Neutral Citation No. [2012] NICA 25	Ref:     	GIR8539	
			
Judgment: approved by the Court for handing down	Delivered:	29/06/12	
(subject to editorial corrections)*			

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

________

THE QUEEN

v.

RYAN LESLIE

Before Morgan LCJ Girvan LJ and Coghlin LJ
________

GIRVAN LJ  (giving the judgment of the court)

Introduction

[1]	This is an application by Ryan Leslie (“the applicant”) for leave to appeal against his conviction for the murder of his baby son Cameron and causing him grievous bodily harm with intent.  Cameron was 14 weeks old at the time of his death.  The applicant seeks leave to appeal on the grounds that the learned trial judge (“the judge”) erred in dismissing an application of ‘no case to answer’ in relation to the charge of causing grievous bodily harm with intent; the learned trial judge’s interruptions during the evidence of the defence medical expert were prejudicial; media reports regarding the professional conduct of defence medical expert may have been prejudicial to the applicant;  the judge’s  directions to the jury on separate consideration of the charges and the cross-admissibility of evidence were inadequate; and that the judge did not adequately explain the onus and quantum of proof to the jury.

[2]	On 17 December 2009 the applicant was committed for trial at the Crown Court sitting in Belfast on two counts, namely:

(i)	on 6 September 2008 he murdered Cameron Leslie contrary to common law; and 

(ii)	on a date unknown between 15 August 2008 and 1 September 2008 he unlawfully and maliciously caused grievous bodily harm to Cameron Leslie with intent to do him grievous bodily harm contrary to section 18 of the Offences Against the Person Act 1861  (“the GBH count”).

[3]	The applicant’s trial commenced on 10 January 2011 before Stephens J sitting with a jury.  On 16 February 2011 the jury convicted the applicant on both counts.  The judge sentenced the applicant to life imprisonment with a minimum tariff of 17 years for the murder.  In relation to the GBH count the judge also imposed a life sentence with a minimum tariff of 4 years.  The judge also made a disqualification order under the Protection of Children and Vulnerable Adults (NI) Order 2003.

An outline of the case

[4]	The applicant at the age of 23 started a relationship with Sheree Black, then aged nearly 17, in October 2006.  Sheree moved in with the applicant. A child of that relationship, Cameron, was born on 30 May 2008.  The relationship broke down and Sheree and Cameron moved out on 12 August 2008 to live with Sheree’s  mother. With Sheree’s agreement the applicant continued to have direct unsupervised contact with Cameron.

[5]	The applicant had overnight contact with Cameron from 4.00 pm on Friday 29 August 2008 to 11.00 am on Saturday 30 August 2008.  It was the prosecution’s case that during that overnight contact the applicant squeezed Cameron’s ribcage so hard that he fractured 14 of his ribs.  The expert medical evidence established that when the injuries were inflicted on Cameron he would have initially felt pain and let this be known but anyone else subsequently handling Cameron would merely have known that Cameron was unhappy without knowing why.

[6]	Further overnight contact commenced at 2.00 pm on Tuesday 2 September 2008.  Cameron remained in the applicant’s care until he left the applicant’s home premises in an ambulance at 8.48 am on Thursday 4 September 2008. He was initially admitted to Antrim Area Hospital. Due to his grave condition he was transferred later that day to the Royal Belfast Hospital for Sick Children.  He died there and was   pronounced dead on Saturday 6 September 2008 at 2.15pm.  Examination of his body showed that he had 14 fractured ribs, massive brain damage, bilateral and extensive retinal haemorrhages, and bruising to many areas of his body.

[7]	The applicant claimed that at 3:00am on Thursday 4 September 2008 he found Cameron to be “pinky, paley pink”; his lips were a bluey colour and there were abnormal eye movements.  He claimed that he thought he had maybe accidentally overdosed Cameron on Calpol and claimed he had performed CPR on the baby.  However, the applicant did not call an ambulance.  The applicant claimed that by 5.00am Cameron’s condition had deteriorated further and he again performed CPR but again he did not call an ambulance.  It was not until 8.37 am that the applicant called an ambulance despite waking at 7.50 am and realising that Cameron had further deteriorated.  At the hospital the applicant changed his story on a number of occasions and failed to give what would have been pertinent information to the doctors.

[8]	The prosecution case at trial was that some time not long before Cameron was admitted to hospital on Thursday 4 September 2008 the applicant had caused a severe blow to the back of Cameron’s head thereby causing massive bleeding on the surface of his brain which in turn caused extensive and fatal brain damage.  The prosecution’s medical experts concluded that Cameron had sustained severe trauma 48 to 72 hours prior to death.  The prosecution also adduced evidence that the applicant’s relationship with Sheree Black was marked by physical and verbal violence. It was part of the prosecution case that the applicant directed  aggression at Cameron. On 12 August 2008 the applicant shouted at Cameron that he was “a spoilt wee brat, a fucking wee cunt” and on Wednesday 3 September 2008 he screamed at Cameron to “shut the fuck up” in response to him crying.  The applicant denied aggression and asserted that he loved his son.

The key medical evidence

Pathologist’s evidence

[9]	Dr Ingram, the Assistant State Pathologist for Northern Ireland, carried out the post mortem examination on Cameron.   He found haemorrhaging through the dura.  There were extensive haemorrhages over the left cerebral hemisphere and on the right and they had tracked down to the base of the brain.  He noted evidence of bleeding on the surface of the brain.   Death was due to a head injury.    There was recent bleeding over the surface of the brain (subdural haemorrhage) as well as beneath the thin translucent membrane closely applied to the brain surface (subarachnoid haemorrhage).  The brain had undergone reactive swelling (cerebral oedema).  There was bleeding into the lining of the retina of the eye indicating that it had occurred not long before admission to hospital.  There were two small bruises on the under-surface of the scalp at the back of the head.  The findings were typical of non-accidental head injury.  Dr Ingram indicated that the mechanism likely to cause such injuries could be violent shaking in conjunction with a forceful impact of the head against a surface or a forceful impact alone. The small bruises on the back of the scalp were in keeping with blunt impact and he considered that the injuries could not have been sustained accidentally and were typical of those seen in cases of child abuse.   

[10]	The witness further referred to past injuries namely, fractures of 5 of the left ribs and 4 of the right ribs at the front and fractures of 3 of the left ribs and 2 of the right ribs at the back.   None of these could have been sustained accidentally.   They were typical of non-accidental injury, probably caused by the infant’s chest having been forcibly grasped or squeezed or compressed.  He went on to conclude that the presence of fingertip type bruises on the child’s back would support such a mechanism.  While the fractures themselves did not contribute to the fatal outcome, they supported the contention that this infant was subjected to an assault on more than one occasion.	

[11]	In relation to slides of the brain taken by the defence expert Dr Squier (qv), they were further examined by Dr Ingram and it did not appear to him that they had been present for a long period of time, possibly a day or two, and in all likelihood as a result of a child in the process of dying where the circulation becomes sluggish.

