COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT WINCHESTER
MRS JUSTICE HALLETT AND A JURY
London, WC2A 2LL
B e f o r e :
MRS JUSTICE RAFFERTY
MR JUSTICE PITCHERS
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Mr P. Dunkels QC and Mr S. Brunton for the Crown
Crown Copyright ©
Lord Justice Judge:
"I have no doubt that for a woman like you to have committed the terrible acts of suffocating your own babies there must have been something seriously wrong with you. All the evidence indicates you wanted the children, and apart from these terrible incidents you cherished them, so in my layman's view, it is no coincidence that these events took place within weeks of your giving birth. It can, in my view, be the only explanation for why someone like you could have committed these acts when you have such a loving and supportive family."
Two critical problems
"However, in a family with a history of this type, current dogma is that an unnatural cause has been established unless it is possible to demonstrate an alternative natural explanation for these events."
That dogma encapsulates what in a criminal case we have described as the first, and we would emphasise, the erroneous approach.
"The definition of SIDS, for instance, .... says usually the definitions include babies up to one year of age; it used to be two years of age but it has been decided by experts in the field meeting that one year is the limitation. I would suggest that biology does not behave like this and [in] any event, sudden unexplained deaths occur throughout life – they also occur in adults. So there is not a magical cut-off point at one year of age."
"I think, to put it in context, there is a fashion nowadays that if you have more than one sudden infant death the next one must have been killed deliberately, and that is something that people within the paediatric profession have taken on board without sufficient evidence. Certainly, obviously, there are cases where it happens, but (in the vast majority) there is no evidence of that."
If that is the fashion, it must now cease.
"... there are a few cases where it (smothering) appears to have happened, but it is by no means clear that the claims that so many families where more than one sudden infant death has occurred are due to smothering. The results haven't been subjected to what I would call an appropriate statistical analysis. They are mostly a hunch that the paediatrician or whoever is looking at it might have but it is not based on any scientific foundation."
"In the CONI study there were two families in which both deaths were attributed to the same condition (one … VLCAD, and one prolonged QT syndrome). In both families, diagnosis was assisted or confirmed by the birth of a third child identified with the same condition. Rib fractures, attributed to resuscitation, were found in the VLCAD CONI infant. A few years ago these deaths would have been totally unexplained. Both families would probably have had a third unexplained death had the underlying cause not been identified and treated, and at least one of the parents might have been suspected of murder."
The Family Context
"Genetics at the moment is such that there are new discoveries all the time. Things that we have no idea about are being revealed every day ... There is a lot of work to be done, and once we have looked at 30,000 genes we should have a clearer idea of what we should be looking at."
In any event, for the purposes of this appeal, we are quite unable to reject the realistic possibility that in the absence of some compelling piece of evidence, whether specialist or extraneous, suggestive of the deliberate infliction of harm, there may have been a genetic cause, as yet unidentified, for the deaths and ALTEs experienced by the Cannings children.
Mrs Cannings' Children
"On the night of 13th the baby was restless but then seemed to return to normal and slept through the night. On 14th the mother fed the baby at 9.00 am and went into town. Came home at 10.30 am and the baby was fine. She checked her at 1.00 pm to give her a feed and found her to be lifeless."
"Nothing was found on post mortem examination that was suggestive of an unnatural death and there was nothing in the history of Gemma's life or in the circumstances of her death that showed her death to have been unnatural. However, no cause for her death was ever identified. The fact of Gemma's death is a background against which you will have to consider what happened to the two children you are principally concerned with, Jason and Matthew."
"Question marks have to hang over Gemma. Again we do not have in clinical terms the evidence to suggest hers was anything other than a natural death but when one steps back from the situation it has been repeatedly found that when everything comes out, in fact the first death turns out not to have been natural."
"Q. Are you saying then that we should regard these three deaths as possibly being entirely random?
A. I can't see any evidence that they shouldn't be ... by random doesn't mean, you know, a bolt from the blue; it means that this is a normal sort of pattern for repeated cot deaths, or, if you had a cot death and took somebody else's cot death and somebody else's cot death and put them together you would get that sort of pattern.
Q. Well, taking three cot deaths from three different families and putting them together is surely quite a different thing to taking three deaths within one family?
A. It is different only that it is from one family.
Q. Are you saying, therefore, that these deaths may not be linked in some way by some common cause?
A. No. What I am saying is that the fact that they are from one family does suggest that there is something else happening that would be responsible for putting that family at higher risk. ...
