a history of straining on defecation. When he did so he became obviously distressed, and his crying could be irritating. The doctors were unable to discover the cause of his straining, but, unlike the mother they believed that it was the result of constipation, for which E was treated.

On 15^th September the family care was transferred to a more convenient general medical practice. The mother became concerned about a spot of red/blood in the baby’s eye. She took E to the doctor. The general practitioner thought that his condition was consistent with the “straining” difficulties, and that there would be a review at a routine appointment on 17^th September. She gave evidence that relatively mild trauma could be the cause of the sub-conjunctival haemorrhages she had seen in E’s eye. The possibility of abuse entered her mind, but only because it was linked with the details the mother had given of drug abuse.

After they returned home, the mother went to pick J up from school, leaving E in the appellant’s sole care. On their return from school she immediately went to keep an appointment with her counsellor at CDAT. She simply dropped J at home, leaving him and E with the appellant at home. On her return the little spot she had seen earlier in the one eye had spread to both. Later in the evening, she took the dog out for a walk, and went to a garage shop. Again, E and J were left in the appellant’s sole charge. On her return home she looked in on E. She found what she thought was a heavy nose bleed. At 20.57 the mother took E to Hemel Hempstead hospital. By the time of the visit, E himself seemed perfectly cheerful.

Spontaneous nose bleeds in children are very rare. Post mortem, histological examination of E’s lungs revealed the presence of iron laden macrophages in the alveolar spaces. These macrophages were indicative of haemorrhage into the lungs. Taken together with the history of events as described by the mother, and in the absence of any evidence of natural causes, this evidence suggested at least one, possibly two instances of obstruction of E’s airways, at its lowest indicative of a non-accidental cause.

In the care proceedings, Hedley J assessed the significance of this evidence and concluded that E suffered at least one obstruction of the airways on 15^th September 2003. However the evidence was “not sufficiently cogent to permit a finding that there were, as a matter of fact two such incidents, but that there was at least one is clear. I think it is more likely than not that the airways obstruction was imposed rather than accidental…..If I were to ask myself, could I be quite sure that this is an imposed airways instruction, I would be hesitant, but I am satisfied on the balance of probabilities, and I think the balance of probabilities points strongly in this direction, to the fact that there was an airways obstruction and that it was imposed rather than accidental”.

On 16^th September, at an examination in the paediatric clinic of Watford General Hospital, an anal fissure was recorded. At that time no significance was attached to the fissure, which was consistent with straining on defecation. On post mortem, a different, abnormal anal fissure was identified. The mother herself found that any suggestion that E had been the subject of sexual abuse was offensive and abhorrent. When she had changed his nappy between 18.00 and 20.00 on 25^th September, she had not seen any fissure. Again, it is significant that while the anal fissure found on 16^th September had no apparent significance at the time, the anal fissure found at post mortem was much more serious than the fissure found earlier. In any event, it was the second such fissure. Whatever views may have been formed, (and different views were expressed by the expert witnesses), about the significance of the second fissure in itself, taken with the other evidence, it was at least open to the Crown to contend that the fissure was part of the picture of consistent abuse to which E was subjected.

In the care proceedings Hedley J agreed with the assessment of the community paediatrician that the most likely explanation of this fissure was abuse, in the form of a penetration from outside, but recorded that she “simply could not say with any confidence” that “this was a case of sexual abuse”. He shared the anxieties and suspicions of the paediatrician, but decided that it would be “unsafe specifically to conclude that anal sexual abuse can be established.

The CDAT notes of the 22^nd September noted that the mother was content with the diagnosis of constipation and prescription of a laxative, but so far as the appellant was concerned, he had not had a “good week”. The relationship between mother and father was said to be under strain, with arguments about drug use, and they were “egging each other on”. The appellant’s use of cocaine and heroin had increased, and his feelings of jealousy towards the mother’s ex-partner and friends were also noted.

On 24^th September E was given his second immunisations. Neither the medical attendant who administered the injections, nor another attendant who was present, observed anything untoward, and when handled, E did not appear to be in pain. E was not seen by any other medical professional before his death.

On 25^th September, when E was placed in the back of a car in his child seat, the driver’s seat fell down on it with what was described as a “big jolt”. This made E cry immediately, but he stopped after 15/20 seconds. According to his mother’s evidence, by the time they returned home, the baby was well. She gave him his bath, and he was happy. At this time the appellant was away from the house. On his return, she went to bed. At about midnight, he told her that E had been fed, and that he was fine. On all the previous nights she had been directly responsible for and involved in E’s care at least part of the night. This was the first time since his birth when his mother had nothing to do with E’s care during the night.

