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Home » Professionals » Legal Guidance » S to U » Shaken Baby and Sudden Infant Death Syndrome

Guidance On The Prosecution Approach To Shaken Baby Syndrome Cases

To:

Chief Crown Prosecutors

Sector Directors (London)

Head of Special Crime Division

From: Director

Action required: For distribution to prosecutors and caseworkers

Action date: Immediate

cc: Director, Policy; Heads of Organised Crime and Counter Terrorism Divisions; ABMs

Standard subject: CRIMINAL CASEWORK

Summary: The prosecution approach to shaken baby syndrome cases in light of the Court of Appeal judgments in R v Kai-Whitewind [2005], R v. Allen [2005]and R v Harris, Rock, Cherry and Faulder [2005].

Introduction

1. This minute provides Areas with information on the stance taken by the Court of Appeal to shaken baby syndrome (SBS) cases. This guidance is intended to assist prosecutors in the approach and presentation of such cases.

Caselaw

A) Judgment in R v Cannings [2004] EWCA Crim 01

B) Judgment in R v Harris, Rock, Cherry and Faulder [2005] EWCA Crim 1980;

C) Judgment in R v Kai-Whitewind [2005] EWCA Crim 1092; and

D) Judgment in R v Allen [2005] EWCA Crim 1344.

Background

2. On 19 January 2004 the Court of Appeal gave full judgment in the Angela Cannings case. The judgment related to the death of infants where there were no obvious external injuries and the issue revolved around expert evidence as to whether the death was as a result of intentional suffocation or due to some unknown reason, termed sudden infants death syndrome or "SIDS".

3. In concluding the judgment Lord Justice Judge stated:

" 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."

4. As a result of this judgment, reviews of past and existing cases involving sudden unexplained deaths in infants were carried out by the Attorney General and myself respectively to ensure that there were no further cases of the type described in the Cannings judgment.

5. The past case review by the Attorney General revealed 297 cases in a 10-year period. Of these, 97 cases were Shaken Baby Syndrome (SBS) cases.

6. It was unclear whether the issues surrounding the sudden death of infants resonated into SBS cases as they also relied heavily on expert evidence and were subject to changing scientific opinions. In the absence of clear guidance the Attorney General requested that SBS cases be considered separately.

7. A number of SBS cases were identified by the CPS and the Court of Appeal as being amenable to be heard together to ensure that a comprehensive judgment could be made by the Court of Appeal in order to guide the CJS on such cases in the future. (R v Harris, Rock, Cherry and Faulder [2005] EWCA Crim 1980).

What is Shaken Baby Syndrome (SBS)?

8. The accepted hypothesis concerning "Shaken baby syndrome", (or as it should be more properly called non-accidental head injury), depends on findings of a triad (the "Triad") of intracranial injuries consisting of:

  • Retinal haemorrhages;
  • Subdural haemorrhages; and
  • Brain encephalopathy. (Disease of the brain affecting function)

The mechanism for these injuries is said to be the shaking of the infant, with or without impact on a solid surface, which moves the brain within the skull, damaging the brain and shearing the bridging veins.

This triad of injuries is central to the diagnosis of SBS when there are no other signs or symptoms of trauma such as bruises or fractures. In addition the injuries are invariably inflicted by a sole carer in the absence of any witness, and they are followed by an inadequate history, incompatible with the severity of the injuries.

The Challenge to SBS

9. The challenge (termed the "unified hypothesis") to the triad hypothesis claimed that other reasons, such as apnoea (cessation of breathing), or raised intracranial pressure, or infection could in fact cause the triad of injuries. Therefore, according to the unified hypothesis, the triad hypothesis was not diagnostic as to how a baby had died.

The Findings of the Court of Appeal in R v Harris, Rock, Cherry and Faulder

10. The Court of Appeal concluded that the unified hypothesis could no longer be considered as a credible or alternative cause to the triad hypothesis. In the course of the Harris trial, Dr. Geddes (the creator of the unified hypothesis) agreed that her research was incomplete.

11. The Court felt that the triad of injuries provided strong evidence towards a finding that the injuries were non-accidental but could not alone be conclusive of the cause of death. The accepted triad hypothesis was not considered to be a fact. It remained a hypothesis.

