ON APPEAL FROM THE HIGH COURT, FAMILY DIVISION
Mr Justice Newton
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE McFARLANE
LADY JUSTICE KING
|Re: H-C (Children)|
Miss Jane Cross QC and Miss Heather Hobson (instructed by Lancashire County Council) for the First Respondent
Mr Peter Rothery (instructed by Cooper Nimmo Ltd.)for the Second Respondent
The third respondent did not attend and was not represented
Hearing date: 16 February 2016
Crown Copyright ©
Lord Justice McFarlane:
"…I find that Mr C temporarily lost control of himself for whatever reason, he is a strong man, he pushed A into the pillow, perhaps to keep him quiet, but causing him to suffocate, it would not have been difficult. Until he turned him over later it may well be that he did not know that he had caused him serious harm and indeed had killed him."
In making that finding the judge concluded that all of the strands of the evidence "I am sure point inexorably to one conclusion" and that he had made "clear, sure findings".
21st March 2014
"Everyone slept in the same bed, Mr C and all three children. There is some debate about the positioning of the individuals in bed which I will return to at the conclusion of the parents' evidence. Mr C maintains that, at about 21.30-22.00, A grizzled and moaned; as a result Mr C woke and gave him a bottle, he only taking half. Thereafter he says that he went back to bed and slept. Mr C describes an unbroken night which was not reflected by the evidence of the neighbours. On the morning of 22 March at 6.30am Mr C says that J woke him, he looked over and saw that A was blue. He telephoned the mother, and then his own mother and then rang the mother again. The mother is clear that he said "the baby is not breathing properly". At 6.51am the father dialled 999. The transcript records him saying "I have just woke up, and my baby boy, he's all blue, he's at the side of me, he's freezing cold and he's not breathing." It was recorded that A was lying on his back "all blue". The ambulance arrived at 6.59am, A was found to be on the floor beside the bed, the paramedic, Mr Fisher, described him as entering rigor mortis, with bruising around his forehead. The police arrived at 7.00am, and at 7.10am Mr Fisher pronounced A as dead at the scene."
Signs of injury
a) Some 14 different bruises, or areas of bruising to his head and face, including one bruise behind the right ear;
b) Two pressure marks to the head consistent with pressure applied to the head from a hard surface;
c) Injuries to the penis and the area of the penis, including what to Dr Armour appeared to be bruises and abrasions.
"What the experts do broadly agree upon is the time of death. Dr Armour said A had died in the early hours of morning the previous night. Dr Cary [Home Office Pathologist] said it was inherently unlikely that death occurred as little as an hour before the paramedics arrived, Dr Cohen [Consultant Paediatric Histo-pathologist] that A died closer to midnight. All agreed closer to when he was fed that evening. The effect of that must be weighed in the context of the evidence of the neighbours."
The evidence of the pathologists
"Therefore considering the entirety of the findings it is my opinion that death was due to smothering with the marks to the face being consistent with being caused by the pillow. These marks/injuries are inconsistent with overlaying."
"The crucial evaluation of the evidence from the pathologists has been significantly hampered by an increasingly difficult and disagreeable undercurrent, which has tainted its robustness, and touched its reliability. Whilst the Court is used to hearing and resolving differences of opinion (sometimes very marked) in medical evaluation and conclusion, what appears to have occurred in this case is in my experience very fortunately rare. There have been moments when the Court wondered whether this most serious inquiry into a proper understanding of how A died was at risk of being hijacked as a rehearsal for some possible or subsequent professional inquiry amongst the pathologists. It has been an unhelpful development. It has diverted from the really difficult evaluation of each aspect of the medical evidence in the wider context of all the other evidence. "
The judge's evaluation of the "injuries" to A
(a) The face and head: bruises
"Dr Cary when giving evidence confirmed that the bruising to the forehead was unequivocal, and that there were 11 bruises altogether: there was no forensic debate. He said that if the bruises were all accidental it accounted for a great number of accidents and certainly a lack of supervision. He conceded that the aetiology of the bruises was highly relevant in looking at the other issues in order to determine whether something else had been done deliberately, adding as is clearly the case, that that was a matter for the Court.