In the morning of 26^th September, when she went downstairs, the mother found that the living room door was closed. This was unusual. In evidence she said that E was sleeping on his front, with the quilt pulled right up. Precisely when she checked E was subject to a number of inconsistent accounts, which tended to suggest that perhaps she had not personally checked E until after she returned from taking J to school. In any event, on her return, she described the appellant as very agitated, angry and overly anxious. She asked whether E had slept through the night, but the appellant said something like “no chance, I have not been upstairs long”. He had tried to put E down to settle, but he would not, and after some “stop/start” feeding E “did a massive poo”. Thereafter the appellant said that he had put E in his cot.

The mother went into the living room, and saw that E’s hand was sticking out from beneath the quilt in an awkward fashion. The quilt was right up to his neck, very precisely laid. As soon as she touched him she realised that he was dead. She turned him over. She said that E’s face was “like a plastic doll”, which had its face squashed in. She called out to the appellant. He came into the living room and fell on his knees saying, “I’ve killed him, I’ve killed him”. He was sobbing, and explained that he had put E to sleep on his stomach when she had told him not to do so. In cross examination, she accepted that it had become routine for E to be put to sleep on his stomach, and she reassured the appellant that E’s death was not his fault. She tried to call the health centre, but the line went dead. She nagged at the appellant to fix it. His comment was that he was unable to handle what had happened, and he spoke of suicide. She replied that he had already killed one member of the family, but she accepted that this was not by way of a direct accusation. She had just lashed out verbally. The appellant ran out of the house.

Before he left, the mother cleaned the house to try and remove all evidence of drug misuse. She did not want people to know that she took drugs or to think that she was a bad mother. She was in a state of disbelief and shock. She could not explain why the 999 call was not made until after 11 o’clock. Eventually she ran to her neighbour’s house. She was too distressed to telephone the health visitor. That call was eventually made at about 11.45 to 12.00. The paramedics received the call at 12.10. On their arrival, the baby was clearly dead. They found a white indent near the baby’s mouth, similar to that which would be made by a resuscitation mark. (There was however no evidence of any attempt at resuscitation)

The doctor arrived between 12.00 and 13.00. The baby had plainly been dead for a number of hours. The body was taken to hospital. In due course, radiological examination revealed a number of fractures to E’s leg bones. These included metaphyseal fractures of both distal femurs, the right distal fibia and the left proximal tibia as well as a spiral fracture of the right distal femoral shaft. These fractures pre-dated death. There was a fracture of the lower end of the right tibia was between one and four weeks old. All the other fractures were between two and seven days old. They may have been caused on the same occasion, or on different occasions, or some on the same and some on another occasion. They resulted from gripping, or twisting or pulling movements. No possible explanation consistent with accident is available.

In the care proceedings, Hedley J found it an “irresistible conclusion that these fractures were the result of non-accidental injury.” That indeed was the Crown’s case at trial.

The post mortem examination carried out by Professor Risdon did not disclose a specific cause of death. According to the death certificate the cause of death was “unascertained”. This was because Professor Risdon was unable from the post mortem to ascertain precisely why the child died when he did. He took a completely neutral view whether death was the result of deliberate smothering or not. If he were sure that death had not been deliberately caused, he would have used an acronym such as Sudden Infant Death Syndrome (SIDS), or Sudden Unexpected Death in Infancy (SUDI). In re-examination he adhered to the view that what he discerned at post mortem amounted to “less than proof beyond reasonable doubt”. He pointed out that in what were described as cot deaths, no abnormalities appeared on post mortem. In this case there were a number of abnormalities, such as the finding of iron laden macrophages.

Dr Hobbs is a consultant paediatrician. In his view, it was critical to look at the evidence as a whole, to form a clinical picture of the cause of death. Looking at the combination of injuries, and all the circumstances, there were a number of features which favoured the conclusion that E was smothered, and that was “the most likely mechanism”. This could not be treated as a SIDS or SUDI death.

In the care proceedings, Hedley J’s determination of the issue was based on Professor Risdon’s firm resolve to adhere to his description of the cause of the death as “unascertained”. He was a man of “unique experience” in this particular speciality. Although Hedley J accepted that airways obstruction came at the top of the possible causes of death, he thought that it would be “quite wrong for the court to come to any other conclusion but that the cause of death itself, however worrying or suspicious the circumstances may be, remains unascertained”. There was a deepening “cloud of suspicion” hanging over the whole of the events of this unhappy child’s death.

In his interviews with the police the appellant said that E could push himself up, because he was “strong enough to, to push up and to struggle and that”, but he would be unable to hold his own weight. He put him to sleep belly down in the cot. He said that when E’s mother said that E was dead, she picked him up, and E looked “like he’d suffocated. He looked like, his face was all puffy and….and he just didn’t look like, didn’t look like our kid.” In a subsequent interview he said that you could see that “his face was all puffy. I think it might have been, it was a kind of, he looked all plasticy, you know”. The appellant denied ill-treating E.