12. The Court indicated that there was no scientific method of correlating the amount of force used with the severity of the injuries caused. However the Court identified four general propositions to assist with the determination of the degree of force required to cause the injuries suffered:

i. The more severe the injury the more probable that they were caused by greater force than mere 'rough handling';

ii. Cases of serious injuries caused by very minor force as may occur in normal or rough handling of an infant, are likely to be rare or even extremely rare;

iii. There will be cases where a small degree of force or a minor fall will cause very severe injuries; and

iv. It is not possible to conclude that age is a factor in deciding whether injuries are caused by strong force or a minimal degree of force or impact.

13. Cases of alleged non-accidental head injury are fact specific and will be determined on their individual facts. All the circumstances, including the clinical picture, must be taken into account.

R v Kai-Whitewind

14. This case is important in setting the scope that the defence can make of the Cannings judgment:

"All this suggests that, for the time being [due to the current state of medical knowledge], where a full investigation into two or more sudden unexplained infants 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 evidence 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

15. The defence in this case sought to argue that the Cannings judgment extended to other sudden infant death cases where there was a conflict of expert opinion.

16. In not allowing the appeal, Lord Justice Judge stated that the Cannings case was only intended to apply to cases that depended on inferences based on coincidence, or the unlikelihood of two or more infant deaths in the same family, or one death where another child had suffered unexplained apparent life-threatening events.

17. The allegation against the Appellant in Kai-Whitewind arose from a single death and could be distinguished from Cannings. Moreover, unlike the case of Cannings, Kai-Whitewind's conviction had not been based entirely on conflicting expert opinion; there was additional cogent evidence.

18. It was for the jury to evaluate the expert evidence, taking into account the facts found at the post mortem, and bearing in mind that the findings related to an infant whose mother:

  • had spoken about killing him,
  • had difficulties bonding with him,
  • who might have delayed reporting his death and
  • had elected not to give evidence.

The Court concluded that there was ample evidence before the jury to justify the verdict and the conviction for murder was safe.

R v Allen

19. The Appellant was convicted of the murder of his baby son following an incident in which it was alleged the child suffered injuries caused by shaking, impact or a combination of the two. This incident had followed a previous one the week before as a result of which the child was detained in hospital for a number of days.

20. On Appeal, the Court held that the evidence of the previous incident was relevant to prove the necessary intent on the day of the fatal act, and that there was sufficient evidence for the jury to convict of murder as opposed to manslaughter. In addition to the Triad of injuries, and the previous incident which the Crown said was due to the Appellant's actions, evidence was found of bruising to the back of the child's head.

21. The Court also considered the case of R v Stacey [2001] EWCA Crim 2031 and distinguished it. (Paragraph 73 of the Allen judgment.)

22. The Court also held that the acceptability of the medical evidence was a matter for the jury. (Paragraph 69 of the Allen judgment.)

23. The Court concluded that the Appellant's conviction for murder was safe.

Actions

24. The result of these decisions is that Areas are still able to prosecute SBS cases.

25. Any reliance on the unified hypothesis to contradict the accepted triad hypothesis should be strongly resisted on the basis of the comments in paragraph 10 above.

26 Each case will clearly turn on its own facts but it would appear unlikely that a charge of murder can be justified where the only evidence available is the triad of injuries.

27. In gathering evidence in such cases, it will be important to obtain as much supporting details as is available. In particular clinical evidence and evidence of the nature of the shake/fall/impact may be critical in assessing the prosecution case. The expert evidence finding of SBS might not be considered as diagnostic in itself but simply as strong evidence that the injuries were non-accidental. All the surrounding evidence must be considered.

28. The level of charging will have to be considered carefully in light of the comments in R v Stacey [2001], Allen [2005] and the Harris & others judgments regarding whether the necessary intent can be inferred from the force that is believed to have been used.

29. Areas will no longer have to refer SBS or SIDS cases to me. Policy Directorate will advise on any policy issues arising.

Enquiries

30. For further information on the content of this minute contact Charlie Monteith, Policy Directorate, 020 7796 8328.

Ken Macdonald QC

Director of Public Prosecutions

14 February 2006