The focus of the appeal

The history of this matter has already been set out; we turn directly to the appeal. Certain matters are common ground. First, there is no dispute that Rock did shake Heidi; there is likewise no dispute (given the full thickness bruise to the back of the head) that she suffered an impact. Secondly, there is no realistic suggestion that disease or infection could possibly have played a role in Heidi's death. The thrust of the appeal was instead that the conviction was unsafe in the light of research subsequent to the trial, calling into question the minimum degree of force necessary to cause the pathology in this case. Rock, it was submitted, was not safely convicted of any offence; at the very least, his conviction of murder was unsafe and a conviction of manslaughter should be substituted.

For its part, the Crown vigorously resisted the notion that there was any real alternative to unlawful killing. Here, as elsewhere, it was to be borne in mind that the minimum degree of force in question was the degree of force necessary to cause all the injuries suffered; Geddes I and II did not address the minimum degree of force necessary to tear bridging veins and cause retinal haemorrhages; the "unified hypothesis" (i.e., Geddes III) which might have done so, has of course gone. The surrounding circumstances and the injuries suffered amply supported the safety of the conviction. While conceding in terms that if there had been the "triad" and no more, "that was unlikely ever in itself to be sufficient" to support a charge of murder (as distinct from manslaughter), here it was contended that there were additional features which justified the jury's verdict – bearing in mind that the intention to cause grievous bodily harm could be both rapidly formed and almost instantly regretted.

The new evidence on the appeal

The only area of dispute between Dr Anslow and Dr Jaspan was whether a lesion in the corpus callosum revealed by MRI scans was caused by trauma; Dr Jaspan was firmly of the opinion that it was; Dr Anslow said that it might be an artefact. As we have already indicated such disputes between reputable experts potentially give rise to difficult issues on an appeal of this nature. In the event, notwithstanding the powerful nature of Dr Jaspan's evidence in this regard, it is unnecessary for us to resolve this dispute. We proceed on the assumption that Dr Anslow might be correct. In cross-examination, Mr. Mansfield QC put to Dr Jaspan one of the "scenarios" developed by Dr Geddes (see below), involving a departure from the evidence given by Rock at trial. This set of facts assumed that Heidi had struck her head when falling and was subsequently the subject of two well-intentioned shakes by Rock. Asked whether this was a possible scenario capable of explaining the injuries sustained by Heidi, Dr Jaspan's initial (and firm) answer was "no". He based this answer on his views as to the cause of the corpus callosum lesion. If wrong about that, he accepted that the scenario "might just be feasible". Immediately thereafter, Dr Jaspan was re-examined by Mr Horwell as follows:
"Q. If you leave the corpus callosum out of the equation, when you say it just might be feasible, what do you mean?
A. Because in medicine there is never a hundred per cent certainty. So, if I was asked is there a hundred per cent certainty that it could happen, I would have to be honest and say no, there must be almost the freak situation where that could happen.
Q. What are the chances from your clinical experience?
A. By inference, 99 per cent unlikely."

