On 20 March 2009 we allowed the appeal against conviction of Jasmin Schmidt on two counts of inflicting grievous bodily harm contrary to Section 20 of the Offences against the Person Act 1861. We now give our reasons.

The conviction was on 5 August 2008 at the Central Criminal Court before Mr Recorder Gold Q.C and a jury. Having been convicted, the appellant was on 8 September 2008 sentenced two concurrent terms of three years imprisonment on each count and disqualified from working with children. She was given leave to appeal against conviction by the Full Court, following refusal by Jack J. He, however, granted leave to appeal against sentence.

The case has a long history and concerns events in September 2002. The appellant is a German national and qualified as a paediatric nurse in September 1997. She moved to London in April 1998 and began working with families looking after children.

M was born in July 2002. His parents, to whom we shall refer as “the mother” and “the father” lived in North Yorkshire and owned a designer clothes shop in Harrogate. On 10 September 2002 they made a family visit with M to London for the London Fashion Week. It was a business trip and the purpose was to buy clothes for the shop. As it was a business trip, arrangements were made with friends and family to help with M’s care. A family friend, to whom we shall refer as “the friend” and who was a retired mid-wife looked after M from 10 – 12 September. The maternal grandmother (to whom we shall refer as “the grandmother”) travelled to London on 13 September to be with the mother and the father and also helped.

The appellant was hired as a night nanny to look after M. She covered the nights of 12, 13 and 14 September. On the morning of 15 September, after the appellant had left, M appeared pale and was cold to the touch. He was taken to St. Mary’s Hospital Paddington where a CT scan showed bilateral subdural haematomas, an injury that can be caused by shaking. A skeletal survey taken on 16 September showed a fractured right ulna near the elbow and an eye examination showed haemorrhages in both retinas. The Crown’s case was that the injuries were caused non-accidentally by the appellant while M was in her care during the night of 14/15 September. The defence case was denial. It was common ground that the injuries were caused non-accidentally. There were limited candidates for who the perpetrator might be. The judge directed the jury there were just four, the appellant, the grandmother, the mother and the father.

Following discovery of the injuries to M, the local authority took care proceedings. An eight day ‘threshold’ hearing took place before Charles J. in the Family Division under s.31 of the Children Act 1989. He held that M had been injured non-accidentally on 14/15 September 2002 when he sustained head injuries and a broken arm but that at least seven or ten days before that he had sustained an earlier head injury. He did not exclude the parents, the grandmother or the appellant from being the possible perpetrator of the injuries caused on 14/15 September but was unable to identify any individual as responsible.

Charles J’s finding of two incidents of non-accidental injury was based on neurological evidence that imaging taken when M was being treated in hospital showed separate collections of fluid in the subdural region of different appearances which suggested bleeds of different ages. The possible earlier injury would have occurred between mid-July and 8 September 2002. The case went to the Court of Appeal for reasons that have no relevance to the present appeal. The Court of Appeal concluded that, on the evidence, there was no real possibility that the appellant had caused the injuries to M on the second occasion. The appellant had, of course, had no contact with the family at the time when the first injury, if there was one, must have occurred.

A decision was taken in July 2003 not to prosecute the appellant, or indeed anyone else. However, in August 2006 following quite separate allegations against the appellant, of which she has since been acquitted, it was decided to revisit the neuro-radiological evidence. Fresh evidence was obtained from Dr Neil Stoodley, a consultant neuro-radiologist and Mr Peter Richards, a consultant neurosurgeon.

The outcome of the Family Division proceedings was, of course, irrelevant to the issue that the jury had to decide. The judge mentioned in summing up the fact that the jury was aware of them and that they had resulted ultimately in M being returned to his parents and that there were no findings of fact attributing any blame to any particular person in relation to the non-accidental injury that M had sustained.

What has changed since 2003 is that the preponderance of medical evidence at the trial in 2008 suggested that there had only been one bleed rather than two and that M had suffered non-accidental injury on just the one occasion and at a time when the appellant was looking after him.

