Shaken Baby Syndrome: evolving law and the quest for justice

Family Law|October 12th 2010

Children tend to cause more problems than any other area of family law. Few areas change so much, or are as nuanced and complex. I’ve recently read a wealth of legal articles and cases that illustrate the breadth of issues affecting them, but there is one type of case in particular that speaks to my own personal experience.

In many ways the real reason children cases cause so much difficulty is because the professionals involved care so deeply about their welfare. At times we seem to collectively become their guardians, as they cannot protect or speak for themselves. They are wholly innocent in matters of which they have little, if any, comprehension, and they are often terribly vulnerable.

These cases include children born to rich but unmarried and bickering parents, with the financial figures involved for the reasonable support of these children akin to telephone numbers. Children currently permitted under our law to be taken by one parent to another country, and so effectively ending any relationship with the other parent (see my recent post for an example).  And those who become embroiled in dramatic cases of child abduction, or are at the centre of arguments involving legal principles that are more complicated than they could ever understand.

Shaken Baby Syndrome

But there is one type of case that stands out for me. These cases cover the topic of babies who die or are gravely injured after falling victim to the phenomenon called Shaken Baby Syndrome. These are babies who never make it past infancy, or if they do may be disabled for life. They are shaken and sustain a type of whiplash injury, usually when a carer or parent can not cope any longer with a crying child. The three classic injuries (known as the triad) caused by this syndrome are haemorrhages in the eyes, bleeding around the brain and swelling of the skull.

When I was a student, working on a placement at a criminal law firm, I went with one of the partners to visit a female client on remand at Risley Prison in Lancashire. The client explained how she had killed her baby. She had taken the child and on more than one occasion thrown it backwards behind her head and then upwards, with the baby banging its head on the ceiling. According to the autopsy, the baby had first been blinded and then died. When the police came to arrest the mother and her boyfriend, who was jointly charged with murder, they found excrement smeared on the walls of their home.

It was such a hideous case that I have never forgotten its details. The dull woman, the offhand way she described killing her baby, the condition of her home from the photographs I saw, and the shocking images from the baby’s autopsy – whose pain and terror can’t even be imagined.

Guilt beyond reasonable doubt

There was no dispute as to what happened to that baby. But there have been other cases in which a baby has died or been badly injured, and where it has been very difficult to prove exactly what did happen and therefore the guilt of the defendant. Every professional involved in these cases is acutely aware of their duty to the child and wishes to secure a just outcome. The judge is tasked with deciding what to admit as evidence, as well as summing up medical evidence for the jury. In turn members of the jury have to be sure that the English standard of guilt beyond reasonable doubt is met after assessing the medical opinions they hear. One expert may have one view, while another may have a different opinion entirely. Whose evidence should the jury accept in the face of a flat denial from the defendant?

These cases bring forth a whole host of other questions. What should happen in a criminal trial where there is only medical evidence on which to rely? How can a jury be certain beyond reasonable doubt that the person in the dock is guilty or innocent? Making the wrong call will lead to a miscarriage of justice, from which a wrongly convicted defendant may never fully recover.

A report on Sudden Unexpected Deaths in Infancy was published in September 2004 and led by The Royal College of Pathologists and The Royal College of Paediatrics. It was much needed, directly following as it did a raft of cases involving mothers prosecuted for the alleged murder of their infant children. These children had died suddenly, and where incriminating evidence was limited to medical opinion, public opinion was on the whole strongly in favour of their guilt. However the medical evidence soon became hotly disputed. The credentials of experts, both their knowledge in specific areas and their competency, were called into question. Extreme theories had been propagated by some of them and demonstrated to be inaccurate. Statistical evidence was given where the expert involved was not a qualified statistician.  Ultimately, women were convicted of murdering their babies and languished in prison on the strength of this evidence.  As information concerning a number of cases emerged, public opinion swiftly changed.

Sally Clark and establishing medical expertise

I had something to do with putting this situation right, although I stumbled into it. I was involved in the case of Sally Clark, one of the first mothers to be freed by the Court of Appeal. The argument centred on medical evidence given in the trial and the deliberate failure by a medical witness to disclose a microbiology report relating to one of the dead infants. After the trial and the failure of a subsequent appeal, I became voluntarily involved and subsequently managed (using my well known charm!) to persuade the relevant hospital to produce this report. It had been withheld by the medical expert for the prosecution. Crucially, it showed the child had most likely died of a virus. Sally was released from prison, although she never recovered from her ordeal and died shortly afterwards. Other mothers were subsequently acquitted, but their lives were also traumatically affected. It was clear the conduct of medical experts needed to be examined.

The 2004 Report, chaired by Baroness Kennedy, set out a checklist of matters to be established about a medical expert before their evidence is admitted in court. In particular doctors were warned “not to fly their personal kites or push a theory from the far end of the medical spectrum”. Questions to be asked of potential expert witnesses included:

  • Are they still in clinical practise?
  • Are they expert in the specific field on which they are giving evidence?
  • Have they recent clinical experience of the specific type of case?
  • To what extent is the expert’s view widely held?

