R v Angela Cannings 2004 UK Court of Appeal

Court Of Appeal - 19 January 2004

This version of the judgment has been prepared by: Dr Robert N Moles and Bibi Sangha
Underlining where it occurs is for editorial emphasis]

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See also the UK case of Sally Clark April 2003

and also the Australian case of Kathleen Folbigg February 2005

Lord Justice Judge:

Angela Cannings [C] was born in 1963. After her marriage to Terry, they had four children, Gemma (1989), Jason (1991), Jade (1996) and Matthew (1999). Gemma, Jason, and Matthew died in infancy.

In April 2002 before Mrs Justice Hallett and a jury, C was convicted of two counts of murder (Jason and Matthew). She had also been charged with Gemma's murder, but that did not proceed. Before his death Jason, and the surviving child, Jade, too, suffered an "Acute" or "Apparent Life Threatening Event" (ALTE). Gemma died at 13 weeks. Jason suffered an ALTE at 6 weeks, and died a week after discharge from hospital. Jade suffered an ALTE at 11 weeks. She made a full recovery. Matthew at 17 weeks suffered his episode, was discharged from hospital, but died 9 days later.

The Crown said C smothered Jason and Matthew, intending to kill or do them serious harm. It was suggested that Gemma's death, and each of the ALTEs, were also smotherings by C, and that the deaths of Jason and Matthew formed part of an overall "pattern". C, a woman of good character, described as a loving mother, apparently free of personality disorder or psychiatric condition, consistently denied harming any of her children. It was not suggested that they had been harmed by anyone else. Her case was that the deaths were disastrous, but natural, even if unexplained incidents (SIDS).

Without medical evidence about C’s mental state, a verdict of infanticide was not open to the jury. Following conviction, sentences of life imprisonment on each count were mandatory. Hallett J expressed her concern at the "kind of injustice that can be caused by mandatory sentences". Honouring, as she had to, the verdicts of the jury, and acknowledging the absence of any medical evidence relevant to the appellant's state of mind, she observed:
"I have no doubt that for a woman like you to have committed the terrible acts of suffocating your own babies there must have been something seriously wrong with you. All the evidence indicates you wanted the children, and apart from these terrible incidents you cherished them, so in my layman's view, it is no coincidence that these events took place within weeks of your giving birth. It can, in my view, be the only explanation for why someone like you could have committed these acts when you have such a loving and supportive family."

This is an appeal against both convictions. On 10th December 2003 we quashed them. We now give our reasons.

The issue

The deaths of Jason and Matthew were either natural or unnatural. In the majority of murders, there is no doubt that someone has caused the death in some way. In a few cases issues may arise whether some underlying or intervening cause contributed to it. The primary question here was whether either of these children was killed at all. We are not blind to the fact that catastrophes happen: mothers and fathers also, do sometimes kill their infant children. Some deaths remain "unexplained" or "unascertained". Professor Berry, a consultant pathologist called by the Crown, identified three categories of death which were encompassed within this last word, "unascertained". It includes deaths which are:
natural and explained (i.e. a similar mechanism to sudden infant death syndrome, but not fitting the strict case definition);
natural and explicable (but the cause was not found); or
unnatural (accidental or deliberate).

Only proof of an unnatural death resulting from deliberate action, can justify a conviction for murder.

Treating SIDS as a syndrome tends to obscure the fact that sudden unexplained infant deaths occur in different circumstances. Some may be the result of a coincidence of processes which, taken in isolation, would not necessarily cause death. No underlying condition for every death categorised as SIDS has been identified. The critical point of such death is that it is unexplained. Its causes, although natural, are unknown. SIDS does not apply to deaths which are explicable or consequent upon trauma. In each SIDS case the mechanism of death is the same, apnoea (loss of breath or cessation of breathing). We do not know why the breathing stopped. All we know is that for some unexplained reason it did. One obvious reason for loss of breath is smothering or some deliberate interference with the infant's normal breathing process. However the same process, with the same result, also occurs naturally.

