Faulder gave evidence in his own defence. He said that he did not deliberately cause the injuries. He explained how he had dropped N by accident when attempting to place him into his pushchair. He said that he had been holding him along his arm with his hand supporting the baby's head. The baby moved suddenly and fell on to the edge of the pushchair. This caused him to bounce off the pushchair and on to the concrete floor bouncing his head on the adjacent highchair as he fell. Faulder conceded that the baby had been crying for twenty minutes but said that he had not lost his temper. He maintained that he did not shake nor forcibly place N into his pushchair. His answers at interview were consistent with his evidence at trial. Dr Rushton a paediatric pathologist gave evidence for Faulder. He put forward the possibility that N's contact with the pushchair and highchair might have lead to the production of rotary forces that accelerated the head and increased the force of contact with the floor. He noted that the three external injuries (bruises) found on the baby's head were consistent with Faulder's explanation but were difficult to explain if the injuries were due to shaking or a single impact injury. He also referred to the lack of retinal haemorrhages saying that in his opinion the cause of retinal haemorrhages was not fully understood. In his view subdural haemorrhages could be caused by shaking or impact but they might also be consistent with injury caused in the manner described by Faulder.

The judge directed the jury in his summing-up that the first question for it to decide was: "Was this or may it have been accident or design? If you come to the conclusion that this is or may have been a tragic accident it follows that the defendant cannot be guilty of count 1 or count 2 and must be acquitted by you. That is the simple issue for you to decide." After deliberating for just less than two hours the jury returned a verdict of guilty of count 2. On conviction Faulder applied for leave to appeal against conviction and sentence and for an extension of time. His applications were refused by the single judge.

Faulder - Appeal

Faulder's Notice of Appeal relies upon two post-trial developments. Firstly the publication of Geddes I and II which, it is said, provides a basis for questioning the explanations previously advanced for N's injuries, and, secondly, a judgment given by Mr Justice Eady in a libel case, Reed and Lillee v Newcastle City Council [2002] EWHC 1600 (QBD) in which Dr San Lazaro, a key prosecution expert witness in the Faulder case, had been severely criticised. In addition the Notice of Appeal relies upon a new explanation, the MORO reflex, which might explain N's sudden movement and subsequent fall from Faulder's outstretched arm. Finally, the Notice relies upon fresh expert evidence from Professor Whitwell, which calls into question the Crown's view at trial that this was primarily a shaking injury, her opinion being that there was evidence of a number impacts (which might fit Faulder's account) and that the primary cause of collapse was likely to be cessation of breathing and consequent brain damage, rather than primary brain damage due to direct trauma. The 'Statement of Reasons' supporting the Criminal Cases Review Commission decision in Faulder's case refers to the trial evidence given by Dr San Lazaro and Dr Alexander to the effect that N's primary injury was as a result of direct impact between the brain and the skull, which would require massive and violent force comparable to a child being hit by a car travelling at 40 mph. As the Commission's statement observes, "within this paradigm, Mr Faulder's explanation is inadequate." The Commission refers to Geddes I and II and postulates that Faulder's explanation becomes more plausible if the cause of N's collapse is cessation of breathing. The Commission concludes that:
a) had the jury been aware of the new evidence they might not have been certain that Faulder's account was untrue; and
b) the medical evidence now available provides a possible alternative explanation for N's injuries and challenges the prosecution case that the injuries must have been caused by shaking.

The Injuries

In Faulder's case the injuries and symptoms relating to N that require consideration are:
Bruises
i) Area of erythema (ill defined flushing of the skin) that was 'grazed/bruised' located directly on top of the head;
ii) A triangular fresh bruise 2cm by 2cm above the forehead;
iii) A 2cm linear bruise on the left side of the head above the ear;
iv) A small deep blue bruise over the right forehead;
v) A second small deep blue bruise over the right forehead but more centrally sited;
vi) Marked swelling over the top of the occipital bone in the midline.

Subdural haemorrhage
vii) Thin fresh subdural haemorrhage along the falx with a thin layer of subdural blood over the surface of the brain (seen on the first CT scan at 7.44 am on the morning after admission, it remained largely unchanged in subsequent scans);

Brain swelling and HII
viii) In the first scan (12 hours after the 999 call) there is no significant brain swelling or injury. Subsequent scans over the following three days show developing brain swelling and hypoxic-ischaemic injury in both cerebral hemispheres.

