APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Clarke Lord Mackay of Drumadoon Lord Drummond Young	[2013] HCJAC 47 Appeal No: XC42/12   OPINION OF THE COURT   delivered by LORD CLARKE   in   APPEAL AGAINST CONVICTION   by   KIMBERLEY MARY HAINEY   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

 

Appellant: Targowski QC, Reilly; Paterson Bell

Respondent: Stewart QC AD; Crown Agent

 

18 April 2013
[1] On 15 December 2011, the appellant was found guilty, by a majority of the jury, at the High Court in Glasgow of murdering her baby son Declan Hainey. The charge in respect of which the guilty verdict was returned was in the following terms:

"(1) Between 1 September 2008 and 30 March 2010, both days inclusive, the precise dates being to the prosecutor unknown, at 45 Bruce Road, Paisley and elsewhere, having sole custody, charge and care of Declan Hainey, your son, born 17 April 2008, then residing with you at said 45 Bruce Road, you KIMBERLEY MARY HAINEY did, on various occasions wilfully ill-treat and neglect said Declan Hainey, fail to provide him with adequate nourishment and fluids, leave him alone and unattended within said 45 Bruce Road for excessive periods of time and fail to seek to provide medical aid and care for him, and did thereby, and by other means to the prosecutor unknown, cause unnecessary suffering and injury to the health of said Declan Hainey whereby he died and you did murder him."

 

The charge had originally contained the word "assault" before the words "wilfully ill-treat and neglect", the words "leave him in wet and soiled nappies for excessive periods of time" after the words "within said 45 Bruce Road for excessive periods of time", and "cause him to ingest diamorphine and amphetamine" before the words "and fail to seek to provide medical aid". The words in question were deleted by the advocate depute at the close of the Crown case. On returning a verdict of guilty of murder, in respect of charge 1, the jury deleted the words "cause him to be exposed to diamorphine and amphetamine" which appeared before the words "and fail to seek".

[2] The indictment, in charge 1, also contained an alternative to the charge just referred to, which alternative was, after deletions by the advocate depute at the close of the Crown case, in the following terms:

"Between 1 September 2008 and 30 March 2010, both dates inclusive, at 45 Bruce Road, Paisley and elsewhere, being a person having attained the age of 16 years and who has parental responsibilities in relation to a child or young person under that age or his charge or care of a child or such a young person, namely Declan Hainey, your son born 17 April 2008, then residing with you at said 45 Bruce Road, you KIMBERLEY MARY HAINEY did wilfully ill-treat, neglect, abandon and expose said child in a manner likely to cause him suffering or injury to his health and did fail to provide him with adequate nourishment and fluids, leave him alone and unattended within said 45 Bruce Road for excessive periods of time, cause him to be exposed to diamorphine and amphetamines and fail to seek to provide medical aid and care for him whereby his physical and psychological development were impaired;

 

CONTRARY to the Children and Young Persons (Scotland) Act 1937, section 12(1) as amended".

 

There were four other charges originally on the indictment. The second was a charge of attempting to defeat the ends of justice. The appellant was found guilty of that charge. Two charges of offences involving contravention of the Misuse of Drugs Act 1971 were withdrawn from the indictment by the Crown. A further charge of theft was also withdrawn by the Crown. The appellant was found guilty of a sixth charge involving her having failed to comply with a bail condition.

[3] The trial judge, Lord Woolman, sentenced the appellant to life imprisonment in respect of the charge of murder with the punishment part fixed at 15 years. In respect of charge 2, he sentenced the appellant to 7 years' imprisonment which sentence was to run concurrently with the life sentence. The appellant was admonished in respect of the sixth charge.

[4] The appellant now appeals against the conviction for murder. She does so on a number of grounds, the majority of which are based on the absence of proper directions or on misdirections by the trial judge. In the written grounds of appeal, there was a ground relying on article 6 of the ECHR which, in the event, was not argued before the court. Nor was a further ground of appeal to the effect that:

"The Crown having departed from the allegation of assault, there was no relevant charge of murder on which the jury could properly return a verdict"

 

Although there were no oral submissions advanced in support of that last mentioned ground of appeal, senior counsel for the appellant did not concede that there had been a relevant charge of murder.

[5] As the trial judge informs us in his report to this court, at page 29, para 132 there were two joint minutes of agreement before the trial court. The principal matters of agreement contained in those minutes were as follows:

a. Declan was born on 17 April 2008.

b. The appellant was his biological mother.

c. Declan's body was found in his cot at the flat occupied by the appellant at that time on 30 March 2010.

d. The cause of death given after the post mortem examination was "unascertained".

[6] Much of the evidence at the trial was taken up with the immediate history of the appellant, her conduct, prior to the birth of her son Declan and her behaviour, after the birth, and before the discovery of the dead body of her child. Otherwise a good deal of time was spent, at the trial, with both sides leading expert evidence seeking to assist the court in relation to the question as to whether or not the cause or causes of the child's death could be established. As will be seen at the conclusion of the evidence at the trial, the Crown's case, as presented to the jury, was essentially one of murder having been committed by the appellant by her having failed in certain respects in relation to the proper care of her child. That approach to matters, was of course, also the basis of the alternative charge referred to above under the 1937 Act.

[7] In the recent case of Liehne v Her Majesty's Advocate 2011 SCCR 419, to which we will require to return, the appellant was charged with culpable homicide in respect of the death of her 7 month old daughter. Most of the evidence came from a number of expert medical witnesses led by each side who disagreed with the evidence of the experts led by the other side. Both counsel in their speeches declined to go into the evidence in any detail. In his charge, the presiding judge did not rehearse the evidence, nor make any reference to the development of the relevant medical science, or remind the jury that special caution is needed when expert evidence is fundamental to the prosecution. The court held that, in order to allow the jury to approach their task in a logical and rational way, and so to reach a reasoned verdict, it was incumbent on the trial judge to focus their attention on the natural explanations for the death given by the defence experts which they would have to reject and have a proper basis for rejecting before they could convict. Simply to leave the technical evidence at large for the jury involved misdirection with the result that there had been a miscarriage of justice. The conviction was quashed. It was one of the main features of the submissions made, on behalf of the appellant, in the present appeal, that Lord Woolman, in charging the jury, in this case had been guilty of a misdirection of the kind described and discussed in Liehne.

[8] Before examining that and related submissions made on behalf of the appellant, it is necessary for us to give some more of the details of the case against the appellant.

[9] The evidence was that the appellant had formed a drug habit in or about 1999 which, it was said, had been triggered by the death of a close relative. Her addiction developed over a period of years and by 2007 she had developed mental health problems requiring her to be hospitalised. While in hospital she met and became friendly with another patient, David Gibson. After leaving hospital they formed a relationship. The appellant fell pregnant by Mr Gibson. The couple separated after a period of acrimony and the appellant moved to live with her mother and stepfather. She was then about 3 or 4 months pregnant.