Retinal haemorrhaging

[12]	Dr McCarthy gave evidence for the Crown.  He was a consultant pathologist with a particular expertise in ophthalmic pathology. He dealt with the retinal haemorrhage in Cameron's eye. His evidence was that Cameron's eyes had been developing normally. Both eyes showed extensive retinal haemorrhage. The degree of retinal haemorrhage was at the extreme end of haemorrhaging to be found in any eye and was at the far end of severity.  The bleeding was widespread and extensive affecting every part of the retina in both eyes.  It was also in all the layers of the retina and in all locations.  This was as bad as the witness had ever seen.  He stated that there was bleeding in the optic nerve. There was bleeding  between the sheath and the nerves and also penetrating into the cluster of nerves inside the sheath.  There was a haemorrhage external to the eyeball itself.  He stated that retinal haemorrhages are caused by severe trauma.  The witness stated that the distribution and extent of retinal haemorrhage is important in determining the cause.  Trauma affects the whole of the retina and along the optic nerve.  That was the nature of the injury that was sustained by Cameron.  He rejected any suggestion that bleeding in the brain had caused the retinal haemorrhages. Dr McCarthy was initially unaware of the post mortem findings of a bruise on the skin at the back of the head. There was  a bruise in the soft tissue under the skin when the skin was resected and brain damage in turn under the bruise.  He had initially considered that the retinal haemorrhage had been caused by shaking. He subsequently became aware of potential evidence of direct cranial trauma injury and then having considered that evidence, he concluded that the cause of the retinal haemorrhage was a severe trauma in the form of direct blow to the back of Cameron's head. The witness rejected as implausible any suggestion that the retinal haemorrhage could have been caused by mere rough handling or by Cameron hitting his head on a plastic bath, an explanation put forward by the applicant. The force in question had to be of much greater magnitude.  The witness discounted any conceivable way in which the retinal haemorrhages could be caused in hospital.  He stated that if a bleed occurs inside the body then the body breaks down the blood cells.  As the blood cells breakdown or burst then iron is released from the cells and deposited in the tissues.  It was not possible to be exact but in approximate terms one sees iron within 48 to 72 hours after the bleed has occurred.  One person will be slightly different from another.  It may be delayed a little longer but only by a matter of a few hours longer. Dr McCarthy took into account the history of Cameron being unwell before coming into hospital, floppy and unresponsive with eyes rolling.  He considered that having regard to the timing of the admission to hospital at 9.05am on Thursday, 4th September 2008, the traumatic event causing the retinal haemorrhage was about 60 hours prior to death.

[13]	Dr McCarthy in cross examination made clear that in his opinion it was inconceivable that any child would have retinal haemorrhages of the degree found in the absence of serious trauma.  The haemorrhaging taken in the context of the other features could only be expected in a child exposed to severe trauma.
[14]	Mr John Orr QC, the applicant’s Senior Counsel at trial, made clear that Ms Adams was the defence expert on retinal haemorrhaging.  The judge on a number of occasions made clear to the defence that in order for the jury to form a view about it they had to know the case that she was making and that case had to be put to Dr McCarthy for him to comment on.  Mr Orr made clear to the court that Ms Adams deferred to Dr McCarthy on the timing of the development of the retinal haemorrhages.  Mr Orr QC stated to the judge:-
“As I say, I don’t see that I can put to an expert dealing with the eye injuries a time frame when I don’t have an expert that can stand over that . . . my expert defers to (Dr McCarthy).”
The judge posed the following to Mr Orr:-
“There is no other mechanism being suggested apart from severe trauma and there is no dispute as to the severe trauma on this evidence taking place within 72 hours of death?”
Mr Orr agreed. He somewhat later referred to Ms Adams’ report and stated:-
“She makes it clear on at least two occasions that she defers to Dr McCarthy.  Now that is the difficulty that I am presented with so I don’t intend to put any other theory . . . because I can only do it if I have ground for doing so and the medical report has me restricted . . . I certainly thought I had made it clear not just from this witness with a number of witnesses that we are not disputing the issue of trauma.”
At a subsequent stage in the exchange between the judge and counsel the transcript records:-
“Mr Orr: But as I did say to the witness I think again the cause of death was a head injury.
Mr Justice Stephens:	 Yes.
Mr Orr: And not  . . .
Mr Justice Stephens:	 No, this is an indicator of severe trauma and this is what the witness says.  It didn’t cause the death, but here is expert medical evidence uncontested with which your witness agrees or defers that there was severe trauma to this child within 72 hours of death with the only person unfortunately who was looking after the child was your client.
Mr Orr: Yes. But it is closer to 48 hours it might not be when we had any control over the child, that’s why I raised the question of whether or not it could have happened in hospital.
Mr Justice Stephens: But if you are postulating a mechanism by which it could happen in hospital this witness has (randomly (sic)) rejected that as a general proposition but if you are postulating some particular mechanism by which it could happen in hospital then you should put that to this witness.
Mr Orr: No, well I have no mechanism that I can put.  I have to be quite blunt.
Mr Justice Stephens: Well there was not a single witness that that was suggested to that you would have the obligation to suggest a witness that they had in some unwitting way caused bilateral retinal haemorrhages and haemorrhages of the optic nerve and haemorrhages in the tissues around the eye by some treatment in hospital.
Mr Orr: I mean.
Mr Justice Stephens: Equivalent to being dropped or slammed on to a table.
Mr Orr: It’s one of those ones that I am tied by the instructions.
Mr Justice Stephens: Yes.
Mr Orr: And by the medical reports that I have.  And I am not trying to extend or change, and I certainly am not trying to put forward theories.  
Mr Justice Stephens: Yes.
Mr Orr: Because I don’t think that’s proper either.  That only confuses the jury.”
[15]	Subsequently in the presence of the jury the judge said to Mr Orr:-
“But as far as the expert evidence is concerned you are not putting forward anything else for the retinal haemorrhages than severe trauma?”  To this Mr Orr replied, “No.”
The transcript then states;
“Mr Justice Stephens: Then as far as the timescale is concerned the witness said 48-72 hours, give or take a bit here or there and it was the purport of it as far as I understand the evidence are you joining issue with that at all?
Mr Orr: Well I – I am not joining the issue, I mean I simply, I have put to the witness and he has agreed that stage one is the timing.
Mr Justice Stephens: Yes.
Mr Orr: Of retinal haemorrhages is inexact.
Mr Justice Stephens: Yes.
Mr Orr: That’s the starting point. He then goes on to say 48 to 72.
Mr Justice Stephens: Yes.
Mr Orr: And his preference is more to 48 than 72.
Mr Justice Stephens: Yes.
Mr Orr: And then he does in answer to me in my respectful submissions say it could be longer.
Mr Justice Stephens: OK?
Mr Orr: I simply,  I don’t.
Mr Justice Stephens: But to put in terms that I can understand and that is that the crucial time is I think from recollection about 3 pm on Tuesday, that’s Tuesday 2 September.  
Mr Orr: Yes.
Mr Justice Stephens: If you are suggesting that it is prior to then that should be put to this witness.
Mr Orr: Well I don’t have an expert report that puts me back in terms of the retinal haemorrhaging before Tuesday afternoon.
Mr Justice Stephens: Yes.
Mr Orr: So I can’t put it to this witness all I can do is to seek to see what are the limits of the time and the witness has answered those questions.”

