Non Accidental Head Injury Cases (NAHI, formerly referred to as Shaken Baby Syndrome [SBS]) - Prosecution Approach

[Alison J Stevens]

Non Accidental Head Injury Cases (NAHI, formerly referred to as Shaken Baby Syndrome [SBS]) - Prosecution Approach

Published: 24 March 2011

Annex A: Case Law

• R v Cannings [2004]
• R v Harris, Rock, Cherry and Faulder [2005]
• R v Kai-Whitewind [2005]
• R v Allen [2005]
• A Local Authority v S [2009]
• R v Reed and Reed and R v Garmson [2009]
• R v Henderson, Butler and Oyediran [2010]

R v Cannings [2004] EWCA Crim 01

See information in Background section in guidance.

R v Harris, Rock, Cherry and Faulder [2005] EWCA Crim 1980

A number of NAHI cases were identified by the CPS and the Court of Appeal as being suitable for being heard together to ensure that a comprehensive judgment could be made by the Court of Appeal in order to guide the handling of such cases in the future.

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

The pathological features themselves are observable facts, although the mechanisms that cause them could be open to interpretation.

The Court felt that the triad of pathological features provided strong evidence towards a finding that the injuries were non-accidental but could not alone be conclusive of the cause of death.

In determining the degree of force required to cause the triad of pathological features, the Court identified four general propositions whilst indicating that there was no scientific method of correlating the amount of force used and the severity of the damage caused:

1. The more severe the injury the more probable that they were caused by greater force than mere 'rough handling';
2. Cases of serious injuries caused by [apparently] very minor force as may occur in normal or rough handling of an infant, are likely to be extremely rare;
3. There will be cases where a [apparently] small degree of force or a minor fall will cause very severe injuries; and
4. It is not possible to conclude that age [of the child] is a factor in deciding whether injuries are caused by strong force or a minimal degree of force or impact.

Cases of alleged NAHI are fact specific and will be determined on their individual characteristics. All the circumstances, and particularly the clinical picture, must be taken into account. The characteristics of the individual components of the triad are particularly vital to its interpretation.

R v Kai-Whitewind [2005] EWCA Crim 1092

This case is important in outlining the scope 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."

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.

In not allowing the appeal, Judge LJ 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.

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.

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

• had spoken about killing him;
• had difficulties bonding with him;
• 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 [2005] EWCA Crim 1344

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.

On appeal, the Court held that the evidence of the previous incident was relevant in order 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.

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

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

A Local Authority v S [2009] EWHC 2115 (Fam)

This case (ALA v S [2009] EWHC 2115 (Fam)) was an application by the local authority for a care order under S.31 of the Children Act 1989 in relation to S, who was born on 17th March 2006 and who had just turned three. (para 1)

The proceedings arose out of the death of a second child of the family, Z, who collapsed at home on 29th October 2007 when he was thirteen weeks old. He died on 1st November 2007. (para 3)

In ALA v S, Mrs Justice King said "This is a case where the allegation is that Z died as a result of a shake or a shaking/impact injury. The classic features of such a non-accidental injury, it is said were present, namely encephalopathy, subdural haemorrhage and retinal haemorrhage. This combination of injuries is known as "the triad" (para 29). She determined the facts of the case against the backdrop of the current law; the judgments handed down by the House of Lords as recently as 11th June 2008 in Re B [2008] (Children) UKHL 35, and adopted the descriptions given by the Court of Appeal, Criminal Division, in its judgment on 21st July 2005 in R v Harris, Rock, Cherry and Faulder [2005] EWCA Crim 1980 paras.63-65 (para 30):

"As already stated, when the three elements of the triad coincide, for some years conventional medical opinion has been that this is diagnostic of NAHI. Typically the brain is found to be encephalopathic; bleeding is found in the subdural space between the dura and the arachnoid subdural haemorrhages; and there are retinal haemorrhages. There may also be other pathological signs such as subarachnoid bleeding and injuries at the cranio-cervical junction. Further, there may be injuries to nerve tissue (axonal injuries) and external signs of broken bones, bruising and other obvious injuries such as extradural oedema (bruising). Determining these findings requires medical experts from a number of different disciplines interpreting often very small signs within the complex structures of an infant's brain and surrounding tissue.