It is of note that in Faulder's case there is no evidence of retinal haemorrhaging or primary brain injury. In the course of Faulder's appeal we have considered evidence from the following experts on behalf of the appellant: Professor Whitwell, Dr Plunkett and Dr Sunderland. In response the Crown have particularly relied upon evidence from Dr Jaspan, Mr Richards, Professor Jenny, Dr Lawler and Dr Rorke-Adams.

Appellant's Experts

For the appellant Professor Whitwell, relying upon the Geddes I and II research, considered that the hypoxic-ischaemic injury to the brain could arise as a result of oxygen starvation caused by a sudden bending and stretching of the nerve tracts in the cranio-cervical region. As N survived, there was obviously no opportunity to use the ßAPP test for axonal damage to confirm this opinion. In N's case the damage may have been ischaemic and localised, but the mechanism was the same as in the case of hypoxia. The Professor, who is a pathologist, rightly conceded that in this case, which did not result in death, her expertise did not permit her to comment upon the interpretation of the radiological evidence. Professor Whitwell considered that the findings were all consistent with some form of impact. The injuries to the head indicated a number of impacts, the multiplicity of which gave rise to concern, but in cross examination she also questioned whether all of the external injuries were clearly present at the time of admission, or, in relation to two, arose as a result of therapeutic intervention. She advised that the forces required to produce subdural haemorrhages in a child of this young age are unknown.

Dr John Plunkett's evidence was based upon his own research into young children and low level falls. He drew attention to the fact that the skull of a 7 week old infant differs fundamentally from that of an older infant or adult. A scalp impact to a 7 week old would cause the skull to bend inwards or deform, with a consequent deformation or movement within the brain itself. This movement, Dr Plunkett advised, could cause subdural haemorrhages and functional brain damage, for example breathing difficulties. Both Dr Plunkett and Professor Whitwell accepted that the subdural haemorrhages were assumed to have been caused by tearing of bridging veins. The minimal impact velocity needed to cause these injuries is not known, but as N did not have any skull fracture or brain contusion, Dr Plunkett postulated that the impact velocity was extremely low. In this manner, Dr Plunkett considered that all of N's injuries could be explained by the account of the fall given by Faulder. Dr Plunkett did not however accept that N had as many as 6 external head injuries believing that there were only three. In particular Dr Plunkett considered that marked swelling seen on the scans was a manifestation of the triangular shaped bruise seen earlier over the top of the occipital bone which, he explained, had migrated to the back of the head by reason of gravity. This explanation and the further explanation proffered by Professor Whitwell that the two forehead bruises were caused during treatment, were rejected by each of the relevant experts for the Crown. In so far as may be necessary we were not persuaded by Dr Plunkett or Professor Whitwell on these issues and, having seen the relevant photographs, scans and medical notes, have no difficulty in finding that there were indeed six separate sites of external head injury as listed above.

Dr Sunderland's written report to the CCRC introduced the "MORO Reflex" (a recognised automatic response seen in babies under 8 weeks old) as an explanation for N arching his back or throwing his arms out. It was therefore surprising that it was only after a substantial number of questions in cross examination that Dr Sunderland responded to junior counsel for the Crown by saying "I am allowing you to develop your proposition. At some point I must help you. I do not think the MORO reflex is relevant to Faulder. But I am cutting in, you develop your proposition." We found Dr Sunderland's contribution in this regard fell short of that which is required by the court from an expert witness.

Dr Sunderland, having had Faulder's detailed account put to him, stated that a baby of N's age could have behaved in the manner described. Dr Thibault, an expert in biomechanics who was, as we have said, not available to give oral evidence, produced an analysis of the evidence which concluded that Faulder's account accorded with a biomechanical analysis of the injuries. Dr Thibault's opinion is however upon the basis that there were only two impacts: one being the linear bruise above the left ear (number (iii) in our list) and the other which caused both of the marks above the right eye (numbers (iv) and (v)). Dr Thibault discounted the swelling on the back of the head (number (vi)) which is only visible on the scan on the basis that if this had been traumatic one would have expected the treating clinicians to have noted it and, further, there is no note of any surface marking at the same location indicating an impact. The report does not consider the area of erythema located directly on top of the head ((i)) or the triangular fresh bruise 2cm by 2cm above the forehead ((ii)), these marks are shown in the photographs, however the photographs were not made available to Dr Thibault. Dr Thibault considered that the linear bruise was consistent with contact with part of the high chair, whereas the two marks on the forehead were consistent with impact on a flat surface, for example the floor. The fall as described by Faulder would, according to Dr Thibault, have been sufficient in magnitude to deform the skull and cause shifting and deformation of the underlying bridging veins and neural tissue thereby producing acute SDH. He also postulated the temporary deformation causing a temporary herniation at the cranio-cervical junction leading to consequent interference with the respiratory system and thereby hypoxic-ischaemic injury.

