http://www.metro.co.uk/news/188084-nannys-shaking-led-to-the-death-of-baby
http://www.dailymail.co.uk/news/article-1038640/Nanny-accused-shaking-baby-boy-death-walks-free-judge-orders-guilty-verdict.html
Wise – ruling
In this case, after nearly a day of legal argument, I accepted the submission of Mr Wood Q.C. for the defence that I should withdraw this case from the jury and should direct them to return a verdict of NG on the indictment. I now give my reasons for that ruling, and I give it in the presence of the jury so that they may understand why I am, perhaps to their regret, taking the responsibility out of their hands. It is right to say that over some 5 weeks the jury have paid the closest attention to a great deal of evidence, much of it being expert evidence of considerable difficulty and complexity.
The prosecution case is, and has always been, that the Defendant inflicted an injury to Isaac, a baby just three months who was at the time in her sold care, by shaking him. The primary evidence on which they base this allegation is the finding, soon after admission to hospital on the morning of Sunday 3 Sept 06, of the so-called “triad of symptoms”, namely subdural haemorrhages, retinal haemorrhages and encephalopathy, which means no more than disease of the brain affecting its function. In this case the encephalopathy took the form of widespread hypoxic/ischaemic brain injury, which was detected in the scans as a loss of differentiation between grey and white matter and which resulted in severe atrophy or shrinkage of the brain Isaac was an in-patient at the RMCH.
The result was a severely brain-damaged young child, but unlike so many infants who develop this triad of symptoms, he survived and was discharged home within a few weeks. He subsequently developed epilepsy secondary to the brain injury, and despite the best efforts of specialists to control that epilepsy by means of anticonvulsant medication, he suffered Sudden Infant Death in Epilepsy 10 months later on 23 July 2007. Because his death was so long after the relevant events, and because of the severe degree of brain damage and shrinkage, only limited findings could be made by the pathologist. However, neither that cause of death, epilepsy, nor the chain of causation between the h/isch brain damage and the epilepsy and thus to his death, has been challenged in this trial.
The defendant has consistently denied shaking Isaac or inflicting any injury upon him. No external bruising was found anywhere on this body, apart from a few pinprick or petechial bruises inside the left ear. These were seen by Dr Madhvi, the consultant paediatrician who took Isaac under her care, but they very soon disappeared. They were at a point within the ear which is overlain by the outer parts of the ear, which were unmarked by any bruising, and accordingly they were not indicative of any trauma to the ear or head. No further reference to them is needed.
There was no bruising to the body and arms, such as might indicate a strong grip used when shaking Isaac. There was no bruising to the scalp, such as might indicate a blow or other form of impact. There were none of the additional pathological findings of the sort described in para 63 of the CA’s judgment in Harris, to which I am about to refer. Thus there is no evidence of any impact or blow to the head. Although there could in theory be a shaking combined with impact if the impact was onto a sufficiently soft surface to leave no mark, the case has been presented as one of shaking alone, and is principally based on the triad hypothesis. It is classically the sort of case described in para 149 in Harris, quoting Dr Anslow as saying “that to reject the carer’s version of events in favour of another requires the highest possible degree of medical evidence; after all, the doctor is effectively accusing the carer of lying”.
From an early stage of the trial, it was clear that I needed to read and re-read the important decision of CACD in Harris, Rock and Others [2006] 1 CAR 5 (p55). As well as the passages of general application in that judgment, I have had particular regard to the facts and the issues before the Court in the case of Harris, and to the fresh evidence called before the court and the disposal of that particular appeal. In fact four of the witnesses who gave evidence in the CA have given evidence in this trial, namely Mr Richards, Dr Bonshek, Dr Anslow and Dr Squier.
That immensely detailed judgment establishes that the presence of the triad is insufficient, standing alone, to justify a safe and secure finding of NAHI. More evidence is required, either clinical findings or direct or circumstancial evidence which can safely be relied on to support the inference of NAHI to which the triad strongly points but which it does not prove.
I recognise the force of the passage which has been relied on in para 70, that in a criminal trial it is for the jury to determine the issue in the light of all the evidence. I make it clear that I am not withdrawing the case simply because there is conflicting expert evidence, or because defence experts are putting forward hypotheses for other causes of Isaac’s presentation, other than NAHI; that would be to usurp the function of the injury, which is emphasised in the judgment of the President in Kai-Whitewind and in Harris itself. On the contrary, it is because of what I find to be the absence of any sufficient clinical or other evidence to support the triad, on the particular facts of this case as the trial has proceeded.
Mr Johnson has argued that the triad survives Harris in the sense that these three findings still establish that the injury must have been caused by trauma; where it modifies the previously perceived position is that further evidence is needed to support a finding that the trauma was non-accidental, an inflicted injury. I do not consider that the significance of Harris can be limited in that way. As Mr Wood has argued, the element which represents the serious damage which can be caused by shaking, the encephalopathy, can arise from non-traumatic causes.