Before turning in detail to the medical evidence it is necessary to refer in a little more detail some of the background evidence. The mother and the father had been trying to have a child for some years before M was born. The mother miscarried M’s twin early in the pregnancy. After M’s birth, perhaps understandably, she was a particularly anxious parent, seeking reassurance when anything seemed to be wrong. Shortly after his birth M was seen by a cranial-osteopath in an attempt to make him less fractious. On 11 August 2002 he was taken to hospital following projectile vomiting and vomiting which had started the previous day. On 8 September the mother contacted NHS Direct following difficulties in feeding him. She was advised over the telephone to take M to a general practitioner. However, an hour or so later she phoned to say that he had improved and she would not be taking him.

It was the Crown’s case that M had been seen by a number of professionals at time when there would have been signs of an earlier injury if he had suffered one, but that no one had seen anything or expressed any concern about him having possibly sustained a significant head injury.

On 21 August 2008 the family went on holiday to Switzerland, returning with M on 4 September. He received his vaccinations on the 5 September. During the time in Switzerland M had been unsettled at times and the mother had to take him away from the rest of the party so that they could get a proper sleep.

On 6 September there were staffing difficulties in the business and the mother had to work in the shop. M went with her but the following day she left him with a friend, although there had been the feeding difficulties to which we have referred that caused her to contact NHS Direct.

The family first met the appellant in the London flat at about 6pm on 12 September. She came with excellent references and the mother and the father were impressed with her. She cared for M overnight and left at 7.30am on the 13 September. Thereafter the arrangement was for the appellant to look after M from 10pm until 7am.

The grandmother arrived in London from Yorkshire on 13 September and looked after M while she accompanied the mother and the father to various business meetings during the day. She was already in bed when the appellant arrived to start work, as arranged, at 10pm. The mother and the father did not go out that night. The appellant slept on a sofa-bed in the living room. M was carried down the spiral staircase by the father in a Moses basket and M slept with the appellant in the living room. The mother saw the appellant at 7am and she left at 7.30am. Nothing happened that caused anyone any concern.

On 14 September M was again taken by his parents and the grandmother to various business meetings in Central London. They returned to the flat at about 6pm and the mother and the father went out at 8.15pm to celebrate a friend’s birthday. The mother was very tired and did not want to go out. The grandmother seemed worried and looked tired.

M was alone with the grandmother between 8.15pm and just before 10pm when the appellant arrived. The appellant had sole care of M until the morning, sleeping with him in the living room overnight.

When the mother went downstairs in the morning she found the appellant fully dressed, in the kitchen, reading. This was the only occasion on which she had been dressed and ready to go. This evidence was disputed by the appellant. None of the occupants of the house had heard any unusual crying or noise during the night.

The mother’s evidence was that she asked the appellant how M had been and that she replied he had woken up at 1.30am and taken three ounces of milk. He had woken up again at 6am. The appellant had not fed him at this stage and had made some reference to M being angry or cross and that she had swaddled him. The mother also stated the appellant referred to having had to “hit” or “pat” M quite hard on the back to get him to sleep. She also stated that “ridiculously I said that I have to hit him quite hard to wind him”. The mother agreed that she had not mentioned this conversation to the hospital staff when M was being treated and denied that she was trying to cast blame onto the appellant. She stated that the comment had not led her to believe that the appellant was admitting inappropriate behaviour and that she wished she had never mentioned the conversation as it was entirely irrelevant.

The mother also said that the appellant had told her that M was asleep and that she should let him sleep until 7.30am. Unlike the previous occasion she did not appear as if she wanted to stay and chat. However, the mother accepted in cross-examination that the appellant was probably in the kitchen for about 20 to 25 minutes before leaving at 7.25am.

The mother stated that she had her breakfast and went into the room where she looked at M “for quite a while”. The room was dark and the curtains were shut but he appeared very peaceful. When she opened the curtains he stirred and the mother stated that she saw he had dried milk around his mouth. When she picked him up to start feeding he made a “high pitched whimpering sound” and looked pale and felt cold. His nappy was dry but he had “done a poo”. She changed his nappy. In evidence the mother said that he did not feed properly. However, in cross-examination she accepted that in an earlier statement she had said he “fed really well”.

