England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WOOD GREEN
H. H. Judge FINNEY
T980388

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/09/2016

Sir Brian Leveson P:

1. This case concerns the effect upon the conviction of the appellant following a guilty plea to an offence of inflicting grievous bodily harm of his subsequent acquittal in relation to an allegation of manslaughter when, 12 years later, the victim died of injuries which had undeniably formed at least a large part of the basis of the original prosecution. Mr Adrian Waterman Q.C. for the appellant contends that the jury's verdict in relation to the allegation of manslaughter (following a trial in July 2014 before Singh J at the Central Criminal Court), based on fresh medical evidence, is inconsistent with the plea of guilty entered on 9 March 1999 before Judge Finney in the Crown Court at Wood Green for which he was subsequently sentenced to 12 months' imprisonment. With the leave of the full court, which granted an extension of time exceeding 15 years, this is an appeal against the conviction which followed the plea of guilty.

The Facts

2. The background is as follows. Michael Young was born on 8 March 1998 and, in the early hours of 16 April, when he was just short of six weeks old, Erica Francis, his mother (who was feeling unwell) left him with the appellant as she tried to sleep. She left them in the living room. The following morning, when she awoke, Michael was lying in his Moses basket, making no sound. He flopped in her arms and, during that day, consumed a large amount of water and some milk; after taking milk, Michael was sick.
3. The following day, Michael looked very poorly and his mother contacted the health visitor. Before she did so, the appellant told her that he may have hurt Michael; she reported that he said he had shaken him gently on the Thursday morning because Michael would not stop crying. Suffice to say that when the health visitor attended the property, she saw that Michael needed immediate medical attention. He was pale, had shallow breathing and his eyes appeared fixed.
4. Michael was taken to the GP who observed that he was floppy and periodically shaking his upper limbs; he was then admitted to the Royal Free Hospital where he was assessed by Dr Phillips, a Paediatric Senior House Officer and Dr Flynn, a Consultant Paediatrician. Michael was cold to the touch, pale and fitting. On arrival he looked dehydrated. He was treated with intravenous anti-convulsants, antibiotics and fluids.
5. Michael was subsequently transferred to the Special Care Baby Unit and seen by Dr Van Someran, a Consultant Paediatrician. By this time Michael was deeply unconscious, unresponsive to normal stimuli and his pupils were fixed and small. A CT scan revealed swelling in the brain; there were small areas of bleeding within it and under the linings surrounding it. The appearance of the brain suggested hypoxic ischaemic injury.
6. There were other serious injuries. A skeletal survey revealed five fractured ribs with metaphyseal fractures near to the knees of the upper right tibia, upper left tibia and lower left femur. There was a further probable metaphyseal fracture near the ankle of the lower end of the left tibia. A diagnosis of non-accidental injury was made. Michael was transferred to the Great Ormond Street Hospital where an examination of his eyes revealed multiple retinal haemorrhages in both of them scattered all around the retina. These findings, taken with the other injuries, were said to be strongly suggestive of a diagnosis of "shaken baby syndrome". 
7. On 18th April 1998, the appellant was arrested. He was interviewed and was frank about what he had done. It was recorded that he said:

"Michael was crying a lot and I couldn't get him to stop so I shook him. I shook him pretty badly then I realised that what I was doing was wrong and because of me being stressed like and I got a lot of problems with other things as well at the moment".   

8. Given its potential significance, we turn to the medical opinion which was obtained in 1998. Dr Vivienne Van Someran detailed Michael's injuries and commented as follows:

"These marks are all indicative of trauma due to rough handling. The marks around the neck could be consistent with constriction due to clothing being grabbed and tightened. The marks on the left arm suggest gripping and twisting. The marks on the trunk suggest being gripped with force."

9. After a review of the CT scan, Dr Van Someran concluded that

"… the features suggested a diagnosis of non-accidental injury … [and] the metaphyseal fracture of the left leg is typical of child abuse. The periosteal reaction on the humerus is also typical and underlies the bruising seen on the left arm which suggests gripping and twisting. Rib fractures are also typical of child abuse."

