Arshad, R. v

On 29 October 2007 the appellant was at home with her baby son, Z, then aged 13 weeks and her elder son, Y, then aged 18 months when Z collapsed suddenly. He was taken to hospital but died on 1 November 2007. As a result of reports by the medical staff and investigations, the appellant was arrested and charged with murder. She was tried in November 2009 at the Crown Court at Luton before Saunders J and a jury. At the close of the Crown’s case the judge directed a verdict of not guilty of murder. The trial proceeded on the alternative count of manslaughter. The appellant was found guilty. She was sentenced to 51 weeks imprisonment, suspended for 24 months, with a requirement she attend as directed with a responsible officer for a period of two years. She appeals, by leave of the Single Judge, on the sole issue of whether, in the light of the decision of this court in R v Henderson [2010] EWCA Crim 1269, the directions given by the judge to the jury were correct and whether the conviction was safe. At the conclusion of the appeal we stated that we would dismiss the appeal for reasons to be given later. These are our reasons.

The appellant’s account in her interviews with the police was that whilst her husband was at work, Z woke up and started crying. As he was crying, he was also taking deep breaths. She telephoned her husband who subsequently arranged for an ambulance to be called. Z was taken to hospital and placed into intensive care. Despite attempts made to keep him alive, he died a few days later. Her evidence at trial differed in two significant respects from that account. Evidence was also given by the paramedics and by the doctors who attended Z in hospital. It is not necessary to summarise that evidence as none of it is material to the issue raised on the appeal.

A post mortem was carried out by Dr Jessop who, although she found no external sign of injury, also found no evidence of natural disease which could explain the death. She noticed there was blood in the subdural space and this, in combination with the retinal haemorrhages and sudden collapse, raised a question in her mind of non-accidental injury. A further post mortem was therefore requested. It was carried out by Dr Carey, a consultant forensic pathologist. He found a low volume subdural haemorrhage but found no injury externally or internally which demonstrated that Z had come into contact with a hard object. Dr Allen, a consultant paediatric ophthalmologist, found extensive bilateral haemorrhages involving all the layers of the retinas.

As a result of the finding of the low volume subdural haemorrhage, the bilateral retinal haemorrhages and sudden collapse leading to brain damage, the so-called “triad of injuries”, Dr Carey provisionally concluded that Z had suffered a head injury which caused him to die. In the light of that view, more correctly expressed as head injury causing an insult to the brain which stopped breathing and led to cardiac arrest, or head injury causing cardiac arrest which caused a cessation of breathing, he concluded that the only credible explanation of Z’s death was head injury of the shaking/impact type.

The Crown’s case at trial therefore proceeded on the basis that the triad was a strong indicator of non-accidental head injury in the absence of any other explanation for the findings. It was the Crown’s case that unless each of the findings of brain damage, subdural haemorrhage and retinal haemorrhages could be explained by another cause, the jury could be sure that the cause of death was non-accidental and had occurred when the appellant had deliberately shaken Z or thrown him against a firm but soft surface.

It was the defence case that it could be shown that the cause of the sudden collapse of Z had another explanation (an arrhythmic heart rhythm problem or choking) which could have caused the brain damage. Even if the defence could not show a cause other than non-accidental for the retinal haemorrhages and subdural haemorrhages, nonetheless, if it could be shown that there was another cause of the brain injury, that was sufficient to show that the Crown had not proved its case. In fact, there were explanations inconsistent with non-accidental cause that explained the retinal haemorrhages and subdural haemorrhage; that was evidence of Dr Waney Squier who said that these could have been caused by the attempts in hospital to resuscitate. Furthermore it was contended that evidence of the triad was insufficient in the present state of medical knowledge to prove that the injury was non-accidental; there had to be other evidence of trauma, such as bruising or other physical injury.

In support of their respective cases on causation, the Crown and defence called a number of experts. Dr Al-Sarraj, a consultant neuropathologist at King’s College, London, Dr Allen, a consultant paediatric ophthalmologist, Dr Bonshek, a consultant ophthalmic pathologist, Dr Janice Till, a specialist in cardiac arrhythmia at the Royal Brompton Hospital, Mr Richards, a consultant neurosurgeon at the John Radcliffe Hospital, Dr Peters, a consultant paediatrician at Great Ormond Street Hospital, and Dr Carey were called by the Crown to give evidence. The defence called Dr Waney Squier, a neuropathologist at the John Radcliffe Hospital, Professor Luthert, an ophthalmologist, and Professor Whitwell, a consultant neuropathologist.