ALTEs are SIDS in which no death has resulted. They represent the consequence of unexpected temporary loss of breathing which has occurred naturally. Whether the cause is natural or harmful interference, the body of the infant undergoes great stress. If the event is the result of deliberate interference with the infant's breathing it is not ALTE: it is attempted murder or attempted grievous bodily harm.

Two critical problems

There are different approaches to infant deaths in the same family, with each apparently unexplained, and for each of which there is no evidence extraneous to the expert evidence that harm was or must have been inflicted. Such events are rare. One approach is to examine each death to see whether it is possible to identify some natural cause of death. If not, the rarity of such incidents in the same family is thought to raise a powerful inference that the deaths must have resulted from deliberate harm. The alternative approach is to start with the same fact, that three unexplained deaths in the same family are indeed rare, but thereafter to proceed on the basis that if there is nothing to explain them, in our current state of knowledge at any rate, they remain unexplained, and still, despite the known fact that some parents do smother their infant children, possible natural deaths.

Much depends on the starting point which is adopted.

The first approach

lightning does not strike three times in the same place.
The route to a finding of guilt is wide open.
Almost any other piece of evidence can reasonably be interpreted to fit this conclusion. For example, if a mother who has lost three babies behaved or responded oddly, or strangely, or not in accordance with some theoretically "normal" way of behaving when faced with such a disaster, her behaviour might be thought to confirm the conclusion that lightning could not indeed have struck three times.

The second approach

the deaths were natural, virtually anything done by the mother on discovering such shattering and repeated disasters would be readily understandable as personal manifestations of profound natural shock and grief.

The importance of establishing the correct starting point is sufficiently demonstrated by this example.

There is no denying that the death of three apparently healthy babies in infancy while in the sole care of their mother was, and remains, very rare, rightly giving rise to suspicion and concern and requiring the most detailed investigation. It would have been contrary to common sense to treat the deaths as isolated incidents. All the relevant evidence had to be examined as a whole. Nevertheless a degree of caution was necessary to avoid taking the wrong starting point.

If it was positively established that Matthew's death had resulted from natural causes, the concerns which would have arisen as a result of his death – as the third in the sequence – would have been dissipated. A positive innocent explanation for the death (not SIDS) might help to confirm that the earlier deaths were indeed natural deaths. Equally, if there were unequivocal evidence that one of these deaths had resulted from deliberate harm by C that would throw considerable suspicion on the other deaths. If, after full investigation, the deaths continued to be unexplained, the deaths could not properly be treated as resulting from unlawful violence.

We have no doubt that what we have described as the second approach is correct. The exclusion of currently known natural causes of infant death does not establish that the deaths resulted from the deliberate infliction of harm. That represents the legal principle which must be applied. It appears also to coincide with a reputable body of expert medical opinion.

The question was whether there were any crimes at all, and whether there were, any victims of crime. There was no direct evidence and very little indirect evidence to suggest that they were. There was evidence to suggest they were not. C was not contending that someone else had harmed her babies, or that she had caused their injuries accidentally. The jury might reasonably have thought that 3 accidental deaths would be highly improbable, or that her presence, on her own, when each "accident" occurred, extinguished any realistic possibility that someone else was responsible. C's defence was simple: she had done nothing to harm any of her children. Although she was contending that the deaths were natural, she could not explain them, and she was not seeking to offer an explanation of her own. She was doing so in the context that medical specialists continue to acknowledge that the death of an infant at home can be natural and unexplained, even by them.

In recent cases which attracted considerable public concern, two mothers were charged, Sally Clark (convicted) and Trupti Patel (acquitted). The conviction of Sally Clark has been quashed. This appeal is dissimilar, and raises different issues. We have not been presented with evidence of apparent misconduct and serious non-disclosure by an expert witness Dr Williams for the Crown, which came to light after conviction. Of itself, that would have been sufficient for the conviction to be quashed. Expert evidence describing statistical probabilities was also severely criticised. That evidence was given by an expert of great distinction, whose evidence would have carried great weight with the jury. If it were flawed, as it was, the safety of the jury's decision was further called into question. Professor Meadow's evidence in the present case did not extend to the flawed statistical evidence presented to the jury during the trial of Sally Clark. The present convictions cannot be quashed on the grounds relied on in her appeal.