The appeal proceeded on the basis that, notwithstanding some differences in the evidence at the two hearings, for all effective purposes the evidence at each hearing was identical. We are not entirely convinced that this analysis was correct. Thus, for example, the CDAT notes, giving a narrative account of the appellant’s frame of mind in the period leading up to E’s death were not available to Hedley J. We are not sure whether the mother’s evidence of the condition of E’s face when she picked him up was put before Hedley J, at any rate in the detail summarised in our narrative of the facts. Finally, of course, while Hedley J heard the evidence of the appellant, the jury did not. However, the appeal was argued, and it was approached on the basis that, for all effective purposes, the evidence was, or would have been the same in both proceedings.

Before examining the authorities we shall briefly identify some essential principles. Subject only to the jurisdiction of the Court to prevent an abuse of its process, the Crown, through the Director of Public Prosecutions, and Crown Prosecution Service, and ultimately the Attorney General, is responsible for the decision whether to institute a prosecute, and if so, for every aspect of its proper conduct. The exercise of this important constitutional responsibility engages much wider interests than those addressed by parties to civil proceedings, no matter how sensitive and troublesome they may be. Unless the defendant pleads guilty, the decision whether guilt is proved is made in open court by a jury, or in less serious cases, by magistrates, similarly sitting in public. Proceedings under the Children Act 1989 are concerned with the welfare of a child or children. No one is being prosecuted. Just as the local authority, which is usually responsible for bringing such proceedings, has no involvement in the prosecution process; similarly, the Crown Prosecution Service has none in the care proceedings. One consequence is that the Crown would not, and could not, influence Hedley J’s decision, let alone appeal against it. Of itself, of course, that is not decisive of the argument, but without doubt, the starting point is that the two sets of proceedings, their initiation and their objectives, are different. At the risk of repeating the obvious, this conclusion is reinforced, for example, by the provisions of section 98 of the Children Act which does away with the privilege against self-incrimination for the purposes of care proceedings, but ensures that, subject to perjury, any consequent incriminating evidence remains inadmissible in subsequent criminal proceedings.

There was no suggestion, and could be none, of any plea in bar. Neither autrefois acquit, nor issue estoppel, nor any question of double jeopardy, could arise. Mr Campbell-Tiech QC, for the appellant, relied on the general power of a criminal court to prevent abuses of its process. This power is beyond question, and examples of its exercise abound. In DPP v Humphrys [1977] AC 1 the House of Lords underlined that the inherent jurisdiction to prevent an abuse of process should be distinguished from a purported power in the trial judge to refuse to allow a prosecution to proceed, merely because he considered, as a matter of policy, that the prosecution ought not to have been brought, or that it should not continue. It dismissed the concept of issue estoppel from the criminal process. The decision in Humphrys, however, goes much further.

The essential facts are illuminating. Humphrys was charged with driving while disqualified. The issue was the correctness of the identification by a police constable. In evidence, Humphrys denied that he was the driver, or indeed that he had driven any car during the year in question. He was acquitted. Later he was charged with perjury said to arise from his untruthful evidence that he had not driven the car. At trial, the judge overruled a defence submission that the same constable who had given evidence at the first trial should not be allowed to give the same evidence at the second trial. It was argued that issue estoppel applied. The judge rejected the submission. The evidence was given. Humphrys was convicted of perjury. He appealed, and his conviction was quashed. In the House of Lords it was held that the verdict favourable to the defendant at the first trial was no bar to the admission at the second trial of evidence given at the first trial, even when that evidence, if accepted, would lead to the inference that Humphrys was guilty of the offence of which he had been acquitted. For the moment, it is sufficient to notice that it was not suggested in the speeches that the second proceedings constituted an abuse of process, or might fall within the ambit of the very principle which was directly engaged in the appeal.

In his judgment in the present case, Beatson J drew attention to the decision in Imperial Tobacco Limited v The Attorney General [1981] AC 718, in which it was held that, using his words, “a declaration as to lawfulness by the civil court is not in itself a bar to a criminal prosecution, even when the parties are the same in both proceedings”.

In that case, after criminal proceedings began, the plaintiffs claimed a declaration that an advertising scheme which might otherwise be regarded as an unlawful lottery, was lawful. Donaldson J refused to grant the declaration. He thought that the scheme amounted to a lottery and was unlawful. The Court of Appeal decided that it was neither, and granted the declaration. Viscount Dilhorne, at 741 observed:

“Such a declaration is no bar to a criminal prosecution, no matter the authority of the court which grants it…such a declaration in a case such as the present one, made after the commencement of the prosecution, and in effect a finding of guilt or innocence of the offence charged, cannot found a plea of autrefois acquit or autrefois convict, though it may well prejudice the criminal proceedings…if a civil court of great authority declares on admissions made by the accused that no crime has been committed, one can foresee the use that might be made of that at the criminal trial…I think that the administration of justice would become chaotic if, after the start of a prosecution, declarations of innocence could be obtained from a civil court. ”

Lord Lane, at 752, commented that counsel had been unable:

“….to find any case in which a defendant in criminal proceedings already properly and not vexatiously instituted had applied for a declaration that the criminal proceedings were unfounded or based on a misapprehension as to the true meaning of the criminal statute….it would be strange if a defendant in proper criminal proceedings were able to pre-empt those proceedings by application to a judge of the High Court…what effect in law upon the criminal proceedings would any pronouncement from the High Court in these circumstances have? The criminal court would not be bound by the decision.”