[10] At Christmas 2007, the appellant's mother and stepfather went on holiday and left the appellant in charge of their home. On their return, they found drugs paraphernalia on the kitchen table. They ejected the appellant from their home and the appellant's mother ceased to have contact with the appellant at that stage.

[11] The appellant was provided with accommodation for homeless persons. The appellant's mother was informed by the Social Work Department that the appellant was clean of heroin and able to give birth. The appellant's mother thereupon resumed contact with the appellant.

[12] The appellant gave birth to Declan on 17 April 2008. Although small, Declan was in good health with high Apgar scores. At the date of Declan's birth, the appellant was 32 years of age. She made it clear to family and friends how greatly she valued the birth of her son. She went to stay with the baby at the home of her mother and stepfather.

[13] The evidence at the trial was that the appellant initially came across, as described in the social work records, as "a devoted, attentive and competent mother" and that remained the position for a period of at least 6 months or so after the baby's birth.

[14] In September 2008, the appellant and Declan moved to a flat in Paisley. After this move, the appellant appeared to be less happy. She reduced contact between the baby and her mother and stepfather, giving a variety of explanations for this. After October 2008, the appellant never allowed her mother to look after Declan or to baby-sit him. Nevertheless, Declan appeared, over all, to the outside world to be happy and well cared for. A small family party was arranged for Declan's first birthday on 17 April 2009. Declan appeared happy and well cared for on that occasion. That was, however, the last time that he was seen by any member of the appellant's family.

[15] There was evidence, at the trial, of the appellant beginning to leave the child alone for significant periods of time. The appellant had, in February 2009, struck up a friendship with a Robert Milton. From April until August 2009 the appellant would regularly come and spend the night with Robert Milton at his home. On one or perhaps two occasions she spent two consecutive nights with him. During these periods Mr Milton never saw Declan. The appellant informed him that Declan was being looked after. Acquaintances of the appellant began to think that her mother had taken over the care of Declan. The appellant's mother regularly helped the appellant financially but would not see Declan and the appellant discouraged her mother from visiting her. Witnesses did speak to seeing Declan from time to time after mid-2009. When acquaintances asked where Declan was when the appellant did not have him with her, she informed them that he was being cared for by relatives.

[16] In late 2009 the appellant cancelled a holiday to Portugal which her mother and stepfather had arranged for herself, themselves and Declan. The appellant's mother and stepfather went on the holiday. The appellant visited them on their return but did not bring Declan. She gave no indication that anything was wrong with him. The appellant's mother and stepfather invited the appellant and Declan to come to their home and stay overnight on Christmas Eve 2009. The appellant and Declan did not take up this invitation. The appellant's mother telephoned the appellant's mobile phone many times on Christmas day but was unable to make contact.

[17] The appellant reappeared about seven weeks later. She told her mother and stepfather that she and Declan had spent the last seven weeks with her natural father in Oxfordshire. This was not true.

[18] A witness, Greg Irving, spoke about a period in early 2010 when he was in a relationship with the appellant. They were both addicted to heroin, at that time, and used money and gifts given to the appellant for Declan to feed their habit. Contact between the appellant and her family and friends ceased about this time.

[19] It has to be noted that any contact with the medical services during Declan's life did not cause the medical personnel any concerns. There was continued social work contact from Declan's birth because of the appellant's drug taking history. The appellant was unwilling to accept support. She continuously cancelled or failed to turn up for appointments with social services. In the latter part of 2009 and early 2010, social workers made repeated efforts to see Declan without success. On or about 5 March 2010 a multi-disciplinary social work meeting decided that it was very important for someone to see mother and child. On a number of occasions, thereafter, the appellant telephoned the Social Work Department and provided a variety of excuses as to why she could not see them. Home visits were arranged for 16, 17, 24 and 30 March 2010. When the social workers in question turned up for these visits at the appellant's then home no one answered the door on any of these occasions. On 30 March 2010 a health visitor contacted the appellant's mother to explain the social workers' concerns. The appellant's stepfather discovered a key to the appellant's flat. He and his wife and a female friend went to the flat. On gaining entry they found a large pile of unopened mail inside the front door. The flat was strewn with rubbish. There were soiled nappies piled in a baby bath. Declan's badly decomposed body was found within his cot. The appellant's natural father, Mr Breslin, heard of Declan's death and managed to contact the appellant by telephone. She told him that Declan was at nursery school. The appellant was then traced by the police and taken to Paisley police office. At that stage she said "I can't take any more, I just want to die" and "I didn't deserve him, nobody will believe me".

[20] The appellant gave evidence at the trial. The trial judge, in his report, advises us that her account of events diverged, on many critical matters, from that of other witnesses. She denied ever leaving Declan alone overnight. She said that Declan had died during the summer of 2009. She did not know how Declan had died. On the evening before his death he had been well. She had a cold and was not feeling well so she did not put him into bed beside her. Instead, she put him down to sleep and left him watching a DVD. When the appellant awoke in the morning, she went to make a bottle of milk for Declan. She looked into his carry-cot and Declan was, as she put it, "just lying there". She picked him up and "begged him not to go" and took him into bed beside her. She gave him mouth to mouth resuscitation. His lips were, however, "just blue" and "he had this fixed look in his eyes" which would not shut.

[21] The appellant said that she did not know how long she lay in bed with Declan's body beside her. At some point she put him in his cot in one of the bedrooms "thinking he was going to wake up" while she sat on the couch in the sitting room. She then started preparing things for him "like I normally would". She "kept thinking he was going to wake and I was going to wake up; it was just a bad dream; it couldn't be real". When asked why she had not gone to her neighbours for assistance, the appellant replied that it did not enter her head. She said that she just could not accept that Declan was dead and that she did not want anyone to take him away. She wanted to be dead herself. She said that she subsequently went into denial. She dealt with the situation by telling herself that Declan was still alive. She kept buying him milk, clothes and certain other items. She denied abusing drugs or alcohol shortly before he died although she accepted she had started taking drugs again after Christmas 2009, but she firmly denied that Declan had ever been exposed to drugs when he was alive.

[22] In relation to the state in which her flat was found, the appellant's position was that "I lost my world, lost my boy, it was never like that when Declan was alive, we were both spotless". After Declan died the appellant said she would not make sense of anything and tidying up seemed a waste of time.