Rib fractures

[16]	The Crown evidence in relation to rib fractures was given by Professor Malcolm, a consultant pathologist with particular expertise in the examination of bones.  He examined Cameron's rib cage and he found 14 rib fractures comprising 5 posterior rib fractures and 9 anterior rib fractures.  He considered and rejected a number of potential causes of Cameron's rib fractures (injury at birth, bone disease, rickets, scurvy and chest compressions). He considered that the cause was trauma and as there was no history of a severe accident that these were non‑accidental injuries caused by severe squeezing or gripping of the chest.  His evidence was that it would take a very significant compression of the chest to create rib fractures in an infant. Professor Malcolm said there was no possible mechanism in this case other than compression with the use of one or two hands squeezing the rib cage.   In relation to force required, he stated that there had to be very significant compression and that the force required was really quite significant.  This was particularly so given that the rib cage is very bendable and squeezable in a baby of the age of Cameron.  In relation to whether the rib fractures were all sustained at the same time or in a number of instances, he stated that they all appeared to be approximately of the same date.  They were all probably of the same date but that the dating of rib fractures is not precise and therefore it was not possible to say for certain whether they were all sustained at the same time. He stated that initially Cameron would feel pain and let that be known.  Thereafter when handled he would be unhappy but the carer would not know why unless the carer knew what had happened. Professor Malcolm explained how fractures could be dated by the cells that are present in the healing process.  The cells which ingest dead material, macrophages, arrive within 3 to 5 days and thereafter new bone or cartilage will be present.  His conclusion was that the anterior rib fractures occurred about 7 to 10 days prior to death and the posterior rib fractures about 10 days prior to death though those timings could not be medically exact. His overall estimate was that all the rib fractures occurred about 7 to 10 days prior to death.  That would place the rib fractures as occurring at some stage between 28th August and  31st August.  He also said that it could be a period of 6 to 14 days.
 
[17]	The Crown also called Dr Patterson, a consultant paediatric radiologist.  In relation to the age of the fractures she deferred to Professor Malcolm. Her date estimate relied on two major factors. Firstly, she referred to the question of soft tissue injury.  A fractured rib does not happen in isolation without any other injuries in the immediate vicinity of the fracture.  At the same time as the rib fractures, the surrounding soft tissues, that is the muscles, fat and linings, are damaged causing a swelling.  Most of that swelling resolves within 10 days.  On her examination of the x‑ray films and scans, the soft tissue damage adjacent to the fractures was not resolved and therefore in her opinion the fractures were less than 10 days old. Secondly she relied on the extent of healing within the bone.  The earliest that healing in bone is observed is 4 days. Typically it is 1-2 weeks.  She saw no new bone but she did see unresolved swelling and therefore her view was that the fractures were all recent and less than 10 days old.

Brain injury

[18]	There was a conflict of medical evidence between the Crown witness Dr Mirakhur and the defence expert Dr Squier.  They both agreed that Cameron suffered a non‑accidental injury to his head causing his death.  They differed on the timescale within which that occurred or might have occurred.  Dr Mirakhur gave different dates for the trauma to Cameron's head from those proposed by Dr Squier.  Dr Squier dated the trauma and injury to the head as having occurred outside the period of 48 to 72 hours prior to Cameron's death, whilst Dr Mirakhur dated it within that period.  They put forward different mechanisms though they both agree that the mechanism involved a blow to Cameron's head inflicted by someone.
  
[19]	Dr Mirakhur is a retired consultant neuropathologist who was the Head of Neuropathological Services in the Royal Victoria Hospital between 1996 and December 2010. On 8th September 2008, she performed an autopsy on Cameron with two other pathologists, namely Dr Ingram and Dr Thornton, a paediatric pathologist.  Her evidence was that Cameron's brain had been developing normally. She found a left subdural clot, the blood having started to solidify and being sticky.  As a result the subdural clot was adherent to the dura.  This clot was over the left cerebral hemisphere and included 3 of the 4 lobes of the cerebral hemisphere.  It was not over the occipital lobe at the back of the head.  She said it was necessary to distinguish between a subdural clot and a clot in the vein.  She gave evidence that there was also a right subdural clot in the right hemisphere involving the frontal and temporal lobes.  There was generalised subarachnoid clot.  This was present on both sides under the arachnoid layer. In relation to the spinal cord there were subdural and subarachnoid clots in the spinal cord in the upper part of the neck.  There was a clot on the right cerebellum at the back of the head and she pointed out that part of the head as being  affected by that clot.
  
[20]	In relation to the methods for dating injury Dr Mirakhur tested for iron and macrophages, this is the body's mechanisms to clean up debris.  She checked the proportion of red blood cells, white blood cells and protein called fibron.  They were all in ordinary proportion.  That proportion is lost during the course of the healing process.  She stated that she found there was an evolution of changes throughout the brain.  The subdural and subarachnoid bleeds occurred first and then deeper into the brain cortex.  In the deep white matter and the deep grey matter the injuries were more recent. She stated there was a sequence, first the bleed, then clotting, then tissue damage into the substance of the brain causing cell death and bursting red cells, and then the arrival of macrophages.  She found that in the deep white cells there were no macrophage reactions.  This indicated that in the deep parts of the brain the damage was more recent than on the outside of the brain.  Her evidence was that all the bleeds occurred in the time period of 48 to 72 hours prior to death. She could not be exact down to the hour. The calculation was not as exact as a mathematical calculation but she could say that the bleeds occurred within the period of 48 to 72 hours prior to death.
  
[21]	She stated that the most likely cause of brain damage was traumatic injury and that it is unusual in this age group that this type of trauma is caused by natural action.  It could not, for instance, be caused by dropping Cameron on the floor because the severity of injury was not compatible with just a fall.  She stated that she gained support from her conclusion that this was a traumatic brain injury caused by a blow to the head from the finding that on the back of his head there was a bruise in the external skin.  Under the bruise on the external skin after the skin was peeled back during the course of post mortem there were two bruises on the soft tissues under the skin.  Beneath that there was a localised subarachnoid clot in the right cerebellum. The clot coincided with the bruises on the skin and under the skin at the back of Cameron's head.  

[22]	The witness also stated that her time frame of 48 to 72 two hours  initially arrived at independently from her examination of the brain was supported by the evidence of Dr McCarthy in relation to the timing of the retinal haemorrhages.  She did not agree that there was a veinous clot.  She and Dr Ingram came to that conclusion from  post mortem examination of the veins in Cameron's head and also upon her initial examination of the slides that she had taken from those veins.  She checked the slides that Dr Squier had taken. She concluded that she could not see anything other than what one would expect from a sluggish circulation system of a child on a ventilator prior to death.
  