Establishing that the expert is in clinical practise at the time of his or her report is of great significance. It means theoreticians are unlikely to give medical evidence in cases of this nature.

The correct approach

The report and its recommendations were approved and mentioned along with other matters by Lord Justice Moses in a leading Court of Appeal judgment delivered this year: R v Henderson, Butler and Oyediran (2010) EWCA 1269. The court had to consider two infant deaths, one caused by manslaughter and the other by murder, as well as a case of grievous bodily harm. All three cases involved similar facts and alleged that Shaken Baby Syndrome had been the cause of death or injury. All three were heard one after the other and medical evidence was divided about the causes. Were the defendants telling the truth, or were they lying? All three had been convicted by juries in the lower courts.

The judgement of Lord Justice Moses is complex but gives valuable guidance to other courts in which similar cases are heard. The court accepted an important starting point, one that was originally stated in the Angela Canning case of 2004 (another of the cases from that period mentioned above), that “even where every known cause has been excluded, the cause may still remain unknown”. This is an important principle of jurisprudence because it does not assume, as experts in the past have done, that a dead child is necessarily a murdered child. However, while that might be fine if the defendant is innocent, it may not be if there has indeed been wrong doing. With this in mind, how can a defendant be proved guilty beyond reasonable doubt?

Expert evidence may be the only evidence relied upon to prove that the defendant was lying in their account of how the injuries or death occurred. Lord Justice Moses stated that a conviction could only be safe if the case proceeded on “a logically justifiable basis, for accepting or rejecting the expert evidence”. This is central to what he called “the correct approach.” In each of the three cases, he applied the logic of medical expert evidence to the facts. Defendants who were alleged to have killed their infants had their convictions upheld in both cases. In the third case, where the child had fully recovered by the time of trial, the conviction was quashed. It was said that the recovery “was powerful evidence which told against shaking and in favour of an unknown cause”.

Sometimes new medical evidence comes to light after the trial has taken place. In truth such information is only likely to offer a new opinion, since it is unlikely that medical reports will ever again remain hidden in cases of this type. The Court of Appeal has now made it clear that an appeal in these cases is not a second bite of the cherry or an opportunity to hear from yet more new experts. Only rarely would the court permit repetition, or near repetition, of evidence to the same effect by another expert. The defence should not seek to “put a defence case which should have gone to the original jury”.

Managing the case

The case management of a prosecution and defence in such cases is therefore vitally important. It calls for experienced counsel able to identify both the issues on which the court can concentrate, and the evidence on which it can resolve those issues. It is not the type of case for novices, as far too much hinges upon the outcome.

In the Sally Clark case I have often wondered why the misleading statistical evidence given by one expert was not more robustly challenged. I believe it should have been excluded by the judge and wonder why the medical report I obtained, known all along to have existed, was never more thoroughly ferreted out by all concerned and produced to the court. I’m certain that had it been, a conviction would have been avoided. But hindsight is a wonderful thing. Coming late to the case, I simply asked myself:  “If she wasn’t a killer, what had caused the deaths?” A medical answer seemed to be the only logical answer, and when the missing report came to light my deduction proved to be correct.

As I’ve mentioned above, I don’t think such a report would be withheld nowadays. I also believe that experts in these cases are more likely to err on the side of caution in providing evidence.

The courts cannot always help though. The quality and extent of the evidence will vary. As Lord Justice Moses pointed referenced R v
Harris and Others (2005) EWCA crim 1980
when he said that a triad of injuries “is a strong pointer to non-accidental head injury”. But also went on to say that no appellate jurisprudence could provide authority for a medical proposition.

What it now boils down to is how the case is managed from both sides: what evidence is obtained and how it is presented; how well medical evidence in the case is focussed; and whether the evidence the expert gives makes logical sense to the jury. There are those experts who argue Shaken Baby Syndrome doesn’t exist. There are those who point to the injuries sustained by a baby and say that it can be nothing else. The competency of  experts may also now be  taken into account in order to assess differing opinions, as was outlined in Baroness Kennedy’s report.  But the overall role of the judge in instructing the jury to deal with conflicting evidence cannot be over emphasised. For example, a judge may ask the jury to consider certain questions: Do they believe the expert has gone outside his area of expertise? Can they point to a recognised peer-reviewed source to support their opinion?

Of course even the best summing up from the judge, and a logical argument in relation to the medical evidence, doesn’t guarantee the jury will come back with the right result, but the rights and wrongs of trial by jury are a different set of issues altogether. Nevertheless, in as much as it is humanly possible we now have a powerful legal system, which at all levels strives to obtain justice for those small children who are unable to obtain it for themselves. A system of which we can all  be extremely proud.

Author: Stowe Family Law

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