The evidence of the family was that at this stage M was taken to the grandmother who suggested that he be taken to hospital. M was described as “becoming more lifeless”. A phone call was made to the appellant to see if she could help but she could not. The grandmother described M as grey and limp. The journey time to the hospital was said to be five minutes.

The appellant’s evidence was that following her first night with M she went out with a friend from Germany before returning on the evening of Friday 13 September. M woke her once during the night. She changed his nappy and fed him. She spent the Saturday with friends and arrived at 10pm when the grandmother was there. The appellant carried M down the spiral staircase in his Moses basket. M woke between 1 and 1.30am. He sneezed, his nose seemed blocked and he was a little unsettled. He was also very windy. He took only three ounces of milk at 1.30am. She burped and swaddled him and returned him to his basket where he went back to sleep.

At 6am M awoke. The appellant picked him up re-swaddled him and returned him to the Moses basket. She did not feed him because the mother was trying to get him into a routine. This was the last occasion on which she held M. She noticed nothing wrong or out of the ordinary.

The fractured ulna was not discovered until it was seen on an x-ray taken on 16 September 2002 i.e. the day after M was taken to hospital. It is puzzling that no one saw or heard anything to suggest there was anything wrong with it at any time before that.

The jury heard the following expert medical evidence at the trial. Professor Hall is a retired consultant paediatric radiologist specialising in bone disorders. She identified on a whole body x-ray taken on 16 September a fracture horizontally across the ulna. There was no evidence of a healing response. She said you would not expect to see a healing response until 7 days after the injury was sustained. A further x-ray on 17 September showed some evidence of swelling around the fracture site indicating the fracture had occurred within the 24 hours before admission to hospital. A further x-ray on 21 September confirmed her opinion. As there was no evidence of any bruising the injury was more likely to have been caused by levering force than direct impact. She discounted the possibility of the injury having happened at the hospital but said she could not completely discount it having occurred as early as the night of 13 September.

The Crown’s case was that the arm break happened at the same time as the head injury and the judge in concluding his reference to Professor Hall said to the jury it might be:

“Of very considerable importance and help to you in assessing both the kind of force used and when it was used.”

Professor Fielder is a retired consultant ophthalmologist. In 2002 he was in charge of eye services for children at St. Mary’s Paddington. His evidence was that pupil responses were slightly sluggish in M’s left eye. There were extensive haemorrhages, more marked on the left than on the right, some had white centres and were extending to the edge of the eye. He said distribution to the edge was unknown save for those with traumatic origin. White centres indicate a recent origin i.e. within the previous two weeks. Most would disappear within a day or so but they could last up to two weeks. There were white centres seen in both eyes. Professor Fielder saw M on 23 September and says everything that he observed indicated the injury occurred within the two weeks prior to the 23 of September. The impact had to be to the head and had to be very severe to have caused these sorts of haemorrhage.

As to neurology and radiology, the Crown called Dr Stoodley and Mr Richards. The defence called Dr Anslow and Mr Jayamohan. It was accepted by everyone that the scans taken of M’s brain in the days following his admission in September 2002 showed blood of two differing appearances. This could be explained either by two separate bleeds or by one bleed with differing appearances explained by dilution of blood by cerebrospinal fluid passing through a tear (which could not be seen on the scans) in the arachnoid membrane. All the witnesses accepted that a lumbar puncture carried out on M in hospital raised the possibility of an arachnoid tear and that either interpretation was a possibility on the scans alone. All agreed that non-accidental injury must have caused the scan findings; the finding of a fractured ulna was of weight in reaching this conclusion.