[23]	The Crown also relied on Dr Peak, a consultant paediatric neurologist. Her evidence was that there were no signs that Cameron had any clot in his brain in the week prior to his death.  A clot causes a build up of back pressure in a vein and this gives rise to headaches, a sleepier baby, decreased interaction, vomiting and  seizures.  On the basis of Dr Maginn's record of what she had been told by the parents at the Royal Victoria Hospital and the other history she had been given, she saw no neurological signs or symptoms in the week proceeding Cameron's admission to hospital and she considered that the most likely cause of the signs and symptoms on the morning of Thursday, 4th September 2008 was inflicted trauma.  She accepted that the signs and symptoms of a CVT can be very subtle and subtle signs can be missed.  Therefore, there is a need to take a very detailed history.  Dr Peak also gave evidence that a cerebral veinous thrombosis is rare with six children in every million having a clot.  When considering that figure she also said that there are multiple causes of veinous clots (infection, dehydration, blood clotting disorders, metabolic upsets) as well as trauma.  
 
[24]	The defence called  Dr Squier, a consultant neuropathologist and an  honorary lecturer at Oxford University, who spends about 95% of her time dealing with the brains of babies.  She examined Cameron's brain.  She saw iron pigment in the area around the blood vessels.  She considered that this was as a result of a bleed at birth.  On examination of the dura by naked eye she saw a blood clot that stuck to the wall of the sinuses.  There was no organisation indicative of a healing process.  In the cortical vein there was no adherent clot under the microscope.  There was no evidence of torn nerve fibres in the spinal cord.  There was no evidence of torn nerve fibres within the brain, both of these would be an indication of trauma. She considered that some of the changes within the brain were less than one to two days or less than a few hours but that there was an older clot which could be up to seven days.  On her sequence of events there was an old clot causing a more recent catastrophic bleed causing death. She considered that  the most likely cause of the veinous clot was trauma and given the absence of a history of trauma that it was inflicted non‑accidental trauma. In her opinion the average time between trauma causing a veinous clot and symptoms is four days.  She considered that an inflicted trauma caused the head injury which caused the clot which caused death.  Whoever inflicted the trauma in her opinion killed Cameron.  

[25]	In relation to a suggested explanation of the veinous clots being due to Cameron being on a ventilator with sluggish circulation, she said that she did not see clots in every baby on a ventilator.  On pathology she could not be sure of the timing of the veinous clots.  She considered that they were older than three days, possibly older than four or more days, probably up to six days old, and then she gave a period of four to eight days old.  She thought that the bruises on Cameron examined histologically all seemed to be recent and suggest further recent impact injury that is impact injury more recent than the 29th and 30th August.  In view of the recent bruising she therefore could not say that further trauma did not occur within 48 to 72 hours of death.  Looking at the whole picture she considered that the trauma to the head tied in with the timing of the rib fractures and the appearance of swelling at the side of Cameron's head.  She conceded that there was no evidence of the origin of the CVT, that is the actual start of this blood clot though it could have been missed as it could have been deep down in the brain.  She also accepted that there was no evidence of a clot blocking a vein, though she stated that there is no need for it to block the vein for there to be serious adverse consequences.  She agreed that there was no evidence of veinous infarction, that is a loss of brain tissue in the brain due to a lack of circulation from that part of the brain.  

[26]	The defence also relied on Dr Jansen who is a paediatric neurologist at the University Hospital in Brussels.  Her evidence was that the clinical picture of Cameron over the period of Saturday, the 30th August 2008 to Thursday, the 4th September 2008, was consistent with a veinous clot.  She stated that a veinous clot would block the drainage from the brain and this would cause congestion with diffuse brain swelling. This might have compromised the brain leading to seizures at 3.00am and 5.00am.  Cameron might have had a period when he did not breathe.  In her evidence in chief she said that it was highly likely that there was an event that led to a CVT but she could go no further.  

[27]	She gave evidence as to the acute symptoms of a CVT and the earlier subtle symptoms of a CVT.  The acute symptoms were seizures, coma, subdural haemorrhage, subarachnoid haemorrhage, infarction that is death of a part of the brain and increased pressure on the brain.  All those symptoms apart from infarction were found in Cameron.  However, she agreed that they were all also consistent with trauma to the back of Cameron's head as opposed to a CVT.  The earlier subtle signs were also non‑specific, that is they could be caused by a whole range of conditions including, for instance, having sustained 14 rib fractures.  A sign to which she pointed was that Cameron was started on Calpol on Saturday 30th August 2008.  That was an indication that he was unwell or a bit irritated.  The prosecution submitted that this could be  explained by the fact that Cameron had sustained 14 rib fractures.  She agreed that there were no other subtle signs of which she was aware prior to 6.00pm on Wednesday, 3rd September 2008 and specifically that there were no symptoms consistent with raised intracranial pressure on the brain secondary to a CVT except for evidence of by Cameron being on Calpol.  

Bruises

[28]	Dr Ingram found bruises not related to medical treatment and caused by trauma in a number of areas of Cameron's body namely on his scalp,  neck,  face,  right shoulder,  abdomen,  right upper arm,  left arm,  right lower leg,  left lower leg and  back.  On the external skin on the scalp there was a bruise seen in the midline at the back on the bony prominence.  There were two further bruises in front of the left ear and on the left side of the scalp just on the hair line.  Under the skin there was a bruise that coincided with a bruise in the midline at the back of the scalp.  There was a further bruise which was not visible on the outside of the skin.  He considered that all those bruises were non‑accidental and due to trauma. Externally on the neck there were little ruptures across the front of the neck in a fold of the skin.  Internally once the skin was resected and peeled back, there was a reddish purple bruise on the jaw, a reddish purple bruise on the left side of the neck, and a bruise on the right side of the neck.  There were three or possibly four areas of bruising overlying the lower jaw.  He considered whether those bruises could have been caused in the process of intubating Cameron in the hospital but said that the doctors were usually very careful and he was of the view that these bruises were caused by Cameron's lower jaw being gripped firmly by fingers.  On the back, there were three bruises, possibly a fourth and these he considered were evidence of fingertip bruising.

The applicant’s evidence

[29]	The applicant gave evidence denying responsibility for any injury caused to the baby.  In the course of his evidence he told the court about drug use on the Wednesday night as he had admitted to police.  He admitted in August 2008 that he had a bad temper and would on occasion lash out and become violent.  He admitted hitting his girlfriend, Sheree, and he admitted that he had hit her on the side of the head. He suggested there was a relationship between his use of drugs and loss of temper.   He referred to punching walls, doors and shouting.  He had been due to get anger management treatment.   He denied that he would ever have spoken to Cameron in a violent manner or raised his voice in a violent manner.   He admitted hitting walls and putting holes in doors.   He referred to being depressed when Sheree and Cameron left him. He accepted that his mental state was bad on the Sunday night/Monday morning of the week Cameron died and stated that he decided to hang himself in the early hours of the Monday morning at approximately 1.00 a.m. He had taken drugs on Saturday and Sunday. He accepted he was having a breakdown but did not tell Sheree or Margaret Black or anyone else.   He agreed that someone in his mental state should not have had the child near him.   He referred to having alcohol on the Friday, Saturday and Sunday and a joint on Sunday night.

