Pink, R. v

LORD JUSTICE LATHAM: This is an application for leave to appeal against conviction which has been referred to the full court by the Registrar. The applicant was convicted on 9th June 2005 in the Crown Court at Northampton of manslaughter by a majority verdict of 11 to 1 and was sentenced to four years' imprisonment. He was acquitted of a second count on the indictment which alleged cruelty to a child under 16.

The sad story relates to a child, Bobby, who was at the time that he died five months old. He had been born on 14th August 2002 and was the child of the applicant and Paula. The applicant and Paula lived with Paula's two other boys, aged 8 and 10.

Bobby had suffered from a number of medical conditions at and after birth. He had an enlarged head and a heart murmur and other conditions which meant that he was frequently seen by the consultants at the local hospital. It is right to say that until the events of the day in question no one had any cause for concern about the way in which Bobby was being cared for.

In order to deal with some of the problems resulting from his disabilities, the applicant and Paula organised their lives so that someone was always with Bobby. They effectively looked after him in shifts; and the events of the night in question which were relevant took place after Paula had given Bobby a feed and then retired herself to bed, leaving Bobby with the applicant downstairs on a sofa bed. That was in the early hours of the morning of 19th January 2003.

At some point the applicant realised that Bobby was not breathing. He had collapsed. In accounts that he gave later in interview and subsequently at trial, he said that he had fallen asleep, for which he blamed himself, and when he woke up Bobby was on his face and when he picked him up and turned him over he realised that he was not breathing. There was mucus in his nose and mouth. He sought to extract the mucus and he gave resuscitative measures to Bobby as he had been taught by the doctors, but was unable to make Bobby breathe spontaneously. He called for Paula. Unfortunately there was no telephone working in the house; so Paula had to run up the road to find a telephone in order to summon the ambulance service. An ambulance arrived shortly before 6.00 am. The ambulance men when they arrived saw that the child was not breathing and sought to provide oxygen and other treatment in order to encourage him to breathe spontaneously. Unhappily, he never did breathe spontaneously thereafter.

Bobby was rushed to hospital where he was seen by the doctors. The position at that stage was, as we have indicated, that he needed to be put on a ventilator. It is clear and it was the evidence of the doctor who received him into hospital that by the time he arrived at hospital the situation was irretrievable. The doctor saw extensive haemorrhages in his eyes. A CT scan taken at about 8.00 am, in other words within two hours of the emergency call, showed evidence of very recent haemorrhage on the brain surface. That was bilateral; it was across the surface of the brain, but there was no swelling of the brain apparent on that scan at that time.

The account given to the doctors by the applicant as to what happened accorded with the account that he gave to the court later, namely that he had dropped off to sleep and when he awoke the child was on his front and not breathing. The doctors who then saw and spoke to the applicant described him as polite, cooperative and distraught - in other words behaving entirely appropriately to the account that he had given. The child was transferred to Addenbrookes. The circumference of his head was then measured and ultimately after death it was found it had increased by 0.8 of a centimetre. All scans taken after death showed that the brain had swelled. Death in fact occurred when he was taken off the ventilator late on 20th January.

No signs were seen by any of the doctors at the hospital of any bruising or other marks to the child; the only external evidence of any traumatic event was the bleeding to the retina.

The post mortem was carried out on 21st January by Dr Carey with a Dr Jessop present. The agreed findings were that there were no external injuries but there was an extensive subdural haemorrhage which was old (subsequently described as probably having occurred between seven and 14 days before the child's death), there was fresh subdural haemorrhages over the surface of the brain and also within the fold in the centre of the brain. There were sub-arachnoid haemorrhages to the brain. There was evidence of widespread brain damage due to ischaemia (that is lack of oxygen), and there were retinal haemorrhages in both eyes and subdural haemorrhage around the optic nerves. The evidence was such as to give rise to the question of whether or not the injury to the brain resulting in the child's death had been caused by some form of shaking shortly before the child's collapse; the sort of handling which the prosecution ultimately suggested was violent shaking of the baby in such a way that the brain was moved around within the skull causing damage both to the brain and to its blood vessels resulting in the haemorrhaging which was seen post mortem.

The classic picture of what has now become known as non-accidental head injury to an infant caused by mis-handling by an adult is that there should be present three particular features. First, subdural haemorrhage; secondly, encephalopathy (damage to the brain structure itself); and retinal haemorrhages. This has become known as the "triad" of injuries, the coincidence of which is considered to be the hallmark of a non-accidental head injury.