Dr Stoodley is, and was described by the judge as, a highly qualified neuro-radiologist. His evidence was that “there were differential diagnoses potentially in this case”. The majority medical view was that what he saw on the screens was consistent with a shaking injury. Some people say that shaking alone cannot cause such an injury but of course that is something that could not be tested by experiment. “The majority view is that it is the backward and forward movement of the infant’s head and there is likely to be some element of rotation and twisting of the brain within the skull and that causes injury because the veins tear and you get a typical pattern of subdural blood at different sites”. Clinical information is important. The appearance can vary for different reasons. It is not uncommon to see dark fluid with an acute injury and the reason is because the arachnoid membrane can tear and the cerebrospinal fluid leaks into the space diluting the bright blood and making it have the appearance on the scan of being older blood. He favoured the probability that there was a single injury because of changes between the CT and MRI scans and there being no evidence of any significant change in M’s behaviour that would have been consistent with a previous subdural bleed. He could not exclude the two incident theory, but in his opinion the one injury model was more likely. The minimum force required was such that anyone seeing it would realise it was dangerous and say “stop” because it was obviously inappropriate. A subdural haematoma can be clinically silent but this is extremely unlikely.

Dr Anslow, also described by the judge as an eminent consultant neuro-radiologist, was called by the defence. He agreed that what appeared to be old blood could sometimes prove to be otherwise. Unlike Dr Stoodley he saw no evidence of bruising or hypoxic-ischaemic injury because it would have been visible on the MRI scan. He preferred the single injury theory but not as strongly as Dr Stoodley who thought it “much more likely”. He said:

“In my view it is not as strong as that. The two injury theory is also consistent with the radiology and there is simply no certainty in the interpretation of these matters.”

Mr Peter Richards is a paediatric neurosurgeon at the John Radcliffe Hospital, Oxford. He said:

“We do not know exactly what the fluid was. The interpretation is a matter of opinion.”

His opinion was that there was probably not a previous subdural haemorrhage and what was seen was likely to have been a mixture of cerebrospinal fluid and acute blood. There was nothing in M’s history to suggest an earlier bleed, but it could be asymptomatic. If it was chronic blood on the scan he would say it was at least 10 days old.

The judge did not refer to Mr Richards’ review of earlier statements in the medical records. All he said was “he explained how he had gone through the medical records and so on.” Those earlier statements can be summarised as follows:

“Dawn Saunders, a consultant neuro-radiologist at St. Mary’s said on 8 October 2002 she was involved in reporting the MRI scan of 17 September 2002 which revealed bilateral subdural haematomas which were at last a week to ten days old. A CT scan of 15 September 2002 demonstrated bilateral subdural haematomas with evidence of acute blood on the right side. This was in keeping with an injury which had occurred within 7 – 10 days. The lower density material on both sides in the subdural space was suggestive of injuries which had occurred more than ten days previously. What she had seen raised the possibility of more than one injury.

Mr Jonathan Punt a consultant paediatric neurosurgeon had reported for the Metropolitan Police on 9 December 2002 and reviewed the case in its entirety. Whilst his conclusion was that M had suffered a single episode of a shaking/impact injury in the early hours of 15 September 2002 he deferred to the opinion of a neuro-radiologist as to whether there were two different ages of subdural blood and if there were it was highly probable there had been a previous episode of inflicted injury.

Professor Carty, a professor of paediatric radiology concluded on 8 November 2002 that there was evidence of two injuries, a fresh one and an older one.

Dr Jaspen, a consultant neuro-radiologist at Nottingham reported on 2 December 2002 and favoured the two injury model. The older haemorrhage was likely to be due to an injury of lesser magnitude 7 – 10 days before 15 September 2002.

Professor Stevenson, a consultant paediatrician reported on 10 January 2003. He had reviewed the whole case from a clinical perspective. His view was that there was overwhelming medical evidence pointing to an injury between the evening of 14 September 2002 and the morning of 15 September but he felt doubt whether there was a chronic subdural haemorrhage and was of opinion that the likelihood of injuries at different times needed to be tested more strongly as this was at odds with the other evidence that he had read.”

