No. 2003/04951/C1

Neutral Citation Number: [2004] EWCA Crim 1365
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Monday  17  May  2004

B e f o r e:

LORD  JUSTICE  WALLER

MR  JUSTICE  JACK

and

MR  JUSTICE  DAVID  CLARKE

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R E G I N A

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K

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MR D LEATHLEY appeared on behalf of THE APPELLANT

MRS S FERRIER appeared on behalf of THE CROWN
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J U D G M E N T

Monday 17 May 2004
LORD JUSTICE WALLER:
1.	On 28 July 2003, in the Crown Court at Cardiff, before Mr Recorder Rees and a jury, the appellant was unanimously convicted of inflicting grievous bodily harm (count 3), and of doing an act of cruelty to a person under 16 years (count 4). The victim was a small child. In August the appellant was sentenced to three-and-a-half years' imprisonment on count 3 and to a consecutive term of three months' imprisonment on count 4. He appeals against conviction by leave of the single judge. 
2.	The appellant, who is a devout Muslim, had come to the United Kingdom from Pakistan, where he had entered into a ceremony of marriage and he had had children. Under his religious code he was entitled to have four wives. After coming to the United Kingdom he met MA, whom we shall call “the mother”. They eventually started living together with her three children: the victim, L, who was about 2 years old, and her twin girls, who were about 3 years old, and the mother's younger brother Salvatore, who was aged about 6. For about three or four nights of the week MG, a friend of the mother, also lived at the house. 
3.	On Monday 27 January 2003, the mother took her small brother to school. The appellant remained at home with the three girls. The victim was then aged 2 years and 2 months. 
4.	There was no dispute that whilst MA was out the appellant called an ambulance, which arrived at about 9.18am. Paramedics found L lying motionless on her back on the floor with white foam/vomit around her mouth, but no other obvious sign of injury. Her eyes were open and she was staring at the ceiling. She was barely able to breath and continued fitting until treatment on arrival at hospital, where a CT scan revealed subdural and retinal haemorrhaging. After treatment she has been left with permanent impaired vision and persistent cerebral deficit. 
5.	The prosecution's case was in the alternative by reference to counts 2 and 3. Their case was that whilst the mother was out the appellant had shaken L violently, causing her serious bodily harm. The allegation was that either the appellant had intended to cause that serious bodily harm, and that was the subject of count 2; or, if the jury were not sure of that necessary intent, then they should convict on count 3. 
6.	Count 1 related to a bite that was found on the back or the shoulder of L. The appellant was charged with inflicting that bite. 
7.	Count 4 related to one occasion between October 2002 and January 2003, whereby it was alleged that the appellant had struck L. It was alleged that that was violence flowing beyond the bounds of reasonable chastisement. 
8.	It was the appellant's case in relation to counts 2 and 3 that he had got up just after MA had left the house. There was no sign at that stage of L. He found her in her room, lying on her back, foaming at the mouth. He called an ambulance after trying to clean her mouth. He at no time offered any unlawful violence to her. Further, the defence case was that L already suffered from a condition of having been shaken by somebody on previous occasions and that any shaking that occurred on 27 January was the straw that broke the camel's back. The defence case was that the simplest or weakest of shakes on that day would have caused the injury that was caused. 
9.	In interview the appellant admitted that he had bitten L, and it was that biting which was the subject of count 1. It seems that very shortly before the trial -- indeed at a directions hearing a week before -- he withdrew this admission and no longer admitted that bite. He asserted that he only admitted it in order to protect his wife due to his religious beliefs. 
10.	The Crown had consulted a forensic dentist, a lady called Catherine Adams. She had examined the bite mark on the shoulder of L. She had taken enlarged photographs of the impressions of the teeth. Her expert view was that, although it was difficult to tell precisely whose teeth had caused the bite mark, it was more likely that the teeth marks were those of the mother than they were of the appellant. 
11.	So far as count 4 was concerned, the appellant's case was simply a denial that such an incident had ever occurred. 
12.	The first and important witness called by the Crown was the mother. She gave evidence that from time to time she tapped the children perhaps on the arm or the back of the leg or even on the mouth. She said that she had told the appellant to keep his distance and not to interfere when she was disciplining them. 
13.	She gave evidence about leaving the house at 8.30 in the morning. Before she did so she gave a bottle of milk to L. Her evidence was that L was well and healthy when she left. That part of her evidence is not summarised in the Recorder's summing-up. We will come back to that in a moment. 
