QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF HARRIS||Claimant|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant|
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Mr H Keith appeared on behalf of the Defendant
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"The post mortem examination confirmed a markedly swollen and softened brain and spinal cord with small amounts of subdural haemorrhage around the tentorium cerebelli at the foramen magnum and in the subdural space along the length of the spinal cord. Detailed examination by Professor Lowe confirmed widespread hypoxic (anoxic or ischaemic) changes within the brain resulting in marked swelling, necrosis of the cerebellum, haemorrhage into the left lateral ventricle and subarachhnoid haemorrhage over the surface of the spinal cord and medulla. Professor Green confirmed extensive haemorrhages through the retina and the vitreous of both eyes with some retinal detachment."
In Dr Bouch's opinion, accepted medical opinion was that the force required to produce injuries from shaking was greater than that resulting from rough handling of an infant.
"Whilst a strong pointer to NAHI"
(non-accidental head injury, the Court of Appeal's preferred description of shaken baby syndrome)
"on its own we do not think it possible to find that it must automatically and necessarily lead to a diagnosis of NAHI. All the circumstances, including the clinical picture, must be taken into account. In any event, on general issues of this nature, where there is a genuine difference between two reputable medical opinions, in our judgment, the Court of Criminal Appeal will not usually be the appropriate forum for these issues to be resolved. The focus of this Court will be (as ours has been) to decide the safety of the conviction bearing in mind the test in fresh evidence appeals which we set out below. That is not to say that such differences cannot be resolved at trial. At trial, when such issues arise, it will be for the jury (in a criminal trial) and the judge (in a civil trial) to resolve them as issues of fact on all the available evidence in the case ..... "
"116 Photographs, G-H 1, 2 and 3 were said by Dr Rorke-Adams to show clear evidence of brain injury caused by trauma. She said that there could be no other cause. Dr Squier was of the opinion that the injuries shown in the photographs 1 and 3 and damage to the nerve tissue at the cervicocranial junction were probably not caused by trauma and were consistent with herniation of the brain at the foramen magnum. She said herniation was caused by the pressure of the swelling brain when it impacted with the narrowing channel of the foramen magnum. As to the blood shown in photograph 2 Dr Squier said it was intrafalcine bleeding (bruising) within the membrane, seen at post mortem which was an extremely common finding in babies who have suffered from failure from blood or oxygen supply.
117 There was no dispute that photographs G-H 4 and 5 showed subdural haemorrhages in the areas of the spinal cord. However, Dr Rorke-Adams gave as the explanation for these that the vertebral arteries must have been ruptured causing massive subarachnoid bleeding and subdural haemorrhages. She accepted that the post mortem revealed no soft tissue injuries to the neck but pointed out this explanation fitted with the combination of findings.
118 Dr Squier described the subdural haemorrhages of the spine as probably caused by blood seeping down from the haemorrhage at the craniocervical junction. She said it was a common finding. Further, she did not accept that such subdural haemorrhages as were found at post mortem were caused by trauma. She said it was local tissue necrosis causing bleeding exacerbated by a clotting disorder (DIC). In addition she said that she had seen cases where bleeding had seeped from the dura into the subdural space. As an example of this she provided her findings in the case to which we have referred in paragraphs 71 to 73.
119 In our judgment there are difficulties with the evidence of both these doctors in respect of their findings. The problem so far as Dr Squier is concerned is three-fold. First her explanation of herniation as the cause of haemorrhages in the area of the foramen magnum is, on the evidence we have heard, to say the least controversial. Dr Rorke-Adams dismissed this explanation as impossible. Mr Peter Richards said that in his 20 years experience as a surgeon he had never seen a case of herniation of the brain causing haemorrhaging at this site. He described Dr Squier's evidence on this point as astonishing. Secondly, Dr Squier can provide no explanation for the mechanism that triggered these injuries. All she can say is that the primary source of the injuries was some form of brain swelling. In her view the most likely explanation was sepsis or infection; and the least likely was trauma. Beyond that she frankly admitted she did not know. Thirdly, Dr Giangrande, whose evidence was not challenged, said that there was no question of DIC playing any part in any of these injuries.
120 So far as Dr Rorke-Adams is concerned, in our judgment, there are also difficulties in respect of her evidence. First, the injury to the brain which she described by reference to photographs G-H 1, 2 and 3 are not referred to in the post mortem report of Dr Bouch. Secondly, her explanation of a rupture of the vertebral artery may not be entirely consistent with there being no evidence of a soft tissue injury to the neck. But, as she pointed out, at post mortem the vertebral arteries were not dissected. Thirdly, subdural haemorrhages of the spine would appear to be very rare. Fourthly, the subdural haemorrhages described by her are neither thin-film nor situated in the classic position for SBS namely at the top of the head."
"The impact of this issue is that, if Dr Adams may be correct, brain swelling may have taken place sooner than supposed by the Crown's witnesses making it possible that there was a cause for the retinal haemorrhage findings other than shaking."
The court had earlier noted the opinion of the neuro-surgeon, Mr Richards (there referred to) who was very experienced, that he was in no doubt that the force used to cause the triad of injuries must have been more than rough handling.
"In the Board's view the law is now clearly established and can be simply stated as follows. Where fresh evidence is adduced on a criminal appeal it is for the Court of Appeal - assuming always that it accepts it - to evaluate its importance in the context of the remainder of the evidence in the case. If the court concludes that the fresh evidence raises no reasonable doubt as to the guilt of the accused it will dismiss the appeal. The primary question is for the court itself and is not what effect the fresh evidence would have on the mind of a jury.
That said, if the court regards the case as a difficult one it may find it helpful to test its view by asking whether the evidence given at the trial might reasonably have affected the decision of the trial jury to convict."