[23] A post mortem examination was conducted on Declan by Dr Julie McAdam, a forensic pathologist and Dr Claire Evans, a paediatric pathologist. They, in evidence, explained that in the case of a recently deceased child, a pathologist would examine a variety of structures, including the mouth, thyroid and larynx. In so doing they are looking to see whether the child has been hit, smothered or strangled. Such investigations could not be carried out in this case, the body was too advanced in decomposition. They were also unable to comment on Declan's nutritional status. The post mortem examination did not disclose evidence of any fractures. That finding was considered important by Dr David Manghan, a consultant who specialises in orthopaedic pathology, and who was a witness for the defence. In his opinion, if there had been chronic neglect, he would have expected to see fractures. Further there was no radiological evidence of malnutrition, nor was there anything to suggest strangulation or smothering. As both pathologists who carried out the post mortem examination were unable to determine the cause of death it was recorded as "unascertained". The pathologists who carried out the post mortem and Dr Manghan accepted that young children can die both of natural causes and of unexplained causes. This point was further explored in evidence given by Professor Sebire, who holds the chair of paediatric and development pathology at Great Ormond Street Hospital in London. He is an expert on unexpected deaths in childhood. He explained that a number of terms are used in this connection - sudden unexpected death in infancy ("SUDI"), sudden infant death syndrome ("SIDS") and sudden unexpected death in childhood ("SUDIC"). Professor Sebire considered that the post mortem examination in Declan's case was as thorough as it could be given the decomposed status of the corpse. He considered that "unascertained" was the appropriate way to describe the cause of death in this case since "both natural and unnatural causes cannot be confirmed or excluded". He continued:

"Since the cause of death cannot be established with certainty, and autopsy examination and investigations were limited by the circumstances, the terms SIDS, SUDI or SUDIC are inappropriate in this case."

 

As, however, to the incidence of such deaths, Professor Sebire continued:

"Almost 90% of SIDS occur in the first six months of life, with a peak frequency at between two and four months of age. Most studies have reported that SIDS is more common in boys, (around 60:40). Various antenatal and environmental factors, such a maternal smoking are associated with increased risk and there is an association with social disadvantage."

 

The witness went on to explain that the frequency of such deaths gradually reduces from the peak. There is almost no equivalent data for children who are no longer infants. That is because many fewer individuals over the age of one year die in such circumstances. Based on Government statistics, however, Professor Sebire would expect "about one boy a year in Scotland at age fifteen months to die due to unexplained causes."

[24] While evidence was led regarding the possible administration of amphetamines to Declan, that evidence was not such as to support any such administration.

[25] In seeking to support a conviction of murder, which was the Crown's position in this case, and faced with the uncontradicted finding of unascertained death, the Crown sought to rely on certain evidence of a scientific nature from two witnesses in relation to two matters, the first being what was described as "cortical erosion" and the second being what are known as "Harris" lines. The two witnesses in question were Professor Susan Black and Dr Craig Cunningham. They are both forensic anthropologists based at the University of Dundee, who had prepared two joint reports for the Crown in this case. Professor Black described her occupation as "director of the Centre for Anatomy and Human Identification and I am a professor of anatomy and forensic anthropology". Dr Cunningham described himself as a lecturer at the University of Dundee in forensic anthropology. Neither of these witnesses claims to have any medical qualifications. In short, the purpose of the Crown leading their evidence was that they spoke about a phenomenon known as "cortical erosion" and certain lines, discovered on Declan's bones, when they examined them which they referred to as "Harris" lines. They contended that these features might be indicative of pre-death stress arising from neglect and malnutrition. As the trial judge says in his report to this court (at para 152): "plainly this evidence was potentially of considerable significance". It was evidence, however, which was subject to what appears most powerful evidence contradicting it from other expert witnesses. As will be seen, a good deal of the appellant's grounds of appeal involve an attack on the evidence of Professor Black and Dr Cunningham, the judge's directions in relation thereto and the place that that evidence had been allowed to take, amongst the material available to the jury to consider arriving at their verdict. We will return, shortly, to that evidence but before doing so it is appropriate to summarise the remaining evidence in so far as material.

[26] The two pathologists who carried out the post mortem examination were unable to come to a definite view about the date of death. But in their report they stated that their examination - revealed advanced decomposition changes consistent with death at least several months prior to examination'." Dr Manghan gave evidence to the effect that the date of death was likely to have been in 2009 "at least in the months of autumn or before". He was able to refine that evidence, in due course, placing the date of death as probably occurring between July and November 2009, and most likely before the beginning of 2010. A highly experienced paediatrician, Dr John Beattie, of Yorkhill Children's Hospital was led by the Crown. He had examined all of Declan's health and social work records. This witness gave evidence, inter alia, that, in his opinion, although Declan was a small baby, he had progressed normally up until, and including, his last examination by the doctors and that all three standard growth patterns - weight, length and head circumference were normal. This witness gave more general evidence about the effect of neglect on babies. He said that a young baby left for 12 hours would tend to become agitated. If left for 48 hours the situation would be very serious, the main risk being dehydration. In the case of a child, aged 12-18 months, his opinion was that if a child of that age was left for 12 hours alone there would be cause for concern. If such a child was left, unattended, for 48 hours that would be "a much more serious scenario" because over that period the body would become progressively dehydrated, the child would be in a "very poor" condition and may show signs of brain dysfunction. At some point death must intervene if the neglect was long enough and severe enough.

[27] At the close of the Crown case the advocate depute, as noted above, amended the indictment. Senior counsel for the appellant then made a submission in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 to the effect that there was an insufficiency of evidence in respect of the murder charge. The evidence, he submitted, did not entitle the jury to infer that:

·       Declan had died an unnatural death;

·       His death was the result of the appellant's conduct;

·       The appellant had the necessary state of mind to be guilty of murder.

There had been no direct evidence of the various detailed allegations set out in the narrative of the murder charge. The deletion of the word "assault" was important since it changed charge 1 from a crime of commission to one of omission. That distinguished this case from cases such as of Beggs v HM Advocate 2010 SCCR 681 and Cameron v HM Advocate (2011) HCJAC 29.

[28] Having heard the advocate depute in reply, the trial judge rejected the submission, expressing the opinion that there was a sufficiency of circumstantial evidence which, if taken together, and accepted by the jury, would entitle them to draw the necessary inference that the child had been murdered by the appellant.

[29] At the close of the defence case, senior counsel for the appellant made a further motion. He invited the trial judge to direct the jury to disregard all the evidence relating to Harris lines and cortical erosion given by Professor Black and Dr Cunningham. He submitted that:

(a) The two witnesses did not have the requisite degree of expertise.

(b) Their evidence fell below the standards required of an expert witness.

(c) Professor Black's evidence was not corroborated by Dr Cunningham.

In making that submission senior counsel recognised that there was no "gatekeeper" system in Scottish criminal trial procedure, whereby it would be possible, pre-trial, for an expert's qualifications and experience to be scrutinised and assessed and for an application to be made, where appropriate, for the exclusion of any such evidence being given at the trial. He then proceeded to make certain detailed criticisms of the evidence of the two witnesses in question. The trial judge rejected the submission. In his report to this court he informs us that:

"I repelled the submission for the following reasons. It is the function of a trial to examine and test the evidence led on each side. The jury are the fact finders. In this case, the defence subjected these two witnesses to rigorous cross-examination. Questions were put relating to their respective qualifications, their approach to acting as expert witnesses (including their accuracy, fairness and objectivity), and the science upon which their findings were based. In other words, a wide ranging challenge was made to the validity and strength of their opinion. It resulted in certain important concessions being made.