10.  Dr Christine Hall, a Radiologist, also noted injuries. Her statement went on:

"Although all the fractures which have been identified have occurred within the same time period, they would have required the application of a minimum of four separate inappropriate applications of force. One a squeezing action to the chest, secondly a gripping and twisting action around the left knee, thirdly a gripping and twisting action around the right knee and fourthly a gripping and twisting action around the left ankle. The brain injury could have occurred in association with the rib fractures or could represent a separate shaking…"  

11. Although there is no evidence one way or the other whether this material was served on the court in the criminal proceedings, the defence had also obtained expert opinions. Dr John Somers, a Consultant Paediatric Radiologist, who was instructed not only in the criminal proceedings but also family proceedings, said (in an opinion for the family proceedings only) that all of the skeletal injuries were non-accidental in nature, could have occurred at a single assault and the degree of force required to cause the injuries was very great and not consistent with rough handling. He also asserted that it was possible that the shaking event described by the appellant could have caused all the injuries.
12. The other expert evidence obtained on behalf of the appellant came from Mr Jonathan Punt, a Consultant Paediatric Neurosurgeon. In addition to concluding that the presentation on 17 April was due to severe traumatic encephalopathy due to non-accidental injury, he also observed that the multiple marks on the trunk and limbs was a frequent finding in babies forcibly held in an abusive fashion and that the multiple rib and metaphyseal fractures is a characteristic finding in babies who have been physically abused. Three other comments have been extracted from the report. These are:

"There is no reasonable doubt that when Michael was admitted to hospital he was suffering the effects of a severe abusive injury.

"The mechanism of the brain injury would have been either a severe shaking or a severe shaking followed by impact or possibly due to impact only.

The shaking admitted by AY in interview would be sufficient to produce all the sequelae observed. He admits that the child moved backwards and forwards while being held at the waist and shaken for about a minute."

13. So it was that, on 9 March 1999, in the Crown Court, the appellant pleaded guilty to inflicting grievous bodily harm; the counts of the indictment identified a spread of dates between 8 March 1998 and 18 April 1998 which encompassed the entirety of Michael's life. Following a successful submission of no case to answer, he was acquitted of an allegation of child cruelty and subsequently acquitted by the jury of causing grievous bodily harm with intent. There is now no record of the reason for the successful submission but it has not been suggested that it led to any consequential or further application in relation to the jury. On 19 April, for the offence of inflicting grievous bodily harm, the appellant was sentenced to 12 months' imprisonment; he will have been released before the end of that year.
14. Years passed until, on 24 January 2011, when Michael was 12 years of age, he died. The appellant was then indicted for manslaughter. When he came for trial in July 2014 before Singh J at the Central Criminal Court, it was conceded by way of admission that the injuries suffered by Michael in 1998 (which could only have meant his cerebral injuries rather than any of the fractures) had contributed to his death. The appellant's plea to inflicting grievous bodily harm contrary to s. 20 of the Offences against the Person Act 1861 was admitted into evidence pursuant to section 74 of the Police and Criminal Evidence Act 1984.
15. At trial, the appellant stated that he pleaded guilty on the advice of his legal representatives. He said he did not understand the medical evidence and still did not know whether he had caused Michael's injuries or not. The central issue at trial was whether the appellant's admitted shake of Michael caused his brain injuries or whether there may have been some other cause. The defence called medical evidence that the injuries may have been caused by a cerebral venous sinus thrombosis ("CVST") which had not previously been considered as a cause.
16. At the trial, the evidence of the appellant's interviews was excluded on the basis that although there was a summary which largely purported to be a transcript (and certainly contained what is set out in question and answer form in relation to the most significant admissions), the tapes were no longer available and it was argued that important statements supportive of the defence position might have been omitted. Further, an application was also made to Singh J to exclude evidence of the fractures and bruises suffered by Michael on the basis that there was no issue but that there was an unlawful act in the form of shaking. It was also common ground that the cerebral injuries had caused Michael's death: the issue was whether the non-accidental act had caused those injuries. The Crown argued that if the jury concluded that the fractures were caused at the same time as the shaking, this was consistent with the shake being of a persistent and sustained nature and that the jury were entitled to consider whether the coincidence of the fractures undermined the alternative possibility of a CVST.
17. For our part, we see force in the argument that the nature and extent of the unlawful act were in issue (where the appellant now admitted shaking Michael but only gently and of short duration) and that the totality of the non-cerebral injuries which could also be proved was evidence which could be material to the question whether Michael suffered CVST coincidentally with the admitted shaking and the other injuries. The judge, however, took a different view. Making the point that the fractures would only become relevant if the jury was sure that they were caused at the same time as the shake, Singh J ruled in favour of the appellant and against the admission of the other injuries. He observed:

"In my judgment, this case is unusual, because the central issue is not to do with whether there was a non-accidental event in this case. That much is admitted by the defendant. Indeed, the defendant pleaded guilty to a charge of causing grievous bodily harm."