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 between the dura and the arachnoid. The shaking may also cause retinal haemorrhages. In the sense that the explanation for the triad is said to be caused by shaking and/or impact it also is a unified hypothesis, albeit that each element is said to be caused individually by trauma.

The triad of injuries becomes central to a diagnosis of NAHI when there are no other signs or symptoms of trauma such as bruises or fractures." (ibid.)

In this case (ALA v S) not only were there a considerable number of experts, but Mrs Justice King was asked specifically to make serious adverse findings in relation to two of those experts, Dr. Cohen and Dr. Squier (para 33). In Re LU and LB [2004] EWCA Civ 567, the Court of Appeal provided guidelines for expert witnesses following the earlier case of R v Cannings. At para.23, Butler-Sloss P. gave the following guidelines:

i) The cause of an injury or an episode that cannot be explained scientifically remains equivocal.

ii) Recurrence is not in itself probative.

iii) Particular caution is necessary in any case where the medical experts disagree, one opinion declining to exclude a reasonable possibility of natural cause.

iv) The court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour propre is at stake, or the expert who has developed a scientific prejudice.

v) The judge in care proceedings must never forget that today's medical certainty may be discarded by the next generation of experts or that scientific research will throw light into corners that are at present dark (ibid).

The approach of the court to expert opinion it was submitted, must include the need to evaluate the witnesses and the soundness of each of their opinions. The mere expression, of a belief by a witness, however eminent, does not suffice. The court's evaluation of the witnesses, it was submitted should follow Ryder J. in A County Council v X Y and Z [2005] 2 FLR 129:

"... involves an examination of the reasons given for his opinions and ... the extent to which they are supported by the evidence." (para 34)

The judge must also examine:

"... the internal consistency and logic of his evidence; his precision and accuracy of thought... the extent to which a witness has conceived an opinion and is reluctant to re-examine it in light of later evidence ... whether or not a witness is biased or lacks independence." (para 35)

Summary positions:

"Drs. Cary, Al-Sarraj, Bonshek, Peters, Richards, Professor Luthert and Mr. Lloyd all regard non-accidental head injury as the most likely cause of all Z's injuries and consider it improbable, or highly improbable, that the other suggested causes could have caused the triad and Z's death. (para 57)

"Dr. Squier and Dr. Cohen regard non-accidental head injury as possible, but unlikely, in the absence of any other bony or soft-tissue injury, or other specific post-mortem evidence of trauma. Dr. Squier agreed that the triad seen in Z was also seen in cases of frank, inflicted trauma and in accidental trauma. Dr. Squier and Dr. Cohen consider the most likely cause of the primary event to be either a choking incident or a heart arrhythmia combined with the effects of prolonged CPR followed by resuscitation. (para 58)

"Drs. Cary, Al-Sarraj, Bonshek, Peters, Richards, Professor Luthert and Mr. Lloyd each hold what might be called the mainstream view of non-accidental head injuries as encapsulated in the judgments of the Court of Appeal in R v Harris. None accept that hypoxia in the absence of trauma is a cause of subdural haemorrhages and retinal haemorrhages of the type seen in Z. Dr. Al-Sarraj summed up the approach which HHJ King found each of this group of experts regarded as the proper approach in considering a case where the triad is present. Dr. Al-Sarraj told the court that: (para 60)

