Submission

After being transferred from Derby to the Queens Medical Centre in Nottingham a CT scan was carried out at 11.50am. The findings were recorded by the radiologist and his conclusion was: "Diffuse cerebral swelling and oedema secondary to hypoxia/ischaemia. Thin subdural haematoma in the para-falsine region. The appearances are suspicious of shaking or shaking - impact injury" Following Patrick's death a post-mortem was carried out by Dr Bouch with Dr McKeever, a paediatric pathologist, in attendance. The findings relevant to this appeal are set out in Dr Bouch's witness statement of 22 March 1999. Paragraph 5 reads: "The post-mortem examination confirmed a markedly swollen and softened brain and softened spinal cord with small amounts of subdural haemorrhage around the tentorium cerebelli at the foramen magnum and in the subdural space along the length of the spinal cord. Detailed examination by Professor Lowe confirmed widespread hypoxic (anoxic or ischaemic) changes within the brain resulting in marked swelling, necrosis of the cerebellum, haemorrhage into the left lateral ventricle and subarachnoid haemorrhage over the surface of the spinal chord and medulla. Professor Green confirmed extensive haemorrhages through the retina and the vitreous of both eyes with some retinal detachment" Dr Bouch recorded the cause of death as cerebral hypoxia/ischaemia; intracranial haemorrhage; shaken baby syndrome. In his witness statement Dr Bouch said he had been advised that Patrick may have been shaken as part of an attempt to revive him. He said that he could not exclude such a shake as having caused the injuries but commented "accepted medical opinion is that the force required to produce injuries from shaking is greater than that resulting from rough handling of an infant". As already noted, Dr Punt said that the blood on the surface of the brain was not sufficient to cause Patrick's death. In his opinion it was the injury to the brain, caused by shaking, which caused his death.

The new evidence on the appeal

The neuropathologists

The reports provided by Dr Waney Squier and Dr Rorke-Adams disclosed a head-on collision between these two experts on the pathological findings and on the cause of death. In our judgment they are the two of the most important witnesses in this appeal. Much of the debate has been focussed on the pathological findings and their interpretation. Dr Waney Squier is a consultant and clinical lecturer at the Department of Neuropathology at the Radcliffe Infirmary, Oxford. Dr Rorke-Adams is the clinical professor of paediatrics at the University of Pennsylvania. She is clearly a very experienced and well respected member of her profession. Dr Waney Squier started with the forensic disadvantage of having provided a report dated 10 February 2000 for Harris's trial solicitors in which she concluded that Patrick's injuries were non-accidental and consistent with shaking. Unsurprisingly, she was not called at trial to give evidence on Harris' behalf. She explained that, influenced by the research carried out by Dr Geddes since the trial, she had re-examined her own work in the light of the Geddes research. As a result in this case she had changed her mind and now concluded that the brain findings were of severe swelling and hypoxic/ischaemic injury; and that there was no incontrovertible evidence of trauma. She relied upon the history given by Harris and the clinical evidence as support for her conclusions.

Dr Rorke-Adams, having examined all the pathological evidence, the history and the clinical history concluded that the injuries to the brain, the subdural haemorrhages and retinal haemorrhages, were all clear evidence of traumatic injuries caused by strong force. In the course of their evidence each of these witnesses commented on brain slices and photographs taken at the post mortem. Their evidence in respect of the findings demonstrated by the photographs and slices was in sharp conflict in a number of instances. Photographs, G-H 1, 2 and 3, were said by Dr Rorke-Adams to show clear evidence of brain injury caused by trauma. She said that there could be no other cause. Dr Squier was of the opinion that the injuries shown in the photographs 1 and 3 and damage to nerve tissue at the cervicocranial junction were probably not caused by trauma and were consistent with herniation of the brain at the foramen magnum. She said herniation was caused by the pressure of the swelling brain when it impacted with the narrowing channel of the foramen magnum. As to the blood shown in photograph 2 Dr Squier said this was intrafalcine bleeding (bruising) within the membrane, seen at post mortem which was an extremely common finding in babies who have suffered from failure from blood or oxygen supply.