18. Thus, the case at trial essentially turned on an analysis of the medical witnesses who could not rely on all the circumstances from which the inference of non-accidental injury might be drawn. The prosecution called evidence from a number of experts on various aspects of the cerebral injuries sustained by Michael. They supported the prosecution case that the injuries taken as a whole were indicative of having been caused by a shaking, or a shaking and impact.  The defence, on the other hand, called evidence that the possibility of infection had not been completely excluded in 1998; furthermore, CVST, which was not generally considered in 1998-1999, was not only a possibility but a more likely explanation for the range of injuries.
19. It is unnecessary to summarise this evidence further; at the conclusion of the trial, on 1 August 2014, the appellant was acquitted by the jury of manslaughter. Thus, given the admission of the conviction under s. 74 of the Police and Evidence Act 1984, were satisfied, on the balance of probabilities that the unlawful shaking of Michael had not caused his cerebral injuries.

The Appeal 

20. Mr Waterman argues that the verdict of the jury, based on fresh medical evidence, is inconsistent with the appellant's plea to the section 20 offence. In that regard, application is made under s. 23 of the Criminal Appeal Act 1968 to admit the evidence of three expert witnesses called at trial, Dr Scheller, Dr Ramsey and Dr Hann, and a fourth from Professor Pennington whose evidence was reduced to an admission. Mr Waterman submits that the case turns on causation: he articulates it on the basis that the jury in 2014 decided on the balance of probabilities that the appellant was wrong to plead guilty because the medical evidence proved, again on the balance of probabilities, that the ultimately fatal brain injuries were caused by CVST and/or infection and not by his admitted shake.
21. Mr Waterman does not submit that this court needs to hear the fresh evidence because, as he put it, it would be an astonishing state of affairs were this court to conclude that it was satisfied that the jury would certainly have convicted of the s. 20 offence despite the fresh evidence when a jury had in fact acquitted. The verdicts, he argued, were inconsistent. As for the argument that the bruises and fractures show that the plea of guilty was safe on the issue of whether it proved causation because the plea was based on different evidence, Mr Waterman relies on the ruling of Singh J and submits that the most likely explanation for the wilful neglect count being withdrawn was that it represented evidence that the fractures were caused on a different occasion and there was no suggestion they had been caused by the appellant.
22. For the Crown, Ms Zoe Johnson Q.C. submits that it is illogical to argue that because the jury in 2014 accepted that on the balance of probabilities the appellant's admitted shake did not cause the brain injuries that his guilty plea to causing grievous bodily harm in 1999 is inconsistent and thus unsafe. The body of evidence upon which the plea was entered and the acquittal was delivered was very different. She points to the fact that both defence medical experts said that "all the skeletal injuries are non-accidental in nature and … could have occurred at a single assault" (Dr Sommers) and that "the shaking acknowledged by the appellant in the police interview … would be sufficient to produce the sequelae observed" (Mr Punt).
23. Miss Johnson argues that the decision to plead guilty to inflicting grievous bodily harm rested with the appellant who had the benefit of leading counsel and two expert medical opinions: CVST was known about at the time and could have been addressed by the experts if asked to do so. Where the appeal is made on the basis of fresh evidence, the appropriate test is to ask whether a miscarriage of justice had occurred as a result of the decision to plead guilty.

Analysis

24. Mr Waterman recognises that the particular circumstances of this case are not governed by precedent; he relies on two strands of what he submitted were the closely analogous situations where the court has considered appeals based on fresh evidence (see R v. Lattimore [1975] 62 Cr App R 53), and those in which it has found inconsistent verdicts. Both strands, however, ignore the very important fact that the appellant pleaded guilty to the offence his conviction for which he now seeks to challenge. The starting point, therefore, must be the authorities which consider the proper approach to be adopted to entertaining an application for leave to appeal against conviction following a tendered guilty plea.
25. As was made clear in R v AM [2010] EWCA Crim 2400, the basis of this jurisdiction is limited and requires the guilty plea to be a nullity. This was explained in R v Evans [2009] EWCA Crim 2243 by Thomas LJ (as he then was) in these terms (at para. 52):

"The applicable general principle is that such a writ will be granted where the proceedings are a nullity, that is to say where a purported trial "is actually no trial at all" (see the opinion of Lord Atkinson in Crane v DPP [1921] 2 AC 299 at 330) or where there has been "some irregularity in procedure which prevents the trial ever having been validly commenced" (see the opinion of Lord Diplock in Rose (1982) 75 Cr App R 322 at 336."