[30]	When the applicant was asked about the rib fractures and whether he had caused them he denied doing so.   He accepted that he did not know that fractures could be aged.   He accepted that he did not tell the truth to the police when he said he had cannabis on Sunday.  Initially he only told them he had cannabis on the Sunday night.  He accepted that he told them later in the interviews that he smoked cannabis on Tuesday night.   He accepted that he only told them about the drugs when he was backed into a corner and when there was other evidence against him.

[31]	He accepted that he did not tell the Emergency Services about his alleged attempted CPR.  The reason he gave was that he was not medically trained.   He went on to say that it was a distressful day.   He did not tell the paramedics about the child being awake at 1.00 a.m. or at 3.00 a.m.   He accepted that he did not tell the doctors at Antrim Hospital about the CPR which he suggested later that he given to Cameron.  Nor did he tell them about the child being up at 3.00 am which he later said had occurred.   He accepted that he had not given a full account to Dr Maginn.  It was the prosecution contention that the applicant had made up the suggestion that he had carried out CPR. It was also the Crown case that the applicant had told lies about the movement of the cot which he linked to the alleged CPR.

[32]	When it was put to him that he lost his temper with Cameron on the Wednesday he told the Police that he never ever shouted at his son.  However, in cross-examination he admitted he lost his patience saying that he raised the tone of his voice in an authoritative manner.  He said at this time the baby had been crying for 15 or 20 minutes but not the 45 minutes referred to by a Crown witness. He gave no explanation for any injury other than a bruise on the ankle.  He accepted that in relation to the timescale given no one else could have caused the injuries to the head. He had no explanation for a bruise on the tip of Cameron’s shoulder; 3 bruises on back, a bruise to his abdomen, to his right elbow, to his left arm. 

[33]	It was the Crown’s case that it was apparent in the light of the evidence of the applicant that he was the person who had total responsibility for Cameron from Tuesday 2 September until his  admission to hospital.  He denied responsibility but did not make any direct allegation against any other person nor was there any evidence suggesting the involvement of any other person.   In particular, there was no suggestion that R, age 13, had been responsible for any injury to the baby.

Grounds of Appeal

[34]	The applicant’s grounds of appeal can be summarised as follows:

(a)	The “no case to answer” issue – It was argued that the judge erred in refusing an application of ‘no case to answer’ in respect of the GBH charge. It was alleged that the charge was based on imprecise medical evidence as to wen the rib fractures occurred, extending to a period during which Cameron was in the care of other persons and that the judge erred in taking into account the evidence in respect of the murder charge when finding there to be a case to answer in respect of the GBH charge.

(b)	The “separate consideration of counts” issue:  The judge’s direction to the jury in relation to the need to consider each charge separately was alleged to be inadequate. The judge’s direction to the jury in relation to the cross-admissibility of evidence between charges was inadequate.

(c)	The “quantum of proof” issue: It was alleged that the judge gave an inadequate direction on the standard of proof.

(d)	The trial judge’s interruptions during the evidence of the applicant’s medical expert, Dr Squier, resulted in unfairness as it meant the witness was unable to rebut some of the prosecution’s medical evidence, namely that the retinal haemorrhaging occurred 48-72 hours prior to his death which placed Cameron in the applicant’s care at the time.

(e)	The “media reports issue” It was argued that unrelated media reports during the trial regarding Dr Squier being reported to the GMC by police in relation to her expertise could have unfairly influenced the jury.

The no case to answer issue

[35]	The applicant’s written grounds of appeal and counsel’s written skeleton argument relied on this ground but counsel for the applicant did not really press the issue in her oral submissions. The defence predicated the application that the applicant had no case to answer on the GBH count on the basis that there was an outer bracket of time for the infliction of the fractures that extended 6 to 14 days prior to the presentation of the child at hospital on 4 September 2008.  The applicant had custody of Cameron in the period 29-30 August and from 2 September 2008 until he was hospitalised.  The defence argued that there were other persons who could have inflicted the injuries.  It was argued that the Crown invited the court to utilise evidence of the infliction of injury that caused the death as additional supporting evidence for the allegation of the rib fractures.  It was argued that this was an impermissible invitation to the jury to rely on evidence said to implicate the applicant in respect of count 2.  The judge by the time he came to direct the jury had resiled from that position.  The applicant contended that the judge at the direction stage wrongly had regard to the proposition that there was cross-admissibility of the evidence between the two counts.

[36]	The Crown contended that the jury was properly invited to look at all the evidence. The evidence adduced provided material showing the circumstances of two proximate events and a course of conduct in respect of an abused child.  The judge’s ruling made clear the evidence which he considered established a prima facie case.

[37]	We are satisfied that the judge correctly stated the applicable principles to be applied in considering whether there was a case to answer.  He referred to the evidence relied on by the Crown as the basis for the argument that there was a prima facie case.  This included:

(a)	Evidence of Cameron’s condition on 30 August 2008 which was consistent with a rib fracture sustained on Friday 29 August or 30 August whilst in the care of the applicant.

(b)	The applicant’s phone call on 30 August 2008 in which he told Sheree that Cameron had been crying his heart out.  This was consistent with the Crown case that Cameron having sustained trauma would have let it be known to the person causing the injury, with subsequent carers only thinking that the child was out of sorts.

(c)	When the applicant returned the child home on 30 August he said that Cameron was due to be fed and was out of his routine and he slept till 12 o’clock.  

(d)	Later that day there were concerns in relation to bruising and a mark inside Cameron’s ear.

(e)	Sheree Black stated to the paternal grandmother of the child that Cameron had been upset and should not be bathed.  

(f)	He was started on Calpol that day and this Calpol was continued until hospitalisation.

(g)	The delay by the applicant giving an account of the CPR allegedly carried out, laying the basis for the suspicion that the applicant did not want to highlight attention on Cameron’s chest area.

(h)	The Crown evidence of abusive and violent behaviour by the applicant towards Sheree.

(i)	The use by the applicant of violent verbal abuse to the child.

(j)	The lies which the applicant told the police.  

[38]	The judge in his ruling concluded that in relation to all the expert evidence including medical evidence the jury should not take it in isolation but should consider it together with all the other evidence in the case.  There was, he concluded, a number of strands of other evidence apart from the medical evidence to support the prosecution case that the rib fractures were sustained on Friday 29th or Saturday 30th August.  There was also evidence albeit of less strength in relation to the previous Wednesday.  He did not consider the evidence to be tenuous, inherently weak or inconsistent and accordingly refused the application for a direction in relation to the count. We are satisfied that the judge had a clear evidential basis justifying his conclusion that there was a case to answer on the GBH count.  

