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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Kai-Whitewind, R v  EWCA Crim 1092 (03 May 2005)
Cite as:  2 Cr App R 31,  EWCA Crim 1092,  2 Cr App Rep 31
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT BIRMINGHAM
Mr Justice Gross and a jury
Strand, London, WC2A 2LL
B e f o r e :
DEPUTY CHIEF JUSTICE OF ENGLAND AND WALES
MRS JUSTICE HALLETT DBE
MR JUSTICE LEVESON
|- v -
W. Davis QC and Miss H. Kubik for the Prosecution
Hearing dates: 11th, 12th and 13th April 2005
Crown Copyright ©
Lord Justice Judge:
Sudden Infant Death Syndrome
"The definition of SIDS allows considerable scope for inconsistency Two pathologists making the same findings may not agree on whether they constitute an adequate explanation for death: for example, if there are signs of respiratory infection one might give this as the cause of death, while the other might regard it as coincidental and classify the death as SIDS. In addition, pathologists and coroners may vary in their readiness to accept SIDS as a registered cause of death, sometimes preferring terms such as "unascertained". These variations may give rise to inconsistency in the reporting of SIDS in different places in the United Kingdom. Inevitably, there will be similar inconsistencies between different countries, so that international comparisons of SIDS rates should be interpreted with caution The exact meaning of the lay term "cot death" ("crib death" in the USA) which was coined by Barratt in 1954, is still the subject of debate. Some people restrict it to deaths meeting the Beckwith criteria for SIDS, while others give it the wider meaning of any infant death that occurs suddenly and unexpectedly, regardless of whether or not a cause is subsequently determined. Besides this impression, the term can be misleading by its implication that death always occurs in the cot, which, although usual, is not invariable.
Finally, the grouping of the deaths in the Confidential Enquiry of Stillbirths and Deaths in Infancy, CESDI [study], which was given the acronym SUDI (sudden unexpected deaths in infancy) does not correspond with any single ICD or ONS classification and includes various other unexpected deaths as well as SIDS."
(ONS is the Office for National Statistics: ICD is the International Classification of Diseases.)
"SIDS appears destined to continue to be a difficult, contentious and emotive term that can, unfortunately, be used very easily as a "diagnostic dustbin" to disguise incomplete investigations and inaccurate conclusions It is a rather disappointing fact that debate continues about the most appropriate definition of SIDS Our understanding of the pathogenesis of SIDS is still incomplete, and this is reflected in the vast number of often contradictory papers that have been published in recent years."
"The convenient acronym SIDS requires a little amplification, particularly in relation to the last "S", which stands for syndrome. Treating the problem as a syndrome tends to obscure the fact that sudden unexplained infant deaths occur in different circumstances, and some may be multi-factorial, the result of a coincidence of processes which, taken in isolation, would not necessarily cause death. No underlying condition for every death categorised as SIDS has been identified. The critical point of each such death is that it is indeed unexplained, and that its cause or causes, although natural, is or are as yet unknown. SIDS does not apply to deaths, or if already attributed to SIDS, ceases to apply to deaths which are clinically explicable or consequent on demonstrable trauma. In each SIDS case the mechanism of death is the same, apnoea, loss of breath or cessation of breathing. In the true SIDS case we do not know why the particular infant's breathing stopped. All we know is that for some unexplained reason it did. One obvious reason for loss of breath is smothering or some deliberate interference with the infant's normal breathing process. However the same process, with the same result, also occurs naturally."
"Yesterday he was coughing and he brought up green bearing in mind he is on SMA White he shouldn't be bringing up any green and my mum says not to worry about it it's probably just a cold, but today just before I phone you he brought up a whole load of brown water that's the only way I can describe it."
When the nurse from NHS direct rang her back the appellant said:
"Yesterday he had a bit of a cough and at the end of his feed he was a bit sick and he was bringing up green. Now because I am feeding him on SMA White "
In answer to a question from the nurse, the appellant confirmed that Bidziil had vomited just the once, when he had brought up green vomit. She went on to say that he had diarrhoea three times in the night and he was bit wheezy in the morning, and that he had been sick "now three times" and on each occasion had brought up a brown fluid like a brown water. In answer to subsequent questions, the appellant said that it was "brown fluid almost transparent with bits of brown in it."
"In my own head making him cry when I was trying to breast feed him. But I know that couldn't have caused his death because he bottle fed afterwards. So no."
When asked when she was last satisfied that the baby was alive she said, "for definite", he was alive before they went out, and that she was not concerned until she noticed the nosebleed. She put the timing of that at about 4 pm, but in view of the till receipt timed at 3.23, her timing was plainly wrong. She repeated that she noticed the nosebleed when she brought him back into the house after her visit to the shops. She confirmed that apart from her other children, no-one else was present in the house during the afternoon.
Post mortem examination
Even if the haemosiderin laden macrophages were caused by infection (itself not a common complication of infection) the infection would have to be severe, and the child would be obviously unwell, and the site of infection would be visible somewhere in the body or in the lungs themselves.
