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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 >> Henderson v R.  EWCA Crim 1269 (17 June 2010)
Cite as: (2010) 115 BMLR 139,  2 Cr App Rep 24,  EWCA Crim 1269,  Fam Law 917,  1 FLR 547,  2 Cr App R 24
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM READING CROWN COURT
Case No: 2007/6546/D4:
The Hon. Mr Justice Keith
Case No: 2009/1668/C5:
His Honour Judge TMF Stow QC
Case No: 2007/2024/B5:
His Honour Judge Focke QC
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE RAFFERTY
MR JUSTICE HEDLEY
| Case No: 2007/6546/D4
|Keran Louise Henderson
|- and -
|Case No: 2009/1668/C5
|- and -
|Case No: 2007/2024/B5
|- and -
Mr M Topolski QC and Mr A Scott (instructed by William Bache & Co) for the Appellant
Miss J Glynn QC and Miss S Campbell (instructed by the Crown Prosecution Service) for the Respondent
Hearing dates: 3rd-5th March 2010
Case No: 2007/6546/D4
Miss S Wass QC and Miss K Thorne (instructed by Mark Williams Associates) for the Appellant
Mr E Brown QC (who did not appear below) and Miss N Tahta (instructed by the Crown Prosecution Service) for the Respondent
Hearing dates: 10th-11th March 2010
Case No: 2007/2024/B5
Mr N P Valios QC and Miss K Arden (instructed by Mackesys Solicitors) for the Appellant
Miss S M Howes QC and Mr B P J Kelleher (instructed by the Crown Prosecution Service) for the Respondent
Hearing dates: 24th-25th March 2010
Crown Copyright ©
Lord Justice Moses :
Evidence at Trial
"She keeps losing consciousness…she's just gone into like a seizure sort of thing. She keeps taking little breaths but she's not getting anything inside of her. She hasn't took a breath now for ages. She's completely rag doll. She's comatose. She looks dead. She keeps trying to take a breath."
The ambulance arrived at 12.11 p.m. and the paramedics' report describes a reduced respiratory rate which improved as they attempted to restore the oxygen supply. The Glasgow Coma Scale showed the minimum motor ability (1). She was, in effect, found to be moribund. There was no sign of external injury.
Expert Evidence at Trial
"I think it entirely reasonable to consider it likely that Maeve collapsed due to inflicted trauma. There is no known, well-documented alternate explanation that I am aware of that fits with what I have read of the clinical and pathological findings in this case. Nevertheless, for reasons I have outlined above, I consider it problematic to assume that the 'triad' is diagnostic of trauma and I think this view is increasingly widely held. I am concerned that the findings in the eyes should not be interpreted as direct evidence of trauma."
"They arise from profound expansion of the retina due to haemorrhage and oedema (increased tissue fluid following injury)."
"I cannot be certain that an admittedly unknown non-traumatic aetiology can lead to the triad" (we think can should read cannot).
"The experts further agreed that:-
i) The focal brain stem/spinal cord injury is understood to be of traumatic origin and provides evidence of focal injury to the central nervous system, contemporary with the retinal injury (this is, in fact, controversial but depends on a dispute between non-ophthalmological experts: we deal with this below).
ii) The known causes of injuries to the central nervous system and the eye listed in sections 1 and 2 above, when seen together, are all traumatic in origin (see below). The mechanism by which such trauma leads to the physical signs in the eye is not known, but the fundamental aetiology is traumatic.
iii) The presence of prior subdural haemorrhage does not pre-dispose the eye to development of the clinical and pathological findings noted in this case."
Axonal Trauma: Neuropathological Evidence
"However, the staining in the cortico-spinal tracts was quite distinct, affecting variable numbers of axons in these fibre bundles bilaterally and appeared to represent localised traumatic axonal injury at the cranio-cervical junction. We believe that this pattern results from non-disruptive stretch injury to the neuraxis." (1305)
In Reichard, (Neuropathology and Applied Neurobiology  31) Dr Reichard reviewed seventy-three cases and assessed them "blind" to the clinical history. His assessment endorsed the value of beta app staining in assessing the extent of axonal injury and in particular that it was of "the greatest utility" in the assessment of traumatic brain injury. The evidence of Dr Al-Sarraj and Dr Squier on this aspect, coupled with the literature on which it was based, was not met by any contrary evidence called on behalf of the defence. The defence had instructed Dr Colin Smith, a highly experienced expert in "neuropathology and baby-shaking" who was a co-author of the Reichard paper to which we have already referred. It chose not to call him although his evidence was served on the prosecution; it did not assist the defence. The defence also obtained a report from Professor Milroy, Professor of Forensic Pathology at the University of Sheffield on which, since it supported the prosecution, the defence did not rely.
"I have never seen a clinically detectable subdural haemorrhage in the absence of trauma, severe central nervous system injury such as a stroke, or an abnormal bleeding tendency."
The last two have been eliminated. At trial, Dr Cary (a Forensic Pathologist) regarded the signs of fresh subdural bleeding as a marker for what had happened in the brain, showing the application of angular rotational force.
"In the presence of obvious "respirator" brain changes from perfusion failure of the brain and possibly parts of the spinal cord it is probably impossible to differentiate beta app reaction products due to true axonal injury (physical forces) from those due to many complex processes such as circulation failure, hypoxia, oedema and various artefacts of removal and preparation which were present in this case. To conclude that shaking forces were involved in this case requires far more scientific proof that this is a bona fide mechanism of injury than exists."
The Evidence at Trial
Grounds of Appeal:
"1. Is the proposed expert still in practice?
2. To what extent is he an expert in the subject to which he testifies?
3. When did he last see a case in his own clinical practice?
4. To what extent is his view widely held?"