I come to the heart of my reason for the unusual step I am taking. This is a particularly unusual case of alleged baby-shaking. When Isaac was scanned, by CT scan at Preston on 3 Sept and at Manchester the following day, it was found that in addition to a small (or very small) amount of acute subdural bleeding overlying the parietal hemispheres and the cerebellum, he also had substantial collections of fluid overlying the frontal cerebral hemispheres. This fluid was, according to all the doctors with the exception of one neuroradiologist Dr Stoodley called by the Crown, chronic subdural haemorrhage. They give their reasons for concluding that this was so (rather than finding it to be acute traumatic effusion as preferred by Dr Stoodley) and for the purpose of the present argument the Crown accept this view.
This finding of chronic subdural collections, in addition to “triad” indicating fresh injury, was taken at the time to indicate that Isaac had had an earlier head injury as well as a fresh one.
He had been admitted previously to hospital on Monday 21 August, 13 days before his acute admission on the morning of Sunday 3 September. There had been a history of earlier visits to doctors including a consultation with a paediatrician over his feeding difficulties, which had been attributed to reflux though it may be that no definitive diagnosis of this condition was ever made. A particular cause of concern to his parents was that when he vomited or refluxed or posseted his milk, it emerged through his nose. He had been thought by a health visitor to have an abnormally high palate, affecting the normal sucking action which involves squeezing the nipple or teat between the tongue and the upper palate. (It was long afterwards found that he had a chromosomal abnormality called diGeorge’s syndrome, though is common ground that this condition has no other relevance to the issues in this case. However, the belief of the parents and others at the time was that this was a baby with continuing feeding difficulties on which advice was repeatedly sought.)
On arrival at the Primary Care Centre at about 7.30 that evening he suffered what was considered to be a choking episode. He was subjected to a full septic screen to exclude infection, and this included a lumbar puncture to draw off CSF so as to exclude meningitis. Thereafter he remained in hospital for two days, being discharged on Wednesday 23rd. What is clear is that no neurological symptoms were recognised, or even suspected, on that occasion.
When the frontal subdural collections were found in the September radiography, it was concluded that Isaac had suffered an earlier subdural bleed. Furthermore, the evidence was considered to point to this earlier injury having been likewise inflicted by the Defendant. She was in charge of Isaac’s night feeds; that was an important element of what she had been employed to do.
On the night of Saturday 19 August, by which time the Defendant had been in the household for 5 days, Isaac had a particularly bad night. At various times the parents head him, they heard him scream, and they heard the Defendant go to him. In the morning he was unwell, and if was the Defendant who suggested that he should be taken to the doctor, which on Sunday morning meant the Primary Care Centre. Little was done apart from getting advice to feed him a little and often; and much the same advice was given when Isaac was taken to the GP the following day (by which time the Defendant had gone home for her delayed weekend off, having left after lunch on the Sunday). Isaac remained unwell until the parents took him back on the Monday evening as I have indicated. Thus, since he had been unwell since the Saturday night, and the Defendant had been in charge of him on that night when he became so, the Defendant seemed to be implicated.
Though there is no separate charge now on the indictment in relation to this earlier injury, the cross-examination of the Defendant shows that the Crown have not, despite the evidence I am about to describe, resiled in any way from their allegation that the Defendant inflicted this earlier injury.
I am greatly troubled by this; it has worried me from midway through the prosecution case. The problem is that on the evidence of the three specialist neuroradiologists who have given evidence, taken as a whole, the original acute bleeding, of which the subdural collections were the product, must have occurred earlier than the night of the 19/20 August, which was exactly 14 days before the night of 2/3 September; or at least, putting it less starkly, the jury cannot in my view safely find that the bleeding could have occurred as recently as that. Yet it is this on which the Crown have always primary relied, as constituting the significant further clinical evidence to support the triad so as to establish their case that something very similar occurred on the night of 2/3 September.
The problem was only faintly foreshadowed during the evidence of Dr Stoodley, the first neuroradiologist to give evidence, called as an expert by the Crown somewhat out of turn at an early stage of the trial, before the evidence of most of the treating clinicians. He, as I have said, did not think these were chronic subdural haemorrhages at all; but if he was wrong in that, he said that the bleeding must have occurred “a minimum of 2 to 3 weeks before” the scans. I thought at the time that this was an unusual concept; a minimum level of anything, ascribed by an expert, is usually a figure at the lower end of a range, rather than itself being a range of figures. There will often be a maximum figure at the other end of the range (though not here, since the chronic subdurals could be of any age above the minimum).
The picture became very much more clear-cut when Dr St Clair Forbes was called, he being the consultant neuroradiologist who first examined and interpreted the scans. He gave clear evidence, based on his experience of 30 years as a consultant in this field, that the subdural haemorrhages must have been at least 3 weeks old in order to have the appearance he saw on the scans. This evidence clearly took the Crown by surprise, and Mr Johnson pressed his witness as far as he properly could in re-examination, at which Dr StCF reluctantly and uncomfortably said that the age of the chronic subdurals could be as little as 18 days but no less. This, when coupled with the evidence of Dr Anslow that the chronic subdurals would not show for at least a month, demonstrates the difficulty the Crown face.