In Imperial Tobacco Limited, the civil proceedings for a declaration represented a contrived device. J’s care proceedings did not. As it happened, in that case, as in this, the civil proceedings were concluded after the criminal proceedings had begun. The House of Lords did not address the possible impact of a decision in concluded civil proceedings on criminal proceedings which were begun after their conclusion. The point did not arise. In our judgment, however, the broad observations of principle apply with equal force.

On behalf of the appellant, Mr Campbell-Teich’s starting point was Hunter v Chief Constable of West Midlands [1982] AC 529. The factual background to this decision is well known. Hunter brought a civil action which would have impugned the final decision of the competent court of criminal jurisdiction after a trial in which he had fully participated as a defendant. Hunter asserted the power of the court to prevent an abuse of its process. The power is “inherent”. The object is to prevent the “misuse of its procedure”. The principles derived from extracts from the judgment of A.L Smith LJ in Stevenson v Garnett [1898] 1 QB 677, “The court ought to be slow to strike out a statement of claim or defence, and to dismiss an action as frivolous and vexatious yet it ought to do so when as here, it has been shown that the identical question sought to be raised has already been decided by a competent court” and from Lord Halsbury’s speech in Reichel v Magrath [1889] 14 APP. Cas. 665 “….I think it will be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again”. It is perhaps important to emphasise that “competent” in this context is not a reflection on the ability, experience or expertise of the court. It simply, but critically, addresses the competence of the court to make the relevant final, juridical decision. If the court making the decision is not competent, it cannot finally dispose of the case.

On analysis, Hunter does not directly assist the appellant. The situation was the reverse of the present. The court of competent jurisdiction at trial had been sure of his guilt. He was seeking to use civil proceedings to demonstrate that on the balance of probabilities he was not. Here, the court vested with jurisdiction to decide the care proceedings was not and could not be invited to decide the criminal proceedings against the appellant. In brief, it was not competent to do so, nor did it decide them. The Crown suggested that Hunter decided that an abuse of process argument could not arise unless there could be identified what was described as “privity” between the two sets of proceedings, or rather, the same parties were engaged.

Whether this is right or not, Hunter provides the starting point from which to examine Smith v Linskills (a firm) and another [1996] 1 WLR 763. A convicted burglar took proceedings against his former solicitors. He alleged that the negligence of the solicitor caused his wrongful conviction. Like Hunter he was seeking to re-litigate issues which had already been litigated in proceedings in the criminal court in which he had been a participant. The decision is accurately summarised in the headnote. This reads:

“…Since the plaintiff’s conviction in the Crown Court amounted to a final decision by a court of competent jurisdiction and its soundness was an issue at the heart of the civil proceedings, the action did involve a collateral attack within the rule”

Mr Campbell-Tiech drew attention to the need for a flexible approach to the application of the Hunter principle. However the essential focus of his argument was derived from a passage in the judgment of Sir Thomas Bingham MR, as he then was, at 773, that the principles underlining the abuse of process jurisprudence were based on considerations of public policy. He identified:

“…the affront to any coherent system of justice which must necessarily arise if there subsist two final but inconsistent decisions of courts of competent jurisdiction. Such would, we think, be the case here if there were a subsisting Crown Court decision that Mr Smith was, beyond reasonable doubt, guilty of aggravated burglary and a subsisting civil court decision that if his defence been properly prepared he would and should have been acquitted. No reasonable observer could view this outcome with equanimity. ”

Mr Campbell-Tiech suggests that an examination of the principles underlining this element of public policy demonstrates the unsoundness of the Crown’s privity argument. Accordingly, his argument should not be defeated by the fact that the prosecution was not party to the care proceedings. He suggested that the situation which arises in the present appeal, even if not identical, is analogous to that which arose in Smith v Linskill and involves the troubling concept of an affront to public justice. His argument can be readily encapsulated. The appellant is now serving a sentence for manslaughter, when another competent court, considering the same evidence, was not satisfied either that E’s death was homicide, or if it was, that the appellant, rather than his partner, was responsible. Such inconsistency would create public concern. This is the high point of the argument, and its attractions, and it was most attractively presented, are plain.

The decision in Smith v Linskills formed the basis for two later decisions at first instance, to which we must come in due course, R v Steidl and Baxendale-Walker Southwark Crown Court 27th June 2002 and R v Stocker, Central Criminal Court, 23^rd November 2004.