(b) Bleeding complications
Bleeding complications were unlikely suddenly to produce blood in the lungs, and any abnormalities would "almost certainly" have emerged when the infant was treated for the fracture of the femur. Although bleeding would have affected all parts of the lung, it was not sufficiently extensive for the child to have drowned in blood. The immediate cause of death was lack of oxygen to the brain.
If the infant had inhaled vomit, that would have been apparent at post mortem or on histological examination. This vomiting was not associated with haemorrhage. The vomit episodes did not suggest lung infection or fatal gut infection on 1st August.
There was no evidence that Bidziil's brain was swollen, and the inflammation of the meninges would have had nothing to do with the blood found in his lungs.
(e) Petechial haemorrhages
The absence of petechial haemorrhages did not undermine his conclusion, nor did the absence of evidence of oxygen starvation when the brain was examined using conventional techniques. The first episode had not been of sufficient severity to produce changes to the brain: it was somewhere in the middle of the scale. There had been insufficient time for changes in the brain to develop immediately prior to death.
(f) Breast feeding
He dismissed an accident through the course of breast feeding.
"The distribution of blood itself is important as bleeding into the airspaces themselves might suggest a natural bleeding disorder but when bleeding occurs in the interstitial tissues, although this can occur under natural circumstances, it does raise the high suspicion of raised intra-thoracic pressure, hence imposed airway obstruction. All of these features are present in this case."
"In the absence of any provable natural disease, then the findings in this case entirely support a death due to asphyxia due to mechanical obstruction of the airways: that is, a smothering. And again, in the absence of any natural disease, the two bleeding episodes would have had a common cause, and the first episode could be described as a near miss asphyxiation."
"Professor Risdon relied on the clinical history, the findings of Dr Tapp and Dr Cox, the presence, distribution and extent of blood in the lungs and the evidence as to two episodes of bleeding into the lungs. In effect, the tests which were not done would have been pointless. That was his view. Dr Gray, it could be said, supported him in large measure. Professor Risdon, having dismissed that long list of natural causes of bleeding into the lungs, what remained was an unnatural cause, asphyxia. Like Dr Cox, Professor Risdon could not think of any other explanation for the presence of the old and new blood in the lungs. The previous episode of bleeding involved a near miss asphyxia. On 1st August asphyxia was both the cause of bleeding into the lungs and the cause of death by depriving the brain of oxygen, the cause known as hypoxia. The presence of blood in the lungs could not determine whether the asphyxia was accidental or deliberate.
Professor Rutty, whom I take next, would agree with Professor Risdon that the bleeding, notwithstanding the absence of some commonly found features, pointed towards asphyxia and that the two bleeding episodes were likely to have a common cause, subject but this is a most important subject to the elimination of natural causes. It is that point which gives rise to the point of departure between Professors Risdon and Rutty.
Professor Rutty was not prepared to accept that natural causes of bleeding into the lungs could be eliminated. Here he was critical of the failures or gaps in the post mortems, especially the first conducted by Dr Tapp. Virology, bacteriology and blood testing were mentioned in particular. He could not say that the tests which were not undertaken would have been significant, but, unlike Professor Risdon, he thought they should be undertaken. He disagreed with Professor Risdon as to whether after death blood testing could be undertaken.
For these reasons Professor Rutty was not prepared to go further than to accept that there was blood in the lungs and that there had been two episodes of bleeding into the lungs. The cause of death, he said, was properly regarded as unascertained.
While Dr Rushton was minded to go further than Professor Rutty and to opine that the probable cause of bleeding into the lungs was the result of natural causes, he otherwise agreed with Professor Rutty in the result but not, in significant part, in the reasoning. He, too, was critical of the tests not done but he alone also said that he did not think that the evidence of bleeding and the macrophages were typical of asphyxia. He contemplated that the first and second episodes of bleeding into the lungs could have had two distinct causes; the first might be attributable to vomiting, the second involving a catastrophic single incident including heart failure was or might be attributable to toxic shock syndrome, that unholy alliance between a virus and a bacteria."
Grounds of Appeal
R v Cannings
"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 that 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 be a possibility, but nevertheless as a doctor of children I am saying these features are those of smothering." (para 133)
This approach was supported by Dr Ward Platt, the thrust of whose opinion was that although the rarity of three infant deaths in the same family was not of itself a compelling reason to conclude that harm was deliberately inflicted, the pattern revealed by the history as a whole was compelling (para 137).
"It is of course possible to smother a baby without leaving physical signs discernible on medical examination or at post mortem. Nevertheless, given that all four children were said by the Crown to have been subjected to violence sufficient to cause death, the absence of any physical signs of injury was somewhat surprising. There was no fresh copious bleeding in the lungs of the dead children and no petechial haemorrhage. There were no pressure marks to show as reddening in the area of the mouth and nose, nor blood or bloodstained fluid in the nose. No bruises were discovered on the outer skin surface or indeed subcutaneously. The fraenulum, in each case, was undamaged." (para 160)
In view of one of Mr Cooper's submissions in the context of this particular appeal, it is perhaps worth pausing to note that this passage demonstrates that physical signs of injury falling within the phrase, "indications of violence", referred to in paragraph 10 of the judgment, includes evidence beyond the kind of external injuries which a jury would readily understand, such as, for example, a fractured skull or a cut lip, and extends to internal findings within the body of the deceased such as fresh copious bleeding within the lungs, or blood or blood stained fluid within the nose, or petechial haemorrhages which would normally be identified, and explained to the jury by expert witnesses.
