The court gave guidance in respect of expert evidence given in criminal trials. The court made the following two points with regard to evidence of a subdural hematoma caused non-accidentally. First, a clinically observed coincidence of SDH, retinal haemorrhages and encephalopathy (the ‘triad’) is a ‘strong pointer to NAHI’ but it should not be treated as leading ‘automatically and necessarily’ to a diagnosis of NAHI.
and b) Second, on the question of the degree of force:
(a) where the triad is present: ‘generally it is agreed that there is no scientific method of correlating the amount of force used and the severity of the damage caused. To state the obvious, it is not possible to carry out experiments on living children. Further, experience shows that the human frame reacts differently in different infants to the same degree of force.’
(b) ‘common sense suggests that the more severe the injuries the more probable they will have been caused by greater force than mere ‘rough handling’. We note that the most recent Update from the Ophthalmology Child Abuse Working Party; Royal College of Ophthalmologists (2004) concludes:
‘It is highly unlikely that the forces required to produce retinal haemorrhage in a child less than 2 years of age would be generated by a reasonable person during the course of (even rough) play or an attempt to arouse a sleeping or apparently unconscious child.”
c) ‘as Mr Peter Richards, a very experienced neurosurgeon with a speciality in paediatrics, pointed out, if rough handling of an infant or something less than rough handling, commonly caused the sort of injuries which resulted in death, the hospitals would be full of such cases. In our view, this points to the fact that cases of serious injuries caused by very minor force such as might occur in normal handling or rough handling of an infant, are likely to be rare or even extremely rare.’
(d) ‘As Mr Richards said when asked a question in the context of the amount of force necessary to cause injuries, he agreed that the assessment of injuries is open to a great deal of further experimentation and information. He assented to the proposition ‘We don’t know all we should”.
Judges:
Lord Justice Gage The Honourable Mr Justice Gross Mr Justice McFarlane
Citations:
[2005] EWCA Crim 1980, [2006] 1 Cr App R 5, [2008] 2 FLR 412
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Bowman, Regina v CACD 2-Mar-2006
The defendant appealed his conviction of murder saying that evidence of other pathologists undermined the evidence given by similar experts for the crown.
Held: The court took the opportunity to give guidance on the provision of expert . .
Cited – Lancashire County Council v R (A Minor) and others FD 4-Dec-2008
The local authority sought a care order, alleging serious physical abuse of the child. The mother said that any injuries had been inflicted by the father. The father said that the cause was the mother.
Held: The injuries were not likely to . .
Cited – Noye, Kenneth, Regina v CACD 22-Mar-2011
The prisoner appealed against his conviction for murder on reference from the CCRC. There were new doubts about the reliabiity of the expert forensic expert.
Held: The appeal was dismissed. Dr H’s evidence did not impinge on the essential . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice
Updated: 21 April 2022; Ref: scu.236243