The decision was followed and developed in R v Belmarsh Magistrates’ Courtex p Watts [1999] 2 CAR 188. The Divisional Court concluded that the magistrate was vested with jurisdiction to consider whether summonses issued by a convicted defendant amounted to an abuse of process. The decision was entirely consistent with Smith v Linskills, by which the court was in any event bound. Mr Campbell-Tiech referred us to the observations of Buxton LJ that the principles governing abuse of process were based on the effect which a second set of proceedings might have in the context of a final determination in the first set of proceedings, rather than the intention with which those second proceedings were brought, or pursued. He suggested that once it was accepted that motive was not the “touchstone”, any argument based on privity became irrelevant. However this consideration takes the present argument no further. The motivation for and the intention behind the decision to prosecute, or to continue with the prosecution, after Hedley J’s decision is not in issue. No question of bad faith arises. The Crown was simply seeking to exercise what it contended was its responsibility for the initiation and conduct of criminal proceedings.

Attention was also drawn to a brief report in R v Bingley Magistrates Court, ex p Morrow Times Law Report, 28 April 1994. It appears that a private prosecution was started by summons. The decision of the Divisional Court accepted that justices were entitled to exercise their discretion not to issue one, a comforting re-assurance that the magistrates were not obliged to “rubber stamp” the process by which a prosecution might be started. The decision does not address the present argument, and we need not address the question whether there might or should be any difference in the outcome, if the prosecution was indeed a private prosecution, or one conducted on behalf of the Crown.

Next, we must consider R v David D; Phillip J. [1996] 1 CAR 455. This decision addressed the opposite situation to the one that arises here. The appellants were convicted by a jury. Subsequently, Connell J heard care proceedings in which he had to consider the same allegations made against the appellants in the criminal trial. He concluded:

“However, this evidence is not sufficient to satisfy me that he did not commit these offences and the situation in which this court is left is that I do not know whether or not he committed the conspiracy offences although I do know that he has been convicted of them… it is not my function in any way to act as some form of appellate court from the verdicts of the jury and therefore I must proceed on the basis that Jay did commit the offences of which he has been convicted.”

That said, Connell J made a number of findings which were said to be “capable of being relevant” to the appeal, and in particular the credibility of some of the complainants. If Connell J’s judgment had preceded the criminal trial, it would not have been admissible in the criminal proceedings. This court was therefore prepared to “consider” Connell J’s judgment in order to examine whether any material in it might throw light on the safety, or otherwise of the convictions. It would or might provide “fresh evidence”. So, for example, if the judge found that the child or children in question had been lying, following the well known line of authorities of which R v Edwards [1991] 93 CAR 48 and R v Williams and Smith [1995] 1 CAR 74 were illustrations, that finding might form admissible material at the hearing of the appeal. In short, matters discreditable to witnesses which occurred after the trial could be examined in this court on appeal if they were relevant to the subject matter of the appeal. On analysis, this decision takes the argument no further. The court did not decide that the hesitation expressed by Connell J would or should provide a viable ground of appeal against conviction. What mattered was whether his judgment provided material requiring further consideration. His conclusion, of itself, did not.

There was some discussion whether this decision provided authority for the proposition that the court will “receive” or admit inadmissible evidence. On analysis, it is not. What the court can do is to examine material which may produce properly admissible evidence. To the extent that admissible evidence emerges, and assuming that the other conditions for the reception of fresh evidence are satisfied, the evidence will be “received”. The decision did not cast doubt, or purport to cast doubt on the familiar passage in R v Lattimore [1976] 62 CAR 53, where Scarman LJ said:

“…It is also inconceivable that the court would receive inadmissible evidence; for the court must act according to law.”

Rather, the court repeated the passage of the judgment of which this observation forms part with approval.

We must now come to decisions reached by experienced trial judges which support the appellant’s submission. R v Steidl and Baxendale-Walker was concerned with a prosecution for serious fraud. In civil proceedings, despite evidence to suggest a powerful case for dishonesty, a High Court judge concluded that the claimant had failed to establish that the defendant, Baxendale-Walker, was acting dishonestly, or intentionally “driving what he knew to be a dishonest transaction”. Judge Wadsworth QC was concerned at the possibility that the criminal prosecution might produce a conflict between the decision of the High Court judge, and the finding of a jury on precisely the same point. He concluded that the prosecution should be stayed on the grounds that it was “against the public interest that the criminal case should proceed …in that the necessary effect of such a proceeding would be to re-litigate the issue with a view to achieving a result on the facts inconsistent with the findings of fact already made in a final judgment of the High Court”.

In R v Stocker Judge Gordon was due to try a case very similar to the present one. In care proceedings Hedley J had concluded that a mother had killed her child, but he was positively satisfied that she lacked the intention requisite to establish murder. Nevertheless the Crown alleged and intended to prosecute her for murder. Judge Gordon decided that although the allegations of manslaughter could proceed, the allegation of murder should not. It would amount to an abuse of process for the “issue of the defendant’s state of mind” to be litigated again. It would not be “in the public interest in view of the nature and strength of the ruling of Mr Justice Hedley”. These decisions are relied on by Mr Campbell-Tiech. The reasoning in them reflects his argument before us.