"12. Nevertheless a degree of caution was necessary to avoid what might otherwise have been the hidden trap of taking the wrong starting point. If, for example, at post mortem it was positively established that Matthew's death had resulted from natural causes, the situation reverted to precisely where it stood before he died. The concerns which would have arisen as a result of his death as the third in the sequence would have been dissipated. There would have been a positive innocent explanation for the death, which would no longer be a SIDS, and might help to confirm that the earlier deaths were indeed natural deaths. Equally, if there were unequivocal evidence that one of these deaths, or even one of the ALTEs, had resulted from deliberate infliction of harm by the appellant, that would be likely to throw considerable light on the question whether the other deaths, or ALTEs, resulted from natural or unnatural causes. If, after full investigation, the deaths, or ALTEs, continued to be unexplained, and there was nothing to demonstrate that one or other incident had resulted from the deliberate infliction of harm, so far as the criminal process was concerned, the deaths continued properly to be regarded as SIDS, or more accurately, could not properly be treated as resulting from unlawful violence.
13. Whether there are one, two or even three deaths, the exclusion of currently known natural causes of infant death does not establish that the death or deaths resulted from the deliberate infliction of harm. That represents not only the legal principle, which must be applied in any event, but, in addition, as we shall see, at the very least, it appears to us to coincide with the views of a reputable body of expert medical opinion."
" We have received significant and persuasive fresh evidence, which was not before the jury, some of it the result of further research, or research published post trial, into the problem of SIDS generally, and some specific to Mrs Cannings and her extended family. The expert evidence was absolutely critical to these convictions. In our judgment the fundamental basis of the Crown's case, based on the extreme rarity of three separate infant deaths in the same family, and the pattern of events in this particular family is, for the reasons we have given, demonstrably undermined." (para 175)
" Throughout the process great care must be taken not to allow the rarity of these sad events, standing on their own, to be subsumed into an assumption or virtual assumption that the dead infants were deliberately killed, or consciously or unconsciously to regard the inability of the defendant to produce some convincing explanation for these deaths as providing a measure of support for the Prosecution's case. If on examination of all the evidence every possible known cause has been excluded, the cause remains unknown." (para 177)
The Court finally came to the passage relied on by Mr Cooper:
" [F]or the time being, where a full investigation into two or more sudden unexplained infant 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 opinion 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. 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." (para 178)
" in the context of their assessment generally of the expert evidence called at the trial, and in particular the lengthy and adverse, although perhaps not unjustified, observations of the learned trial judge on Dr Rushton and the way he gave his evidence Dr Rushton made a number of perhaps unwise observations on peripheral matters in the course of his evidence. Given that, it is submitted that the perception of the jury of his evidence was undoubtedly coloured. Whilst this is a factor which perhaps unfortunately is an unavoidable side-effect of the adversarial jury system, the perception of the defence case it is submitted was open to substantial enhancement had the further evidence been available at the time."
"Professor Milroy also raises an issue which was not considered at trial, namely, the effect that the time the samples were taken for histology may be of significance when considering the observations in relation to haemosiderin in the lungs and haemorrhage.
Had the question of the timing of the histology samples been explored further, it is submitted that on this issue also the jury might reasonably have taken a different view of the evidence."
By the time Professor Milroy came to give evidence, however, he had understood that the tissues had been taken at the first autopsy, preserved and then tested histologically. There is thus nothing in this point and it was not pursued further.
"It is therefore clearly unsafe to conclude that the presence of nasal and pulmonary haemorrhage are necessarily indicative of smothering since both patterns of haemorrhage are common in SIDS and the presence of nasal haemorrhage in such cases is associated with more extensive intra pulmonary haemorrhage. Certainly, it does not indicate beyond reasonable doubt that death was due to asphyxia be it accidental or non-accidental."
"Thus this infant had exactly the same pathological findings as the infant in this case. There were no suspicious circumstances surrounding the death of our subject. The clinical features were that the baby was 5 weeks of age, co-sleeping and non-prone."
Conclusion on Fresh Evidence
"Where a woman by any wilful act or omission causes the death of her child being a child under the age of 12 months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child, then, notwithstanding that but for this Act the offence would have amounted to murder, she shall be guilty of infanticide."
Under s 1(2) provision is made for infanticide to be an alternative verdict available to the jury trying a mother for murder of her infant child. It does however require evidence that the "balance of her mind was disturbed" either because the mother has not recovered from giving birth to the child, or the effect of lactation on her. No other circumstances are relevant.
" if her act is done when the child is under the age of 12 months and the balance of her mind is disturbed by reason of the effect of giving birth or of circumstances consequent upon the birth."
The Report of the Select Committee of the House of Lords on Murder and Life Imprisonment (HL Paper 78) (1989) did not recommend that there should be a change in the law, but suggested that it should be "further considered".