There was no dispute that photographs G-H 4 and 5 showed subdural haemorrhages in the areas of the spinal cord. However, Dr Rorke-Adams gave as the explanation for these that the vertebral arteries must have been ruptured causing massive subarachnoid bleeding and subdural haemorrhages. She accepted that the post mortem revealed no soft tissue injuries to the neck but pointed out this explanation fitted with the combination of findings. Dr Squier described the subdural haemorrhages of the spine as probably caused by blood seeping down from the haemorrhage at the craniocervical junction. She said it was a common finding. Further, she did not accept that such subdural haemorrhages as were found at post mortem were caused by trauma. She said that it was local tissue necrosis causing bleeding exacerbated by a clotting disorder (DIC). In addition she said that she had seen cases where bleeding had seeped from the dura into the subdural space. As an example of this she provided her findings in the case to which we have referred in paragraphs 71 to 73.

In our judgment there are difficulties with the evidence of both these doctors in respect of their findings. The problem so far as Dr Squier is concerned is three-fold. First her explanation of herniation as the cause of haemorrhages in the area of the foramen magnum is, on the evidence we have heard, to say the least controversial. Dr Rorke-Adams dismissed this explanation as impossible. Mr Peter Richards said that in his 20 years experience as a surgeon he had never seen a case of herniation of the brain causing haemorrhaging at this site. He described Dr Squier's evidence on this point as astonishing. Secondly, Dr Squier can provide no explanation for the mechanism that triggered these injuries. All she can say is that the primary source of the injuries was some form of brain swelling, but she was unable to give any precise cause for the swelling. In her view the most likely explanation was sepsis or infection; and the least likely was trauma. Beyond that she frankly admitted she did not know. Thirdly, Dr Giangrande, whose evidence was not challenged, said that there was no question of DIC playing any part in any of these injuries.

The ophthalmic witnesses

The measure of agreement between the witnesses in this area of expertise was a little greater than that between Dr Squier and Dr Rorke-Adams. There was no dispute that the retinal haemorrhages were quite severe injuries and that they could have been caused by shaking. Dr Rorke-Adams had described the retinal haemorrhages as severe and towards the top end of the scale. This description was similar to descriptions given by other witnesses. There was also no dispute that on their own retinal haemorrhages findings were not diagnostic of SBS. Next, it was agreed that a sharp surge in ICP could cause retinal haemorrhages although the degree of raised ICP necessary to cause such injuries was not agreed. We have already referred to Mr Richards' experience of carrying out brain surgery procedures designed to increase venous pressure substantially, but which had not caused retinal haemorrhages.

On the question of the force required to produce retinal haemorrhages by shaking we have referred to the 2004 paper produced by the working party of the Royal College of Ophthalmologists. No witness was able to provide a measure of the force required. Mr Mansfield QC asked each witness what was the minimum force required. For obvious reasons no witness was able to provide an answer to this question.

Dr Adams expressed the opinion that the fact that the ambulance crew noted Patrick's pupils to be fixed and dilated at 2.41am on 5 December was a sign that the brain was swollen at that stage. She said fixed and dilated pupils were a clinical sign of brain swelling. Brain swelling caused stretching of the third nerve which in turn affected the pupils of the eyes. In her opinion the retinal haemorrhages were caused by raised intercranial pressure, a more probable cause than shaking. However, she said that in the absence of evidence of brain swelling the cause of retinal haemorrhages may well be shaking. On the question of the force necessary to cause retinal haemorrhages she said that the fact that the injuries were at the top end of the scale did not provide any information as to their aetiology and "You have to look at the whole picture."

Dr Jaspan and Mr Richards did not accept that there could have been brain swelling at 2.41am. Dr Jaspan, in his report, said that if a CT scan had been carried out at the time when retinal haemorrhages was first seen at Derby Children's Hospital little brain swelling would have been evident. In evidence, Dr Jaspan said one to two hours after an apnoeic incident one can start to see mild and subtle signs of swelling. The swelling may then progress swiftly in relatively few hours; or in other cases it could take twenty-four to forty-eight hours. Mr Richards said that ICP is normal for some hours after an apnoeic incident, possibly four to five hours before it starts to rise slowly. Mr Gregson also disagreed with Dr Adams on this point. He said that the more likely explanation was at that time, in a period of cardio-arrest, the part of the brain which controls the pupils had become hypoxic (Patrick was noted as pulseless). This would have caused the pupils to become fixed and dilated. This explanation was put to Dr Adams, she said her explanation was more probable and that the explanation given by Mr Gregson was one which only occurred when the infant was near death.

The impact of this issue is that, if Dr Adams may be correct, brain swelling may have taken place sooner than supposed by the Crown's witnesses making it possible that there was a cause for the retinal haemorrhage findings other than shaking.