We must reflect on the likely impact on the verdict in the present case if Mr Mansfield had been able to cross-examine Professor Meadow, and undermine the weight the jury would inevitably attach to his evidence, by exposing that, notwithstanding his pre-eminence, at least part of his evidence in the Sally Clark case was flawed in an important respect. To some extent at least, Professor Meadow's standing as a witness would have been reduced. Therefore the flawed evidence he gave at Sally Clark's trial serves to undermine his high reputation and authority as a witness in the forensic process. It also demonstrates that even the most distinguished expert can be wrong, and provides a salutary warning against the possible dangers of an over-dogmatic expert approach.

The word "dogma" was used in evidence by Dr Rushton. He said:
"However, in a family with a history of this type, current dogma is that an unnatural cause has been established unless it is possible to demonstrate an alternative natural explanation for these events."

That dogma encapsulates what we have described as the erroneous approach. By way of linking the word "dogma" with SIDS, Dr Rushton went on:
"The definition of SIDS, for instance, .... says usually the definitions include babies up to one year of age; it used to be two years of age but it has been decided by experts in the field meeting that one year is the limitation. I would suggest that biology does not behave like this and [in] any event, sudden unexplained deaths occur throughout life – they also occur in adults. So there is not a magical cut-off point at one year of age."

The Confidential Enquiry into Stillbirths and Deaths in Infancy (CESDI) of Sudden Unexpected Death in Infancy (SUDI) was published in 2000. The list of contributors included professional witnesses of distinction, some of whom gave evidence or were more generally involved in this case. Described in the Preface, written by Professor Meadow, as one of "the most comprehensive scientific paediatric research studies to come from the UK". On the basis of the CESDI SUDI-study he believed that about 6% of SIDS were "extremely likely" to have been the result of maltreatment, and a further 8% or so were ones where maltreatment was considered to have played an important part in the chain of events leading to the infant's death.

What is abundantly clear is that in our present state of knowledge, it does not necessarily follow that three sudden unexplained infant deaths in the same family leads to the inexorable conclusion that they must have resulted from the deliberate infliction of harm. There is acceptable evidence that even three infant deaths in the same family may be natural, and may indeed all properly be described as SIDS.

While the speed of research is gratifying, one unintended consequence is that it sometimes creates doubt about what were once thought to be certainties. And what was confidently presented to the jury as virtually overwhelming expert evidence providing the necessary proof that Jason and Matthew's deaths resulted from the infliction of deliberate harm, should now be approached with a degree of healthy scepticism. On three specific issues, first, the rarity of three natural unexplained infant deaths in the same family, second, the interval between the infant's death, or near-death, and the last time when that infant appeared to be well, and, third, the possible significance of an ALTE preceding death, the evidence before us presents a different picture, and one more favourable to the appellant than that which was before the jury.

At trial, understandably, the Prosecution relied on a number of additional features of the evidence to support the case that the deaths were unnatural. The six incidents were linked. Each of the appellant's four children suffered serious ALTE or death, or both, while small babies. They relied on the "pattern of events", suggesting that this "pattern" was reinforced by the fact that all the relevant events, the deaths and the ALTEs, occurred when the baby was in the sole care of the appellant. By contrast, when the babies were in hospital, or being cared for by both the appellant and her husband there were no such events. Factually, that was correct, but of course, with her husband at work, it was inevitable that the appellant would be in sole charge of the children at the time of day when research establishes that many SIDS in fact happen, or are discovered. We acknowledge the force of the argument that all these incidents occurred when C was alone with her children, and that no incidents occurred when anyone else was present, but its force is less than overwhelming, and as we shall see fails to establish the significant pattern relied on by the experts called by the Crown.