In her report of 24 May 2005, Dr Geddes posited three "scenarios" which might have caused the pathological findings in this case. She could not be certain which of the three actually happened. The first scenario involved a low-level fall in which Heidi, among other things, knocked the back of her head, resulting in hyperflexion of the neck which damaged her brain stem. The second, also involved a fall, followed by a resuscitative (i.e., well-intentioned) shake by Rock, causing damage to her brain stem. In both these scenarios, damage to the brain stem resulted in Heidi's breathing stopping, her brain swelling rapidly and consequential subdural and retinal bleeding. The third scenario involved an assault on Heidi. We are bound to observe that the suggested sequence of the first two scenarios is troubling, given the apparent conflict with the radiology evidence. Moreover, Dr Geddes was closely cross-examined as to the factual basis for the first scenario, involving a departure from Rock's own account of events – in which he was adamant that Heidi had not struck her head. Pressed on this point, Dr Geddes said that she was duty bound to point out that there was impact (given the bruise at the back of Heidi's head); she thought that Rock must have been wrong in his account but had not given the matter attention when writing her 1999 report; she was (notwithstanding the factual evidence) prepared to speculate to this degree in now giving her evidence to the Court. Dr Rorke-Adams and Dr Geddes disagreed as to (i) the extent of subarachnoid bleeding in this case; and (ii) the cause of a "hole" or "tear" in the corpus callosum (in a location different from that which formed the subject of the disagreement between the radiologists, already referred to). Once again, it is not necessary to resolve this dispute and, we proceed on the assumption that Dr Geddes might be correct. For our part, we find the agreement between Dr Rorke-Adams and Dr Geddes that there were here subdural haemorrhages considerably more significant than the areas in which they disagreed. As Dr Rorke-Adams put it: "Subdural haemorrhage is essentially always traumatic in origin except under very unusual circumstances…." In itself, of course, that answer cannot resolve the source of the trauma nor, insofar as it was inflicted by another, the intention with which it was inflicted.

We come next to the evidence of the ophthalmic experts, Professor Luthert and Dr Adams, called by Rock and Dr Gregson, called by the Crown. It is convenient to take Dr Gregson's evidence first. He put the matter starkly; the significance of the eye injuries was crucial to this case. The retinal injuries were at the very top of the range or not far from it. There were in addition para-macular retinal folds, a type of detached retina. In his evidence-in-chief, Dr Gregson explained this matter as follows:
"Q. The retina is completely detached from the eye?
A. The retina is folded up very much like a rug would be if you pushed it together. It is not detached in the same way as boxers get retinal detachments, but the fact that it is folded means it is not in the place that it should be." A little earlier, Dr Gregson had observed that in children of Heidi's age, he knew of no other cause for para-macular folds other than trauma; this was so, regardless of when the para-macular folds had first appeared. Moreover, the presence of para-macular folds was indicative of severe injury – "a lot of trauma" was required. His reason for this view was as follows: "…the retina wants to stay attached; it does not want to fold. It requires an effort to detach it."

Returning to his written report of the 2 June 2005, Professor Luthert explained that since the original trial and following publications by Dr Geddes and Dr Plunkett, he had reconsidered the minimum degree of force required to generate the "triad". He went on to say this: "The minimum level of force required to produce this syndrome can not be defined, but the recent Royal College of Ophthalmologists Working Party concluded 'It is highly unlikely that the forces required to produce retinal haemorrhage in a child less than 2 years of age would be generated by a reasonable person during the course of (even rough) play or an attempt to arouse a sleeping or apparently unconscious child.' In my opinion, it is now not possible to exclude the possibility that a well-intentioned but ill-advised shake might cause the pattern of pathology seen in Heidi. The same Working Party commented 'It seems clear that minor falls can, only exceptionally, give rise to subdural and retinal bleeding. In these cases, it may well be that the biomechanics of the impact induce the rotational forces necessary to produce the picture considered typical of SBS.' So it is difficult to exclude with total confidence the possibility that the fall caused the injuries seen. Finally, it is also feasible that Heidi was assaulted." In answer to questions from the Court as to this passage, Professor Luthert asserted that he had relied on Geddes I and II but not Geddes III. Professor Luthert said that he had been a member of the Working Party and agreed with its conclusions. While he was (in effect) contemplating the infliction of some force going beyond rough play, by itself that did not determine the intention of the person inflicting the force.

Conclusions

How were these injuries caused? Having regard to the evidence we have summarised, it is plain that Rock's explanation – a fall in which Heidi did not strike her head – cannot account for them. We are, moreover, unable to accept that Rock's version of events was innocently mistaken, along the lines that he had simply not seen her strike her head. As set out above, he was adamant that he had prevented her hitting her head. We naturally have regard to the burden of proof resting on the Crown throughout. That burden may however be satisfied by reliance on such inferences which it is proper to draw from Heidi's injuries, taken together with Ms. Banham's evidence and the absence of an explanation from Rock, with whom Heidi was alone at the relevant time.