"Dr. Squier and Dr. Cohen have a very different approach in two important areas:

i)

a) Dr. Cohen does not regard trauma as a proper diagnosis where the triad is present, but there are no external injuries such as bruises or fractures and /or a witness to the alleged shaking event.
b) Dr. Squier regards trauma as very important. She is of the opinion that the triad, in the absence of evidence of trauma, is simply "no evidence of shaken baby syndrome". The triad of injuries may be due to many other factors that are not trauma. She does not accept that the triad is necessarily a strong indicator of shaken baby syndrome. In the opinion of Dr. Squier, shaking alone may cause the triad, but the level of violence required is such that many people would be incapable of it and it would break the child's neck. She said, in terms, that she would never advise the court that trauma was the probable cause absent external injury, either seen physically with the naked eye or found at post-mortem.

ii) Both Dr. Cohen and Dr. Squier subscribe to the Geddes III hypothesis in one form or another. Put at its simplest, each are of the view that hypoxia in children can lead to subdural haemorrhages and retinal haemorrhages in the absence of trauma." (para 63, i, ii, iii)

In considering the evidence of Dr. Cohen and Dr. Squier, Mrs Justice King had in mind the guidance of Butler-Sloss P. in Re LU and LB (set out above), and in particular: (para 197)

1. That the court must be on guard against the over-dogmatic expert ... who has developed a scientific prejudice; and
2. A judge in care proceedings must never forget that today's medical certainty may be discarded by the next generation of experts.

"The latter is of importance in the present case where it is accepted by all that there is much to learn and much which is not yet understood about so-called shaken baby syndrome and the triad. Dr. Cohen and Dr. Squier each agree with Geddes III. Dr. Cohen and Dr. Squier each believe that in the absence of additional external injuries, such as grip marks or fractures, there is no reliable evidence of shaken baby syndrome. Dr. Squier does not accept the triad to be a strong indicator of shaken baby syndrome. (198)

"These views are, undoubtedly, controversial. They go against the mainstream of current thinking and the analysis of the Court of Appeal in R v. Harris. Dr. Al-Sarraj told the court that his views are in line with mainstream opinion. Mainstream opinion in all the other specialities is the same as his, that is to say that hypoxia cannot cause subdural haemorrhages. Al-Sarraj told the court that there are 40-44 neuropathologists in the country of whom a maximum of 10 or 12 are forensic neuropathologists. To his knowledge, the only neuropathologist in the UK believing that hypoxia can cause subdural haemorrhages is Dr. Waney Squier. In addition, he said there are two or three other people who share her opinion who are working in different, but related, specialities, of whom Dr. Cohen and Dr. Scheimberg (Dr. Cohen's co-author) are presumably two. (para 199)"

It was observed that "They come in all the defence cases, so you do not realise that they are in such a minority." Dr. Cohen and Dr. Squier support Geddes III, even though Dr. Geddes herself in Harris withdrew from her own unified hypothesis. (ibid.)

Dr. Cohen and Dr. Squier maintain their position that in the absence of external injuries trauma cannot be established despite the Court of Appeal's conclusion that:

"The triad of injuries becomes central to a diagnosis of non-accidental injury where there are no other signs or symptoms of trauma, such as bruises or fractures." (para 201)

In considering the evidence of Dr. Cohen and Dr Squier, Mrs Justice King reminded herself that four years have passed since Dr. Geddes accepted that her unified hypothesis could no longer credibly be put forward. Dr. Cohen and Dr. Squier regard themselves as having built on her work. She also noted that the next generation of experts and scientific research may, as Butler-Sloss P. said:

"Throw light into corners that were then dark and that the hypothesis of Dr. Geddes may yet be proven to be in all, or in part, correct." (para 202)

The judge went on to consider whether or not these experts have "developed a scientific prejudice" or whether they are in the vanguard of research and learning. (para 203)

In the context of the evidence given by Drs. Cohen and Squier she considered whether their respective beliefs in:

(i) Geddes III
(ii) That trauma may only be regarded as likely causation where there is a triad plus additional external injury (or alternatively a witness) has led to their conviction in respect of SBS overwhelming their forensic analysis of the case. (para 204)