The final expert was Mr Jayamohan described by the judge as an equally eminent consultant neurosurgeon to Mr Richards and a colleague of his at the John Radcliffe hospital. Mr Jayamohan likewise emphasised the two possible explanations adding that as far as the tearing of the arachnoid membrane is concerned you see that after major traumas and the fluid then mingles, “but I do not favour that interpretation of the scans”. Nevertheless, he could not discount the one bleed theory. He said: “There are a lot of grey areas here. I am not at all surprised that there are differing views. If a baby has a subdural bleed there are usually, but not always, symptoms.” He agreed that on the scans there were two examples of an old bleed and potentially four of a new bleed. He could not conclude from that which of the two theories was more likely to be correct.

The first ground of appeal is that the judge should have stopped the case at ‘half time’ because there was no case to answer. The judge rightly identified that there were two conflicting theories arising from the scans taken following M’s admission to St Mary’s, two bleeds or one and that if there were two the appellant could not be responsible for the earlier one and that accordingly there was strong evidence that she was not responsible for the later one.

He also accepted that the court should not leave to the jury a case that depended entirely on the jury accepting one view and rejecting the other of conflicting expert opinion. But, he pointed out, this case did not depend simply on resolution of the one bleed/two bleed conflict between the experts. Professor Hall’s evidence was important, as was the evidence of the mother, the father and the grandmother who had all given evidence for the prosecution. He said the jury was entitled to consider the whole of the evidence including that of M’s condition before and after he was in the care of the appellant.

In our view the judge was both entitled and correct to leave this case to the jury. He was right to point out that the Family Division proceedings, although interesting and informative as background, were not relevant. What mattered was the evidence before the jury. We would also point out that by the time the submission was made all the expert evidence had been heard, so the judge was well aware of the ambit of the dispute between them. Nevertheless the evidence under consideration to see if there was a prima facie case was that which had been called by the Crown.

The second ground of appeal relates to the judge’s summing up. The judge was in one sense correct when he described this case as a “who done it” rather than what was done, because it was clear that whoever had caused the injuries to M must have been one of the limited number of people who had had access to him. He should however in our judgment have gone on to make clear to the jury that by finding the appellant not guilty they were not finding implicitly that someone else e.g. the mother was guilty. This is a distinction that it is not easy for someone other than a lawyer always to appreciate.

The main point in the appeal, however, is that the judge downgraded the importance of the difference between the medical experts, inviting the jury to treat the medical evidence that they accepted as evidence that could support findings of fact made separately from it. The passage of which particular complaint is made comes after the judge had mentioned that three experts favoured the one incident theory and one the two incident theory but that none would discount the theory that he did not favour. The passage runs as follows:

“So that is the background against which you need to look at this evidence and, of course, you are going to be saying to yourselves, “Bearing in mind that we have to be sure, what do we make of this evidence?” Let me make it absolutely clear to you, ladies and gentlemen, that if this evidence stood alone it obviously would not be possible, would it, for you to conclude that this was a one incident case and that, therefore, this defendant must be guilty. But it does not stand alone. It is only part of the evidence for you to consider and although it is obviously important, it is capable of supporting your findings of fact made in isolation from this evidence, irrespective of which side of the line your ultimate decision comes.

If ultimately you were to decide on the evidence that you were driven to conclude that Jasmin Schmidt had caused these injuries to (M), then it would be possible to interpret this evidence in a way that supported that conclusion. If ultimately you decided that you were not sure that she had caused these injuries or – indeed, at the other end of the extreme – if you concluded that you were able to specifically say that, for example, the mother had caused the injuries, you would be able to interpret this evidence to support that conclusion.”

The suggestion that if they were driven to the conclusion that the appellant had caused M’s injuries then it would be possible to interpret the neurological evidence to support that conclusion seems to us to put the cart before the horse. What in our view the jury should have been clearly directed, but were not, was that if they thought the two bleed theory was or might be true, having considered the whole of the evidence i.e. not just the neurological evidence, they could not be sure that the appellant was guilty because she could not have been responsible for the event that caused the first bleed and that was the end of the case. Of course, extraneous evidence could help the jury to decide whether the one or two bleed theory was correct but in the end the jury’s view about one or two bleeds was critical to the outcome of the case. The sentence that suggests that the neurological evidence is capable of supporting the jury’s findings of fact made in isolation from this evidence is not happily phrased and suggests that the jury should look first at the lay evidence.