 

The Crown case is a circumstantial one. Corroboration is not required for each circumstance. In my opinion it was a matter for the jury to determine what weight, if any, to attach to the evidence of Professor Black and Dr Cunningham. I subsequently gave direction that the jury should scrutinise this chapter of the evidence with care"

 

[30] In making his submissions, in this appeal, senior counsel for the appellant contended that the case put before the jury by the Crown, after all the evidence was led, was that the child had died from neglect from a failure by the appellant to provide him with adequate nourishment and fluids. There was no evidence of any assault, violence or other physical maltreatment by the appellant of the child. That was reflected in the deletion of the word "assault" from the indictment. The appellant's position was that she had not neglected nor mistreated the child before his death. She, in effect, said that she did not know how her son had died. The night before the child had apparently been well. He had died in the summer of 2009.

[31] The Crown case from two sources (a) certain circumstantial evidence given by friends and relatives as to the appellant's behaviour both prior to and after what was now considered to be the probable time of Declan's death, as set out, in summary, above and (b) evidence of a scientific nature from Professor Black and Dr Cunningham which was said to provide evidence of neglect and malnutrition. But the difficulty for the Crown, it was submitted, was that the cause of the death of the child had, throughout, been considered by the pathologists to be unascertained. The pathologists who had produced the post mortem report confirmed, in evidence, that was the position. Those witnesses accepted, in cross-examination, that there were three possibilities as to the cause of death - natural causes, trauma or assault, or simply unknown. The following question had been put to the pathologist Dr Claire Evans:

"So the, if I can put it this way, there would have been, if we leave aside unnatural causes, there would have been a number of natural causes that could have led to Declan's death, which because of decomposition you cannot be sure about. If I can put it that way; is that correct. The witness replied 'that's correct'?"

 

When asked to comment on the kind of natural causes which could not be ruled out the witness replied:

"Ehm, there's a vast spectrum that, ehm, infectious disease might be one for example, meningitis, inflammation in the heart, ehm, eh, pancreatitis inflammation of the pancreas. Ehm, we couldn't rule out ehm, a, an abnormality of anatomy that might have caused death, particularly with the heart, Eehm, the, a mean the list is very long."

 

The witness went on to accept that the child could have died of some form of infection, a rapid infection that would cause rapid death and she also accepted that to speak of a sudden unexplained death of such a child was a useful phrase in medical science. The witness was then asked:

".... As far as a child of Declan's age, which may be that we come to around 18 months, as far as a child of his age is concerned, it is perfectly possible that his mother could put him down to sleep at night, eh, go away leaving a healthy child, and come back in the morning and find him dead.

 

The witness replied "In theory, yes it is possible." She was then asked "and in practice it's possible because it does happen." The witness responded "yes".

[32] Senior counsel for the appellant contended that the Crown, finding itself, in the situation where there was no forensic evidence of death by means of an act of commission on the part of the appellant, had sought to rely on evidence of Professor Black and Dr Cunningham to support its ultimate case which was death by neglect, and in particular by virtue of malnutrition.

[33] A good deal of the appeal had been taken up then with a consideration of the status and nature of that evidence. The position, advanced on behalf of the appellant, was that either the trial judge should have acceded to the motion made at the trial by senior counsel for the appellant that he should direct the jury to disregard the evidence of Professor Black and Dr Cunningham altogether or, alternatively, at the very least, the trial judge had failed to give appropriate and adequate directions regarding the scientific and medical evidence, taken as a whole, and, in particular, how the jury should address the evidence of Professor Black and Dr Cunningham in particular.

[34] The first proposition made in advancing that submission was that if a judge or jury is being invited to place any reliance on expert evidence in assisting them to decide the issues before them, it is essential that the witness in question is established as having the necessary qualifications, experience and expertise to justify his or her views being given any weight as those of an expert. In that regard senior counsel referred to the charge of the trial judge, Lord Hardie, in the case of Liehne above where he is recorded as saying:

"In this case there has been evidence from expert witnesses led by the Crown and on behalf of the accused. I want to say something about that matter. In assessing such evidence you should decide whether you are satisfied that the witness should be accorded the status of an expert because of his or her qualifications and experience. The significance of being treated as an expert witness is that an expert is allowed to express an opinion based upon facts presented to him or her. If you do not consider that a witness was truly an expert you should place no reliance upon his or her opinion."

While the Appeal Court had found that Lord Hardie's charge was inadequate in other respects, there was no criticism of that particular direction. Be that as it may, senior counsel submitted that, at least in certain cases, matters may have to be taken even further by the trial judge than simply giving the kind of direction just referred to and that, in such situations, the judge may have to tell the jury simply to disregard the evidence in question because he, the judge, had reached the view that its author lacked the relevant experience, qualifications and expertise in question. In this case the trial judge had done neither thing and had simply, in his charge, referred to the evidence of Professor Black and Dr Cunningham as if it was just like any other evidence. That involved a misdirection by the trial judge.

[35] Both Professor Black and Dr Cunningham in their reports prepared for the trial, and spoken to by them in their evidence in court, as has been noted, spoke to their examination of the bones of Declan revealing the presence of Harris lines and signs of the phenomenon known as cortical erosion. In cross-examination, however, Professor Black accepted, in effect, that she was not qualified to provide any expert opinion on cortical erosion, a matter which would require to be spoken to by a paediatric histopathologist. In his evidence Dr Cunningham confirmed that he also was not qualified to give an opinion on cortical erosion and that any such advice would require to come from a histopathologist. While, in the event, the advocate depute, in his speech to the jury, did not seek to rely on what had been said initially by these witnesses in relation to cortical erosion, the judge had failed to direct the jury that they should put out of their minds all that had been said by these witnesses in that regard. What he did say was:

"The advocate depute did not found on the evidence relating to cortical erosion in his closing speech. Against that background, I direct you to scrutinise the chapter of evidence relating to Harris lines and cortical erosion with great care. You must decide what weight, if any, it should have." (Emphasis added).

 

That was, it was submitted, a clear misdirection by the trial judge in that rather than saying, what he should have said, namely that the jury should disregard completely the evidence on cortical erosion from these witnesses he had positively directed the jury to have regard to it and to decide what weight, if any, they would wish to place upon it. He did that in the face of the admissions by the two witnesses of their complete lack of expertise in the matter and also in the face of evidence given by Dr Mangham, who is qualified in a number of fields including histopathology. Dr Mangham had examined scans and x-rays of Declan's bones and opined that the appearance of the cortex was normal. That witness also gave evidence that his examination of the images of the bones showed no signs of malnutrition. Yet Professor Black, in her original evidence, given by someone unqualified to speak to the matter, said that the condition of the cortex was evidence of poor nutrition.