Crown's Experts

For the prosecution Dr Jaspan described the existence of the subdural haemorrhages and the development of what became extensive hypoxic-ischaemic injury in both cerebral hemispheres. He considered that the most substantial impact was that which caused swelling to the right parietal region, with the other bruises resulting from injuries of lesser magnitude. Dr Jaspan, in a balanced report, drew attention to the fact that only four of the eight elements that would normally constitute a diagnostic 'full house' for inflicted injury were present in this case, namely: unexplained encephalopathy, scalp bruising, subdural haemorrhages and secondary hypoxic-ischaemic injury. He therefore considered that accidental trauma could not be entirely excluded, but some form of inflicted injury was the most likely cause. Mr Richards, who in his written evidence questioned whether a 7 week old baby would have come to fall in the manner described by Faulder, in oral evidence came to accept that N may have fallen from Faulder's arm in an ordinary 'gravity roll', which did not depend upon any overt momentum from the child himself other than throwing his arms up because he felt unstable. If such a fall took place, Mr Richards would have anticipated a hairline skull fracture or a fractured clavicle. On the other hand, such a fall was unlikely to cause such severe brain substance injury and subdural haemorrhages. He concluded that it was highly likely that N suffered inflicted NAHI.

Professor Jenny clearly identified the six external head injuries found on N. Her evidence on this point, which we accept, was confirmed by Dr Lawlor. Professor Jenny's opinion was that N had sustained multiple blunt injuries to the head which were not accounted for by the history of a fall given by his father. Professor Jenny disagreed with the prosecution experts at trial, who had concentrated upon shaking rather than some form of impact causing the injuries. When considering the triad as a diagnostic tool Professor Jenny regarded the presence of characteristic retinal haemorrhaging as being particularly important in identifying shaking as the mechanism of trauma. She explained that "you really have difficulty diagnosing Shaken Baby Syndrome, as opposed to abusive head trauma, if you do not have those retinal haemorrhages, because they seem to be very characteristic of that particular biomechanical event".

Dr Rorke-Adams' conclusion was to the same effect, namely that N was subjected to blunt force trauma to the head. She too expressly disagreed with the crown's experts at trial. Dr Rorke-Adams considered that there was discordance between Faulder's account and the severity of the injuries to N. Dr Rorke-Adams, relying firstly upon her interpretation of the CT scans and secondly upon the fact that N experienced a left-sided paralysis after the incident, considered that the primary injury was to the right side of the brain, and therefore was focussed on a particular location rather than being diffuse and evenly distributed throughout the brain. Dr Rorke-Adams was the only witness to put forward this interpretation of the evidence. As a pathologist Dr Rorke-Adams was at a similar disadvantage to Professor Whitwell in this case. Equally, Dr Rorke-Adams is not a radiologist. Dr Jaspan in a very thorough report on the series of scans does not identify any particular difference in presentation between the two sides of the brain. We are therefore cautious about placing undue weight about Dr Rorke-Adams's conclusion that there was a focal (as opposed to a diffuse) brain injury. Dr Rorke-Adams conclusion in favour of a focal injury to one part of the brain is the main reason for her dismissing Professor Whitwell's proposition that the brain injury may be secondary to a stretching injury at the cranio-cervical junction. Given our caution about Dr Rorke-Adams' view on this point, it follows that we do not feel able to dismiss Professor Whitwell's opinion on that basis as being untenable. The prosecution expert on biomechanics, Dr Bertocci, due to the short notice available to her, did not make observations about this case.

Changes in the Crown's Case

The appellant asserts that the Crown's case against him at trial has now been changed in three significant respects relating to (1) his account of the fall, (2) whether there was a primary injury to the brain itself and (3) whether the injury was caused by shaking or impact.

(1) The appellant's account of the fall: The appellant has consistently given an account of N's fall from his outstretched arm to the effect that N's head was cupped in his hand and N's body ran along his forearm. At some stage N arched his back, slipped off the arm and fell, catching his back on a push-chair and his head on the bar of a high-chair before hitting the floor headfirst. At trial, Dr San Lazaro did not accept that a 7 week old child could make sufficient jerking, arching or rolling movement to propel itself from a carer's arm. That was also the position of a number of the Crown's experts on paper at the start of this appeal. During oral evidence, as we have already noted, Mr Richards came to accept that N may have fallen in the manner described by Faulder simply as a result of a gravity roll from his insecure position lying along Faulder's arm. It follows that the prosecution expert testimony is no longer entirely at odds with Faulder's account on this point.