We doubt the aptness of the description, "pattern". It would be more accurate to describe the events in the C family as a "series" rather than a "pattern" of events. In Gemma's case, her death was not preceded by an ALTE. There was none. In Jason's case, there was one ALTE, which if the Crown was right followed the deliberate infliction of harm by Mrs C, quite uncharacteristically at just the moment when the health visitor was arriving. This was followed a few days later by his death. In Jade's case, however, an ALTE which was said by the Crown to have been a virtual death, was not preceded by an earlier ALTE, nor followed either by an ALTE or death. In Matthew's case, the first incident was not regarded by the Crown's medical experts as an ALTE at all. So his death was preceded by what was no more than an "episode" which had led his mother to call for help although his life was not in apparent danger. On this analysis, the history of each child was different from every other child.

In relation to patterns, we must revert to epidemiology, which is particularly concerned with the search for pattern. Professor Golding adds the necessary element of professional expertise to what we recognise is our own lay reaction. She did not believe that there was a "pattern" in the sense which Dr Ward Platt thought gave rise to suspicion. She pointed out that if you were looking at three random cot deaths you would get the sort of pattern which was established here. That would not give rise to a suspicion that the set of deaths was unnatural. This was a normal sort of pattern for repeated cot deaths, and the fact that these deaths happened in the same family suggested that there might be a single factor running through the events, but that was not determinative of the question whether the common factor should be ascribed to the deliberate actions of the children's mother, or to some other undiagnosed natural cause. She added that although this history required a close study to be made of the family, she could find "none of the patterns that one would normally see in the background of somebody who was out to kill their children." In our judgment the mere fact that specific natural causes were not established for any of the deaths did not lead to the inference that the infants had been smothered, or deliberately harmed, but rather left open the possibility that SIDS should not be excluded.

As against the factors extraneous to the expert evidence relied on by the Prosecution, the appellant invited us to consider a number of other factors which, again in a common sense way, were relevant. No-one doubted that each of these babies was a wanted child, blessed with love and affection and care from both parents. There was no suggestion of ill temper, inappropriate behaviour, ill-treatment, let alone violence, at any time with any one of the four children. Although three of them died very young, Jade did not. Of itself, when four infants are said to have been deliberately harmed, that is an unusual feature. It is distinct from the additional fact that if it was indeed right that the appellant had tried to kill each of her four children, during each of these six incidents, there was an absence of the slightest evidence of physical interference which might support the allegation that she had deliberately harmed them. It is of course possible to smother a baby without leaving any physical signs discernible on medical examination or at post mortem. Nevertheless, given that all four children were said by the Crown to have been subjected to violence sufficient to cause death, the absence of any physical signs of injury was somewhat surprising. There was no fresh copious bleeding in the lungs of the dead children, and no petechial haemorrhage. There were no pressure marks to show as reddening in the area of the mouth and nose, nor blood or bloodstained fluid in the nose. No bruises were discovered on the outer skin surface, or indeed subcutaneously. The fraenulum, in each case, was undamaged.

We must address criticisms about the appellant's behaviour. In our view by the time Jason, and then Jade, and then Matthew were born, particularly when troubles enveloped Matthew, the appellant was faced with recurring disasters which made comprehensible any form of response which, on cold forensic analysis, would otherwise appear strange. We also understand the argument that the appellant would not have killed the children (as the jury found that she had) unless she was suffering from some form of personality disorder or psychiatric condition. There was no evidence to sustain any such diagnosis: indeed it was to the contrary. To a layman, it did not make much sense that the appellant killed the babies whom, in the judge's words, she "cherished", unless her state of mind was, to some degree at any rate, abnormal when she did. We recognise that this is a factor of some importance, again noting that of itself the absence of such a diagnosis does not preclude baby killing. Mr Mansfield submitted that if the appellant had indeed murdered her children, and subjected each of them to life threatening incidents, the logical approach to her repeated pregnancies was that she was having babies in order to kill the baby she was carrying after it was born. In its modified, less dramatic, but not less forceful version, Mr Mansfield suggested that these facts meant that the appellant must have been becoming pregnant knowing, at the very least, that there was a serious risk that she would try and kill them. That predicated an extraordinary state of mind, completely out of character, contradicted by the evidence of both her family and outsiders about the love and care she bestowed on her children, and undetected by the distinguished psychiatrist who examined her. Given the absence of any indication of ill-temper or ill-treatment of any child at any time, we acknowledge the force of this argument.