[36] Professor Black and Dr Cunningham both spoke to having witnessed Harris lines on the bones of Declan which, they suggested, were indicative of neglect and malnutrition. This was a topic about which Professor Black continued to maintain, in her evidence, that she had some expertise. It was, however, submitted senior counsel for the appellant, important to recognise, in the first place, what Professor Black's qualifications are and in particular to have regard to the fact that she has no medical qualifications. She had examined the x-rays of the scans of the bones of Declan and she gave evidence to the effect that these indicated to her that Declan had been more than one year of age and less than two years of age at the date of his death. There seemed to be no doubt that kind of evidence lay within her particular expertise as a forensic anthropologist, called upon to determine both the age of skeletons and the age of the person, whose skeleton it was, at the time of death. The witness, however, went on to give evidence that she had identified what she described as growth arrest lines on some of the bones of Declan. These lines were otherwise known as Harris lines after the person who produced the first most significant report about them. These, she contended, raised the possibility that growth in the child had been stopped at different times during the child's life and that these stoppages in growth could have been caused by poor nutrition sickness and neglect. In a written report which was before the court she recorded:

"The evidence of growth retardation present by at least six distinct growth arrest lines, in association with the poor bone quality which was represented by areas of poorly defined bone cortex formation."

 

She elaborated upon these findings in examination in chief and the significance of the presence of Harris lines as pointing towards neglect of the child.

[37] In cross-examination she accepted that it was odd that the pathologists carrying out the post mortem examination and the radiologist producing the x-rays and scans of Declan's body had not commented on the presence of the Harris lines. She would have expected them to do so. It was then put to her that up to date expert writing on the subject put a very serious question mark over Harris lines ever being evidence of neglect. Those writings had been not mentioned in her reports or in her evidence in chief. In particular there was put to her two recent papers. The first was by Dr Christina Papageorgopoulou. This had first appeared in 2011 in the American Journal of Human Biology. It was a paper which was peer reviewed. Its conclusion, which was spoken to by Dr Papageorgopoulou in evidence, was:

"By this short overview one may conclude that growth Harris lines, or Harris lines are debatably stress markers. They have been traditionally used as markers as non-specific stress for the reconstruction of the living conditions and the health status of - populations, but the possibility of this result has never been really proven. Even research studies failed to correlate the presence or absence or Harris lines with specific stress markers."

 

The second paper was by Dr Alfonso-Durruty. It was published in the American Journal of Physical Anthropology. It concluded inter alia:

"Harris lines status as a stress marker is, however, questionable because their association to illness and deficient growth is low and they commonly form in the absence of stress during periods of accelerated growth."

 

Professor Black, in cross-examination, accepted that she made no reference in her report to these conclusions which might be said to put a question mark, at the very least, over her own opinions. However, she robustly condemned these papers as containing "poor science".

[38] As previously noted, Professor Black's reports were co-signed by Dr Craig Cunningham. He was 27 years of age at the time of giving evidence. He holds a B.SC degree in anatomical and physiological sciences and a doctorate in anatomy and forensic anthropology. When asked what his role was in relation to the compilation of the reports, and how responsibility for them was divided between himself and Professor Black, he replied:

"For both reports I worked alongside Professor Black, so any work that was undertaken was undertaken in a joint capacity whereby I was being supervised and being trained by Professor Black in each of the different aspects of these."

 

He accepted in cross-examination that he had no medical qualifications nor has he dealt with children in a paediatric role. He agreed that there was recent scientific literature which seriously questioned the evidence of Professor Black as to the significance of Harris lines. Furthermore, he accepted that the study of Harris lines really belongs in the field of archaeology. He said that he was still learning from Professor Black, who was his line manager in his capacity as a lecturer. When he went to examine the skeleton of Declan at the post mortem he did so as a trainee forensic anthropologist. He accepted he had no training in radiology and, accordingly, had no training in considering and interpreting CT scans. What he and Professor Black had been doing in looking at the images of Declan's skeleton was to try to ascertain Declan's age of death but later he and Professor Black had been asked to comment further on the presence of Harris lines.

[39] He accepted in cross-examination that the methods employed by Professor Black in producing the evidence regarding Harris lines were flawed but, in any event, he went on to say that the amount of stress to cause a Harris line was very unclear in the literature. There was no definite answer as to which of numerous causes might produce Harris lines.

[40] At another point in his cross-examination this witness said that the interpretation of Harris lines was uncertain when one looked at the literature which set out potential causes. He agreed, in cross-examination, that the reports of Professor Black and himself should have said that the radiograph film was not sufficiently clear to show adequately the Harris lines and that their report was also misleading in suggesting that films demonstrated the presence of several growth arrest lines. In fact there were only two on the right radius, two on the right femur and six on the right tibia. This he accepted might put any theory that they were caused by arrested growth in doubt because they did not occur equally in all three bones. Dr Cunningham accepted that where in one of the reports it was stated that "these lines are accepted as an indication of periods of stress" that should have been qualified as there was reputable scientific literature which, at the very least, raised a question mark over such a conclusion. It appeared that had the defence not produced the papers in question the court would not have been informed of them by witnesses led on behalf of the Crown, even though they were aware of these papers.

[41] Dr Mangham, the witness already referred to, was asked if a consideration of the scans and x-rays of Declan would make him concerned about the child's development prior to death. He replied that they would not as they appeared perfectly normal to him. As far as the cortex was concerned he described it as normal anatomy. The witness had not seen any signs of malnutrition in the scans or x-rays. He was in the habit of looking at thousands of scans and x-rays each year including paediatric cases. He regarded Harris lines as of no real consequence, as being as normal as he put it as "the rings of a growing tree". He made these observations, having had sight of the recent literature produced on behalf of the defence, but he said that he would have reached those conclusions based on his own clinical experience.

[42] The paediatric doctor, Dr Beattie, in his report stated that:

"There is nothing to suggest that in early infancy Declan had evidence of any medical or other condition or disease that might prove lethal."

 

He continued:

"Nor is there any suggestion that he did not have anything other than an expectation of a normal healthy potential future with normal neurodevelopmental outcome".

 

He spoke of Declan being:

"Apparently entirely healthy and had a full life ahead of him and there was nothing to suggest that he would not develop normally in terms of his ... progress as a small child, walking, talking and so on."

 

While Declan was a relatively small child his rate of growth was normal.

[43] As regards Harris lines, this witness said that he saw these all the time in his practice as a paediatrician. They were to be seen in quite normal children and a paediatrician did not even think about them "although he knew that historically they had been perceived to be a marker of severe malnutrition or severe illness". The witness, however, went on to say "from a day to day point of view they are not an issue for us clinically, we ignore them". Later on he said:

"Well as paediatricians we see them and ignore them. I mean there is no paediatric literature on Harris lines. It is not a clinical issue for us and anybody I have spoken to or asked about it, is not an issue for us, we don't interpret them, we don't use them in any useful practical way. They are just there."

 

At one point in his examination in chief he volunteered the following in relation to Harris lines:

"We don't tend to interpret their presence in any practical way. And I have confirmed this with many colleagues. Because this topic has come up I actually asked 100 colleagues in a meeting in Stirling University, 'do you - how do you deal with Harris lines?' and nobody had any response to Harris lines. And this was a child protection meeting from all over Scotland were at this meeting."