14.	A great deal of the evidence was medical evidence. In support of the Crown's case two neuro-radiologists, Dr Neil Stoodley and Dr Peter Richards, were called. The thrust of Dr Stoodley's evidence was that the injuries to the brain which he had found were not acute haemorrhage on top of chronic previous haemorrhage, but were likely to be the product of one incident, one acute haemorrhaging. In other words, he said that there was likely to have been just one incident of shaking which had caused the very serious injury to L. 
15.	Dr Peter Richards, who was called for the Crown, was not so sure about that, but he bowed to the views of Dr Stoodley. But he was clear in any event, even if it was not an acute on top of a chronic haemorrhage, that was undoubtedly an acute incident on the 27th. He described it as “a very, very significant display of nasty shaking violence on the morning of the 27th”. 
16.	A Consultant Paediatric Ophthalmologist's evidence was read. Her evidence was that the most likely cause of the retinal haemorrhaging was through rapid angular accelerations and decelerations of the head, which tended to be accompanied by violent shaking. 
17.	There was also evidence that the hypoxic ischaemic injury noted within a couple of hours at hospital could have been attributable to a tight gripping of the victim's torso, so that a venous pressure surged to the brain. 
18.	The defence called Dr Dewi Evans. He supported the theory that the injuries were consistent with there being an acute haemorrhage on top of a chronic haemorrhage, but on being re-examined by prosecution counsel, he too supported the view that, even if that was so, there must have been a severe shaking episode with or without an associated blow to the head on the morning of the 27th. 
19.	Evidence was also given by Sue Pritchard, who was a nurse and health visitor. She gave evidence which supported the view that the mother had looked after all the children well, including L, though her evidence covered only up until November 2002. 
20.	Evidence was given by another health visitor which indicated that up until the Saturday before Monday 27 January, L was fit and well. 
21.	Evidence was also called in relation to the incident which was the subject of count 4. MG described how the victim was attempting to pick up some chairs and she saw the appellant hit L twice about the head. She said that she was surprised to see him act in that way. 
22.	That incident was also seen by Jemma Borago. She described a similar incident. She also said that she had never seen MA hit the children around the head at any time. 
23.	We have already referred to the interview of the appellant and what he said in relation to the bite. He denied that any incident took place that might have injured L in the way described on 27 January, although he accepted that he shook her a little bit and gently patted the back of her head in order to try to revive her, but he did not do that hard. As far as the incident with the chair is concerned (the subject of count 4), he denied the allegation that he had hit her about the head. 
24.	He gave evidence inconsistent with his interview so far as the bite was concerned. But so far as injury to the children was concerned, he said that he had never offered violence at any time to any of the children that anyone would have considered untoward, although he might have shouted at them occasionally. He again admitted the gentle tap to the victim's mouth and the back of her head when he discovered her on the floor on 27 January. He said that he never saw the mother act in a way that would have injured the children. 
25.	During the evidence of the appellant, and having regard to the reason given by the appellant for changing his answers given in interview in relation to the bite, an application was made to cross-examine the appellant on his marriage in Pakistan and on what he had told the Registrar of Marriages when he married the mother in the United Kingdom. What the appellant said in his evidence was that the reason why he had said that he had inflicted the bite and not blamed the mother was because of his religious belief, the importance of defending the mother and not saying anything against her. 
26.	The Crown took the view that what the appellant was saying was that but for his religious beliefs he would not have told that lie in interview and was saying that normally he was not a liar. That led the prosecution to seek to cross-examine him about the possible lie that he had told the Registrar when he married the mother. Mr Leathley, who represented the appellant in the court below and has represented him here, sought to resist that line of cross-examination on the basis that the prosecution could not prove that the appellant was already married, although the appellant had accepted that he was already married. The appellant's case was that he was entitled to have four wives. 
27.	The Recorder allowed the line of questioning. But it is important to record at this stage what the Recorder said about it when he summed-up for the jury. He said: 
“The defendant was cross-examined about the marriage to MA [the mother] on 25th October 2002 at Cardiff Register Office. You know where it is in Park Place. He told a porky, a lie, to the Registrar of Marriages or that person's agent, because he said he had never been married before. My advice to you about that, members of the jury, is this: do not attach much significance to that, bearing in mind the different culture and religious ethos from which he comes. He gave his explanation. He is allowed to have up to four wives. He had only marred once in Pakistan. It was a marriage of convenience. He has children there. Really, in all conscience -- I hope I am putting his case as fairly as I can -- effectively he was saying to you this: 'It really wasn't an insult to my own conscience to tell that lie because I was only marrying one person in this country and it didn't conflict with my own religious principles'. That is my advice to you about that. It is far better for you in this case, members of the jury, to concentrate and concentrate very hard on the other and much more important alleged lie, which is, members of the jury, in relation to the bite.” 
