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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Cannings, R v [2004] EWCA Crim 1 (19 January 2004) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2004/1.html Cite as: [2004] WLR 2607, [2004] EWCA Crim 1, [2004] EWCA Crim 01, [2004] 2 Cr App Rep 7, [2004] 1 WLR 2607, [2004] 2 Cr App R 7, [2004] 1 All ER 725 |
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT WINCHESTER
MRS JUSTICE HALLETT AND A JURY
Strand, London, WC2A 2LL |
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B e f o r e :
MRS JUSTICE RAFFERTY
and
MR JUSTICE PITCHERS
____________________
| REGINA |
Respondent |
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| - v - |
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| ANGELA CANNINGS |
Appellant |
____________________
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr P. Dunkels QC and Mr S. Brunton for the Crown
____________________
Crown Copyright ©
Lord Justice Judge:
"I have no doubt that for a woman like you to have committed the terrible acts of suffocating your own babies there must have been something seriously wrong with you. All the evidence indicates you wanted the children, and apart from these terrible incidents you cherished them, so in my layman's view, it is no coincidence that these events took place within weeks of your giving birth. It can, in my view, be the only explanation for why someone like you could have committed these acts when you have such a loving and supportive family."
The issue
Two critical problems
Clark
, convicted, and the other, Trupti Patel, acquitted of murder, following the deaths of their infants. The verdict in Trupti Patel decided no point of principle: on the evidence the jury was not sure of guilt. Lest anyone seek to read anything deeper into that observation, and imply that we are commenting one way or another on the verdict, we emphasise that that is all that is ever decided by a "not guilty" verdict. Nowadays, we read and hear much about a new concept, "found innocent": that is not a verdict known to the law.
Clark
has been quashed. Save superficially, however, this appeal is dissimilar, and raises different issues. Unlike the Court of Appeal Criminal Division in that case, we have not been presented with evidence of apparent misconduct and serious non-disclosure by an expert witness, Dr Williams, called by the Crown, which came to light after conviction. Of itself, that would have been sufficient for the conviction to be quashed. In addition, expert evidence describing statistical probabilities was also severely criticised. That evidence was given by an expert witness of great distinction, if not pre-eminence in this field, Professor Sir Roy
Meadow
, whose evidence would undoubtedly have carried great weight with the jury which tried Sally
Clark
. If it were flawed, as it was, the safety of the jury's decision was further called into question. Professor
Meadow
's evidence in the present case did not extend to the flawed statistical evidence presented to the jury during the trial of Sally
Clark
. The present convictions therefore cannot be quashed on either or both of the grounds relied on in her appeal, and the observations on the facts in the CACD in that case were case-specific, and not otherwise of general application to the present appeal.
Meadow
did not expressly give statistical evidence, he offered it to the jury by implication. We shall examine the relevant evidence later in this judgment. On any view however, we must reflect on the likely impact on the verdict in the present case if Mr Mansfield had been able to cross-examine Professor
Meadow
, and undermine the weight the jury would inevitably attach to his evidence, by exposing that, notwithstanding his pre-eminence, at least part of his evidence in the Sally
Clark
case was flawed in an important respect. To some extent at least, Professor
Meadow
's standing as a witness would have been reduced. Therefore the flawed evidence he gave at Sally
Clark
's trial serves to undermine his high reputation and authority as a witness in the forensic process. It also, and not unimportantly for present purposes, demonstrates not only that in this particular field which we summarise as "cot deaths", even the most distinguished expert can be wrong, but also provides a salutary warning against the possible dangers of an over-dogmatic expert approach.
"However, in a family with a history of this type, current dogma is that an unnatural cause has been established unless it is possible to demonstrate an alternative natural explanation for these events."
That dogma encapsulates what in a criminal case we have described as the first, and we would emphasise, the erroneous approach.
"The definition of SIDS, for instance, .... says usually the definitions include babies up to one year of age; it used to be two years of age but it has been decided by experts in the field meeting that one year is the limitation. I would suggest that biology does not behave like this and [in] any event, sudden unexplained deaths occur throughout life – they also occur in adults. So there is not a magical cut-off point at one year of age."