Many of these experts are well known and often give evidence at such trials. We would like to pay tribute to the way in which the judge clearly explained the issues to the jury and cogently summarised the evidence in a manner which carefully contrasted what had been said by each of the experts. The jury can have been in no doubt about the issues or the evidence. After a retirement of over three days, the jury unanimously found the appellant guilty.

Shortly after the conclusion of the trial the Royal College of Pathologists held a meeting at the College on 10 December 2009. It had been convened by the President to probe scientific aspects of the interpretation of the pathology of traumatic head injury in children. It was attended by many of the well known experts in this subject, including many of those who had given evidence at the trial of the appellant. The discussion, though apparently conducted in a cordial atmosphere, left unresolved the well known disagreements between the experts in this field, particularly as to the significance of the finding of the triad of injuries. The decision in Henderson was given after that meeting.

Although at one stage the possibility of fresh evidence being called was mooted, none was. It was common ground that there had been no scientific advance which materially affected the evidence at the trial.

As we have already indicated, the sole issue, therefore, on the appeal was whether the directions to the jury were correct in the light of the judgment in this court in Henderson. The submissions of the appellant were based upon two paragraphs of the judgment:

“217.

There are two features of the content of a summing-up in cases such as these which, we suggest, are important. First, a realistic possibility of an unknown cause must not be overlooked. In cases where that possibility is realistic, the jury should be reminded of that possibility. They should be instructed that unless the evidence leads them to exclude any realistic possibility of an unknown cause they cannot convict. In cases where it is relevant to do so, they should be reminded that medical science develops and that which was previously thought unknown may subsequently be recognised and acknowledged. As it was put by Toulson LJ, “today’s orthodoxy may become tomorrow’s outdated learning” (R v Holdsworth [2008] EWCA Crim 971 at 57, 102 BMLR 112, [2009] Crim LR 195). In cases where developing medical science is relevant, the jury should be reminded that special caution is needed where expert opinion is fundamental to the prosecution.

218.

Second, the jury need directions as to how they should approach conflicting expert evidence. Kai-Whitewind teaches that the mere fact that expert differs from expert is no ground for withdrawing the case from the jury. But how is the jury to approach such a conflict? To suggest, in cases where the expert evidence is fundamental to the case, that the jury should approach that expert opinion in the same way as they do in every other criminal case, is inadequate. It is difficult enough for Family Division judges to express their reasons for accepting or rejecting conflicting expert evidence, despite their experience. Juries, we suggest, should not be left in cases requiring a higher standard of proof to flounder in the formation of a general impression. A conclusion cannot be left merely to impression. …. Lacking the experience of Family Division judges, a jury needs to be directed as to the pointers to reliable evidence and the basis of distinguishing that which may be relied upon and that which should be rejected.”

Mr Carter QC, on behalf of the appellant, directed his criticism of the summing-up to the first of the features referred to in the paragraphs we have quoted. He was right to do so, as it is clear from the summing-up that the judge carefully directed the jury on the second of the features. The judge was at pains to emphasise that the jury must reach their conclusion on the basis of a reasoned approach. He stressed that in deciding whether to accept or reject the evidence of each expert, the jury had to do so on the basis of reasoning and not on the basis of his or her reputation or whether the expert came from what was a wonderful hospital. We are entirely satisfied that the judge carefully and clearly emphasised the correct approach a jury should take when determining what expert evidence to accept.

Mr Carter QC’s argument was therefore directed to his submission that the judge had not reminded the jury in an area of developing medical science that the jury had to consider the realistic possibility of an unknown cause and that special caution was needed where expert opinion in a developing science was fundamental to the prosecution.

This was a case where the expert evidence was fundamental to the prosecution. Moreover, in the current state of medical science, there was an acknowledged uncertainty as to aspects of causation and the significance of findings. For example, the ophthalmic pathologists were agreed that there is no certain knowledge as to the cause of retinal haemorrhages. The jury cannot have been left in any doubt by the clear nature of the summing-up as to the uncertain state of medical science in the light of the findings on the investigation into Z’s death and the fundamental importance of the expert evidence to the prosecution case.