The separate consideration of counts issue

[39]	The applicant contends that the judge’s directions to the jury in respect of the separate treatment on the two counts were inadequate.  It was argued that the judge should have cautioned the jury in clear terms that they should be careful not to assume that their decision on the other evidence necessarily meant that they must take the same view of the evidence relating to the count they were considering.  No direction was given regarding the approach to be followed by the jury where they did not accept the applicant’s evidence in respect of one count.  They were not warned that it would not automatically follow that they had to reject the applicant’s evidence relating to the other count.  The issues were complex and depended on the view that the jury took of the expert medical evidence on each count. It was argued that the judge failed to stress that the evidence on each count was of a completely different nature and quality.  Count 1 related to the mechanism that may have produced the bleed in the brain that ultimately led to death.  On count 2 the issue related to the timing of the infliction of injuries. 

[40]	However, as the Crown pointed out, the judge in his summing up made clear to the jury that each count had to be considered separately.  The judge pointed out correctly and logically that there might be something in the evidence relating to one count that might assist the jury in reaching a verdict on the other count but he stressed that the jury had to go through the full process of analysis in relation to each count. He properly identified the three questions which the jury had to consider on the GBH count: 

(i)	was it proved beyond reasonable doubt that the applicant fractured the baby’s ribs; 
(ii)	was it proved beyond reasonable doubt that Cameron sustained really serious harm; and 
(iii)	was it proved beyond reasonable doubt that the applicant intended to cause really serious harm.

He properly instructed the jury that if there was a reasonable doubt as to whether the rib fractures were sustained on 23 August 2008 (the 14th day prior to Cameron’s death) they should acquit because the Crown would not have established that Cameron was in the care of the defendant on that day.  He properly detailed the evidence of what was found in relation to Cameron on Saturday and referred to the evidence of Margaret Black and Alison Cargill and the evidence about Cameron’s condition when he came back from overnight custody with the applicant on Saturday.  He directed the jury to consider with considerable care the defence proposition that the prosecution had not excluded the possible infliction of injury by another to Cameron on the afternoon of Saturday 30 August.  He referred the jury to the evidence from the applicant stating that he was not suggesting anybody else was responsible for the injuries.  The judge properly highlighted the relevant material evidence.  

[41]	We are satisfied that the judge properly made clear to the jury that the counts should be separately considered and he properly identified the two separate evidential bases for the two charges and the jury must have fully understood that it had to consider each count separately.  Having regard to the summing up read as a whole we are satisfied that the judge properly indicated the interplay of evidence in so far as it might affect the jury’s approach to its separate consideration of the two counts.

The standard of proof issue

[42]	The applicant contended that although the judge directed the jury on the issue of the standard and burden of proof in accordance with the recommended direction in the Northern Ireland Bench Book such a direction was in the circumstances inadequate.  Counsel submitted that in the circumstances of the case the preferable course would have been to have adopted the formulation used by Lord Goddard CJ in R v Sumners 36 Criminal Appeal Reports 14 at 15 (“The prosecution proves its case if the jury, having considered all the evidence relevant to the charge they are considering, are sure that the defendant is guilty.  Further explanation is unwise.”)

[43]	It is important to bear in mind what Lord Goddard said in R v Bentley referring to what was said in R v Kritz [1950] 1 KB 82 at 89 where it was  rightly said:

“It would be a great misfortune in criminal cases especially if the accuracy or inaccuracy of a summing up were to depend upon whether or not the judge or the chairman had used a particular formula of words.  It is not the particular formula of words that matters; it is the effect of the summing up.  If the jury are charged whether in one set of words or in another and are made to understand that they have to be satisfied and must not return a verdict against a defendant unless they feel sure and that the onus is all the time on the prosecution and not on the defence, then whether the learned judge uses one form of language or whether he uses another is neither here nor there.”

[44]	We recognise that it would be desirable that the Bench Books in the two jurisdictions should so far as possible adopt a common approach to standard directions to juries on issues where there is no difference in the law in the two jurisdictions. We also recognise that the formulation in R v Sumners has the advantage of being clear, succinct and correct. However, we are quite satisfied that the judge’s direction in this instance was clear and adequate stressing the importance to the jury of the need to be satisfied beyond reasonable doubt of the guilt of the accused.  The direction followed a direction which is regularly and widely used in this jurisdiction and which has had the approval of a succession of distinguished Lord Chief Justices. It should be borne in mind that the standard direction in this jurisdiction makes clear to the jury that the defendant must be given the benefit of the doubt and that the defendant should be acquitted if there is a real possibility that he is not guilty.
	
[45]	Throughout the summing up the judge reminded the jury of the standard of proof beyond reasonable doubt on issues on which the jury had to be satisfied.  Thus, the jury was reminded that the prosecution had to prove beyond reasonable doubt that the trauma alleged was a substantial cause of Cameron’s death.  The jury was reminded that the Crown had to prove beyond reasonable doubt that the applicant caused an injury to Cameron’s head.  The jury members were informed that they had to be satisfied beyond reasonable doubt that the applicant intended to kill or cause Cameron really serious harm.  On count 2, as we have already noted, on the three relevant questions posed by the Judge the jury had to be satisfied beyond reasonable doubt.  On the question  whether the Crown had proved a propensity to loss of temper and physical violence the court made clear that the Crown had to prove that beyond reasonable doubt.  On the issue of lies allegedly told by the applicant the jury was rightly told that only if it was satisfied beyond reasonable doubt that he did not lie for an innocent reason could the evidence of lying support the Crown case.  On the issue of inferences to be drawn against the applicant in consequence of alleged delay in seeking help or in informing the doctors of what had happened, the judge reminded the jury that it could only draw inferences adverse to the applicant if satisfied beyond reasonable doubt that he did not delay for some innocent reason.  

[46]	We are  satisfied that the jury was  properly directed on the importance of the requirement of the Crown proving its case beyond reasonable doubt and the jury cannot have failed to appreciate the importance of the issue. Nor can we accept the applicant’s contention that the issue of proof beyond reasonable doubt emerged only at an early stage in the trial and was not repeated. The summing up was replete with reminders to the jury of the standard of proof on the issues on which the Crown had to satisfy the jury.