The Crown submits that they were wrongly decided, and that Beatson J’s contrary decision in the present case reflects the essential principles. After a meticulous recital of the respective arguments, he reasoned that the principles which underlined the decisions in Hunter and Smith v Linskills should be examined on the basis that they were “cases of attempted re-litigation in circumstances in which the person seeking to re-litigate had had a full opportunity to take part in and contest the earlier proceedings”. The pre-eminent concerns highlighted by these decisions were the problems created by “re-litigation by the same party”. If the appellant’s submissions were correct, the consequence would be that the “prosecution authorities would be foreclosed by a decision in which they have taken no part, on evidence presented in part for a different purpose, which they have not been able to test, and in respect of which they have had no right of appeal. As there was nothing to suggest that the Crown had not reached a properly considered decision, the case should proceed.”

In this case, the purpose of the Children Act proceedings, and the questions with which they were ultimately concerned, were to establish where and with whom JL should live, and the arrangements required for his future upbringing and welfare. The focus of the decision was whether or not the statutory criteria set out in section 31(2) of the Children Act 1989 were established. The making of a care or supervision order depended on whether, in the light of the care which he would or would be likely to receive if he continued to live at home with his mother, J (not E) would suffer or would be likely to suffer significant harm. J’ welfare was the paramount consideration. Although concern about him flowed from E’s death, the proceedings brought and conducted by the local authority were not criminal proceedings in which the ultimate question for decision was whether the appellant had killed E. Neither of E’s parents was being prosecuted. No one was. And whatever the outcome, neither was, nor could be, convicted or acquitted of a criminal offence. For this purpose, the court responsible for the care proceedings was bereft of jurisdiction. It was not “competent” to decide criminal proceedings.

We are being invited to conclude that although Hedley J’s decision and findings in the care proceedings were inadmissible at the appellant’s trial (Hollington v F Hewthorne & Co Limited [1943] KB 587 and R v David D; Philip J [1996] 1CAR 455), nevertheless his decision was conclusive, or should be treated as if it were conclusive, of the criminal proceedings, and that it was an abuse of process for the prosecution to seek to prosecute the appellant to conviction before a jury. In effect, therefore, if this is right, to the extent that it was favourable to the appellant, the decision in the care proceedings resulted in a terminating, unappealable ruling against the prosecution in the criminal proceedings, which by long established constitutional principle should, unless the defendant pleads guilty, be decided in open court by a jury, or magistrates. This would be an astonishing result of litigation in care proceedings to which the prosecution was a stranger, and which were ultimately concerned with the future care and welfare of J rather than criminal responsibility for E’s death.

In our judgment the decision in the care proceedings was not, and could not be, a final determination of the criminal proceedings. Moreover, no question of autrefois acquit, or issue estoppel, or double jeopardy could arise. Even if Hedley J had invited the Crown to attend the hearing of the care proceedings as an interested party, and said in terms (and he did not) that he intended his decision finally to decide the outcome of all proceedings involving the appellant, for the purposes of criminal proceedings, any such observations would, on proper analysis, have been meaningless. In the language of Lord Lane in Imperial Tobacco Limited v Attorney General, the criminal court would not be bound by any such pronouncement. Moreover,if the second trial of Humphrys, following his acquittal at the first trial, did not constitute an abuse of process, it is difficult to see how any purported “acquittal” of the appellant in the care proceedings could do so.

We must return to public concern of the kind identified by Sir Thomas Bingham in Smith, and relied on by Mr Campbell-Tiech. In our view, once it is appreciated that in the care proceedings the appellant was not being prosecuted, and that he was never at risk of conviction, and that the judge who decided those proceedings lacked jurisdiction finally to exonerate or condemn the appellant and, if to condemn him, to pass sentence, any such concerns would be quickly extinguished. Indeed public concern might be greatly engaged if it were thought that criminal proceedings affecting the public interest, and in this case the death of a baby, had in effect been decided by a court lacking due authority, and not “competent” for the purpose. These concerns would be that much greater, if, as here, the determination were made in private.

The simple reality is that the Crown did not accept the correctness or applicability of Hedley J’s reservations whether E’s death was a homicide. Moreover, given the Crown’s view that it was indeed homicide, an analysis of the timetable of events served to demonstrate that although both parents had the opportunity to inflict some of the injuries, the incidence of airways obstruction on 15^th September appeared to have occurred when E was in his father’s care, and E’s death, whatever its cause, occurred at a time when the father, not the mother, had assumed direct personal care for him. No doubt before the Crown elected to continue with the proceedings, it reflected, as it always should, long and hard on Hedley J’s judgment, and in particular in the context of the public interest test adopted by prosecutors in the Code of Practice, whether the criminal proceedings should be continued. Nevertheless, after such reflection, the decision, and ultimate responsibility for it, remains with the Crown. Accordingly, properly analysed, the decision by the Crown to continue with the prosecution of the appellant, and the eventual verdict by the jury, could not reasonably be regarded as an affront to the administration of justice.