Professor Luthert described the critical issue of the retinal haemorrhage findings in this appeal as whether it was feasible that there had been a significant and rapid increase in intracranial pressure so as to cause them. When asked whether subdural haemorrhages and retinal haemorrhages were associated with cardiac arrest, he said it was not in the context of events in hospital but the possibility of low brainstem damage might be important and might well produce a pattern of cardio-respiratory arrest which is rather different from that seen in other contexts. Although he described the retinal haemorrhages findings in Patrick's case as typical of those found in cases of alleged NAHI, Professor Luthert was one of those doctors who was concerned that the triad was a hypothesis and that the full aetiology of the injuries comprising the triad was not "necessarily known."

Mr Gregson described the retinal haemorrhages findings as very severe and was of the opinion that they could only have been caused by a severe degree of trauma. Dr Bonshek agreed with this opinion. In his report he described the injuries as highly suggestive of non-accidental injury. Both Mr Gregson and Dr Bonshek agreed that the degree of injury was not necessarily commensurate with the degree of force used to create it.

Evidence of a possible infection

One of the difficulties faced by Harris at trial and in this appeal is to suggest what was the cause of Patrick's collapse, if it was not shaking. Of course, as Mr Mansfield QC properly pointed out, a defendant faced with an allegation of unlawfully shaking an infant so as to cause injury or death, does not have to provide evidence of, let alone prove, an alternative cause. Nevertheless in cases such as this both prosecution and defence will seek to prove respectively either that there was no alternative cause or that there was one. Not surprisingly we have heard a good deal of evidence on the issue of whether or not Patrick's condition might have been caused by some form of infection. We have already noted Dr Squier's opinion that the primary cause of brain swelling in this case was or may have been infection. To deal with this issue we heard evidence principally, but not exclusively, from Professor Morris and Dr Sunderland called on behalf of Harris; and Dr Carole Jenny, Professor Klein and Dr Mark Peters called on behalf of the Crown.

Professor Whitwell

We have left Professor Whitwell's evidence until last when dealing with the evidence in this appeal. She was one of the team of doctors who co-authored Geddes III with Dr Geddes. In our judgment her view must necessarily be considered in the light of Dr Geddes' concessions in respect of Geddes III. In this case having examined all the material, Professor Whitwell produced a report in which she referred to the fact that the major pathology was of hypoxic-ischaemic trauma damage which she said might be secondary to trauma or other cause of cardio-respiratory arrest. She went on to raise the question of the degree of force necessary to produce localised neck injuries. Her opinion expressed in the final paragraph of her report was that the injuries to the brain may have arisen in the background of a "shaking" incident but there was a possibility of an underlying natural cause of the collapse. She said the neuropathological findings may be open to several interpretations. In evidence she gave some support to Dr Squier's opinion that bleeding and injuries to the nerve roots could have been caused by herniation. But she agreed in cross-examination that the most significant factor in her opinion was a stretching injury to the nerve roots.

The submissions

Mr Horwell submitted that the new evidence did not undermine the conviction. He asked the Court to accept that the triad had survived intact. He pointed to the fact that at 1.00am on 5 December 1998 Dr Barber examined Patrick and found him to be well. At 2.30am Patrick was found to be suffering cardio-respiratory arrest. Mr Horwell submitted that the only credible explanation for this sudden collapse was shaking by Harris. The triad of injuries was established and there was no credible alternative cause of these injuries. In addition, Dr Rorke-Adams' evidence of injuries to the brain should be accepted. He submitted that her evidence together with the evidence of the doctors dealing with the ocular injuries demonstrated that unlawful force had been used. He argued that Harris was asking the court to accept that the cause of death was a series of coincidences involving two unlikely syndromes. He invited the Court to find that all suggested causes of Patrick's collapse and death other than the triad had been disproved. The conviction was therefore safe.

Mr Mansfield QC submitted that there were disagreements between the experts as to the cause of death. He rightly pointed out that it was not for Harris to prove an alternative cause of Patrick's death. He submitted that this Court could not decide matters which a jury should decide such as the differences of opinion expressed by Dr Squier and Dr Rorke-Adams. Finally, he submitted that in a case such as this, where the clinical evidence and the history given by the mother, ran completely contrary to a finding of unlawful force, the Court was entitled to accept that this was one of those cases where the explanation for Patrick's injuries and his death was just not known; and/or that the amount of force used by her was no more than any mother might use to revive her baby and therefore not unlawful.