 

[44] In cross-examination Dr Beattie did say that severe malnutrition may be a potential cause of Harris lines but equally they could be caused by a whole range of other factors. He referred to a class of children in his experience with Harris lines who were very far from being malnourished. He would not reach a conclusion on seeing a child with Harris lines that it must have been malnourished or subject to some terrible trauma. He repeated that Declan's growth and weight were normal for his age. Dr Beattie also gave evidence as to sudden death from unnatural causes of children of Declan's age. He said that such a death would be extremely traumatic for the parent or parents of such a child.

[45] As noted the Crown led Professor Neil Sebire whose is a professor of paediatric pathology at Great Ormond Street Hospital, London. He gave evidence about, inter alia, the incidence of sudden death in infants and young children. He had examined Declan's medical records and the post mortem report. In cross-examination the witness said that from the evidence available to him he would agree with the post mortem report that it was impossible to determine the cause of death. He also accepted that there were a large number of causes of death that may result in a child dying suddenly and unexpectedly. As noted, previously, he accepted that, on the basis of statistical evidence it could be expected that there would be one death per year in Scotland of a male child about Declan's age in whom, following a post mortem examination, a cause of death could not be determined. In his opinion it was not possible to tell whether Declan's death was a sudden explained death or a sudden unexplained death. Senior counsel for the appellant pointed out that the trial judge had made no mention, at all, of this witness and his evidence in his charge.

[46] Against that summary of the evidence in the case, senior counsel's submission was that his motion to the trial judge that he should direct the jury to disregard the evidence of Professor Black and Dr Cunningham should have been granted. Alternatively the trial judge had clearly failed, in delivering his charge, in a case of this kind, to follow the instructions given by the court in the case of Liehne. He had failed to give the jury the required assistance for them to carry out the assessment of the critical medical and scientific evidence in this case. As regards the topic of cortical erosion, spoken to by Professor Black and her assistant, both of these witnesses had ultimately disclaimed any expertise in relation to this topic. As previously shown, notwithstanding that the advocate depute did not rely on cortical erosion in his speech to the jury the trial judge expressly referred to it in his charge at pages 16-17 where he said:

"I direct you to scrutinise the chapter of the evidence relating to Harris lines and cortical erosion with great care. You must decide what weight, if any, it should receive"

 

The trial judge's duty, it was submitted, had been to "close down" this topic completely, as something the jury should pay no attention to in reaching their verdict.

[47] As the advocate depute had made clear in his speech to the jury the evidence of Professor Black and Dr Cunningham on the subject of Harris lines was, clearly, a crucial part of the Crown's case. Standing the attacks that had been made upon it, standing Dr Cunningham' ultimate position with regard to it and standing that there was evidence led of a medical nature wholly consistent with Declan having died from a non-sinister cause, the judge's charge was wholly inadequate in saying as it did simply that, with regard to the evidence of Dr Cunningham and Professor Black relating to the topics of Harris lines and cortical erosion, the jury had to scrutinise that evidence "with care". There was no rehearsal at all of the medical and scientific evidence in the judge's charge to the jury. For these reasons the misdirection and failures in direction by the trial judge were highly material and had resulted in a miscarriage of justice.

[48] We have reached the clear conclusion that foregoing submissions must be upheld and the conviction of murder quashed.

[49] We have found this to be a particularly anxious and troubling case and we have little doubt that the jury would have found it to be so also. There is scarcely any more serious charge than one of murder by a mother of her infant child. Any prosecution of such an alleged crime, particularly in the absence of evidence of any physical attack or other violence visited upon the child, must require the most careful and sensitive consideration by those responsible for bringing the prosecution. If the case, as this one was, is to be based, to a material extent, on expert evidence, it is of the utmost importance that the experts chosen by the prosecutor to provide evidence supportive of the charge of murder should have the relevant qualifications, competence, expertise and experience to speak to the matters they are invited to give evidence about. The matters about which they are to be invited to give evidence about must themselves be clearly defined so that their competence to speak to them can be readily identified and confirmed. In Dickson Evidence (3^rd edition), the writer in dealing with the evidence of witnesses of matters of opinion at para 398 states:

"A foundation for such an examination must always be laid by ascertaining whether the witness is a person of skill or an 'expert' (the English term) under which is included those have a theoretical acquaintance with the subject, as well as one who speaks from practical knowledge"

 

A modern statement of the position is to be found in Davidson: Evidence at para 11.13 in the following terms:

"It is for the court to be satisfied whether a particular individual tendered as an expert does have sufficient relevant expertise to assist the court, and if this is not established the evidence of that witness is not admissible, even if the opposing party raises no objection."

 

Notwithstanding what was said by the trial judge in his charge to the jury in the case of Liehne quoted above, such questions as to the competence and experience of expert witnesses to speak to any particular topic are questions for the trial judge and not for the jury to determine. On the other hand, if the witness has the appropriate competency and expertise, if he is discredited in evidence that goes to the weight of the evidence and is a matter for the jury. It is true that in our system of criminal procedure there is no procedure set down for the judge to operate a gatekeeper's role whereby, during some procedure or hearing, prior to trial, he can determine whether or not a person who is to be invited to give evidence at the trial has the necessary expertise and qualifications to give that evidence. That does not, in our judgement, relieve the judge from performing that function where necessary. That will be necessary where, as happened in this case, the competence of the witness to give any evidence on the topic in question is raised, or where it becomes clear to the judge, himself, that the witness clearly does not have the relevant competence to give evidence about the issues involved in the case. While the trial judge does not act as a gatekeeper, in such matters he has a continuing role as referee, or umpire, throughout the trial to ensure that it is conducted fairly and that evidence from a person claiming specialist knowledge and expertise, who clearly does not have such expertise and knowledge, is disregarded by the jury. Putting matters colloquially it cannot be right for a trial judge to allow an obvious "quack" doctor to speak to a subject in a supposed expert way in relation to which he has no qualifications, and to allow his evidence to be placed before a jury with the simple direction that it is a matter for them to assess his competence. The position is somewhat analogous, perhaps, to that referred to by the Lord Justice Clerk in Nulty 2003 SCCR 378 at para 35. His Lordship, in dealing with section 259 of the Criminal Procedure (Scotland) Act 1995 said:

"If I am right in the conclusion that the court has no discretion under section 259 to exclude hearsay that qualifies under the section, that has serious procedural implications. When such evidence is admitted, whether on the application of the Crown or the defence, the full evidential significance of it may not be immediately apparent. In my opinion it is the continuing duty of the trial judge under article 6 to consider carefully the fairness of such evidence as the trial progresses."