I do not overlook the evidence of the clinicians. Dr Smith (paediatrician) and Dr Tomlin (paediatric neurologist) gave evidence that in their view the radiological findings were consistent with the origin of the bleeding being as recent as 19 August.
Dr Tomlin had given evidence before Dr St CF and Dr Anslow and was not questioned about the timing issue: Dr Smith, who was clearly a strong adherent of the triad hypothesis, considered that the bleed could be dated from then on balance of probabilities. Mr Richards quoted a minimum of 10 days, but based this on a single case in his own experience, a case of a particularly unusual nature. In my judgment it would be unsafe to let this case go to the jury on the basis that they could safely reject the radiologists as I have described it.
I therefore conclude that the chronic subdural collections cannot safely be left to the jury as implicating the Defendant and therefore as lending safe support to the triad.
This conclusion has a further consequence. It means that the jury would have to approach this case on the basis that Isaac was, when in the Defendant’s charge on the night of 2/3 September, a child who already had an abnormal intracranial process in existence inside his skull. In my judgment, considering the evidence as a whole, this must have an impact on the issue of what degree of force would be required to cause the relevant brain damage. Was it necessarily such that the jury could safely conclude that it must have amounted to an unlawful act?
Before reaching this point of the trial I had of course given thought to the direction I would give to the jury on this issue. I intended to formulate it as follows:
The unlawful act which the proscn say she carried out was an unlawful shaking. In particular, they argue that on the evidence, you must be driven to the conclusion that she shook Isaac in a manner which was sufficiently severe to amount to an unlawful act.
Of course, any handling of a baby involves lifting and moving him about and in a sense this must involve some of the sort of movements which, if done repeatedly, could be described as shaking. And some people may be less gentle than others in the way they handle babies. But none of this would be enough to constitute an unlawful act.
You may only convict the Defendant if you are driven to the conclusion, and are sure, that she knew that what she did would be likely to cause him some physical harm, or at least that she foresaw the possibility that he would suffer some physical harm but still took that risk.
This is a topic extensively discussed in Harris. Mr Richards was an important witness and is a leading expert. In the present case he expressed himself in very moderate and guarded terms. He said no-one can know for certain what degree of force is required, that the injury could have been the result of an event not appreciated by a carer as likely to cause injury or by an event not even remembered, or not reported as a likely cause of the illness suffered by the baby. In this case in particular, there was no such a sudden collapse as occurs in many shaken baby cases.
I do not intend to review all the evidence on this topic. My conclusion is that there is not enough evidence on which the jury could safely conclude from the evidence that this catastrophic and eventually fatal injury to this child must have been, or had to have been, the result of an unlawful act on the Dft’s part.
Mr Johnson sought to distinguish Harris on the footing that in the present case there has been no acknowledgement of any shaking, whereas Ms Harris said she had given the baby a small shake to try and revive him when he collapsed. If he is right this would have the bizarre consequence that a defendant’s position is stronger, rather than weaker, if a shaking is admitted. I accept Mr Wood’s submission that the effect of the Crown’s position on this issue is to impose an improper evidential burden onto a Defendant who has consistently denied that any shaking occurred.
I do not consider that the deficiency is capable of being made good by the arguments of inconsistent accounts given by the Defendant, as recorded by different doctors whose primary task was to treat this desperately ill baby; nor by any inferences now sought to be drawn from the evidence about Isaac’s clothing, or the presence of Arnica cream on the changing table (these were issue about which the Defendant was not questioned in the very lengthy interviews and which she really cannot be expected to answer for now). I will not lengthen this ruling by going into the details.
I have not overlooked the emphasis placed by Mr Johnson on the ophthalmic evidence of the extensive retinal haemorrhages in both eyes, coupled with evidence of slight optic nerve head swelling with pathological evidence that there had been some bleeding in the nerve sheath (not itself seen by Mr Biswas on examination in life). The finding of retinal haemorrhages is not itself diagnostic of NAHI, but is only one part of the triad which itself needs to be supported by other evidence as I have already indicated.
Therefore the presence of this element of the triad makes no difference to the conclusion which I have reached, that a jury properly directed could not properly and safely convict in this case.
I will not leave this case without publicly acknowledging the tragedy of what happened to Isaac, and the double loss suffered by his parents, firstly in him sustaining catastrophic brain damage and then dying so many months later. Yesterday, when I indicated what ruling I intended to make, I commented that there are no winners in this case. The loss to the parents is incalculable. The Defendant has herself been under a cloud of suspicion for a very long time, and that cloud will not necessarily lift at once just because this trial is coming to an end.
You, the jury may feel that you have been deprived of the opportunity of performing your very important function of deciding the case. If so, I am sorry, but I have the responsibility in law to ensure that any verdict of guilty is a safe one which can be justified on the evidence. It does not mean your time has been wasted. This prosecution was brought and our system is one of trial by jury. It cannot be predicted that every trial will run it full course. I am very grateful for the close attention you have paid throughout the trial, and indeed for your wonderful consistent punctuality which is not always the case.
Direct verdict of NG on the indictment
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