26. In AM, the court went on (at [12]):

"The test for a plea to be held a nullity was elaborated (per Scott Baker LJ in R v Saik [2004] EWCA Crim 2936) as requiring the facts to be so strong as to demonstrate that there is no true acknowledgment of guilt with the advice going to the heart of the plea so that it was not "a free plea".  It is, however, important not to water down the underlying concept of the jurisdiction so as to bring nullity into play purely on the basis of advice alleged to be wrong.  For those circumstances, there remains a basis on which this Court can intervene which is firmly grounded in the safety of the conviction.  Thus, in R v Lee (Bruce) (1984) 79 Cr App R 108, the approach was articulated by Ackner LJ in this way:

'The fact that [Lee] was fit to plead; knew what he was doing; intended to make the pleas he did; pleaded guilty without equivocation after receiving expert advice; although factors highly relevant to whether the convictions or any of them were either unsafe or unsatisfactory, cannot of themselves deprive the court of the jurisdiction to hear the applications.'"

27. The jurisdiction was adopted and applied to quash a conviction for rape in the case of R v. Foster (1984) 79 Crim App R 61, also in the case of  R v Boal (1992) 95 Cr App R 272. This case concerned the failure to challenge what was held to be the erroneous assumption that an assistant general manager at a bookshop, responsible for the shop during a week in which the manager was absent, was a manager within s 23(1) of the Fire Precautions Act 1971.  The conviction which followed guilty pleas based on the assumption was quashed with the court observing that the appellant "was deprived of what was in all likelihood a good defence in law". Simon Brown LJ (as he then was) also made clear the additional hurdle that had to be overcome when he said (at 278):

"This decision must not be taken as a licence to appeal by anyone who discovers that following conviction (still less where there has been a plea of guilty) some possible line of defence has been overlooked.  Only most exceptionally will this Court be prepared to intervene in such a situation.  Only, in short, where it believes the defence would quite probably have succeeded and concludes, therefore, that a clear injustice has been done.  That is this case.  It will not happen often."

28. In R v. Asiedu [2015] EWCA Crim 714 the defendant had pleaded guilty to a conspiracy to cause explosions. He subsequently sought to appeal his conviction on the ground that there had been non-disclosure to him of certain key documents. In dismissing the application for permission Lord Hughes SCJ said this (at [19]):

"A defendant who pleads guilty is making a formal admission in open court that he is guilty of the offence. He may of course by a written basis of plea limit his admissions to only some of the facts alleged by the Crown, so long as he is admitting facts which constitute the offence, and Asiedu did so here. But ordinarily, once he has admitted such facts by an unambiguous and deliberately intended plea of guilty, there cannot then be an appeal against his conviction, for the simple reason that there is nothing unsafe about a conviction based on the defendant's own voluntary confession in open court. A defendant will not normally be permitted in this court to say that he has changed his mind and now wishes to deny what he has previously thus admitted in the Crown Court."

29. Lord Hughes went on to set out and discuss cases in relation to two circumstances where conviction on a plea may nonetheless be set aside: (i) where the plea has been entered on an incorrect ruling on law and (ii) where proceedings were an abuse of process. To that list might be added some other irregularity in procedure which prevents the trial ever having been validly commenced. In each case, the rationale for setting aside the conviction was that, by reason of the particular circumstances, it was unsafe. That is the question which the court must address.
30. Mr Waterman correctly argued that the test of safety can be examined from many different perspectives. He submitted that to demonstrate that the conviction in this case was unsafe, it was sufficient to ask whether if the new CVST causation evidence had been available in 1999, a defence to the charge to which the appellant pleaded guilty would have had a reasonable chance of success. Another (and, in our judgment, preferable) approach is not to restrict the question of safety in that way but, rather to consider the circumstances in which that plea was entered and, in the light of all those circumstances, assess whether the 1999 conviction is safe.
31. The relevant circumstances for these purposes from the 1999 prosecution appear to us to be as follows:

i) The evidence of serious injury at that time encompassed not only the brain injury but also bruising and fractures to the baby's ribs and knees, the majority of which fractures, according to the expert radiological evidence, were likely to have been caused during the same shaking incident.