 

[50] In the present case it seems quite clear to us that the trial judge erred in a material respect in not instructing the jury to put out of their minds completely the evidence given by Professor Black and Dr Cunningham in their reports, and in court, on the topic of cortical erosion since both of these witnesses accepted in evidence that they did not have the necessary competence and qualifications to speak to this topic. There was not only a failure on the part of the trial judge to tell the jury to put this evidence out of their minds but he chose, as has been seen, to refer expressly to it and to leave it with the jury for their consideration. Matters, however, go further. A review of the evidence of Professor Black and Dr Cunningham as a whole in this case appears to suggest strongly that they were originally instructed by the Crown to assist in determining the age of Declan when he died. That was a subject about which Professor Black, as a forensic anthropologist, was no doubt well qualified to speak. Her own experience of 25 years as spoken to by her is in inter alia national and international forensic anthropology and human identification. She has extensive experience in examining war crime sites. While she advised the court that the majority of her writing had been in relation to the child skeleton, she has no medical qualifications. Her understanding of what she was required to do in the present case was expressed by her in examination in chief as follows.

"I was contacted by Paisley CID. They gave me a very brief summary of the fact that a child had been found. They advised me that the body was in an advanced state of decomposition and what they requested from me was an indication of how old the child might have been when he died, as there were some doubt in relation to the actual timing of the death of the individual child. As a result of that we were invited to attend the post mortem examination on 1 April, and our understanding, from having spoken with the senior investigating officer, that the prime areas of information that they would require from us was a determination of the age of the child at death, whether there was any evidence of trauma or pathology to the skeleton, in relation to the child's death and if there were likely to be any other indicators that we might be able to determine that might consider any element associated with the child's health status."

 

It is not obviously clear from this witness' own description of her qualifications and expertise as to how she came to be regarded by the Crown as qualified to speak to the status of the child's health particularly in relation to how death might have come about.

[51] In any event as has been seen, both she and Dr Cunningham did not only set out their views on cortical erosion, they also did so as to the appearance of Harris lines. We have dealt with the cortical erosion issue. As regards the evidence of these witnesses in relation to Harris lines certain features cried out to be addressed. In the first place Professor Black and Dr Cunningham had refrained from making any reference to apparently respectable scientific writing in the field which had the effect of seriously qualifying their views on this subject. Secondly, Dr Cunningham went as far as to accept that the methodology employed in the examination of the Harris lines observed on Declan's bones was "severely flawed". Thirdly, neither the pathologists nor the radiologists instructed in the post mortem examination of Declan considered this to be an issue. Fourthly, not a single one of the distinguished medical practitioners who gave evidence, at the trial, attested that the Harris lines told them anything about the health or otherwise of the child before his death and, in particular, as to whether the child had been subject to general neglect and in particular malnutrition, which was ultimately the Crown's case against the appellant. Dr Cunningham's expertise and experience in such matters was clearly extremely limited yet he signed the reports produced by Professor Black. By the end of his evidence it was clear that it had been severely undermined and it is difficult to see how he could be properly held out as an expert in any of the topics he spoke to nor, to be fair to him, did he really claim to be so. Professor Black's own evidence in relation to Harris lines was clearly subjected to very serious criticism. As the trial judge says in his report to the court at page 37, "plainly, this evidence was potentially of considerable significance". In that situation, senior counsel for the appellant was clearly correct in submitting that the trial judge had omitted to carry out any detailed rehearsal in his charge, of the other evidence at the trial which might be thought to have very seriously undermined it. This submission, it appears to us, was particularly significant in a situation where there was no scientific or medical evidence otherwise pointing to the cause of death of the child and where there was evidence led which was entirely compatible with the death having arisen from a non-sinister cause. It is clear from the advocate depute's speech to the jury that he placed a considerable deal of emphasis on the evidence of Professor Black and Dr Cunningham regarding Harris lines as being an important part of the Crown's case. He described it as part of the jigsaw puzzle which made up the Crown's case. The trial itself lasted 26 days. While the length of a judge's charge can never, of itself, be indicative of it being adequate, or otherwise, it is noteworthy the judge's charge in this case ran only to 26 pages. Having reviewed its contents carefully, it is clear to us that the trial judge failed to follow the requirements in relation to directions to be given to juries in such a case as were set out by the court in Liehne. The extent of the judge's treatment of the scientific and medical evidence in relation to cause of death is to be found in the following passages from his charge.

"Secondly you will recall the evidence relating to the Harris lines. While the advocate depute accepted that it was a matter of controversy, he asked you to accept the evidence of Professor Black and Dr Cunningham in this connection. It was one of his jigsaw pieces, although he said there was enough to convict even without it. But you will also recollect Mr Targowski's detailed criticisms. The pathologist did not mention Harris lines. Dr Beattie and Dr Langham thought they had no clinical significance and there were two recent papers which questioned their diagnostic validity. As I understood Professor Black, she accepted Dr Beattie's view, that the relevance of Harris lines in Declan's case was uncertain. With regard to Dr Cunningham, at one point in cross-examination, he accepted the conclusions of Dr Papageorgopoulou although he stood by the conclusions of the joint report, that is his report and Professor Black's in re-examination. The advocate depute did not found on the evidence relating to cortical erosion in his closing speech. Against that background I direct you to scrutinise the chapter of the evidence relating to Harris lines and cortical erosion with great care. You must decide what weight, if any, it should receive." (Pages 15-17).

 

This was a case where, as has been noted, there was substantial medical evidence which did not rule out a natural cause of death. In that situation we can do no better than set out the following passages from the Lord Justice General's judgment in Liehne. At paragraph 49 his Lordship said:

"Where there is on the evidence a realistic possibility of there being an unknown (currently unknowable) cause of death, ... the jury should be reminded that this must be excluded before they can convict. Also, of course, the jury will require, before they can convict, to exclude any natural cause of death which is positively suggested in the evidence. This may be obvious, but the jury should be reminded of it. The way in which a jury approached their deliberations upon the issues before them will be a matter, ultimately, for them to decide; but in a case of the present kind it will be incumbent on the judge to give them guidance. Even where counsel for the prosecution and the defence have in their speeches fully explored the technical evidence (and they did not do so here), it will be for the trial judge to provide a succinct, balanced review of the central factual matters for the jury's determination. Where natural causes for the death are suggested in evidence, an appropriate starting point may be to remind what these are, giving a brief explanation of the evidential basis for each of them, and directing them that, if they are persuaded of them or if any evidence with respect to them gives rise to a reasonable doubt about the accused's guilt, they are bound to acquit."

 

After having then set out the way in which the trial judge should have rehearsed the expert evidence, the Lord Justice General at paragraph 56 said:

"The task which it was, in our view, incumbent on the trial judge to perform was not an easy one. There was a risk that, in seeking to identify the position of each of the principal experts, errors might be made. But the fact that the task was difficult does not mean that it was unnecessary. The failure to undertake that task in this case amounted in our view to a material misdirection."

The trial judge's charge in the present case, in our opinion, does not meet the requirements set out in that judgment.