She decided that there were three areas which the court should consider in relation to each of Drs. Cohen and Squier in order to determine that issue namely:

(i) Their use of research material;
(ii) Their willingness to defer to the experts in another field and as part of that their acceptance of the importance of confining their respective opinion to their own expertise and;
(iii) The importance in any forensic examination of factual accuracy (para 205)

"To illustrate: Dr. Cohen accepted in evidence that for the purposes of her study the eyes of the foetuses or neonates were not examined. She said there were research papers confirming that hypoxia leads to retinal haemorrhages. That evidence is without exception at odds with the combined view of all the ophthalmic expertise. (para 225 (6))

"It was put to Dr Cohen that she had employed the head circumference point to bolster her hypothesis. This she denied. She said that it could have been an old birth bleed, or a re-bleed, but she now thought the baby may have had a re-bleed. She said she could not exclude re-bleed as a primary cause, but that she thought it was secondary. Finally, she said, "we do not know the cause of his collapse". (para 270)

Mrs Justice King felt that "Ultimately, her evidence was confusing and unhelpful."(ibid.)

Moving on to Dr Squier, the judge observed that "any court dealing with these cases on a regular basis will be aware that Dr. Squier is a strong believer that many cases hitherto regarded as SBS have in fact been precipitated by a choke and that there has thereafter been a cascade of events, including hypoxia, which has been responsible for the subdural haemorrhages and retinal haemorrhages." (para 245)

She declared that Dr Squier's view is a legitimate one and an appropriate line of research, (para 246) went on to say that:

"All agree that much remains unknown about SBS and the triad. It is essential, however, that Dr. Squier and others engaged on such research avoid becoming a zealots with the consequence that scientific rigour is lost or sacrificed. (para 246)

"These Courts rely on the professionalism and rigor of the experts who come before them. That means not only drawing the Court's attention to research that is contrary to their view, but that the experts are rigorous in the use they make of research papers. Dr. Squier's suggestion that there were "well documented cases of choking, leading to subdural haemorrhages and retinal haemorrhages" by reference to the two articles analysed above is disquieting. It should be borne in mind that Dr. Squier relied upon these so called "well documented cases" in support of her hypothesis as to the cause of Z's death; the subject of this enquiry. She should have, at the very least, drawn the court's attention to the fact that the cases in question were cases where the child had been shaken and that in one of them had been regarded as a case of non accidental injury resulting in the child being taken into care as a result of the incident. (para 247)

"Dr. Bonshek referred to Dr. Squier's use of these articles as being "disingenuous". I feel driven, with regret, to agree. (para 248)

"I do not doubt the commitment of Dr. Squier and Dr. Cohen to the advancement of the understanding of Shaken Baby Syndrome. As already indicated, I make no criticism and, indeed, it would be wrong to do so, of the fact that neither of them hold mainstream views. There is a significant fundamental difference between academic theories and hypotheses, on the one hand, and the rigorous forensic analysis which is required in care proceedings, on the other. In care proceedings the parents of the children concerned face allegations of the most serious type and they are therefore entitled to expect the experts commissioned to report to the court to be meticulous in both their analysis of the data and in their presentation to the court of their expert forensic opinion.(para 284)

"Dr. Squier and Dr. Cohen, I find with regret, have each fallen into that category of expert identified by Butler-Sloss P. in Re LU & LB, namely the expert who has developed a scientific prejudice. As a consequence, I accept the submission of the Local Authority that Dr. Squier has permitted her convictions to lead her analysis. The very fact that she said that she would, in future, be content to report Z's case as a "well described case of choking leading to subdural haemorrhage and retinal haemorrhages, subject to the exclusion of cardiac defect" sums up her approach in one concise example. Another, is the fact that each of the significant factual errors made by her served to support her hypothesis of choking and hypoxia. (para 285)