"I think, to put it in context, there is a fashion nowadays that if you have more than one sudden infant death the next one must have been killed deliberately, and that is something that people within the paediatric profession have taken on board without sufficient evidence. Certainly, obviously, there are cases where it happens, but (in the vast majority) there is no evidence of that."
If that is the fashion, it must now cease.
"... there are a few cases where it (smothering) appears to have happened, but it is by no means clear that the claims that so many families where more than one sudden infant death has occurred are due to smothering. The results haven't been subjected to what I would call an appropriate statistical analysis. They are mostly a hunch that the paediatrician or whoever is looking at it might have but it is not based on any scientific foundation."
Clark
and Trupti Patel. We have read bundles of reports from numerous experts of great distinction in this field, together with transcripts of their evidence. If we have derived an overwhelming and abiding impression from studying this material, it is that a great deal about death in infancy, and its causes, remains as yet unknown and undiscovered. That impression is confirmed by counsel on both sides. Much work by dedicated men and women is devoted to this problem. No doubt one urgent objective is to reduce to an irreducible minimum the tragic waste of life and consequent life-scarring grief suffered by parents. In the process however much will also be learned about those deaths which are not natural, and are indeed the consequence of harmful parental activity. We cannot avoid the thought that some of the honest views expressed with reasonable confidence in the present case (on both sides of the argument) will have to be revised in years to come, when the fruits of continuing medical research, both here and internationally, become available. What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise should be met with an answering challenge.
"In the CONI study there were two families in which both deaths were attributed to the same condition (one … VLCAD, and one prolonged QT syndrome). In both families, diagnosis was assisted or confirmed by the birth of a third child identified with the same condition. Rib fractures, attributed to resuscitation, were found in the VLCAD CONI infant. A few years ago these deaths would have been totally unexplained. Both families would probably have had a third unexplained death had the underlying cause not been identified and treated, and at least one of the parents might have been suspected of murder."
Meadow
and Dr Ward Platt on the rarity of three unexplained infant deaths in the same family, and the "pattern" which was said to have emerged in the Cannings family. For the moment we shall confine ourselves to observing that this research powerfully reinforces the need for caution against the dangers of dogmatism at a time when our knowledge is limited and incomplete.
The Family Context
"Genetics at the moment is such that there are new discoveries all the time. Things that we have no idea about are being revealed every day ... There is a lot of work to be done, and once we have looked at 30,000 genes we should have a clearer idea of what we should be looking at."
In any event, for the purposes of this appeal, we are quite unable to reject the realistic possibility that in the absence of some compelling piece of evidence, whether specialist or extraneous, suggestive of the deliberate infliction of harm, there may have been a genetic cause, as yet unidentified, for the deaths and ALTEs experienced by the Cannings children.
Mrs Cannings' Children
Gemma
"On the night of 13th the baby was restless but then seemed to return to normal and slept through the night. On 14th the mother fed the baby at 9.00 am and went into town. Came home at 10.30 am and the baby was fine. She checked her at 1.00 pm to give her a feed and found her to be lifeless."
"Nothing was found on post mortem examination that was suggestive of an unnatural death and there was nothing in the history of Gemma's life or in the circumstances of her death that showed her death to have been unnatural. However, no cause for her death was ever identified. The fact of Gemma's death is a background against which you will have to consider what happened to the two children you are principally concerned with, Jason and Matthew."
Meadow
attached huge importance to the fact of three infant deaths in the same family. With hesitation, Dr Ward Platt would have been content to accept that, taken on its own, Gemma's death fell within the description SIDS. He did however say:
"Question marks have to hang over Gemma. Again we do not have in clinical terms the evidence to suggest hers was anything other than a natural death but when one steps back from the situation it has been repeatedly found that when everything comes out, in fact the first death turns out not to have been natural."
"Q. Are you saying then that we should regard these three deaths as possibly being entirely random?