The evidence of Dr Squier

[47]	Ms Jenkins QC submitted that the evidence of Dr Squier was of critical importance in respect of the timing of the injuries because if the wider time bracket she proposed were to be adopted then there was a number of people involved in the care of Cameron who were potential candidates for the infliction of injures. She contended that on this issue the role of expert witnesses was paramount.  Any material which raised, suggested or confirmed that there was a question mark over the expertise or credibility of a defence expert would be a matter  of serious concern.  The Crown had initially sought to cross examine Dr Squier in relation to allegations made against her to the General Medical Council and the Human Tissue Authority by the Metropolitan Police and in respect of the ruling of King J in the family court criticising Dr Squier and touching on what was described as Dr Squier’s scientific prejudice and purported comments made by Dr Squier during an interview.  While initially minded to permit such a cross examination the judge reviewed that conclusion and decided not to permit such cross examination before the cross examination started.  The jury were kept waiting while these issues were debated.  The Crown had raised the application to cross examine on these issues late in the day and thereby prejudiced the possibility of the defence finding another expert.  The arguments about the cross examination of Dr Squier took place on 3 February.  Following the judge’s initial ruling permitting such cross examination Dr Squier started her evidence on 3 February.  On Friday 4 February the judge reviewed his ruling and cross examination then commenced on 7 February.  Following the cross examination on 8 February there were broadcasts on radio and television which disclosed into the public arena the fact that allegations had been made against Dr Squier to her professional body.  Later that day the Attorney General intervened to prevent a programme proposed to be broadcast on the evening of that day.  The Attorney General’s intervention was brought about by the judge bringing the matter to the attention of the Court Service who contacted the Attorney General’s office with concerns about the material broadcast and to be broadcast.  Counsel contended that the judge should have raised the issue of the broadcast material with counsel in court.   The gravity of the potential prejudicial effect of the broadcast material was accentuated by the fact that the broadcasts occurred on a day when the jury was not sitting in court.  It was argued that the material which the judge had ultimately decided should not be put to Dr Squier in cross examination effectively emerged in the broadcasts.  Having regard to the decision of the judge not to raise the matter in court and to the fact that neither the defence nor the Crown raised the matter, in the result prejudicial material undermining the credibility of the defence witness had wrongly emerged and the court had wrongly failed to take steps to deal with the problem.  Members of the jury may have been influenced by material to which they should not have had access.  A proper enquiry by the judge would have required ascertaining whether jurors had heard or discussed the broadcast material and after proper enquiry the judge would have had to consider whether he should discharge the jury or jurors and whether any additional warning should be given to the jury to disregard anything that they may have heard in the course of the broadcast.  There had been, it was argued, a material irregularity in the trial process which rendered the verdicts unsafe.

[48]	Counsel further contended that the judge had been guilty of repeated interruptions during the cross examination of Dr Squier and had made comments which undermined her credibility to the jury.  This was of particular significance when coupled with the fact of the broadcasts of other material which could impact on the jury’s consideration of the expert evidence.  In particular counsel contended that Dr Squier was effectively prevented from answering a question which affected a central issue in the case as to the timing of the injuries.

The judge’s conduct during the cross examination of Dr Squier

[49]	We cannot accept as correct the submission made on behalf of the defence that the judge’s conduct during the cross examination of Dr Squier either on its own or in conjunction with the surrounding circumstances was unfair or tended to undermine  or could have unfairly undermined her evidence.  As the trial judge he was bound to ensure that the jury could properly follow, hear and take in what the witness was saying by way of evidence.  The judge’s limited and entirely fair interjections to ensure that the jury could hear and follow her evidence and that as an expert she gave her evidence within the confines of her expertise were entirely proper.  It is unfair to suggest that the jury was being sent in and out or kept out of court on an excessive number of occasions or for excessive periods of time so as to give rise to the impression that the quality of the witness’ evidence was suspect.  What transpired during this trial was no different from what happens regularly in jury trials. When issues arise in relation to the admissibility of certain lines of questioning and when legal points arise in the course of the trial the jury must inevitably be asked to withdraw.  Having regard to the way in which Dr McCarthy was cross examined and the way the defence case had been put  with the very clear acceptance during Dr McCarthy’s evidence that the defence expert on retinal haemorrhaging did not challenge Dr McCarthy’s conclusions as to causation or timing of the retinal haemorrhaging, the judge was rightly concerned to ensure that Dr Squier, who was not an expert on retinal haemorrhages, did not trespass into a field outside her expertise and attempt to contradict the unchallenged evidence of Dr McCarthy.  As is apparent from paragraph [13] to [16] above the judge during Dr McCarthy’s evidence was careful to ensure that the defence adequately and fully put the case that they wished to put on the issue of retinal haemorrhaging to Dr McCarthy.  We are satisfied that the judge’s limited interruptions were properly directed to ensuring that the defence evidence was fairly and properly adduced in the light of the way in which the case had been presented.  We are quite satisfied that the way which the judge dealt with these matters gave rise to no irregularity.

The issue of media reports

[50]	Following the conclusion of Dr Squier’s evidence on Monday 7 February, on the morning of Tuesday 8 February 2011 there were a number of occasions when an item of news was broadcast during which reference was made to a current controversy in relation to experts (one of whom was Dr Squier)  as expert witnesses in respect of “shaken baby syndrome”.  These were broadcast at 6.02 am on BBC Breakfast TV, at 6.31 am on Radio Four Today, at 7.10 am on BBC Breakfast television, at 8.14 am on Radio Four Today, at 11.12 am on BBC News and at an unspecified time on Radio Five Live.  

[51]	During the hearing of the appeal we heard and in the case of the televised items saw the relevant broadcast items.  We have also been referred to the transcripts of the items.  The items refer to complaints by certain consultant pathologists about alleged improper police tactics including the making of official complaints about the consultants to professional bodies, tactics which it was alleged were carried out in an attempt to improperly undermine the credibility of those pathologists in respect of evidence they gave in trials of defendants charged with crimes relating to the abuse of children.  The news items named three consultant pathologists including Dr Squier.  The item, for example, at 6.31 am on Radio Today broadcast included a statement by Dr Squier who said that there had been an attempt to remove from the courts those people who were willing to challenge mainstream hypotheses in the field.  It also referred to a police enquiry arising from a family court judge’s criticism of two doctors.  In the broadcast at 8.14 a.m. Dr Squier and another paediatric pathologist were referred to as being wrongly accused of retaining human tissue illegally.  That broadcast referred to a further story to be broadcast on File on Four at 8.00 pm.  

[52]	The judge was aware that a broadcast had occurred on 8 February and that it was intended to broadcast a further story that evening.  He drew the matter to the attention of the Court Service which contacted the Attorney General on his instructions.  The Attorney General took steps to prevent a further broadcast.  The judge however did not raise the matter with counsel in court in the absence of the jury and did not seek submissions from either party as to what steps if any should be taken in light of the broadcast which had already occurred.  It was accepted by Ms Jenkins QC that her instructing solicitor and the original trial counsel were aware of the broadcasts.  The defence did not raise or express any concern about the matter.  Mr Murphy QC on behalf of the Crown accepted that at some point in the course of the day the prosecution became aware of the broadcasts but the Crown did not raise the matter with the judge.  No member of the jury raised any point arising from the broadcast. No question was posed to the jury as to whether any of the jurors had heard or seen any of the broadcasts or discussed them with other members of the jury.

[53]	The fact the broadcasts had occurred in the course of the trial and that they drew attention to matters of controversy relating to a defence witness should have alerted the court and counsel to the need to consider and properly address the issues raised by those broadcasts.  Had the question been properly raised and addressed it would have been necessary to consider whether the jury or individual members of it who had seen the broadcast should be discharged, whether any discussion had taken place between the jurors about the broadcast and whether possible prejudice could be adequately avoided by a clearly expressed direction given as soon as possible or in the course of the summing up.  The fact that the issues were not adequately addressed constituted an irregularity in the course of the trial.

