Expert evidence – Grievous bodily harm – Shaken baby syndrome

R v Keran Louise Henderson : R v Ben Butler : R v Oladapo Oyediran: CA (Crim Div) (Lord Justice Moses, Mrs Justice Rafferty, Mr Justice Hedley, Mrs Justice Sharp): 17 June 2010

The appellants (H, B and O) in joined cases, appealed respectively against their convictions for manslaughter, causing grievous bodily harm and cruelty and for murder. All three appellants had been convicted in cases involving shaken baby syndrome. On appeal, the appellants sought to adduce fresh expert medical evidence.

Held: (1) In H’s case, the new evidence did not undermine the safety of the conviction and her appeal was dismissed. In B’s case the appeal was allowed and both convictions quashed. There was no need to address the fresh pathological evidence that he sought to adduce. In O’s case the quality of the expert evidence was not capable of undermining the safety of the verdict and the application to call fresh evidence was rejected. O's appeal was dismissed.

(2) (Per curiam) Justice in such cases depended on proper advanced preparation and control of the evidence from the outset at the stage of investigation and thereafter. The problem for the court was how to manage expert evidence so that a jury could be ­directed in a way which would, so far as possible, ensure that any verdict they reached was justified on a logical basis, R v Kai-Whitewind (Chaha'oh Niyol) [2005] EWCA Crim 1092, (2005) 2 Cr App R 31 considered.

It was for the jury to evaluate expert evidence even where the experts disagreed. The jury could only approach conflicting expert evidence if that evidence was marshalled and controlled before it was presented to the jury. Unless the evidence was properly prepared before the jury was sworn in, it was unlikely that proper direction could be given as to how that evidence should be approached. A judge who was to hear a particular case had to deal with all pre-trial hearings, save for those in which no issue of substance was to be considered. It was also desirable that any judge hearing a case which depended entirely on expert evidence should have experience of the complex issues and understanding of the medical hearing. The process of narrowing the real medical issues was also vital as the judge should be in a position to identify whether the expert evidence from either side was admissible. Courts should be familiar with the Kennedy Report on sudden infant death in infancy. It recommended a checklist of matters to be established by the trial judge before expert evidence was admitted, including in particular, whether an expert was in clinical ­practice when he made his report. Part 33 of the Criminal Procedure Rules 2010 needed to be deployed to ensure that the overriding objective to deal with criminal cases justly was achieved. Generally, it would be necessary for the court to direct a meeting of experts so that statements could be prepared in areas of agreement and disagreement.

(3) A logically justifiable conclusion depended also on the structure and quality of the direction in the summing up. Two features of the content of a summing up were important.

First, a realistic possibility of an unknown cause should not be overlooked and the jury should be instructed that it could not convict unless the evidence led to the exclusion of any realistic ­possibility of an unknown cause. In cases where developing medical ­science was relevant, the jury should be reminded that special caution was needed where expert opinion ­evidence was fundamental to prosecution.

Second, the jury needed directions on how to approach conflicting expert evidence. A jury was not required to produce reasons for its conclusion; ­nevertheless, the judge should guide them by identifying those reasons which would justify either accepting or rejecting any conflicting expert opinion on which either side relied.

Judgment accordingly.

M Topolski QC, A Scott (instructed by William Bache & Co) for the appellant Henderson; S Wass QC, K Thorne (instructed by Mark Williams Associates) for the appellant Butler; N P Valios QC, K Arden (instructed by Mackesys) for the appellant Oyediran; J Glynn QC, S Campbell (instructed by the CPS) for the Crown in Henderson; E Brown QC (instructed by the CPS) for the Crown in Butler; S M Howes QC, B P J Keleher (instructed by the CPS) for the Crown in Oyediran.