Did the jury therefore need to be told in express terms that there was a need for special caution and that they should not overlook the realistic possibility that the cause of death was unknown? We do not consider that those precise terms need be used provided that the judge sumned the case up in such a way that the jury were left in no doubt that they should not convict unless, giving full weight to the uncertainties in medical science, they were sure that the appellant had shaken Z in the way the Crown alleged. In other words, the effect of the summing-up must be to make clear that special caution is needed and unknown causes must not be overlooked, even though those precise terms are not used. What was necessary, it seems to us, was for the judge, in the course of the summing-up, looking at it as a whole, to put before the jury the respective cases of the Crown and of the defence in such a way that, given the findings and the uncertain state of medical knowledge, the jury understood that they could only convict if they were sure that the appellant had shaken Z in the way alleged. The issue for us in this case is whether the judge summed the case up in that way.

The case which Mr Carter QC advanced to show that the judge had not summed up the case in this way can be illustrated by his criticism of the way the judge summarised the evidence of Mr Richards about damage to the spinal nerve roots upon which the Crown relied as powerful evidence of injury caused by trauma. He was one of the three experts called by the Crown to give an overall opinion on the conclusion to be drawn from the triad – the brain injury, the subdural haemorrhage and the retinal haemorrhages. His view, which was very similar to the view expressed by Dr Carey and Dr Peters, was that it was only non-accidental trauma that explained each of the three findings. In summing up his evidence, the judge referred to Mr Richards’s evidence in respect of the damage to the spinal nerve roots which had been found by Dr Al Sarraj. The judge reminded the jury that Mr Richards referred to these as “the torn nerves in the spine” and to criticism of Mr Richards for speaking of them as torn when they had only been tugged. The judge then continued:

“But, I think what he was actually saying was, “If the damage to the spinal nerve roots can be shown to be unequivocally caused by trauma rather than anything else, then that of course would be of great assistance and add weight to my diagnosis.”

It was contended by Mr Carter QC that the judge had not reminded the jury sufficiently about the possibility that the damage to the spinal nerve roots could have had a cause consistent with non-inflicted injury and did not remind the jury at that point of another possible cause of the damage to the spinal nerve roots. The jury were therefore not told to examine the other possible causes for the damage to the spinal nerve roots and to apply special caution.

We do not think that criticism is well placed or supports the submission that the summing-up did not make clear to the jury what we have summarised at paragraph 15. The judge in summarising the evidence of Dr Al-Sarraj made clear that it was Dr Al-Sarraj’s view that the damage to the spinal nerve roots could, in Dr Al-Sarraj’s opinion, have been caused by shaking or by ischemia. But he also reminded them that it was Dr Al-Sarraj’s view that because the injury was localised and not all over the spinal roots, his preference was for the damage to have been caused by trauma and not by ischemia, although he could not exclude the possibility of it being caused by ischemia. Moreover, when the judge reminded the jury of the evidence of Dr Carey and Dr Peters, he also reminded them that both of these experts had themselves acknowledged the possibility of ischemia as a cause of the damage to the spinal nerve roots.

In our judgement, taking that as the principal illustration relied upon by Mr Carter QC, the judge very fairly summed up the alternative causes of the damage to the spinal nerve roots so that the jury had before them the possible causes and the lack of medical certainty in relation to the cause of the nerve root damage. He also made clear to the jury the care they had to exercise in respect of that evidence in those circumstances.

It is not, we think, necessary to set out further illustrations of the way in which the judge summed the case up. He reminded the jury at several points of the alternative causes and the possibility of an unknown cause of the other findings (such as retinal haemorrhages) and the uncertain state of medical science with regard to them. The jury cannot have been in any doubt at all about the uncertainty that existed in some of the areas of medical science or of the possibility of an unknown cause.

We have anxiously examined the summing-up of the judge in this case where there was no evidence of external trauma. We have looked at it as a whole to see whether it fulfilled the requirements we have summarised at paragraph 15. He clearly explained the issues in respect of each matter which the jury had to consider, summarised the evidence in terms which we consider were entirely fair and in a manner which the jury could readily understand. It was, in short, a summing-up which was a model of clarity.

In our view the jury could have been in no doubt that in a case where medical science was uncertain in the light of the findings made by the doctors, they could only convict if they were sure on the evidence that the death had been caused in the manner alleged by the Crown and the other possibilities had been excluded.

Those are the reasons, therefore, for which we dismissed this appeal.