The Appeal

After this lengthy discussion, we can deal relatively briefly with the issues raised in the appeal. In response to Mr Mansfield's main argument that these convictions are unsafe, Mr Dunkels reminded us of the constitutional primacy of the jury. This jury returned its verdict after a long trial during which it had demonstrated a keen and alert interest in the issues, and had the opportunity to evaluate not only the evidence of the experts on both sides, but that of the appellant herself, and a number of other civilian witnesses. In effect, he submitted in careful and measured terms, that the convictions were safe, and that no sufficient ground had been demonstrated for interfering with them. We reflected closely on these submissions before concluding that, for the reasons set out in this lengthy judgment, the convictions are unsafe.

We therefore need not deal with all Mr Mansfield's submissions, some of which we have already addressed. We shall deal with the most important arguments in their logical order. As our analysis of the evidence called by the Prosecution demonstrates, there plainly was a case for C to answer. It would therefore have been wrong for Hallett J to have withdrawn it from the jury. Looking at the evidence at the end of the trial, we can discern no basis for interfering with her decision that the issues should not be withdrawn from the jury. This is an extremely rare course for a judge to take, and Hallett J was entitled to decline to take it here.

Mr Mansfield drew our attention to the summing up by Jack J at the trial of Trupti Patel, and his directions about the approach to be taken to the deaths of three infants in the same family. In doing so, Mr Mansfield was not seeking to criticise Hallett J's directions at the time when she gave them, but suggested that Jack J was reflecting the greater understanding of and insight into these problems following Sally Clark's successful appeal to the CACD, in which Hallett J was a member of the court. Equally, he did not submit that such a direction would be compulsory. In essence, he suggested that in this kind of case, such a direction would normally be appropriate. Jack J directed the jury:

"I said that I would have a direction for you on the subject of there being three deaths. You have heard from some of the Prosecution witnesses the idea that the fact of three deaths makes it more likely that the cause was unnatural. Certainly with three deaths one must be suspicious and look the more carefully, for it is potentially a very serious situation. But I am going to ask you to put out of your minds the idea that because there are three that makes it more likely that the causes are unnatural: that is asphyxiation by Trupti Patel. I think that would be a dangerous approach in this case for two reasons."

"The first is this: suppose that something happens and there is only one possible event as the cause for it. However rare or common that event may be, it must be the cause: straightforward. If it is rare the unexpected has happened. Suppose, though, that there are two possible events as the cause. One is a common event and one rare. It can then be said that the common event is the more likely cause. Suppose, however, that the two events are both rare; perhaps very rare. They are nonetheless equally likely as the cause even though they are rare, because they are competing with each other to be the cause".

"So it is not enough to say that an event is rare so it is unlikely to be the cause of something. One has to look at the likelihood of the other possible cause, or other possible causes. That is the danger with what may be happening here in saying that three SIDS deaths in a family would be very unusual, therefore the deaths are unnatural. How rare would three asphyxiations be particularly where, as is the case here, the mother loved her children and was immediately distraught and regretful? We simply do not know. We have not had any evidence about that. It is hardly common is it? That is obvious. That is the competing cause of the deaths and nobody has evaluated its likelihood."

In the present trial Hallett J's directions required the jury to consider the case "for and against" C in relation to the counts of murder of Jason and Matthew separately. The evidence, she pointed out, was not the same. She added, rightly, that it did not mean that all the other evidence had to be ignored when the jury were deciding either case, because, as she explained, "You have heard all the evidence to help you in reaching your verdicts, and the evidence in relation to one child may assist you when considering the count in relation to another child." She reminded the jury that both sides were inviting them to look at all the evidence. She then went on to deal with Gemma.