[52] Judges in Scotland, as certain decisions referred to by the Lord Justice General in Liehne illustrate, do not tend to rehearse the evidence in their charges in any great detail. While accepting there is normally good reason for that since it avoids the risk of a judge trespassing into the jury's territory, the position is different where a trial turns significantly on complex scientific and medical evidence. In R v Henderson (Practice Note) [2010] 2 CR.APP.24 the Court of Appeal said that the trial judge's summing up should, in such a case, be done issue by issue unless there is good reason not to do so. It went on say that the summing up should enable anyone who heard or read it to understand the route followed by the jury in reaching its verdict. The guidance in that case focussed on certain other important factors. The first was where there was a realistic possibility of an unknown cause of death, the jury should be reminded of that. The second was they should be instructed that unless the evidence leads them to exclude any realistic possibility of an unknown cause they could not convict. It was also suggested that where it is relevant to do so, the jury should be reminded that today's scientific orthodoxy may become tomorrow's outdated learning and in cases where developing medical science is relevant they should be instructed that special caution is needed where expert opinion evidence is fundamental to the prosecution. The third was that the jury should also be directed as to how they should approach conflicting evidence. To suggest in cases where expert evidence is fundamental that the jurors should approach the evidence in the same way as they would in any other criminal case was inadequate. Rather they must be directed as to the pointers to reliable evidence and the basis for distinguishing that which may be relied upon and that which should be rejected. Where relevant, the jury should be asked to consider whether the expert has, in the course of his evidence, assumed the role of an advocate, whether he has stepped outside his area of expertise, whether he was able to point to a recognised peer - reviewed source for his opinion, and whether his clinical experience is up to date and equal to that of others whose opinions he seeks to contradict. It seems to us that in a case like the present where the expert evidence raises issues of some difficulty, controversy and sensitivity, the guidance set out in that case could usefully be applied in our courts. It is to be noted that in England and Wales the rules of procedure require that where there is to be medical evidence led and relied upon it should be considered at a pre-trial hearing.

"The pre-trial process is of particular importance. Without robust pre-trial management, the real medical issues cannot be identified and, absent such identification, a judge is unlikely, to be able to prevent experts wandering into unnecessary, complicated and confusing details; accordingly, a judge who is to hear a case of this type should deal with all pre-trial hearings, save for those in which no issue of substance arise. By the time a trial starts the essential medical issues which the jury have to resolve, and the expert evidence, identifying the source on which the evidence is based, should all be clear" - see Archibald Criminal Pleading, Evidence and Practice 2012 at 1380.

 

It may be that the time has come for some thought to be given to providing for such an approach in Scotland in such cases.

[53] Before us the advocate depute sought to contend that, even if some of the criticism made of the judge's charge in respect of the scientific and medical issues were justified there had been no miscarriage of justice, because of the formidable amount of other evidence about the appellant's behaviour both, prior to, and after the death of her child which would have, it was submitted, allowed the jury to draw the inference that she had been responsible for the death of Declan. We accept that there was a great deal of circumstantial evidence about the appellant's behaviour prior to, and after, the baby's death. However, we are entirely satisfied that the role of the medical and scientific evidence, in particular the evidence in relation to Harris lines, was so important to the Crown case, as the trial judge and the advocate depute, at the trial, accepted, that the misdirections were material and resulted in a miscarriage of justice which requires the appeal against the conviction of murder to be allowed.

[54] That is sufficient for the determination of the appeal. We, accordingly, do not need to say a great deal about the other bases upon which the appeal was presented. That was, in the first place, in terms of ground of appeal 2, which was to the following effect:

"In addressing the jury the advocate depute maintained that there was sufficient evidence to entitle the jury to convict even if they rejected the evidence of Professor Black and Dr Cunningham. It was submitted that he was in error to have done so and that therefore the trial judge should have directed the jury accordingly. Without being able to establish that the cause of death was directly referable to the absence of adequate nourishment and fluids there was no basis for a conviction of homicide."

 

The response of the trial judge that ground of appeal in his report to this court was as follows:

"In my view there was a sufficiency of evidence, even without the testimony of Professor Black and Dr Cunningham. The jury had evidence from many sources. In my view, it was entitled to conclude that Declan had died as a result of the appellant's conduct and in particular lack of care towards him."

 

It appears to us that there may be some force in what is said in the second ground of appeal. If the evidence of Professor Black and Dr Cunningham was disregarded it appears to us that there may have been insufficient to support conviction on the charge of murder, as opposed to evidence from which neglect of the child, which may have resulted in death, and which may have justified a conviction in terms of the alternative in the first charge.

[55] Another and related basis of attack by the appellant on the judge's charge is to be found of ground of appeal 6 which is in the following terms:

"On the basis that there was a relevant charge of murder before the jury it was incumbent on the trial judge to give the necessary directions in relation to the question of foreseeability in considering the issue of mens rea"

 

The Crown having removed the word "assault" from the charge of murder its case was based on an omission by the appellant amounting to maltreatment and in particular malnutrition of the child. The trial judge in his charge gave a traditional definition of murder. But it was submitted this was a case which required more, since it appeared to be based on the notion that the appellant's alleged acts of neglect had resulted in the death of the child and for that to amount to murder it would have been necessary for the jury to be satisfied, beyond reasonable doubt, that the appellant had been guilty of wicked recklessness, regardless of the consequences and possessing the necessary foresight of those consequences. The trial judge in his report to this court at page 48 states:

"I provided the jury with what I considered to be the appropriate directions in relation to murder." At page 43 he states: "The deletion of the word 'assault' from the first alternative in charge 1 does not in my view alter matters. The jury can rely on circumstantial evidence in a crime of omission, just as much as in one of commission. In my view, where a failure to look after a baby's welfare leads to death or injury, it can be regarded as a crime of commission by omission."

 

And at page 48 the trial judge states:

"I have set out above why in my view this was a relevant charge of murder, even under deletion of 'assault'. Standing the evidence of Dr Beattie in particular, it is plain that failing to provide adequate nourishment and support for a young child can lead to death.

 

With respect to the trial judge those last remarks seem to us to address only the question of causation and not the question of mens rea. Senior counsel for the appellant submitted that this was a case where the judge should have provided a direction in relation to mens rea in line with what was said in Petto v HM Advocate 2001 SCCR 519 particularly at paragraphs 13, 27 and 28. The judge's direction was simply:

"For the Crown to prove murder you would need to be satisfied beyond reasonable doubt that; (1) the accused caused the death of her son, Declan Hainey. In other words, but for her conduct he would not have died. (2) In doing so she acted either with a wicked intention to cause death or in a way which showed wicked recklessness as to his fate"

 

The charge, as amended, did not aver circumstances of any wilful act intended to cause physical injury which, it was said, was necessary for there to be a relevant charge of murder, see Her Majesty's Advocate v Purcell 2007 SCCR 520. It does appear to us that there may well be force in the submission that the trial judge may well have underestimated the significance of the deletion of the word "assault" from the charge reflective of the absence of any evidence to support it which would have necessitated, at the very least, a full explanation of the requirements of mens rea in a case like the present. We would have preferred to have fuller submissions on these issues than we had from either side of the bar, before deciding upon them conclusively. As has been seen it is not necessary for us in any event to do so.

[56] In the event for the reasons given earlier in this opinion the appeal is allowed and the conviction in respect of charge 1 is quashed.