Conclusion in this appeal

In considering all the evidence in this appeal we have kept well in mind that our task is to decide whether the conviction is safe. We also bear in mind Lord Bingham's test in Pendleton in a case of any difficulty (which in our view this is) of "asking whether the evidence, if given at the trial might reasonably have affected the decision of the trial jury to convict." This approach, in our judgment, merits careful consideration in this appeal. We have already stated that so far as the evidence relating to an alternative cause of death based on a possible infection is concerned, in our judgment, this evidence does not form any basis for holding that the conviction is unsafe.

So far as the other issues are concerned, the evidence at trial and the evidence adduced by the Crown in this appeal, provide a strong case against Harris. Mr Horwell's submission that the triad is established and that any attempt to undermine it is based on speculation is a powerful one. Nevertheless strong as is the case against Harris we have concerns about the safety of the conviction.

First, in order to dismiss the appeal, we would have to accede to Mr Horwell's submission that we should reject Dr Squier's evidence in its entirety. If Dr Squier may be right, such evidence of subdural bleeding as she accepts was present was small; untypical of the usual thin-film subdural haemorrhages found in triad cases; in the sense that it was not found at the top of the head and probably not caused by trauma. Secondly, if Dr Squier is, or may be, right there is no pathological evidence of trauma. At one stage Mr Horwell in cross-examination, suggested to Dr Squier that she had lost objectivity in her evidence in this appeal. This was a bold assertion and one which we find difficult to accept. It was put at the end of her evidence when Dr Squier was describing subdural haemorrhages in another case which she said represented bleeding seeping from the dura into the subdural space. As we have said already we find it impossible to conclude that on this issue Dr Squier's evidence is plainly wrong and that Dr Rorke-Adams must be correct. The importance of Dr Squier's evidence is that it throws doubt on the significance of such subdural haemorrhages as there are; and it throws doubt on the evidence of injuries to the brain described by Dr Rorke-Adams. We are far from saying that we accept Dr Squier's evidence in preference to that of Dr Rorke-Adams. Indeed, in view of the weight of evidence disputing her opinions we have reservations about whether Dr Squier can be right. But equally, in all the circumstances of this case, the differences between them are ones which the jury would have had to have assessed in the light of all the evidence in the case.

Secondly, although the evidence of the findings of retinal haemorrhages is powerful supporting evidence of shaking, on its own it is not diagnostic of shaking. If the subdural haemorrhages are undermined, the retinal haemorrhages findings will not fill the gap although we recognise that both can be considered together. There is also the issue of whether Dr Adams may be correct in her view that fixed and dilated pupils seen by the ambulance crew was a sign of brain swelling at that time.

Thirdly, although as we have already stated the amount of force required to cause the triad of injuries will in most case be more than just rough handling, the evidence suggests that there will be rare cases when injuries will not correspond to the amount of force used. It is at least possible that in such rare cases (maybe very rare cases) very little force will cause catastrophic injuries. In this connection the evidence shows that in recent years the medical profession has become more aware of the degree of force necessary to cause injuries by the growing science of biomechanics. This knowledge, and to an extent Geddes I and II, in our judgment, have had the effect of moderating to some extent the conventional view that strong force is required to cause the triad of injuries. In this case Dr Bouch rejected as an explanation for the injuries he found, shaking by Harris to revive Patrick. Today he might have taken a less firm stance. This knowledge might also have acted as a counter-balance to the evidence given at trial by Professor Green on the amount of force necessary to cause the retinal haemorrhages. The above factors, which have all arisen out of post-trial material have to be assessed against the background of the clinical evidence which in our judgment is significant and important. As Dr Anslow said in his report of 3 June 2005: "The clinical history is perhaps the most important clinical tool available to the clinician and to reject the carer's version of events in favour of another requires the highest possible level of medical evidence. After all, the Doctor is effectively accusing the carer of lying." Dr Anslow is not a clinician but in our judgment his words of caution are apt in cases of this sort.

As we have said the Crown's evidence and arguments are powerful. We are conscious that the witnesses called on behalf of Harris have not identified to our satisfaction a specific alternative cause of Patrick's injuries. But, in this appeal the triad stands alone and in our judgment the clinical evidence points away from NAHI. Here the triad itself may be uncertain for the reasons already expressed. In any event, on our view of the evidence in these appeals, the mere presence of the triad on its own cannot automatically or necessarily lead to a diagnosis of NAHI.

The central issue at trial was whether Harris caused the death of her son, Patrick by the use of unlawful force. We ask ourselves whether the fresh evidence, which we have heard as to the cause of death and the amount force necessary to cause the triad, might reasonably have affected the jury's decision to convict. For all the reasons referred to we have concluded that it might. Accordingly the conviction is unsafe and this appeal must be allowed. The conviction will be quashed.