"You have heard of course about Gemma. You know that Gemma is no longer the subject of a murder charge, although the defence elicited that C was once charged with Gemma's murder ... be careful how you approach Gemma's death. It was a long time ago. We do not of course have the kind of results and tissues still available that Mr Mansfield has been referring to that would help you in knowing from either side's point of view anything more about Gemma's death. You have had to hear about Gemma's death because obviously it is part of the background and it is relevant. It may, for example, be relevant as to whether or not there is a genetic defect. But be very wary how you approach Gemma's death. You know the pathologists carried out a very careful post mortem and decided that the death effectively was SIDS, or cot death, and no suggestion of maltreatment."

She ended this part of her directions in unequivocal terms:

"You have not heard about Gemma's death to justify the kind of approach referred to by Mr Mansfield; the Lady Bracknell approach. This is not a case whereby you could say "to lose one baby is misfortune, two carelessness, three murder". As you will appreciate, members of the jury, that is just inappropriate – totally."

Hallett J then went on to illustrate how the function of the burden of proof in the context of the exploration by the defence at trial of a number of possibilities which might have accounted for the death of one or other or all of the children, or indeed each of the ALTEs. She said,

"Do not think that when Mr Mansfield called an expert before you he is under any kind of duty to prove that expert is right. He does not have to establish that any particular incident was natural in causation or that it was due to as yet unknown or unidentified causes. The possibilities are put before you because firstly, we know that babies do sadly die of natural causes, as yet possibly unknown or unidentified, but also there may be many contributory factors as to why a baby may die. So when you hear the evidence called by the defence, very much bear in mind the submissions made by Mr Mansfield, and which I wholeheartedly endorse, that he does not have to prove that any of the theories of the experts he has called are correct."

She then continued to illustrate the point using Jade's admission to hospital as an example.

"It is not for the defence to prove that Jade was suffering from severe gastro-enteritis. Jade's admission into hospital can only assist the Crown if the Crown can prove that it was due to smothering ... always bear in mind, members of the jury, the burden of proof and who must prove what."

We have some sympathy for the jury. We have to reflect an anxiety which has struck us throughout our own deliberations, whether notwithstanding these clear directions, the whole course of the trial, the sheer number of experts called by the defence, and the complex specialist fields in which these distinguished men and women worked, the jury may not, inadvertently, unconsciously, have thought to itself that if between them all, none could offer a definitive or specific explanation for these deaths, the Crown's case must be right.

In any event, in our judgment, Hallett J's directions were sufficient. In any future case, at any rate while so much about Sudden Infant Death remains unknown, a trial judge will no doubt wish to take account of our analysis of the fundamental approach to cases of this kind, as well as Jack J's directions in the case of Trupti Patel. In the result, however, Hallett J's directions, or such absence of directions as Mr Mansfield was able to identify, do not undermine the safety of these convictions.

We must acknowledge an interesting debate on what we shall for convenience summarise as the "reasons" argument, that is the problem that may arise from the stark fact that in our criminal justice system the jury delivers its verdict without providing its reasons. Arguing from authority, both domestic and in the European Court of Human Rights, Mr Mansfield suggested that these provided support for the extra-judicial observations of Sir Robin Auld in his Review of the Criminal Courts of England and Wales, 2001. In particular he focused on this part of Sir Robin's conclusion:

"... The time has come for the trial judge in each case to give the jury a series of written factual questions, tailored to the law as he knows it to be and to the issues in evidence in the case. The answers to these questions should logically lead only to a verdict of guilty and not guilty."

This raises an issue which may have to be addressed in another appeal, but does not arise here. We shall therefore confine ourselves to three brief observations. First, Sir Robin's proposal goes much further than the now traditional and appropriate use of a series of written questions provided by the judge to enable the jury to work its route through potentially complicated verdicts. This is most frequently exemplified in cases where more than one defendant is charged with murder, and the combination of lack of intent, provocation, self-defence, and even diminished responsibility is simultaneously before the jury. Second, it should not be assumed that Sir Robin's views on this topic necessarily reflect the views of the judiciary as a whole, or were supported in the judiciary's response to his proposals. Third, the proposal, and Mr Mansfield's submission, overlook the principle that although each member of the jury participates in the verdict, each must arrive at his or her conclusion by a conscientious personal examination of the evidence in the context of the legal principles which have been defined by the trial judge. Each member may be convinced, or doubtful, of guilt for reasons which are different to those of each of the other members who nevertheless, for their own conscientious reasons, are agreed on the result.