The position in the literature is that, as Professor Risdon, one of the witnesses at trial accepted, one should look for all three in order to establish the diagnosis of non-accidental head injury. But that is not the uniform view of all those who have been concerned in this area, as is recorded in the judgment of this court in Harris and others [2005] EWCA Crim. 1980, at paragraph 56.

The form that the trial took in the present case was entirely in accordance with the way in which cases such as this should be dealt with. There was first a hearing in November 2004 at which the question of whether or not there was satisfactory evidence to go before the jury as to there having been non-accidental head injury was considered; and it was concluded by the judge that there was. When it came to the trial itself the evidence included the evidence of the ambulance men, the doctors who had seen the baby, the applicant at the hospital and then an array of experts including Dr Carey (the pathologist who carried out the post mortem); Professor Carty, a consultant paediatric radiologist who considered the findings at the post mortem; Dr Al-Sarraj, a consultant neuro-pathologist to whom the brain and the spinal cord were sent for further consideration; Professor Luthert, a Professor of Pathology at the Institute of Ophthalmology in the University College London, who is an expert in damage to the eyes; Professor Risdon, who was a paediatric forensic pathologist who was called to give an overview of the evidence of the other doctors, he being a doctor who had particular expertise in this area and was a member of the Kennedy Committee which was looking at the problems presented by the evidence in such cases. Finally, on behalf of the applicant, Professor Whitwell, a neuro-pathologist.

The issue at the end of the day between the prosecution experts and Professor Whitwell boiled down to whether or not there was a possible explanation other than non-accidental head injury for the damage found in this child's brain after his death. It was Professor Whitwell's view that it was possible that the injuries that were found could have been caused by overlaying - that is that the applicant whilst asleep may have rolled on top of or otherwise found himself on top of the child in such a way as to cause asphyxia to the child which could account for at least some of the findings of the other doctors. She considered that as far as the subdural bleeding was concerned, that could have been a re-bleed from the earlier bleeding episode which had undoubtedly taken place and she accepted would appear to have been a traumatic and not natural event; the asphyxia would account for the encephalopathy; as far as the haemorrhages to the retina were concerned, she at first was putting forward the hypothesis that the swelling of the brain itself might have in some way caused that damage. She was unable to explain how it came about that there would have been fresh bleeding in the fissure between the two brain hemispheres which she acknowledged was clearly visible on the scans and was found at post mortem and could not be a re-bleed.

So far as the prosecution witnesses were concerned, they had been of the view that the classic triad was present here: the damage to the retina, the subdural bleed and the encephalopathy and that there was no other available explanation other than non-accidental head injury.

There was some debate during the course of the evidence as to whether or not the triad was indeed necessary for the diagnosis of non-accidental head injury; and there is no doubt that so far as Dr Carey (the pathologist) and Professor Risdon were concerned, they considered that it was not essential and that two of the findings would be sufficient. Dr Al-Sarraj, however, took what might be called the purist line and concluded that all three had to be present; but he considered they were on the evidence in this case.

One of the central features of the applicant's application to us today is that the judge failed to approach this question of the presence or otherwise of the triad properly. It is submitted that in cases such as this where there is no external injury and where the evidence otherwise shows that the defendant is a caring parent, it is essential that the court approaches the diagnosis of non-accidental head injury with the utmost care and that that in effect requires a court to be conservative, like Dr Al-Sarraj, and look always for the presence of the triad. It is submitted that in the present case the triad was not securely established for this reason, namely that Professor Luthert who had originally given it as his view that the haemorrhaging into the retina was between 24 and 48 hours old - in other words could only have been the episode which had resulted in the baby's collapse on the early morning of 19th January and could not have been anything to do with the earlier incident - subsequently modified his view to this extent: his view that it was 24 to 48 hours previously was because of the absence of haemosiderin (which is a product of the blood when it degenerates) and the accepted period before haemosiderin becomes apparent is 24 to 48 hours. However, he had had to modify that view by reason of the fact that on one occasion before his first report was written for the purposes of the trial, he had found that there was no haemosiderin present when the trauma must have been about seven days previously; and that was not something which was entirely random because he had discovered a subsequent case in which it was similarly found that there was no haemosiderin after a period of approximately seven days. He was therefore unable to say for certain that the haemorrhaging in this baby's eyes was only 24 to 48 hours old. However, it was his clear view by reason not simply of the fact that usually haemosiderin will start to be detectable after 24 to 48 hours, but also the nature of the actual haemorrhages themselves, that it was most likely that the event which caused the haemorrhaging had taken place within 24 to 48 hours.