Dr Malcolmson confirmed Dr Cary's opinion that whereas the bruises to the forehead may be explained on the basis of accidental falls, albeit implying inadequate supervision, he could not exclude that some of the bruises related to other mechanisms such as fingertip bruising under pressure. Dr Cohen, as with Dr Malcolmson, was concerned about the number and distribution of the bruises to the head. Dr Cartlidge agreed that if the injury to the penis was not explained by bruising then he could not say that the bruises to the head were more likely to be inflicted by an adult."
(b) The face and head: two pressure marks
"I conclude on all the evidence in relation to the pressure marks that I can draw no conclusions one way or the other about them. The marks do not assist with the mechanism of death."
(c) Injuries to the penis
"62. The Local Authority do not now rely on this aspect. They were an inevitable and understandable starting point for Dr Armour and Dr Malcolmson. The gold standard histopathology makes it clear that the investigated site and the bottom of the penile shaft was not bruising, whatever appearances may indicate the contrary. The remaining sites of lividity have not been adequately explained and were not unfortunately explored further at the time. Dr Cary was correctly uncompromising in his stance on this issue. It is impossible now to accurately identify the cause of the very livid presentation, but it appears it may have been a combination of congestion, hypostasis and inflammation."
The background context
"The totality of all the background evidence is that it is evident that A was ambulant, had very many knocks indeed, clearly more than may be anticipated with an average child but those knocks did not result in any significant or resulting injury. On 19th March the nursery nurse at the toddler group examined A and found no marks on his face, head, neck or hands."
"He is a man who views the world from his own perspective and who is unreliable both as to reporting and in terms of truth. He demonstrably lied to the police in interview, was not telling the truth about the innumerable domestic incidents of violence meted out by him upon the mother, and as I find as the other evidence demonstrates, he was not telling the truth about that evening either. There is almost no aspect of this case about which the father has not told some lies and I sadly conclude that he will say the first thing that comes into his mind. The father [is] self-centred, he would say anything if he considered that it would assist him."
"The male neighbour, Mr V, lived in the flat below. He fell asleep watching the television. He woke and went straight to bed. He did not know, and was unclear, as to the time, but guessed it was between 4 and 5am, it might have been earlier. Importantly it was still dark (sunrise that day was 6.09am). He heard what he thought was arguing, a raised voice, from upstairs, but could only hear one side. It sounded like a confrontation. Oddly he said it was not an unusual occurrence from upstairs. He went back to sleep. Later his partner, Miss S, woke him, by then it was light, told him to listen; there was a male voice and a child crying. She said "it sounds like a baby's being battered upstairs". He said he regretted it to this day, it was something he had heard on a regular basis so ignored it. "I'm always hearing that baby crying". On the evidence, A was likely to be already dead, whether during the events that Mr V heard earlier, or at some other stage during the night, I am unable to tell.
He was later knocked up by a former neighbour at 8am, describing footsteps, or at least activity, between 7am and 8am.
Miss S was staying with Mr V, together with their child. When she woke at about 2am to feed their child Mr V was still asleep on the settee. She woke again at about 6am (she knew the time because of how light it was, that it was sufficiently light to see). Mr V was now in bed, asleep. She described lots of banging and shouting going on upstairs. She went to the bathroom, drawn to the disturbance, all the windows were open. She heard a man say "I fucking hate you, get out now" and a baby screaming, a very young child (which could account for either A or J), the kind of scream when they can't catch their breath. She went back to the bedroom and could still hear banging and shouting and screaming. It was suggested to her that the man had said "I can't fucking believe this", she was certain that was incorrect. None of the above was recounted by K in his ABE interview, which in all other aspects relates events as portrayed by Mr C. Either she is mistaken or wrong or K either slept through this or so far has said nothing. Miss S was an impressive witness, careful in what she said. I prefer her account without hesitation."