(2) Causation of brain injury: At trial, Dr Alexander considered that the fall described by Faulder bore no relationship to the severity of the brain injury. His opinion was that the subdural haemorrhages and brain injury were the result of shaking and were the sort of injuries seen "in older children who have been hit by a car at 40 mph, spun round and eventually hit the floor". He described the mechanism for the brain injury by imagining that the brain was similar in substance to porridge, with the shaking causing the brain to accelerate and decelerate many times causing a spinning effect which was "just like putting a food mixer inside the brain." He further postulated that the trauma to the brain may have interfered with breathing, thereby causing further brain damage. Dr San Lazaro, at trial, explained that only "very severe forces" or "severe massive deceleration forces" would account for the brain injuries which were caused by "violent shaking and slamming down". In the CCRC report for this appeal, Dr Lazaro and Dr Alexander are quoted as stating in letters written to the CCRC in 2001 that N's injuries included "brain contusions". At trial, Dr Gholkal, a consultant radiologist, did not positively identify any primary brain injury. Before us, with the exception of Dr Rorke-Adams, whose opinion relating to a localised focal brain injury we have already described, none of the Crown's experts suggested that there was evidence of direct trauma to the brain. Dr Jaspan identifies secondary hypoxic-ischaemic injury and asserts that there is no evidence of primary brain injury or brain contusions. N survived these events and thus the only direct evidence of the condition of his brain is radiological. Given the careful and clear evidence of the prosecution radiologist, Dr Jaspan, on this point we consider that the opinion of both Dr San Lazaro and Dr Alexander that there was primary brain injury is not tenable.

Shaking or Impact

In summary the prosecution's position at the conclusion of the appeal differed from the Crown case at trial in the following material respects:
a) Faulder's account of N falling from his outstretched arm is now accepted as a possible event;
b) The brain injury is now seen to be a secondary hypoxic-ischaemia rather than as a result of primary intra-cranial trauma;
c) The mechanism for injury is now stated to be a number of blunt force impacts to the head, rather than the massive violent shaking mechanism put forward at trial.

Dr San Lazaro

The Amended Grounds of Appeal rely in part upon the fact that Dr San Lazaro's credibility and impartiality have subsequently been seriously challenged in the case of Lilley and Reed v Newcastle City Council. It is indeed the case that Mr Justice Eady considered Dr San Lazaro's role in a substantial child sexual abuse investigation and, having heard her give evidence, found that, in order to meet what she perceived to be the needs of the children she examined, she was prepared to throw "objectivity and scientific rigour to the winds in a highly emotional misrepresentation of the facts". She was, according to Eady J's findings, "unbalanced, obsessive and lacking in judgment". In the event this point was not raised in the appellant's Skeleton Argument filed at the start of the appeal hearing and did not feature in the written closing submissions. Mr Mansfield QC told us that he was effectively not relying upon this ground in support of Faulder's appeal. We consider that this was a realistic concession. There is no challenge to the primary evidence of fact given by Dr San Lazaro. If Dr San Lazaro had remained the leading Crown expert in the case, there might well have been some concern arising from Eady J's findings, however the wealth of medical evidence that has now been acquired indicates that even were her evidence to be totally ignored there is a substantial body of expert opinion that supports the Crown's case as it is now cast.

Overview of Faulder's case

We now seek to draw together the various central issues in Faulder's appeal. Before doing so, it is helpful to highlight the fact that there are now no less than five different explanations for N's injuries that have been put forward by experts either at trial or on appeal, they are:
a) Shaking and slamming down involving very severe force (Dr San Lazaro and Dr Alexander at trial);
b) Non-specific inflicted head injury (Dr Jaspan and Mr Richards) involving secondary, but not primary, brain injury (Dr Jaspan);
c) Multiple (at least six) blows to the head (Professor Jenny and Dr Rorke-Adams) causing primary localised brain injury (Dr Rorke-Adams);
d) A bending and stretching injury to the respiratory nerves in the cranio-cervical junction causing a secondary brain damage. On the basis that the minimum degree of force required to cause subdural haemorrhages is unknown, all the symptoms could have been caused in the fall described by Faulder (Professor Whitwell);
e) A blow to the skull during the fall from Faulder's arm, causing the baby's skull temporarily to deform and directly injure the underlying brain substance, which may then hinder respiration and cause secondary brain damage (Dr Plunkett).

