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Unknown causes of shaken baby syndrome "must not be overlooked"

21 June 2010

The possibility of an unknown cause for the death of a baby alleged to have been killed by shaking must not be overlooked, the Court of Appeal has ruled.

The court was laying down guidelines to help judges direct juries in cases of shaken baby syndrome, which often depend entirely on expert evidence.

Delivering judgment on behalf of the court in R v Henderson, R v Butler and R v Oyediran [2010] EWCA Crim 1269, Lord Justice Moses said it was no surprise that cases of shaken baby syndrome were controversial.

“A young baby dies while under the sole care of a parent or childminder,” he said. “That child can give no clue to clinicians as to what has happened. Experts, prosecuting authorities and juries must reconstruct as best they can what has happened.

“There remains a temptation to believe that it is always possible to identify the cause of injury to a child.”

Moses LJ said such a temptation should be resisted. He said the correct management of expert evidence was of crucial importance and a conviction could only be regarded as safe if it proceeded on a “logically justifiable basis”.

Unless evidence was properly prepared before juries were sworn in, Moses LJ said it was unlikely that proper directions could be given by the judge.

He said that the judge due to hear a particular case should deal with all the pre-trial hearings and it was desirable for him to have “experience of the complex issues and understanding of the medical learning”.

Lord Justice Moses said this was easy enough to achieve in the Family Division, but more difficult in the criminal courts.

“Proper and robust pre-trial management is essential. Without it, real medical issues cannot be identified,” he said.

“Absent such identification, a judge is unlikely to be able to prevent experts wandering into unnecessary complicated and confusing detail. Unless the real medical issues are identified in advance, avoidable detail will not be avoided.”

Lord Justice Moses said that the fact a medical expert was in clinical practice at the time he made his report was significant.

“Clinicians learn from each case in which they are engaged,” he said. “Each case makes them think and as their experience develops so does their understanding.

“Continuing experience gives them the opportunity to adjust previously held opinions, to alter their views. They are best placed to recognise that that which is unknown one day may be acknowledged the next.”

Moses LJ said that such evidence could provide a “far more reliable source” than that of medical experts who had retired.

“Such experts are, usually, engaged only in reviewing the opinion of others,” he said. “They have lost the opportunity, day by day, to learn and develop from continuing experience.”

When summing up, Moses LJ said judges should not ignore the “realistic possibility of an unknown cause” and juries instructed that unless the evidence “leads them to exclude any realistic possibility of an unknown cause they cannot convict”.

He said juries needed directions on how to approach conflicting expert evidence.

“An overall impression can never be the substitute for a rational process of analysis,” he said. “The jury are not required to produce reasons for their 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 relies.”

Moses LJ, Mrs Justice Rafferty and Mr Justice Hedley dismissed an appeal by Keran Henderson, a childminder, against her manslaughter conviction. The same trio allowed Ben Butler’s appeal against convictions for GBH and cruelty regarding his baby daughter.

Moses LJ, Rafferty J and Mr Justice Sharp rejected Oladapo Oyediran’s appeal against a conviction for murdering his baby son.

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Procedures Children