A. I can't see any evidence that they shouldn't be ... by random doesn't mean, you know, a bolt from the blue; it means that this is a normal sort of pattern for repeated cot deaths, or, if you had a cot death and took somebody else's cot death and somebody else's cot death and put them together you would get that sort of pattern.
Q. Well, taking three cot deaths from three different families and putting them together is surely quite a different thing to taking three deaths within one family?
A. It is different only that it is from one family.
Q. Are you saying, therefore, that these deaths may not be linked in some way by some common cause?
A. No. What I am saying is that the fact that they are from one family does suggest that there is something else happening that would be responsible for putting that family at higher risk. ...
Q. It is not just the three deaths that have to be looked at when considering the history of the four Cannings children, is it?
A. No, everybody has put acute life-threatening events together with them.
Q. Yes. Do you?
A. I see them as part of the pattern certainly, and definitely knowing that there is good evidence that children who have apparent life-threatening events are at greater risk of sudden infant death syndrome. ...
Q. In this family we have a total of six events: three deaths, three non-fatal events?
A. Yes.
Q. Affecting all four children. If it is right that no cause has been found for any of them, they are six unexplained events?
A. I don't want to comment on whether it is right or not that no cause has been found ... but these children seem particularly susceptible."
Jason
"10.15 am. Apnoea alarm – mother finds baby pale and limp. Health visitor … arrived coincidentally at the same time. Resuscitated the baby."
"I think on one of the occasions I had gone downstairs because we had a garden out the back … I had been putting some washing out and when I came back upstairs the alarm was going off and I didn't have the walkie-talkie thing, and I just went in, the alarm was going off."
The health visitor was "literally arriving as I'd found him." She had run to the door to open it to her. On 8th March, in her further interview, she said that she was in the room with Jason when she heard the car. She had not heard the apnoea alarm start up, but heard the alarm sound.
"Jason stopped breathing on 4th June but was resuscitated by a health visitor. Since that time he had been fine, feeding well and no chest or breathing problems. At 3.30 am on 13th June he had feed (bottle) no problems, and was put back into his cot with baby alarm turned on, mum went back to bed herself in the same room. At 7.45 am mother checked baby, he was ok, she went to get her own breakfast and the baby alarm went off at 9.00 am. She went back to the room and found him still and white, resuscitation tried with no success."
Jade
"Baby fed at 6.00 am – floppy, laid back down as thought baby tired. Turned apnoea alarm off as thought baby would wake. Mother fell asleep again. Woke at 7.30 am went into her bedroom and noticed white colour, eyes closed, breathing gasping and laboured. Shook baby, called GP, baby began crying, breathing still laboured. Apnoea alarm went off two weeks ago when disconnected."
The evidence also showed that Jade had vomited twice at home and again in the ambulance on the way to hospital. The appellant added that until this incident Jade had been well, but she reported that the baby had been lethargic during the previous day, and had suffered two bouts of diarrhoea. There was a dispute at trial between experts, which summarising it simply, was whether this was a true ALTE, or simply a consequence of a bout of gastro-enteritis. If the latter, of course, it ceased to be relevant to the issue before the jury: the baby was suffering a normal unremarkable illness.
Meadow
and Dr Ward Platt disagreed with the contention that Jade had suffered an episode of acute gastro-enteritis. She was not displaying sufficient symptoms to enable that diagnosis to be made. Professor
Meadow
, while conceding that paediatric gastroenterology was not his speciality, nevertheless believed that this was a topic well within his sphere of expertise, and noted that Jade had taken a feed normally at 6 am on the morning of her admission, which was inconsistent with severe gastro-enteritis, and it was "inconceivable" that gastro-enteritis could explain the state in which she was found shortly afterwards. Dr Ward Platt believed that Jade's reduced temperature, as noted on admission, would have been unusual, and the episode of loose stools and vomiting prior to admission was insufficient to justify this diagnosis. He suggested that this would require some days of loose stools or vomiting, together with an inability to take fluid, and that a severe attack of gastro-enteritis would have resulted in a significant reduction in the baby's body weight as measured on admission and set against her weight on discharge. He did not accept that the baby was dehydrated. The sunken anterior fontanelle which, he agreed, would have been a sign of dehydration, was, he believed, misleading, and one which was often misinterpreted by junior doctors. The term had not been used by the more senior clinician who saw the baby later. The use of the intravenous drip had been unnecessary. With Professor
Meadow
he also believed that the good urine output noted while Jade was in hospital militated against the diagnosis of dehydration, and thus of severe gastro-enteritis. He could accept mild, but would reject severe gastro-enteritis. His final position was that Jade had an illness consistent with gastro-enteritis, but that after an incident of smothering, a "knock-on" effect upon the gut can occur.