"143 So far as the other issues are concerned, the evidence at trial and the evidence produced by the Crown in this appeal provide a strong case against Harris. Mr Horwell's submission that the triad is established and any attempt to undermine it is based on speculation is a powerful one. Nevertheless strong as the case is against Harris we have concerns about the safety of the conviction."
It went on to analyse those concerns. First of all, it would have had to have rejected the evidence of Dr Squier in its entirety. Unless that was possible, then there was or might have been no pathological evidence of trauma. Further the evidence of Dr Squier, if right, cast doubt on the significance of such subdural haemorrhages as there were and on the conclusions to be drawn from them. The court's conclusion was that if the issue were to be resolved it would have to be for a jury to resolve it.
" ..... this history combined with the absence of findings of bruises to any part of the head, face or body and the absence of fractures or any other sign apart from the triad of injuries, does not fit easily with the Crown's case of an unlawful assault based on the triad of injuries, itself a hypothesis."
"152 As we have said, the Crown's evidence and arguments are powerful. We are conscious that the witnesses called on behalf of Harris have not identified to our satisfaction a specific alternative cause of [the boy's] injuries. But in this appeal the triad stands alone and in our judgment the clinical evidence points away from NAHI. Here the triad itself may be uncertain for the reasons already expressed. In any event, on our view of the evidence in these appeals, the mere presence of the triad on its own cannot automatically or necessarily lead to a diagnosis of NAHI.
153 The central issue at trial was whether Harris caused the death of her son ..... by use of unlawful force. We ask ourselves whether the fresh evidence, which we have heard as to the cause of death and the amount of force necessary to cause the triad, might reasonably have affected the jury's decision to convict. For all the reasons referred to we have concluded that it might. Accordingly the conviction is unsafe and this appeal must be allowed ..... "
"The Home Secretary is of the opinion that your client does not fulfil the statutory requirements of Section 133 (1) of the Act because the medical evidence considered by the Court of Appeal did not disclose a new fact ..... The Home Secretary's view is that this new medical evidence about the degree of force required to cause a triad of injuries is not a new or newly discovered fact; rather it shows the changing medical opinion about the degree of force needed to cause a triad and is properly categorised as new evidence of facts known all along rather than new facts."
"He is not satisfied that the medical evidence referred to is fact as opposed to opinion, that is subject to development and change. It can therefore only be regarded as new evidence."
"(1) ..... when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed ..... on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction ..... "
Sub-section (5) defines "reversed" -
" ..... as referring to a conviction having been quashed -
(a) on an appeal out of time;
(b) on a reference -
(i) under the Criminal Appeal Act 1995 ..... "
"The expression 'wrongful convictions' is not a legal term of art and it has no settled meaning. Plainly the expression includes the conviction of those who are innocent of the crime of which they have been convicted. But in ordinary parlance the expression would, I think, be extended to those who, whether guilty or not, should clearly not have been convicted at their trials. It is impossible and unnecessary to identify the manifold reasons why a defendant may be convicted when he should not have been. It may be because the evidence against him was fabricated or perjured. It may be because flawed expert evidence was relied on to secure conviction. It may be because evidence helpful to the defence was concealed or withheld. It may be because the jury was the subject of malicious interference. It may be because of judicial unfairness or misdirection. In cases of this kind, it may, or more often may not, be possible to say that a defendant is innocent, but it is possible to say that he has been wrongly convicted. The common factor in such cases is that something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted."
There being no such factor present in Mullen, Lord Bingham was of the opinion that his claim should be rejected on that narrow ground.
" ..... not at present inclined to accept Mr Pleming's submission that denial of compensation to a defendant acquitted in circumstances meeting the conditions of Section 113 necessarily infringes the presumption of innocence protected by Article 14 (2) of the ICCPR ..... "
In paragraph 11 he observed that he had -
" ..... necessarily rejected Mr Mullen's main argument, accepted by the Court of Appeal, that any defendant whose conviction is reversed in circumstances meeting the conditions in Section 133 is entitled to payment of compensation."
"in enacting Section 133 ..... had intended to give effect to the international obligations of the United Kingdom under the ICCPR in domestic law."
And that there was no foundation whatever in the language of the underlying Article 14 (6) or in the section for the suggestion that Parliament intended to use the words "miscarriage of justice" in a wider sense than it bore in Article 14 (6).
"The requirement that the new or newly discovered fact must show conclusively (or beyond reasonable doubt in the language of Section 133) 'that there has been a miscarriage of justice' is important. It filters out cases where it is only established that there may have been a wrongful conviction. Similarly excluded are cases where it is only probable that there has been a wrongful conviction. These two categories would include the vast majority of cases where an appeal is allowed out of time."
"While accepting that in other contexts 'a miscarriage of justice' is capable of bearing a narrower or wider meaning, the only relevant context points to a narrow interpretation, viz, the case where innocence is demonstrated."
I refer to the circumstances analysed by Lord Steyn as an evidential miscarriage of justice.
"Lord Bingham, in the passage of his judgment that we have set out above, considered two different situations, each of which he considered fell within the description of 'miscarriage of justice' in Section 133 of the 1988 Act. The first is where new facts demonstrate that the claimant was innocent of the offence of which he was convicted. In such circumstances, it is possible to say that if the facts in question had been before the jury, he would not have been convicted. The second is where there are acts or omissions in the course of the trial which should not have occurred and which so infringed his right to a fair trial that it is possible to say that he was 'wrongly convicted'. In such circumstances it is appropriate to say that the claimant should not have been convicted."
"The most that can be said is that if the jury had had advance notice of the lies that the complainant told after her husband's trial they might not have convicted."
That concession seems to me to be not only inevitable at this level but also right in principle.