ii) When interviewed, the appellant admitted that he had shaken the baby backwards and forwards violently for up to a minute. Although there was some uncertainty before Singh J as to the accuracy of the transcript, this admission at that time was entirely consistent with his subsequent statement in family proceedings and thus is overwhelmingly likely to have formed his instructions.

iii) The medical evidence (including in particular that of medical experts instructed on behalf of the defence) was to the effect that the fractures were in all probability caused during the shaking incident. Although it is recognised that the appellant could not know what injuries he had caused, the contemporaneous fractures (whatever might have been said about the injuries which were likely to have been caused some days earlier) would have been at a time when he was responsible for Michael's welfare.

iv) With the benefit of advice from leading counsel the accuracy and propriety of which is not challenged, the appellant entered a plea of guilty to causing serious bodily harm to his 5-week old son.

32. Without in any sense seeking to undermine the conclusions of the trial in 2014, it proceeded on different evidence because it was not concerned with the question whether the appellant had caused grievous bodily harm to Michael but rather whether the admitted shaking had caused the brain injury from which Michael died some 11 years later. This was in circumstances where the evidence before the jury in 2014 was to the effect that the appellant had administered a gentle shake and no more, and where, given the single, narrow issue arising in the manslaughter trial, the judge had ruled that the bruising and fracture evidence was inadmissible.
33. Thus, there is no question of those who advised the appellant depriving him of a good defence in law; he admitted shaking the baby who attended at hospital with multiple fractures and other indicia of shaken baby syndrome. The medical experts advising the appellant were clear and counsels' advice was based on the entirety of the evidence (substantial parts of which were not adduced at the manslaughter trial) and in the light of the factual instructions they received. We recognise, of course, that the appellant cannot have known what the impact was of his use of force on this very small baby but even putting the cerebral injuries to one side, the admissions were entirely consistent with his having caused at least some of the skeletal injuries.
34. Mr Waterman also relied on the contention that the wilful neglect charge was dismissed because there was no evidence that the appellant had caused the various fractures and that it was these injuries that were reflected in that count. It may be that the reason for the allegation was that these injuries might have been inflicted at some other time but, for our part, we do not accept that the count reflected all the injuries other than the cerebral. Had that been the case, there would have been further counts of inflicting grievous bodily harm. In our judgment, it is very much more likely that the count was withdrawn from the jury on the basis that it was accepted or, at least, could not be challenged, (as the experts postulated) that all bar two of the injuries could have been inflicted at the same time and thus were encompassed within the substantive count of inflicting grievous bodily harm (and its aggravated form of causing grievous bodily harm with intent which was left to the jury) and, furthermore, there was no evidence in relation to those injuries which were not contemporaneous with the shaking incident.
35. Advising the appellant, knowing of his admissions and with the benefit of the expert opinion available from the experts instructed by the defence, it is difficult to see on what basis the case could have proceeded other than by way of an admission to an offence of inflicting grievous bodily harm within the date parameters set by the counts contained within the indictment. This was not, of course, the position which obtained at the time of the second trial where the evidence of the admissions and the other injuries (including the fractures) was excluded.
36. This appeal does not turn on reflecting the evidence from the manslaughter trial back into the circumstances in which the appellant faced his original trial. The evidence is and was different. Thus, Mr Waterman's premise that the appellant was wrong to plead guilty because the medical evidence proved that the ultimately fatal brain injuries were caused by CVST and/or infection and not by his admitted shake does not identify the correct starting point: the question is whether the medical evidence was sufficient properly to justify advice that the appellant had caused serious bodily injury to Michael in circumstances when it was not suggested that anyone else had injured him. Suffice to say that, in the light of the evidence available for the first trial, there is no basis for contending that a defence to a charge of inflicting grievous bodily harm would quite probably have succeeded. There is thus no basis for treating the plea of guilty as a nullity or the conviction as unsafe.
37. In the circumstances, this appeal against conviction is dismissed.