"Whilst what was heard by Miss S could be accounted for by the sequence of events described by Mr C, the events described by Mr V cannot. He, like Miss S, was an impressive independent witness, it was dark, he had no reason to lie or exaggerate, quite the contrary. Mr C's description of a peaceful night of unbroken sleep is plainly untrue. I have stepped back, to consider whether that is because of shame or panic, or because of some dreadful accident."
Conclusions on the injuries
"65. Having regard to their position, and the uncontested evidence of friends and family it is unsurprising that Dr Cartlidge considers that they represent inadequate supervision, none is diagnostic of an inflicted injury. I bear in mind the bruise behind the ear. Dr Cary described them as relatively minor or pretty trivial in nature. At what point does the frequency become diagnostic of itself, absent other factors? There is an additional point (which I am not convinced Dr Armour fully accepted) which is that bruising can become more frank post mortem. I cannot rule out the realistic prospect that those bruises developed or became more obvious visually because of death and had been caused earlier that week, whilst no specific event(s) are identified. Whilst I have very great anxiety about them, suspecting that Mr C may be responsible for some, I cannot find on the evidence that the bruises are more likely to arise from inflicted injury than accident, and therefore do not do so."
"The abraded appearance to the face is not disputed. Dr Armour concluded that this was an injury caused by pressure. Dr Cary was not convinced that the reddening necessarily represented abrasion (implying a traumatic origin). He considered that it may be excoriation from overlaying, potentially caused or contributed to by moisture or gastric acids from the stomach. Tests were carried out on the pillows and no saliva (or fluids) attributable to A were identified. Resuscitation attempts do not account for the abrasions to the cheeks and chin. The failure to identify injury inside the mouth Dr Cary also considered relevant. Having regard to the fact that Mr C and K report that A was sick earlier that evening I cannot rule out this aetiology, the likelihood of abrasion (through trauma), requires weighing with the other aspects."
"70. The marks identified by Dr Armour it is agreed match the configuration of the pleats and stripes of the pillows. She considered that the appearance was consistent with peri mortem congestion and not hypostasis, becoming more visible at the end of the post mortem. Dr Armour considered together with the perioral pallor (as well as the abrasions and the pressure marks) that they were consistent with active smothering. Dr Cary contended that the marks could be positional, i.e. no more than contact by the face on the pillow. It was in the build up to the unfortunate exchange with Miss Cross QC that Dr Cary considered Dr Armour's advices as an "overcall", postulating other possible mechanisms. He was not convinced that (the pattering and abrasions in particular) "necessarily represented traumatic injury". Dr Cary was clear that he did not accept that A had only ever been on his back. He did not accept that physical nasal and oral evidence was consistent with smothering.
71. I am satisfied on the balance of probabilities that Dr Armour is correct; the appearance both of the marks to the configuration of the bed linen, and the facial abrasions, preferring her evidence on this, together with the perioral pallor, point away from some organic cause, and all support active smothering."
"72. Extensive hypostasis to A's back, front and side does no more than determine that at different times that A was in different positions. None is probative of the position of death."
"Either hypothesis would entail some struggle, none was recounted by K in interview, nor did anyone apparently wake. Overlay, the hypothesis favoured by some of the experts involves most likely Mr C rolling or lying across A. I bear in mind that Mr C maintains he had placed cushions in order to prevent A from rolling or being rolled upon, although that may have prevented rolling, it does not appear to account for A lying on his back with his head 1) on the pillow and 2) which appears to have marked the front of his face. There were in addition the legs and/or bodies of K and J which otherwise would have been an obstruction too. Dr Cary was clear that A most probably died face down, and remained face down after death, the body subsequently being moved. The advices of Dr Cartlidge apply just as strongly here, A would have struggled. Overlaying is most unlikely to have occurred, in particular having regard to A's age, the position of A's body on discovery, and the pattern of the hypostasis."