[54]	At the outset to the trial the judge gave the following direction:-

“At this stage of the trial the law presumes the jurors who have been selected at random know nothing at all about the case.  That is as it should be, because each juror has to decide this case according to the evidence.  In other words the decision should be based only on what the jurors hear in court.  However, during the trial it sometimes happens that once the jury hear who the accused is or hear a reference to a witness or to the facts of the case or see somebody in court who is going to be a witness that for the first time a member of the jury realises that he or she knows somebody connected with the case and therefore may have heard something about the case.  There is therefore a risk that knowledge heard outside of the courtroom might influence the juror concerned either consciously or unconsciously as they arrive at their verdict and might therefore influence their colleagues as well.  That is something that should not happen because I repeat you decide the case according to what you hear in court.”

In his summing up the jury were directed:-

“You must decide this case only on the evidence which has been placed before you.  There will be no more.  You may not speculate about what evidence there might have been.”

These succinct directions were clear and should have made evident to the jury its duty to take account only of the evidence and not to speculate on matters not in evidence.  Jurors sitting through a lengthy and fraught trial such as this will in the course of the trial become very conscious of their decision making judicial role as finders of fact.  They will come to appreciate what is involved in the careful consideration and weighing up of evidence as properly presented to them and the need to bear in mind the two sides of the case.  The jury system depends on a high degree of confidence the 12 individuals acting as a jury will bring to their function a sense of corporate fairness and follow directions clearly given to them.

[55]	 R v. Thompson [2010] EWCA Crim 1623 was case in which  during the jury’s deliberations one of the jurors had produced material on the case which he had obtained from the internet.  Lord Judge CJ at paragraph 6 stated:-

“. . . What has perhaps not been sufficiently emphasised thus far is that the collective responsibility of the jury is not confined to the verdict.  It begins as soon as the members of the jury have been sworn.  From that moment onwards there is a collective responsibility for ensuring that the conduct of each member is consistent with the jury oath and that the directions of the trial judge about the discharge of their responsibilities are followed.  Where it appears that a member of the jury may be misconducting himself or herself, this must immediately be drawn to the attention of the trial judge by another or other members of the jury.  So, if for example, an individual juror were to be heard saying that he proposed to decide the case in a particular way regardless of his oath to try it on the evidence, or he were demonstrating a bias based on racism or some other improper prejudice, whether against a witness or the defendant, these things must be reported to the trial judge.  So must outside interference such as imparting information or views apparently gathered from family or friends using a mobile telephone during deliberations or conducting research on the internet.  The collective responsibility of the jury for its conduct must be regarded as an integral part of the trial itself.”

Lord Judge’s comments highlight the desirability of the jurors being informed at an early stage of the trial process of their duty to police themselves and to bring to the attention of the judge any irregularities which some or more of the jurors might be attempting to bring to the process.  Since jurors must be properly instructed if they are to understand their duties trial judges at the outset of a trial should bring these obligations to the attention of the jury at an early stage in the trial process.  Jurors need to be clearly instructed that they should wholly disregard any material relating to the case whether it comes from third parties, press reports, broadcast reports or the internet and to bring to the judge’s attention any action by any juror acting contrary to that direction.

[56]	In this case against the background of a risk that some of the jurors may have had access to the broadcasts the judge should have taken an opportunity at least in his summing up to remind the jury in more emphatic terms than he did to act only on the evidence and to leave entirely out of account any extrinsic material and any press or media report touching on the case or any witness called in the course of the trial.

[57]	In R v. McDonald [2010] EWCA Crim 2352 it was discovered that the jury had access to various internet sites including Wikipedia and the BBC and downloaded information regarding amongst other things chemicals used to cut cocaine and also the sentences normally given for the offences.  The appellant made an application to the trial judge for the jury to be discharged as the jurors had totally disregarded the judge’s opening direction to them.  The judge refused the application instead opining that another strongly worded direction to the jury would be sufficient.  The Court of Appeal dismissed the appeal against conviction.  In dismissing the appeal against conviction the Court of Appeal at paragraph 29 stated:-

“. . . The fact that some members of the jury had carried out private researches, contrary to the judge’s express directions, is undoubtedly troubling but it is not by itself a reason to discharge the jury unless either there are grounds for thinking that they have acquired information that might have led them to reach a verdict otherwise than on the evidence in the case, or there are grounds for thinking that one or more of them might disregard a clear warning from the judge not to repeat the process.  We do not think that either was the case here.”

That was a case in which it was actually known that the jury had access to various internet sites including Wikipedia and the BBC and downloaded information.  In the present case there is no evidence to show that any juror actually heard the broadcasts.

[58]	What we are concerned with in this instance is a case in which there was a possibility that the jurors did hear some of the broadcasts.  Even if they did what was broadcast did not really undermine Dr Squier as such.  Dr Squier was if anything portrayed as the potential victim of unfair criticism.  Nothing was said to show that criticism or complaints about her were justified.  In fact there was nothing said that could have led the jury to reach a verdict otherwise than in accordance with the evidence.  In the circumstances we do not consider the judge’s omission to give a more detailed direction actually resulted in the present circumstances in an unsafe verdict.  

[59]	The principles to be applied for determining whether a verdict is unsafe are formulated in R v. Pollock [2004] NICA 34 at paragraph 32:-

“[1]	The Court of Appeal should concentrate on the single and simple question “does it think that the verdict is unsafe.”

[2]	This exercise does not involve trying the case again.  Rather it requires the court, where conviction has followed trial and no fresh evidence has been introduced on the appeal to examine the evidence given at the trial and gauge the safety of the verdict against the background.

[3]	The court should eschew speculation as to what may have influenced the jury to its verdict.

[4]	The Court of Appeal must be persuaded that the verdict is unsafe but if, having considered the evidence, the court has a significant sense of unease about the correctness of the verdict based on a reasoned analysis of the evidence, it should allow the appeal.”

[60]	Even if as a result of jurors hearing any of the broadcasts and if the jurors or some of them unfairly took an adverse view to her evidence because of what they might have heard, giving Dr Squier’s evidence the most favourable interpretation in favour of the defence her evidence could never have been sufficient to undermine the Crown case on the key part of  the Crown case relating to the conclusions to be drawn from the evidence in respect of retinal haemorrhaging.  The evidence of Dr McCarthy clearly and unequivocally demonstrated the fact that the baby was subjected to severe trauma during the hours in which the child was in the sole custody of the applicant.  The medical evidence which we have set out in paragraphs [9] and [12] to [16] above clearly linked the trauma to that relevant period and related the retinal haemorrhaging to severe trauma suffered by the child.  Dr Squier accepted that even on her disputed interpretation of the clotting she could not say that the trauma did not occur within 48 to 72 hours.  She could not dispute the expert evidence relating to the causation and timing of the retinal haemorrhaging which were matters in respect of which she was not an expert. The defence called no evidence to challenge the Crown’s evidence on that issue.  Her concession on the possible time frame taken with the undisputed medical expert evidence tying the trauma to that time frame had the result that her evidence, taken at its most favourable for the defence, could not effectively put in doubt the conclusion that the applicant inflicted on Cameron during the period when he had custody of the child severe trauma leading to his death.  

Disposal of the application

[61]	In the result we consider that the applicant has failed to establish any ground of appeal and the application accordingly is dismissed.