"The error in relation to Z's head circumference was not the only serious factual error made by Dr. Squier. In her written material, Dr. Squier recorded that the paramedic at the scene had noted "pink frothy sputum running out of Z's nostrils". She also noted that at the hospital, "milk was noticed in the throat and nose". She said in her oral evidence, however, that there was evidence of aspiration as a contributory cause and so choking must be a likely explanation. In support of this proposition she said:

"The child was found with milk and vomit in his airways by the ambulance man." (para 280)

"This was not only wrong, but misleading." (para 281)

R v Reed and Reed; R v Garmson [2009] EWCA Crim 2698

The Court of Appeal dismissed two joined appeal cases involving Low Copy Number (LCN) DNA analysis. Whilst confirming that there had been no substantive attack on the science of LCN analysis, the Court set out explicitly how it expects cases involving expert evidence to pay the closest attention to the requirements of Part 33 of The Criminal Procedure Rules and the need to agree evidence or identify issues at an early stage (Part 3).

The Court did not accept the evidence provided by the defence expert witness, Dr Allan Jamieson and went on to question how his evidence was admissible in the Omagh boming case (R v Hoey) as that was the first occasion he had given an opinion regarding LCN DNA analysis. The Court ruled that an appropriately experienced scientist is fully entitled to offer an opinion [...], though emphasised that "it is the duty of the Crown and the defence to ensure that the necessary steps are taken to bring the matter back before the judge where a disagreement is identified" (p131 iii), which must occur before the trial.

R v Henderson, Butler and Oyediran [2010] EWCA Crim 1269

The key principle set out in this case was the need to consider each case on its own merits; Henderson & Others was not an authority for removing complex medical evidence from the jury.

The Court of Appeal made it very clear that the complex medical issues arising in cases of alleged NAHI in babies must be dealt with by counsel and judges suitably experienced, who are thus able clearly to set out the points made by each expert in a way that assists the jury to consider the evidence.

Further Points made:

• The court in line with the approach taken by the police and prosecution, rejected the 'unified hypothesis'.
• No-one in the appeal suggested that the presence of the triad, even with the characteristics demonstrated in these cases, was conclusive or provided a certain diagnosis.
• It will usually be necessary for the court to direct a meeting of experts so that a statement can be prepared on areas of agreement and disagreement. The essential medical issues which the jury have to resolve should be clear by the time the trial starts.
• An expert's evidence, Dr Leestma's, was rejected as it was more historic and far more limited than that of Dr Al-Sarraj. Dr Leestma had not conducted autopsies or given evidence in cases involved with baby-shaking for many years.  In order to establish the appropriate level and relevance of expertise, questions that should be considered by the jury include:
  • Has the witness gone outside his area of expertise?
  • Can the witness point to a recognised, peer-reviewed, source for the opinion?
  • Is the clinical experience of the witness up-to-date and equal to the experience of others whose evidence he seeks to contradict?
• The fact that an expert is in clinical practice at the time he makes his report is of significance as they can learn and develop from continuing experience. See also Annex C, The report of a working group convened by The Royal College of Pathologists and The Royal College of Paediatrics and Child Health: "Judges should also ensure that experts have recent clinical experience".
• Any conclusion of any court as to the medical evidence depends upon the evidence before that court, as no appellate jurisprudence can provide authority for a medical proposition.
• The exact occasions upon which injuries occurred do not need to be established when deliberate injury has been caused. The nature and severity of the injury in Oyediran was a sufficient basis to establish a murderous intent.
• The previously accepted proposition that only trauma can cause retinal folds was shown to be incorrect. The evidence of this was from a case in which perimacular folds associated with extensive retinal haemorrhages emerged not due to trauma, but rather to acute myeloid leukaemia suffered by a 14 year-old.
• It was suggested that the judge who is to hear a particular case should deal with all pre-trial hearings, except for those in which no issue of substance is to be considered; and the judge should have experience of the complex issues and understanding of the medical learning.