Q. It is not just the three deaths that have to be looked at when considering the history of the four Cannings children, is it?
A. No, everybody has put acute life-threatening events together with them.
Q. Yes. Do you?
A. I see them as part of the pattern certainly, and definitely knowing that there is good evidence that children who have apparent life-threatening events are at greater risk of sudden infant death syndrome. ...
Q. In this family we have a total of six events: three deaths, three non-fatal events?
Q. Affecting all four children. If it is right that no cause has been found for any of them, they are six unexplained events?
A. I don't want to comment on whether it is right or not that no cause has been found ... but these children seem particularly susceptible."
"10.15 am. Apnoea alarm – mother finds baby pale and limp. Health visitor … arrived coincidentally at the same time. Resuscitated the baby."
"I think on one of the occasions I had gone downstairs because we had a garden out the back … I had been putting some washing out and when I came back upstairs the alarm was going off and I didn't have the walkie-talkie thing, and I just went in, the alarm was going off."
The health visitor was "literally arriving as I'd found him." She had run to the door to open it to her. On 8th March, in her further interview, she said that she was in the room with Jason when she heard the car. She had not heard the apnoea alarm start up, but heard the alarm sound.
"Jason stopped breathing on 4th June but was resuscitated by a health visitor. Since that time he had been fine, feeding well and no chest or breathing problems. At 3.30 am on 13th June he had feed (bottle) no problems, and was put back into his cot with baby alarm turned on, mum went back to bed herself in the same room. At 7.45 am mother checked baby, he was ok, she went to get her own breakfast and the baby alarm went off at 9.00 am. She went back to the room and found him still and white, resuscitation tried with no success."
"Baby fed at 6.00 am – floppy, laid back down as thought baby tired. Turned apnoea alarm off as thought baby would wake. Mother fell asleep again. Woke at 7.30 am went into her bedroom and noticed white colour, eyes closed, breathing gasping and laboured. Shook baby, called GP, baby began crying, breathing still laboured. Apnoea alarm went off two weeks ago when disconnected."
The evidence also showed that Jade had vomited twice at home and again in the ambulance on the way to hospital. The appellant added that until this incident Jade had been well, but she reported that the baby had been lethargic during the previous day, and had suffered two bouts of diarrhoea. There was a dispute at trial between experts, which summarising it simply, was whether this was a true ALTE, or simply a consequence of a bout of gastro-enteritis. If the latter, of course, it ceased to be relevant to the issue before the jury: the baby was suffering a normal unremarkable illness.
"She had a circulatory collapse which resulted in her being admitted to hospital. The cause of that circulatory collapse is not entirely clear but she had symptoms both prior to the collapse and following the collapse suggestive of gastro-enteritis."
"Neither you nor I nor infants have diarrhoea for no reason. Diarrhoea is caused by malfunction of the gastro-intestinal tract and that may be caused by a whole host of different disorders but most commonly it will be an acute infection of the gastro-intestinal tract, and in this country viral infections are the commonest cause of them."
"Mum fed him his breakfast this morning and dad put him to bed – 9.00 am. Apnoea mattress was on. About 20 minutes later the mattress was alarm so mum went to investigate. Matthew had been sick – breakfast and some clear fluid. Fighting for breath. Pale, not blue. Mum describes him as being distant. Phoned 999 for ambulance."
"In view of the extreme rarity of three deaths without explanation occurring in the same family I have given the cause of death as unascertained pending further investigations."
The essential features of the Crown's case
"That means that on that day, he hadn't got any serious infection or disease going on, he appeared well. So something very sudden happened on that day."
He went on to note that:
"The fact that a previous child had died in the family is relevant because that combination of circumstances, that sort of story is one that is very typical of a child who has died as a result of smothering. So my medical diagnosis there would be probable smothering."
Professor Meadow also took account of the subsequent post mortem findings in relation to haemosiderin in Jason's lungs, which was "one pointer to previous smothering".
"In the context of the family as a whole it is of importance, because one of the reasons for such an event as this is smothering or (a word used) airways obstruction could cause a bout like this. And certainly that would come into diagnostic probability for a paediatrician reading these notes in the light of what has happened to other children in this family and reviewing those records."