"The evidence of pathology and the medical evidence does not necessarily assist on the assessment of likelihood."
i) Mr C's description of a peaceful night of unbroken sleep was plainly untrue (and therefore a lie) which was not explained by feelings of shame, panic or to cover up some dreadful accident;
ii) Nothing about Mr C's apparent drug use or sleeping habits would render him more likely to sleep more heavily than might be commonly understood;
iii) Mr C was especially agitated and consumed by the failure of his wages to be paid;
iv) Mr C finds it difficult, almost impossible, to control himself when things do not go his way; he acts impulsively without thought for the consequences. He is a man whose life is chaotic and volatile, using drugs and alcohol so as to "feel normal", and a man who commits criminal offences;
v) This was the first occasion that he had had the sole care of the three boys.
"I do not think for a moment that he necessarily intended the consequences of his actions, his panic and grief, his remorse being entirely genuine, but as his incoherent, self indulgent, indeed angry responses to the mother demonstrated that morning as the parents were taken by the police to the Hospital, he did not want to speak about it to her, he has as he told me "to live with this for the rest of his life". This was a rare glimpse of the truth, away from the consistent, prepared and untruthful script to which he largely otherwise adhered. Weighing all those strands I am sure point inexorably to one conclusion. As the evidence of Mr V illustrates, I find that Mr C temporarily lost control of himself for whatever reason, he is a strong man, he pushed A into the pillow, perhaps to keep him quiet, but causing him to suffocate, it would not have been difficult. Until he turned him over later it may well be that he did not know that he had caused him serious harm and indeed had killed him. The bodily signs are consistent and support such a mechanism. The furious exchanges heard by Miss S are moreover entirely consistent with Mr C discovering what he had done. The evidenced hypostasis (and of the linen) is consistent with the body being moved by Mr C. The position of the arms in early rigor mortis is consistent. It is consistent with my assessment of Mr C as a witness (his self-centred reaction to the suggestion of smothering in addition, whilst forming no part of my reasoning and evaluation, struck me as curiously flat, rehearsed and emotionless). As he told me "I have to live with this for the rest of my life", whereas his obvious emotion, grief and regret elsewhere was all too obvious."
i) The learned judge was plainly wrong in that he elevated a suspicion in respect of smothering to a finding on the balance of probabilities which was not justified on the evidence received.
ii) The internal reasoning of the judgment is fundamentally flawed.
a) Having rejected Dr Armour's evidence in respect of some of the injuries, the judge failed to bring the apparent certainty of her evidence in respect of those rejected elements into an evaluation to consider whether it undermined her conclusions as to the cause of death;
b) Favouring Dr Armour's interpretation of the significance of the marks to the face, facial abrasions and perioral pallor over that of Dr Cary and others for no sufficient reason;
c) Placing weight upon the evidence of the neighbours which that testimony could not bear and failing to reconcile or properly address the apparent incompatibility of the medical evidence with the neighbours' account.
a) The judge proceeded to a finding of smothering despite having stripped the abusive context from the case by rejecting the allegations about bruising to the head;
b) The judge expressed contradictory conclusions in relation to hypostasis in determining whether smothering had occurred;
c) The judge failed to assess and analyse the effect of the ABE evidence of K;
d) The judge failed to undertake an adequate analysis of the father's character, motivation and credibility in the light of all the evidence in the case.
"The crucial evaluation of the evidence from the pathologists has been significantly hampered by an increasingly difficult and disagreeable undercurrent, which has tainted its robustness, and touched its reliability."
Mr Rowley points to the fact that the judge does not explain how his task was "hampered" and how the robustness and reliability of the evidence was tainted or touched by the manner in which it was presented. Later, in the course of a postscript to the judgment relating to the expert evidence, at paragraph 87, the judge states:
"I make clear, sure findings but not for the reasons or process of reasoning set out by Dr Armour."
Mr Rowley asks, rhetorically "where does that leave the judge?" and how does that apparent rejection of Dr Armour's reasoning sit with paragraphs 70 and 71 in which the judge states in terms "I am satisfied on the balance of probabilities that Dr Armour is correct" in relation to the facial abrasions, facial marks and perioral pallor.
a) This evidence could not have been obtained with reasonable diligence for use at the trial;
b) The evidence is such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and
c) The evidence is such as is presumably to be believed, or is apparently credible, though need not be incontrovertible.