We return to the retinal injuries. On the totality of the evidence, we are sure that these were at the top end of the scale (Dr Gregson and Dr Adams) and we are not deterred from that conclusion by anything said by Professor Luthert, if indeed he ultimately disagreed. We cannot necessarily infer from the severity of those injuries, including the presence of the para-macular folds, that any precise or specific degree of force was used; we are acutely conscious both of "thin skull" cases on the one hand and of "lucky" victims on the other. We have, however, no realistic doubt that the force used must have been – as even Professor Luthert was minded to agree – in excess of anything generated by a reasonable person in the course of rough play. We further have no real doubt that the cause of those injuries was shaking or shaking plus an impact; if anything, we favour the latter given the presence of the bruise at the back of the head. In all the circumstances, we regard as fanciful the notion that Heidi's retinal injuries can be explained by a fall in which she struck her head and was then the subject of a well-intentioned resuscitative shake (Geddes, first and second scenarios).

i) On behalf of Rock, some play was made with the moderation in language employed by Crown experts between the trial and the appeal; in this regard, as we have seen, considerable emphasis was placed on the alleged "concession" made by Dr Jaspan, an emphasis we have already indicated we regard as misplaced. We think that the submission as to moderation of language is correct as far as it goes; but we do not think it goes very far. Doubtless, as expert thinking has evolved, so, rightly, the language has moderated and become less graphic or emotive. Those are welcome developments. But when the totality of the evidence is considered, there is nothing in any of this to suggest that the safety of Rock's conviction is undermined.
ii) Dr Geddes, as we have seen, was puzzled as to the absence of other injuries, if indeed Heidi had been the subject of violent shaking. We have given this matter anxious consideration but ultimately regard it as decisively outweighed by the overwhelming evidence pointing to a degree of force (or violence) at least going beyond even rough play. There is, as has frequently been urged on us, no precise correlation between force inflicted and the gravity of the injuries suffered.
iii) As seen in the passages set out earlier, the Judge summed up in robust terms. On the evidence before him, no proper criticism could be made of those passages. Given the totality of the evidence now before the Court, even though an alteration in expression might have been warranted, we do not think that any change to the substance of the summing-up would have been such so as to undermine the safety of a conviction for unlawful killing on this ground.

What remains is whether Rock's conviction for murder as distinct from manslaughter is safe. In R v Stacey [2001] EWCA Crim 2031, a "shaking" case, the Court said this: " 48. Other grounds of appeal having been examined, and in the end abandoned, that leaves only the question of whether the jury was entitled to find that she intended to do really serious harm. We are troubled about that. One brief period of violent shaking by a frustrated mother and child-minder was all that was required to explain this death. Apart from the bruises to the neck, no other injuries were found. As the judge said, an intent to do serious bodily harm may be quickly formed and soon regretted; but so may a less serious intent, simply to stop a child crying by handling him in a way any responsible adult would realise would cause serious damage or certainly might do so. That would only provide the mental element necessary for manslaughter. 49. Even allowing for the jury's obvious advantage in seeing the appellant give evidence, we have been unable to discern anything which, in our judgment, would have made it safe for the jury to convict this appellant of the more serious charge. In our judgment, the less serious charge was the only safe verdict. If the jury had had the additional benefit of hearing the fresh medical evidence we have heard, they might well have come to the same conclusion."

Stacey was of course a case on its own facts but the reasoning of the Court has, with respect, an undoubted resonance. As already foreshadowed, the Crown's stance, very fairly, was to accept that a verdict of murder was unlikely ever to be justified on the basis of the "triad" standing alone; it follows that the verdict of murder could be justified here, only, if at all, on the basis of (i) the bruise at the back of the head and (ii) Ms. Banham's evidence.