"... Firstly, the investigations and the pathologists did not find a reason for him dying. For me, the unusual feature is death so soon after being seen well, the fact that there had been previous deaths in the family and the fact that he had had an episode of some sort only nine days before he died that caused him to be assessed in hospital, because those features are ones that are found really quite commonly in children who have been smothered by their mothers. So the diagnosis for me, the clinical diagnosis, would be this was characteristic of smothering. ... One then goes on to say 'Well, is it possible it is a condition that is not yet understood by doctors or described by them?', and that must always be a possibility, but nevertheless as a doctor of children I am saying these features are those of smothering."
Infant deaths in the same family
"However, only five (9%) of our total series were assessed as being true or idiopathic cot deaths and in only one family were both deaths in this category, suggesting that the chance of recurrence is very small and probably no greater than the general occurrence of such deaths ... only five (9%) were found to be true or idiopathic cot deaths (SIDS)."
"I said that I would have a direction for you on the subject of there being three deaths. You have heard from some of the Prosecution witnesses the idea that the fact of three deaths makes it more likely that the cause was unnatural. Certainly with three deaths one must be suspicious and look the more carefully, for it is potentially a very serious situation. But I am going to ask you to put out of your minds the idea that because there are three that makes it more likely that the causes are unnatural: that is asphyxiation by Trupti Patel. I think that would be a dangerous approach in this case for two reasons.
The first is this: suppose that something happens and there is only one possible event as the cause for it. However rare or common that event may be, it must be the cause: straightforward. If it is rare the unexpected has happened. Suppose, though, that there are two possible events as the cause. One is a common event and one rare. It can then be said that the common event is the more likely cause. Suppose, however, that the two events are both rare; perhaps very rare. They are nonetheless equally likely as the cause even though they are rare, because they are competing with each other to be the cause.
So it is not enough to say that an event is rare so it is unlikely to be the cause of something. One has to look at the likelihood of the other possible cause, or other possible causes. That is the danger with what may be happening here in saying that three SIDS deaths in a family would be very unusual, therefore the deaths are unnatural. How rare would three asphyxiations be, particularly where, as is the case here, the mother loved her children and was immediately distraught and regretful? We simply do not know. We have not had any evidence about that. It is hardly common is it? That is obvious. That is the competing cause of the deaths and nobody has evaluated its likelihood."
"You have heard of course about Gemma. You know that Gemma is no longer the subject of a murder charge, although the defence elicited that Mrs Cannings was once charged with Gemma's murder ... be careful how you approach Gemma's death. It was a long time ago. We do not of course have the kind of results and tissues still available that Mr Mansfield has been referring to that would help you in knowing from either side's point of view anything more about Gemma's death. You have had to hear about Gemma's death because obviously it is part of the background and it is relevant. It may, for example, be relevant as to whether or not there is a genetic defect. But be very wary how you approach Gemma's death. You know the pathologists carried out a very careful post mortem and decided that the death effectively was SIDS, or cot death, and no suggestion of maltreatment."
"You have not heard about Gemma's death to justify the kind of approach referred to by Mr Mansfield; the Lady Bracknell approach. This is not a case whereby you could say "to lose one baby is misfortune, two carelessness, three murder". As you will appreciate, members of the jury, that is just inappropriate – totally."
"Do not think that when Mr Mansfield called an expert before you he is under any kind of duty to prove that expert is right. He does not have to establish that any particular incident was natural in causation or that it was due to as yet unknown or unidentified causes. The possibilities are put before you because firstly, we know that babies do sadly die of natural causes, as yet possibly unknown or unidentified, but also there may be many contributory factors as to why a baby may die. So when you hear the evidence called by the defence, very much bear in mind the submissions made by Mr Mansfield, and which I wholeheartedly endorse, that he does not have to prove that any of the theories of the experts he has called are correct."
"It is not for the defence to prove that Jade was suffering from severe gastro-enteritis. Jade's admission into hospital can only assist the Crown if the Crown can prove that it was due to smothering ... always bear in mind, members of the jury, the burden of proof and who must prove what."
We have some sympathy for the jury. We have to reflect an anxiety which has struck us throughout our own deliberations, whether notwithstanding these clear directions, the whole course of the trial, the sheer number of experts called by the defence, and the complex specialist fields in which these distinguished men and women worked, the jury may not, inadvertently, unconsciously, have thought to itself that if between them all, none could offer a definitive or specific explanation for these deaths, the Crown's case must be right.
"... The time has come for the trial judge in each case to give the jury a series of written factual questions, tailored to the law as he knows it to be and to the issues in evidence in the case. The answers to these questions should logically lead only to a verdict of guilty and not guilty."