"She had a circulatory collapse which resulted in her being admitted to hospital. The cause of that circulatory collapse is not entirely clear but she had symptoms both prior to the collapse and following the collapse suggestive of gastro-enteritis."
"Neither you nor I nor infants have diarrhoea for no reason. Diarrhoea is caused by malfunction of the gastro-intestinal tract and that may be caused by a whole host of different disorders but most commonly it will be an acute infection of the gastro-intestinal tract, and in this country viral infections are the commonest cause of them."
Meadow
rejected the idea that a vaso-vagal attack was a significant factor in a sudden infant death. Dr Ward Platt rejected it both generally, and with particular reference to this case. He accepted the possible existence of an abnormal vaso-vagal response in an infant, but held the view that a baby would recover very quickly from such an incident.
Matthew
Meadow
and Dr Ward Platt. When the paramedics arrived, the baby was found in a cot. The appellant told them that his apnoea alarmed had worked. One of them tried to assess the child, who seemed conscious and appeared normal and alert. Indeed although his limbs were slightly pale, the baby felt quite warm and there appeared to be no major problems. The appellant was standing on the opposite side of the room.
"Mum fed him his breakfast this morning and dad put him to bed – 9.00 am. Apnoea mattress was on. About 20 minutes later the mattress was alarm so mum went to investigate. Matthew had been sick – breakfast and some clear fluid. Fighting for breath. Pale, not blue. Mum describes him as being distant. Phoned 999 for ambulance."
"In view of the extreme rarity of three deaths without explanation occurring in the same family I have given the cause of death as unascertained pending further investigations."
The essential features of the Crown's case
Meadow
. He was particularly concerned by the extreme rarity of a third infant death in the same family, coupled with two earlier ALTEs, involving one of the children who subsequently died, and a fourth child, who did not. No natural cause was identified. In addition, the deaths or ALTEs occurred very soon after the baby in question appeared to be fit and well.
Meadow
noted that he was a mature healthy baby who, without any significant previous incident, had suffered an unexplained ALTE, from which he made a very rapid recovery, and then died suddenly a week later, shortly after having been seen well.
"That means that on that day, he hadn't got any serious infection or disease going on, he appeared well. So something very sudden happened on that day."
He went on to note that:
"The fact that a previous child had died in the family is relevant because that combination of circumstances, that sort of story is one that is very typical of a child who has died as a result of smothering. So my medical diagnosis there would be probable smothering."
Professor
Meadow
also took account of the subsequent post mortem findings in relation to haemosiderin in Jason's lungs, which was "one pointer to previous smothering".
Meadow
stressed that the event at the age of 3 months was "very unusual". Jade had suffered a genuine ALTE without any apparent cause from which she had made a remarkably rapid recovery. The event was unexplained.
"In the context of the family as a whole it is of importance, because one of the reasons for such an event as this is smothering or (a word used) airways obstruction could cause a bout like this. And certainly that would come into diagnostic probability for a paediatrician reading these notes in the light of what has happened to other children in this family and reviewing those records."