In our judgment there was no abuse of process, and Beatson J’s decision that the prosecution should be allowed to continue was right. To the extent that they suggest the contrary, the decisions in R v Steidl and Baxendale-Walker and R v Stocker were wrong. This ground of appeal fails.

Counsel for the Crown was not pressed by Beatson J, and he did not explain why the Crown was proceeding with the trial. He took his stand on the principle that as the Crown was not abusing the process of the court, it did not need to explain or justify the decision. We recognise that on occasion endeavours to justify or explain the Crown’s decision might be productive of satellite litigation. In this case, there would have been an argument before Beatson J about the correctness, or otherwise, of Hedley J’s decision, the Crown seeking to demonstrate to Beatson J that Hedley J was wrong, and the appellant contending that it was right, and that in any event Beatson J could not and should not interfere with it. The disadvantages of such a course are obvious.

We do not, however, endorse the Crown’s submission that, in circumstances like the present, it cannot be required to explain or justify the decision. In our judgment, if the judge seeks an explanation, even if in brief form, it should be provided, and unless there are grounds for impugning it, that should normally suffice. This seems to us consistent with principle. We do not accept that the court is prohibited from inquiry, and explanation. We doubt whether there can ever be any such prohibition. Quite apart from the need for the judge properly to address any abuse of process argument as he thinks fit, this case, and others like it, may cause the judge to require an explanation in the wider public interest, even if publicity for the explanation is deferred. This, again, is merely illustrative of judicial control of the process. In the present context, there is an additional consideration. Section 11 (1) of the Civil Evidence Act 1968 makes the appellant’s conviction admissible in civil or family proceedings. He is now to be taken to have been responsible for E’s death, “unless the contrary is proved”. The potential for complication in further proceedings about J’s future is obvious. In short, the Crown’s decision to continue with the criminal proceedings may, and in this case will, have a continuing impact on subsequent care proceedings. Of itself, this tends to reinforce our view that if and when the judge trying the criminal proceedings seeks an explanation for the Crown’s decision it should be provided.

We can deal briefly with the remaining grounds of appeal. It is submitted that the evidence relating to the anal fissure should have been excluded. Counts 6 and 7, which charged wounding with intent, alternatively wounding, on the basis of the second anal fissure were severed from the remaining counts, but when the judge made his order, he had indicated that his ruling did not determine issues of admissibility. It was argued on behalf of the appellant that the evidence relating to the anal fissure did not go to any issue in the trial, and was tenuous and contradictory and, because it implied sexual abuse, scandalous. Dr.Hobbs considered that the fissure represented evidence of abuse. However, neither Professor Risdon nor Dr.Watkeys was prepared to express the same view. Even if admissible, this evidence should have been excluded under section 78 of the Police and Criminal Evidence Act. The Crown’s contention was that all the injuries discovered on this baby over a short period should be before the jury, not least because the opinions expressed by Dr.Hobbs were formed at least partly in the light of the anal fissure.

Beatson J concluded that the evidence was admissible. We agree. All the evidence of injuries to E, as well as any possible natural or innocent explanation for the anal fissure, was admissible. In fact Beatson J imposed strict limits on the extent to which this evidence could be deployed, and restricted it to material which might explain how, unless the explanation for the injury was that something had emerged from the rectum, the kind of object might cause such an injury. In our judgment he was entitled to reach these conclusions. Any potential prejudice did not outweigh the probative value, and as the case unfolded, when the judge came to sum the issues up to the jury, he carefully explained the different expert views. No complaint is made about the judge’s summary of the evidence to the jury.

Mr.Campbell-Tiech then submitted that, where there was a known pool of individuals who had the opportunity to commit an offence, the identity of the actual perpetrator could not be sufficiently proved by the Crown calling as witnesses all those from the pool who might have committed the offence, and asking each in turn whether or not he or she had in fact committed it. The contention was that all that distinguished the appellant from E’s mother and indeed other family members, was the Crown’s decision that the appellant should be prosecuted. Mr Campbell-Tiech suggested that to proceed in this way was to rely on a fallacy, and to reverse the burden of proof. We reject these submissions. It is certainly permissible for the prosecution to call all the other possible candidates who had an opportunity to have committed a crime in order to ask each whether they had in fact committed the offence, and enable the jury to decide whether the individual in question should properly be excluded from consideration as the perpetrator of the crime. Indeed, if it were going to be suggested on behalf of the appellant that someone else might have been responsible for E’s death, common fairness demanded that any potential candidate should have an opportunity to meet the suggestion head on. In our judgment the course adopted here was entirely appropriate.