On the evidence that is now before the court, there is unanimity that what occurred was primarily an impact injury. The central questions remaining are:
i) What is the minimum degree of force required to cause these injuries? And
ii) Might the injuries have been incurred by a fall as described by Faulder?

For the reasons that we have already given, we conclude that there were six separate sites of injury found on N's head when he was examined at hospital. This is an important finding as whilst three or possibly four impacts could conceivable fit with Mr Faulder's account, it is not possible to stretch the sequence of events he describes to explain all six injuries. Coming to a conclusion about the external head injuries is, however, a very much more straightforward task compared to consideration of the internal injuries. Having heard all of the evidence we are not in a position to reject Professor Whitwell's opinion that the key event was a nerve injury at the cranio-cervical junction. That opinion is based on the Geddes I and II research, which has been largely accepted by the scientific community. If that opinion is correct, then the severity of the brain injury does not arise from the degree of force used, but from the extent to which the brain is starved of oxygen and/or blood. Questions of degree of force, on the Whitwell basis, are confined to the minimum force needed (a) to cause the cranio cervical junction nerve damage and (b) the subdural haemorrhage. We have already expressed our overall conclusions upon the necessary degree of force in triad cases by stating four general propositions. Applying those propositions to Faulder's case we are therefore mindful that there will be rare cases where comparatively minor falls may generate serious injuries and that an infant may be particularly vulnerable to injury at the site of the craniocervical junction as postulated by Professor Whitwell in this case. In not rejecting Professor Whitwell's opinion, we have particularly borne in mind Dr Jaspan's cautious analysis ("an unequivocal stance cannot be taken"). Dr Jaspan considered that only four of a possible eight signs for NAHI were present. We would add that of those four, only two are direct evidence of a primary event involving force (scalp bruising and subdural haemmorhage) whereas the other two are, or could be, secondary consequences of the primary event (unexplained encephalopathy and secondary hypoixic-ischaemic injury).

There are no retinal haemorrhages in this case. On Professor Jenny's evidence, that would be a cause for concern were the Crown's case to have remained one of pure shaking, but is a lesser matter of note in the context of an impact injury. We have already considered Dr Plunkett's evidence in relation to the appeals of Rock and Cherry. It is, as we have said, important to look closely at the relevance of Dr Plunkett's research to each individual case. In relation to Faulder's appeal we are troubled by Dr Plunkett declining to accept that N had more than three sites of injury. Our approach has been to evaluate each case by considering all of the symptoms as a whole, as well as individually. Dr Plunkett's inability to include and account for the six sites of injury must devalue, but not eliminate, the importance of his evidence in this particular case.

The jury were directed to treat Faulder as a man of good character and that is a factor that we too bear in mind. We also have particular regard to the fact that, unlike the Crown case, his account of the key event has been consistent throughout. If the number of external marks of impact had been four or less we would have little hesitation in holding that there is sufficient within the evidence of Professor Whitwell, when set against the conflicting and contradictory evidence that has, when looked at as a whole, been presented by the Crown, to render this conviction unsafe. We have approached each of these cases by attempting to look at the evidence as a whole. Do the two or three external marks that fall outside Mr Faulder's account tip the balance in favour of dismissing the appeal? In considering this question we are conscious of the fact that this was not a matter that the jury were ever asked to contemplate in this case. In the same regard we consider it is relevant to question how fair it is for the Crown to change its case so radically from "very severe shaking" to "at least six blows to the head" in an attempt to uphold the conviction. In conclusion we are struck in this appeal by the very radical change in the Crown case; the jury considered one case, shaking, yet that case is now rejected and we have been asked to consider a totally different allegation of multiple blows to the head. During the summing up at trial the jury were told that Dr San Lazaro was "very, very experienced" and "specialises in child protection and abuse" cases. They were also reminded that Dr San Lazaro had said "I am as certain as you can be in medicine" in her opinion that this was a shaking injury. This "certain" opinion from the Crown's principal witness is now rejected by Crown experts who are equally firm in their own opinion. We have to consider the evidence in its totality, both at trial and before us. There are, as we have observed, now five different explanations put forward by experts for N's injuries.

In relation to Cherry's appeal we have stressed that the mere fact that there has been some change in the manner in which the Crown puts its case will not automatically lead to a conclusion that the conviction is unsafe. It will be a matter of fact and degree to be considered in each individual case. In contrast to Cherry's case, the turnaround in the Crown's case in Faulder could hardly be more substantial. This factor, coupled with the introduction of potentially credible alternative explanations presented by the defence experts, drives us to the conclusion that, despite the number of bruises found, this conviction must now be considered unsafe. We therefore allow the appeal and quash the conviction.