Mr Farmer on behalf of the applicant, and this is the central point of his case, submits that it accordingly could not be said by the prosecution that they had satisfactorily established the triad and that the judge should have so directed the jury. As it happens in relation to the triad what the judge said at page 48 of the summing-up, after dealing with the fact that Dr Carey had said that you do not necessarily need all three of the findings, was this:

It follows that that central argument of the applicant is, in our view, devoid of merit and there is no basis upon which we could interfere with the verdict of the jury on the basis that in some way the evidence was insufficient to justify the conclusion that the jury came to or that the judge inadequately or inappropriately directed the jury in that regard.

Essentially, Mr Farmer accepts that if he has not been able to establish that central plank of his argument to us, the remainder of his arguments really are unlikely to take the matter much further. The position in fact was that the case against this applicant on the medical evidence was extremely strong. It was not simply that the consistent evidence of all the prosecution witnesses was to the effect that this was indeed a case of non-accidental head injury with no possible explanation apart from that. But also the only possible mechanism suggested on the applicant's behalf was that of Professor Whitwell which carried with it inherent difficulties. We have already referred to the fact that there was no explanation from her and could be none as to the presence of fresh bleeding in the fissure between the two brain hemispheres. The fact was that if the jury accepted the evidence of Professor Luthert, then there was no sensible explanation for the retinal haemorrhages either. Essentially the only real injury which could be fully and satisfactorily explained by Professor Whitwell, her theory of there having been overlaying, was the encephalopathy which undoubtedly, if there had been asphyxia, would have been the consequence.

Criticism has been made by Mr Farmer of the evidence in particular of Professor Risdon. It is said that he resiled, returning to the triad point, from a published paper in which he asserted that the triad was necessary and at trial was prepared to say that only two of the findings were necessary. In fact a proper reading of that paper makes it plain that he was not asserting that it was only in the event of the triad that one could conclude there was non-accidental head injury; he was simply setting out what we have referred to as the 'conservative view' which is that one should look primarily for the triad.

It is suggested that at some point in Professor Risdon's evidence he strayed out of his specialty in seeking to say that Professor Luthert was incorrect in his expressed view that he could no longer rely on the lack of haemosiderin in itself to identify the time at which the injury had taken place. The fact that the Professor may have been giving evidence on or trespassed into the space of another specialist was mentioned by counsel for the applicant to the jury in his submissions and indeed in cross-examination and the judge fairly and fully in our view pointed that out in his summary of the prosecution and the defence case at the end of the summing-up.

Looking accordingly at the grounds of appeal which are directed to these central issues, we consider that there is no merit in them. We have not referred to the factual dispute which there was between the ambulance men and the applicant as to what was or was not said by the applicant when they arrived at the house. It seems to us it is not necessary to go into that particular area. In any event we could not be confident as to what view the jury may have taken of the respective recollections of the ambulance men on the one hand and the account given by the applicant on the other.

We turn to the last ground of appeal which is based upon the fact that after the trial was over and the applicant's counsel was leaving court, one of the jurors came up to him and handed him a document. That document which we have read indicates that whoever prepared that document had been searching the internet in relation to some of the technical aspects of the case and had come to conclusions adverse to the care of the child, in particular by the paramedics, which were entirely in favour of the applicant's case.

We have been referred quite rightly to the case of Karakay [2005] EWCA Crim. 346 in which this court once again said that a jury trial must take place in circumstances where all the material considered by the jury is open both to the public (in the sense that it is said or read in court), but also available to both defence and prosecuting counsel so that they can ensure that they know and have an opportunity to comment upon anything which the jury takes into account. That is why it is commonplace for judges to remind jurors before the commencement of a trial not to talk about a case to anyone else on the basis that material might affect the juror's mind, and therefore ultimately the jury's verdict, which no one had had an opportunity to consider and determine whether it was accurate or otherwise. That, this court has said, applies equally to searches on the internet and for the same and obvious reasons. If there is in any case the slightest possibility that such a search has been made and may have affected the jury in a way which is adverse to the defendant, then this court is likely to conclude that the verdict is unsafe, although that would depend upon all the circumstances. In the present case, the material that we have shows that to the extent that there has been any breach of that principle, the fact is it could not affect the safety of the conviction for the reason inherent in what we have said about what the material consisted of. In those circumstances, there is no basis upon which the applicant could obtain leave to appeal on that ground either.

For the reasons that we have given, we consider accordingly that this application must be refused.