"The most significant call is one that took place on 5th June at 2.30 in the morning for 52 minutes. I think that was an outgoing call from mother to Mr H which had been immediately preceded by an 8 minute call incoming from him. They had therefore spent an hour, approximately, on the telephone to each other at 2.30 in the morning on 5th June…both declined to say what they were talking about and they still do so. I cannot accept that they do not know what they were talking about. They know what they were talking about. They have chosen not to tell me."
The respondent's case on appeal
"71. I am satisfied on the balance of probabilities that Dr Armour is correct; the appearance both of the marks to the configuration of the bed linen, and the facial abrasions, preferring her evidence on this, together with the perioral pallor, point away from some organic cause, and all support active smothering."
a) The distinction drawn by the judge as between "some organic cause" and "active smothering" is not a correct statement of the issue in the case. There was no suggestion that A died as a result of "some organic cause". The essential choice was between suffocation as a result of his airflow becoming compromised through becoming wedged in the bed or being lain upon by one of the other occupants, or smothering.
b) With regard to the facial abrasions, the judge had concluded in paragraph 69 that "the likelihood of abrasion (through trauma) requires weighing with the other aspects". He could not rule out this reddening to A's face being explained by a bout of sickness reported by Mr C and K earlier in the previous evening. Yet, within two paragraphs of that conclusion, the judge expressed himself to be satisfied on the balance of probabilities that the facial abrasions supported a conclusion of active smothering;
c) Paragraph 71 where the judge expresses himself to be satisfied that "Dr Armour is correct" is difficult to reconcile with paragraph 87 where the judge states "I make clear, sure findings but not for the reasons or process of reasoning set out by Dr Armour".
d) The judge's conclusion at paragraph 71 that these three signs "support" active smothering is also at odds with his statement at paragraph 77 that "the evidence of pathology and the medical evidence does not necessarily assist on the assessment of likelihood."
"Overlaying is most unlikely to have occurred, in particular having regard to A's age, the position of A's body on discovery, and the pattern of the hypostasis."
Either hypostasis is a neutral, non-probative sign or it can be relied upon to support a determination that "overlaying is most unlikely to have occurred". It is, however, difficult to understand how the judge could have deployed the signs of hypostasis in this apparently contradictory manner.
"Either hypothesis would entail some struggle, none was recounted by K in interview, nor did anyone apparently wake."
And in paragraph 82, following reference to the detailed account given by the female neighbour, where the judge states:
"None of the above was recounted by K in his ABE interview, which in all other aspects relates events as portrayed by Mr C. Either she (female neighbour) is mistaken or wrong or K either slept through this or so far has said nothing."
a) On the basis of the neighbours' evidence "Mr C's description of a peaceful night of unbroken sleep is plainly untrue", and leading to the conclusion that he is not lying to cover up some "dreadful accident or mistake";
b) Mr C has a propensity to lose control of himself when matters do not go his way; he acts impulsively without thought for the consequences;
c) This was the first occasion on which he had looked after all three children;
d) Mr C was especially agitated and consumed by the fact that he had not been paid the wages that were due to him that day;
e) Mr C's comment to the mother that he has 'to live with this for the rest of his life', was, in the judge's view, a rare glimpse of truth.
"To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it must relate to a material issue. Thirdly the motive for the lie must be a realisation of guilt and a fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family. Fourthly the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or by evidence from an independent witness."
In my view there should be no distinction between the approach taken by the criminal court on the issue of lies to that adopted in the family court. Judges should therefore take care to ensure that they do not rely upon a conclusion that an individual has lied on a material issue as direct proof of guilt.
"The only independent evidence comes from the neighbours. On the face of the evidence, the accounts are damning and in particular paint the lie to Mr C's assertion that he and the boys had a quiet, unbroken night, the context needs careful consideration."
Lady Justice King
Lord Justice Laws