	He then turned to other matters. We do not think the Recorder's ruling can be impugned. He was entitled to allow the Crown to ask these question; but even if that be wrong, the Recorder's direction to the jury was as clear as it could be that neither the lie nor this aspect of the case should have any significance in the context of the case. This is an aspect which formed the subject of ground 1 of Mr Leathley's appeal to this court, but in our view there is no substance in it. 
28.	It is the second ground of appeal which gives the most food for thought and is the most troublesome. It is an attack on the safety of the conviction under count 3. One aspect of this is related to count 1 and comes about in this way. In his directions on the law and in his directions upon counts 2 and 3, the Recorder said: 
“.... your verdict upon count 1 might have some bearing, would it not, upon your verdicts in relation to counts 2 and 3 because, for instance, were you to find that the defendant was actually lying, but lying to protect MA in respect of the bite covered by count 1, that might have some bearing on your deliberations in relation to counts 2 and 3. 
Conversely, were you to decide that what he admitted was in fact true, equally, members of the jury, that would be something you could, if you so wished, use to bolster, if you felt it necessary, the prosecution's case upon count 2 and/or count 3.” 
	There seems to be little doubt that the decision to prosecute the appellant (as opposed to MA, for example) was based on the fact that he had admitted the bite (the subject of count 1). He was also the subject of the allegation such as it was on count 4, and thus when it came to counts 2 and 3, the Crown were saying, “This is a person who has inflicted injury on this child and thus when you come to look at counts 2 and 3, you should start from the point of view that there is that evidence against him as opposed to anybody else”. 
29.	Mr Leathley's submission is that once there is an acquittal on count 1, then the court should look very carefully at the evidence that there is in relation to counts 2 and 3. His submission on that aspect is that there are those cases in which the Crown may prosecute two persons in relation to the injury to a child and at the end of the prosecution case are not able to point to evidence that conclusively shows one or the other. In such circumstances he submits that both defendants are entitled to an acquittal. He submits that it cannot make any difference if the Crown do not choose to prosecute both. Where there are circumstances in which it might be one or other adult, care must be taken to see whether the evidence points conclusively in favour of one or the other. Those submissions are sound, although of course it must be made clear that, simply because there are two possible perpetrators and simply because there is some evidence against one and some evidence against the other, it does not follow that a verdict must without more be said to be unsafe. But the approach to the evidence needs to be cautious and the court needs to make sure that the jury are aware of the weaknesses or otherwise of the case which they are considering. 
30.	The evidence against the appellant must be identified with some precision. The Crown's case was that the jury could be sure that it was the appellant who inflicted the injury on the morning of 27 January, first, because the evidence demonstrated that a healthy child had been left by the mother before she set off to school; secondly, because only an adult could inflict the injuries on that small child; and thirdly, the only adult present was the appellant. 
31.	To establish that the child was healthy child when the mother left, the Crown called, first, some expert evidence that there had only been one incident. Secondly, they relied on the appellant's own evidence that he never saw the mother hurt the child, and the evidence of Sue Pritchard and the health visitor. Thirdly, they relied on the mother's evidence that she left the child in a healthy condition with a bottle of milk. Fourthly, they relied on the contents of the statement of James Lawrence Bigg, who was a member of the ambulance team who arrived. In that statement he said: 
“I recall this male [the appellant] saying something which I cannot remember what he said. I do remember that he spoke broken English. 
The female, who I believed was the mother of the unconscious child kept saying, 'What's happening, what's happening?' She started to become very concerned and was panicking. 
I recall Steve asking the male what had happened to the child. 
I recall the male saying something about the child drinking milk and then either collapsing on the floor or falling on the floor. 
Martin then asked the male to pick up the child from the floor and carry her downstairs to the ambulance. The male proceeded to do this.” 
	The Crown were also entitled to rely on count 1, the bite. 