"... Firstly, the investigations and the pathologists did not find a reason for him dying. For me, the unusual feature is death so soon after being seen well, the fact that there had been previous deaths in the family and the fact that he had had an episode of some sort only nine days before he died that caused him to be assessed in hospital, because those features are ones that are found really quite commonly in children who have been smothered by their mothers. So the diagnosis for me, the clinical diagnosis, would be this was characteristic of smothering. ... One then goes on to say 'Well, is it possible it is a condition that is not yet understood by doctors or described by them?', and that must always be a possibility, but nevertheless as a doctor of children I am saying these features are those of smothering."
Infant deaths in the same family
Meadow
, as one of "the most comprehensive scientific paediatric research studies to come from the UK", it is pointed out that although the problem of the unexpected death of a baby appears to received its first mention in the context of the judgment of King Solomon, it is only in the "last fifty years or so" that medical interest and research has focused on it. In 1971 Sudden Infant Death Syndrome (SIDS) became a registrable cause of death in England and Wales. It was applied to an acknowledged category of infant death, caused naturally, and for which no blame could be attached to bereaved parents. In 1997, by when the registration system was believed to be fully effective, 27% of post-neonatal (that is between the ages of one to twelve months) infant death was attributed to SIDS. The other proportions were congenital anomalies 23%, infections 19%, immaturity related conditions 7%, external conditions 5%, other specific conditions 3%, other conditions 15%, asphyxia anoxia or trauma 1%. Those figures were not fixed. It was recognised that a proportion of deaths registered as SIDS variously estimated at between 2% and 10% of those registered as such, might well have resulted from harm inflicted by a parent. Even so that left a substantial proportion of infant deaths which did not. In other words, the possibility that parents were not involved in the sudden deaths of their children was, as Mr Mansfield graphically described it, not a remote academic possibility. Although the precise proportions may vary from study to study, these findings continue to reflect the broad view of expert evidence in the profession, both here and abroad. The jury at trial was told by Dr Ward Platt, the paediatric clinician called by the Crown, that he subscribed to the view "that the overwhelming majority of SIDS deaths are entirely natural". On the basis of the CESDI SUDI-study he believed that about 6% of SIDS were "extremely likely" to have been the result of maltreatment, and a further 8% or so were ones where maltreatment was considered to have played an important part in the chain of events leading to the infant's death.
Meadow
appears to have reported the results of this research. He said that "They found that – I think they only found one family, one family, in which there were two deaths that they considered were genuinely unexplained and the other cases they either found a genuine disease (which was not found in these children) or they found circumstances that made them believe the child had been killed." Professor Carpenter, plainly assuming that Professor
Meadow
was referring to the 1993 study by Emery and Wolkind described this evidence as a "travesty". Having been supplied with a copy of the study and read it for ourselves after the hearing was concluded, it seems that Professor
Meadow
must have been referring to a passage in the study which reads:
"However, only five (9%) of our total series were assessed as being true or idiopathic cot deaths and in only one family were both deaths in this category, suggesting that the chance of recurrence is very small and probably no greater than the general occurrence of such deaths ... only five (9%) were found to be true or idiopathic cot deaths (SIDS)."
Meadow
had the advantage of reading Professor Emery's notes about these three cases. If he did, his evidence on this point was indeed a travesty: if not, it would be unfair to criticise him for knowing less about the three families than we have discovered from Professor Carpenter's analysis of the notes themselves. In any event our prime concern is the correct analysis of Professor Emery's notes, and the problems of three infant deaths in the same family.
Meadow
told the jury that he set store by evidence that the interval between the infant appearing to be well, and then found close to death, or dead, was very significant. "Anyone who has dealt with ill children knows it takes time for the symptoms to develop", and he continued "This very fact of there being a very short time interval between being seen well and perhaps taking feed and being seen dead means it is something quite extraordinary that has happened . … This is the big issue of it."
Meadow
himself described a "lot" of research on following up children who have different sorts of episode or episodes. He continued "There is surprisingly little firm evidence now that preceding apnoea or acute life-threatening events are a predecessor of natural death. At one time it was thought to be much more important than it is now." The theme of constant research, and changing views is well echoed in this observation.