It was then submitted that the judge should have upheld a submission on behalf of the appellant that there was no case for him to answer on manslaughter. The Crown were relying on the evidence of Dr.Hobbs, who did not advance any alternative hypothesis to the view expressed by Professor Risdon, that the cause of death was “unascertained”. In our judgment, the issue whether E was the victim of homicide, or died a natural death, was pre-eminently an issue for the jury. Beatson J considered the evidence of how the child looked when he was found, and the position of the bed clothes, together with the evidence of airway obstruction and the sad picture of serious injuries inflicted over a short period and decided that this evidence was sufficient to enable the jury to conclude, if they saw fit, that E was unlawfully killed. There plainly was a case to answer. Any other conclusion would have usurped the function of the jury. It was accepted by Mr Campbell-Tiech that, if it was right to leave the jury to decide whether E was unlawfully killed, there was sufficient evidence for a jury to conclude that the appellant was responsible.

Next, it was suggested that the judge should not have directed the jury to defer consideration of count 2 until they were satisfied that they should convict the appellant on at least one of counts 3, 4 or 5. The argument is that the ruling tended to conflate the issues on the different counts, and to undermine the impact Professor Risdon’s evidence about the cause of death. If anything, Beatson J’s reasoning was over-favourable to the appellant. He reasoned that since the Crown’s case on manslaughter depended at least in part on the history of other deliberate injuries inflicted on E, it would not be safe for the jury to convict on count 2 unless they were first satisfied that the appellant was responsible for one or other of the earlier injuries. This erected a possible obstacle to the appellant’s conviction for manslaughter. Far from rendering the subsequent conviction unsafe, the judge’s ruling ensured that the correct process to conviction was rigorously maintained.

As his final submission, Mr.Campbell-Tiech suggested that this was a case in which the court should apply the “lurking doubt” principles. In effect, this argument brings us round in full circle to Hedley J’s decision in the care proceedings. Although we have carefully considered Hedley J’s judgment, we are unpersuaded that it should lead us to doubt the safety of these convictions.

This appeal will be dismissed

Until relatively recently, the problems addressed in this case were most unlikely to have arisen. It was once thought that where the facts of an individual case might give rise to a criminal prosecution, the prosecution should be concluded before any care or equivalent proceedings took place. This no doubt reflected a former rule of law that civil proceedings could not be pursued until the conclusion of criminal proceedings. However, since the advent of the Children Act 1989, with its emphasis on the paramountcy of the welfare of any child the subject of care proceedings, and the consequent need for expedition in the disposal of such proceedings, the position has changed. The current practice is summarised in the judgment of Butler-Sloss LJ, in re TB (Care Proceedings; Criminal Trial) [1995] 2 FLR 801.

“One starts with the fact that the criminal proceedings of themselves are not a reason to adjourn the care proceedings. There must be some detriment to the children in the broadest terms for not bringing on the care proceedings because delay is detrimental generally to the children…I think that we do have to hold the line that in the majority of cases, unless there are circumstances which warrant taking a different course, that the care proceedings should come on, even if they are to be heard before the criminal proceedings. That is in line with the President’s ruling and it is a ruling which this court ought respectfully to follow. ”

Nothing in this judgment should be taken to suggest or imply that any alteration in the practice of the Family Division is called for.

We emphasise however, that because procedural and evidential difficulties can arise when there are in existence parallel care proceedings in respect of a child and criminal proceedings against a person connected with that child in respect of a serious offence against the child (or any person connected with the child), it is essential that there should be close liaison between the local Social Services Authority conducting the care proceedings and the Crown Prosecution Service. Wherever possible, linked criminal and care directions hearings should take place as the cases progress. Since November 1993 there has been in operation in the Greater London area a Practice Statement issued by the Presiding Judges and the Family Division Liaison Judge for London with the approval of the Senior Presiding Judge, which sets out a scheme for the purposes of identifying cases where difficulties are likely to arise and provides for linked direction hearings to take place in the Crown Court to which the criminal case has been committed before one of a number of judges nominated for the purposes of the scheme.

The main object of the scheme is to timetable both the criminal and the care proceedings, to decide which should be heard first, and to ensure that each is heard without avoidable delay. This includes determining whether the care proceedings should be heard in the High Court or the County Court. It provides for close liaison between the judge and the listing officers in the Crown Court, and the Principal Registry at the Royal Courts of Justice. The further object is to determine so far as possible the procedural and evidential issues in one case which impinge upon the other. These include disclosure of evidence as between the two sets of proceedings; requests for third-party disclosure in the criminal proceedings and any issues of public interest immunity arising there from; and any requests for leave to interview children in care for the purpose of the criminal proceedings. The statement also provides that, where directions in linked care and criminal proceedings are not complied with, the case must immediately be restored for hearing before the directions judge. A similar scheme is at present being developed for the use in the Manchester area.

When this case came before Hedley J, it had not been the subject of such co-ordination or directions and we are told that it was not until a very late stage that the Crown Prosecution Service were aware of the state of the care proceedings and the evidence available within them. That is a most undesirable state of affairs, which we hope will be avoided in future as schemes, such as the London scheme to which we have referred and which we endorse and encourage, are instituted nationwide.