These are issues of vast complexity, and huge potential importance to the community as a whole. Any changes of this kind should be decided in Parliament, which, notwithstanding current reforms of the criminal justice system, after Sir Robin Auld's Review, has not adopted his proposals on this topic.

Conclusion

We have now given our reasons for concluding that these convictions are unsafe. We have received significant and persuasive fresh evidence, which was not before the jury, some of it the result of further research, or research published post trial, into the problem of SIDS generally, and some specific to C and her extended family. The expert evidence was absolutely critical to these convictions. In our judgment the fundamental basis of the Crown's case, based on the extreme rarity of three separate infant deaths in the same family, and the pattern of events in this particular family is, for the reasons we have given, demonstrably undermined. What is more we are satisfied that there is a realistic, albeit as yet undefined, possibility of a genetic problem within this family, which may serve to explain these tragic events. For the moment therefore we cannot be sure either that these deaths were not true SIDS, or that, although properly categorised as SIDS at present, they may not come in due course to be regarded as natural deaths resulting from an explicable, possibly genetic cause. In view of these conclusions, we need not do more than record a further concern which troubled us during our deliberations, which is whether the multi-factorial aspect of each of these incidents was sufficiently addressed. These concerns did not contribute to the quashing of the convictions, and as they do not affect the result, we need not deal with them further. In subsequent cases, this issue may arise more starkly than it does here.

In view of the fact that, although not identical to each other, this is the third case of its type to come before the courts in 2003, we must add these further observations.

We recognise that the occurrence of three sudden and unexpected infant deaths in the same family is very rare, and therefore demands an investigation into their causes. Nevertheless the fact that such deaths have occurred does not identify, let alone prescribe, the deliberate infliction of harm as the cause of death. Throughout the process great care must be taken not to allow the rarity of these sad events, standing on their own, to be subsumed into an assumption or virtual assumption that the dead infants were deliberately killed, or consciously or unconsciously to regard the inability of the defendant to produce some convincing explanation for these deaths as providing a measure of support for the Prosecution's case. If on examination of all the evidence every possible known cause has been excluded, the cause remains unknown.

The trial, and this appeal, have proceeded in a most unusual context. Experts in many fields will acknowledge the possibility that later research may undermine the accepted wisdom of today. "Never say never" is a phrase which we have heard in many different contexts from expert witnesses. That does not normally provide a basis for rejecting the expert evidence, or indeed for conjuring up fanciful doubts about the possible impact of later research. With unexplained infant deaths, however, as this judgment has demonstrated, in many important respects we are still at the frontiers of knowledge. Necessarily, further research is needed, and fortunately, thanks to the dedication of the medical profession, it is continuing. All this suggests that, for the time being, where a full investigation into two or more sudden unexplained infant deaths in the same family is followed by a serious disagreement between reputable experts about the cause of death, and a body of such expert opinion concludes that natural causes, whether explained or unexplained, cannot be excluded as a reasonable (and not a fanciful) possibility, the prosecution of a parent or parents for murder should not be started, or continued, unless there is additional cogent evidence, extraneous to the expert evidence, which tends to support the conclusion that the infant, or where there is more than one death, one of the infants, was deliberately harmed. In cases like the present, if the outcome of the trial depends exclusively or almost exclusively on a serious disagreement between distinguished and reputable experts, it will often be unwise, and therefore unsafe, to proceed.

In expressing ourselves in this way we recognise that justice may not be done in a small number of cases where in truth a mother has deliberately killed her baby without leaving any identifiable evidence of the crime. That is an undesirable result, which however avoids a worse one. If murder cannot be proved, the conviction cannot be safe. In a criminal case, it is simply not enough to be able to establish even a high probability of guilt. Unless we are sure of guilt the dreadful possibility always remains that a mother, already brutally scarred by the unexplained death or deaths of her babies, may find herself in prison for life for killing them when she should not be there at all. In our community, and in any civilised community, that is abhorrent.

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