The Appeal
Clark's successful appeal to the CACD, in which Hallett J was a member of the court. Equally, he did not submit that such a direction would be compulsory. In essence, he suggested that in this kind of case, such a direction would normally be appropriate.
"I said that I would have a direction for you on the subject of there being three deaths. You have heard from some of the Prosecution witnesses the idea that the fact of three deaths makes it more likely that the cause was unnatural. Certainly with three deaths one must be suspicious and look the more carefully, for it is potentially a very serious situation. But I am going to ask you to put out of your minds the idea that because there are three that makes it more likely that the causes are unnatural: that is asphyxiation by Trupti Patel. I think that would be a dangerous approach in this case for two reasons.
The first is this: suppose that something happens and there is only one possible event as the cause for it. However rare or common that event may be, it must be the cause: straightforward. If it is rare the unexpected has happened. Suppose, though, that there are two possible events as the cause. One is a common event and one rare. It can then be said that the common event is the more likely cause. Suppose, however, that the two events are both rare; perhaps very rare. They are nonetheless equally likely as the cause even though they are rare, because they are competing with each other to be the cause.
So it is not enough to say that an event is rare so it is unlikely to be the cause of something. One has to look at the likelihood of the other possible cause, or other possible causes. That is the danger with what may be happening here in saying that three SIDS deaths in a family would be very unusual, therefore the deaths are unnatural. How rare would three asphyxiations be, particularly where, as is the case here, the mother loved her children and was immediately distraught and regretful? We simply do not know. We have not had any evidence about that. It is hardly common is it? That is obvious. That is the competing cause of the deaths and nobody has evaluated its likelihood."
"You have heard of course about Gemma. You know that Gemma is no longer the subject of a murder charge, although the defence elicited that Mrs Cannings was once charged with Gemma's murder ... be careful how you approach Gemma's death. It was a long time ago. We do not of course have the kind of results and tissues still available that Mr Mansfield has been referring to that would help you in knowing from either side's point of view anything more about Gemma's death. You have had to hear about Gemma's death because obviously it is part of the background and it is relevant. It may, for example, be relevant as to whether or not there is a genetic defect. But be very wary how you approach Gemma's death. You know the pathologists carried out a very careful post mortem and decided that the death effectively was SIDS, or cot death, and no suggestion of maltreatment."
"You have not heard about Gemma's death to justify the kind of approach referred to by Mr Mansfield; the Lady Bracknell approach. This is not a case whereby you could say "to lose one baby is misfortune, two carelessness, three murder". As you will appreciate, members of the jury, that is just inappropriate – totally."
"Do not think that when Mr Mansfield called an expert before you he is under any kind of duty to prove that expert is right. He does not have to establish that any particular incident was natural in causation or that it was due to as yet unknown or unidentified causes. The possibilities are put before you because firstly, we know that babies do sadly die of natural causes, as yet possibly unknown or unidentified, but also there may be many contributory factors as to why a baby may die. So when you hear the evidence called by the defence, very much bear in mind the submissions made by Mr Mansfield, and which I wholeheartedly endorse, that he does not have to prove that any of the theories of the experts he has called are correct."
"It is not for the defence to prove that Jade was suffering from severe gastro-enteritis. Jade's admission into hospital can only assist the Crown if the Crown can prove that it was due to smothering ... always bear in mind, members of the jury, the burden of proof and who must prove what."
We have some sympathy for the jury. We have to reflect an anxiety which has struck us throughout our own deliberations, whether notwithstanding these clear directions, the whole course of the trial, the sheer number of experts called by the defence, and the complex specialist fields in which these distinguished men and women worked, the jury may not, inadvertently, unconsciously, have thought to itself that if between them all, none could offer a definitive or specific explanation for these deaths, the Crown's case must be right.
"... The time has come for the trial judge in each case to give the jury a series of written factual questions, tailored to the law as he knows it to be and to the issues in evidence in the case. The answers to these questions should logically lead only to a verdict of guilty and not guilty."
Conclusion