32.	The defence challenged the expert evidence, but at the end of the day whether it was one incident or two incidents (and the expert evidence was in favour of there having been at least one very serious incident on that morning) that does not help to identify the perpetrator. The fact that the mother had never been seen hurting her children did not help one way or the other as to what happened on that fateful morning. The defence also say that if it was the mother, she will have her own case to make; and it is upon her evidence the Crown rely for saying that when she left the house the baby was in a fit and healthy condition with a bottle of milk. The defence say that Lawrence Bigg's statement in relation to the appellant's admission that he was on his own with the child at a time when the child was healthy is very thin evidence indeed. The position was: either it was the appellant or, conceivably, it was the mother who had inflicted this injury before she left with her young brother to go to school. 
33.	The difficulty is this. Not only is this one of those anxious cases where there are two possible perpetrators and where the evidence is difficult to analyse in terms of whether it squarely points at one or the other, but unfortunately in this case there are points of criticism in relation to the summing-up. Although Mr Leathley did not take those points in his submissions, they support his submissions. Nowhere in the summing-up is there mention of MA leaving the house after seeing the child safe and well with a bottle of milk. Furthermore, nowhere is there mention in the summing-up of the statement of Lawrence Bigg, evidence which had become the firm base of the Crown's case. The importance of that is this. If the Recorder had recited that evidence of the mother and recited, for example, her demeanour when she came racing back and saw James Lawrence Bigg and asked what had happened, the Recorder would have been bound to give a warning in relation to the mother's evidence. She was the only other possible perpetrator of this terrible incident that took place in relation to her child. Thus if she had been the perpetrator, she would have had an interest in pointing the finger at the appellant. It may well be that the jury would have been able to satisfy themselves that she was not doing that, but in a difficult case of this sort the Recorder should have warned the jury about the possibility that she had that interest in giving the evidence that she did. 
34.	It is also strange that the Recorder only summarised a part of the appellant's evidence. This he did at page 21. He did that while looking at counts 2 and 3. He explained what the appellant's case was and he also made clear what the defence case was in relation to count 4. Then he said:
	“At a later stage of this summing-up, members of the jury, I shall refer in full to the defendant's evidence.”
	Unfortunately, he never returned to do that. 
35.	In the light of those criticisms that we have made of the summing-up we find it impossibly to say that this conviction is safe. 
36.	An attack is made on the Recorder's directions as to character. We were referred to R v Lloyd in that connection, where this court said that character directions should not be given in the form of questions, but that firm directions should be given in accordance with the guidance previously given by this court in R v Vye and other cases. It may be that some criticism can be made of the character direction on page 6, but if that point had stood alone that would not have been the basis on which we would have allowed the appeal. 
37.	But for the reasons we have given this conviction must be quashed and the appeal allowed. Will the Crown want a retrial? 
38.	MRS FERRIER: My Lord, I know that those instructing me, as does the court, take the view that this is a very serious matter and in the circumstances it may be prudent to deal with the matter in that way. We are conscious that the appellant has spent so far about eighteen months in custody. 
39.	LORD JUSTICE WALLER: If there is to be a retrial, it should be a retrial conducted as speedily as possible. But you do ask for a retrial. Have you anything to say, Mr Leathley? 
40.	MR LEATHLEY: It is a matter within the domain of the Crown. 
41.	LORD JUSTICE WALLER: And of the court, I think you will find. 
42.	MR LEATHLEY: Yes. My Lord, the remaining count is cruelty to a child for which the learned Recorder ordered K to serve three months' imprisonment. As my learned friend has said, he has in fact suffered an enormous hardship in that he has served 18 months, which of course, as you can patently see, is 15 months in excess of the conviction which now stands and the sentence attached thereto. 
43.	LORD JUSTICE WALLER: Putting it another way may be more helpful to you: 18 months served is the equivalent of three years and you can say he has only been sentenced to three year and nine months. 
44.	MR LEATHLEY: Yes, my Lord. It follows that I was going to develop the fact that he has effectively served the sentence he would ideally receive if the Crown were successful. It makes no sense to suggest that were he to be convicted a second time, the sentence would be any greater. 
	(The court conferred) 
45.	LORD JUSTICE WALLER: Just to make clear, we did not make it clear in the judgment, but the conviction on count 4 must also be quashed because there is a knock-on effect as between count 3 and count 4.
46.	MR LEATHLEY: I had not appreciated that. 
47.	LORD JUSTICE WALLER: On the question of retrial, what is of concern to us is the point about him having served most of the sentence already and it is very difficult to see how a trial could come on when he would not effectively have served the whole of his sentence. Unless you have something further to say, our inclination is to think that there should not be a retrial here. 
48.	MRS FERRIER: I do not think there is anything further I can say. 
49.	LORD JUSTICE WALLER: In the circumstances we will not order a retrial.