This was a difficult case for the jury where they needed the help of the judge as to how to approach the crucial issues. It was not a case for going through the witnesses one by one and summarising their evidence having given the standard Judicial Studies Board directions.

Earlier in his summing up the judge had explained that if there were or may have been two bleeds one would have been on an earlier occasion when the appellant had no access to M. He went on to say:

“The argument that is put forward and it is an entirely valid one that I am sure you would accept, ladies and gentlemen, is that had there been two bleeds you certainly could not be sure that this defendant had been the person who caused the more recent bleed immediately before admission to hospital when it was obviously someone else who caused the earlier one.

I do not doubt for one moment that if that was ultimately your conclusion as a question of fact then you will acquit this defendant but I will deal with that in more detail when I come to deal with neurosurgeons’ and neuro-radiologists’ evidence.”

Complaint is made with some force that this passage is really directing the jury’s attention to a firm finding or conclusion that there had been two bleeds whereas the real question was whether the jury could rule out the possibility of there having been two bleeds. Nor did the judge at any stage refer to the weight of opinion identified in the medical records in support of this possibility that had been referred to by Mr Richards in his evidence.

The real thrust of the appellant’s complaint is that the judge gave the jury no assistance how they might assess the evidence if they thought that there might have been, rather than definitely were, two bleeds and consequently two incidents. The judge relegated the evidence of the possible earlier bleed to a supporting role which could be used to support any assessment of the evidence, whereas if the jury were not sure the one bleed theory was correct then that inevitably affected fundamentally the way in which they viewed the evidence of the possible perpetrator of an earlier assault.

Although this point is of direct relevance only to the head injury, it is obvious that if there were two injuries the jury would be likely to conclude that whoever inflicted the first also inflicted the second, which included the broken arm.

In our view, in the light of the way this case was summed up the conviction is not safe and therefore cannot stand. The appeal against conviction must be allowed.

Before leaving the appeal against conviction we should express our sympathy with the learned Recorder in having a complicated case of this nature listed before him rather than a circuit judge. Fortunately the injuries in this case did not turn out to be of lasting seriousness, but that did not make the issues any less complicated. It is obvious that he tried this case conscientiously and carefully, and with full regard to the JSB directions. His error was to fail to stand back and assist the jury about the relevance of the disputed medical evidence to the fundamental issue that they had to decide.

Having allowed the appeal against conviction the appeal against sentence is no longer directly relevant. It did, however, have potential relevance to the issue of re-trial. The appellant was sentenced to three years imprisonment. The maximum penalty for an offence under s.20 of the Offence against the Person Act 1861 is five years imprisonment. Miss Ellis for the appellant submits that three years was too long for an isolated unplanned incident and failed to take adequate account of the mitigation. She argues that the judge wrongly penalised the appellant for pleading not guilty. The judge said at 2G:

“In the minutes, hours, days, months and indeed years after the incident, you have denied responsibility for causing (M’s) injuries. As a result the doctors had no help in treating (M) at the hospital and, as time went by, suspicion fell not only on you but also on his devoted parents and grandmother.”

And a little later:

“The pressure applied to (M’s) family must have been enormous and that was the direct result of what you had done to (M), made worse by your persistent denial of responsibility which had the effect of pointing the finger of blame at them. That is in my view a significant aggravating feature of this case.”

In our view there is force in this submission. Whilst the appellant was entitled to no mitigation for a plea of guilty, the offence was not aggravated by a persistent denial of responsibility. Although the appellant was in a position of trust as a qualified paediatric nurse, she was also of good character and put glowing references before the court. In our view an appropriate sentence would have been two years rather than three. As we have allowed the appeal against conviction and declined to order a re-trial the sentence becomes academic.