Crown Prosecution Service response to Judgements in Four Appeals involving Shaken Baby Syndrome Issues

21/07/2005

Today's judgment sends a clear signal validating the approach used by the CPS in prosecuting Shaken Baby Syndrome cases. The Geddes theory will no longer be used by the defence. The CPS will continue to prosecute appropriately in order to protect infants - the most vulnerable victims in our society.

The judgment was also about individual cases - two convictions were upheld (one of which was reduced from murder to manslaughter) and two quashed on unrelated new evidence particular to the facts of each case. These cases were prosecuted because there was sufficient evidence and it was in the public interest to do so. Vulnerable infants need the law to protect them, but we need to ensure that convictions are safe and we welcome any judgment which helps courts to reach informed decisions.

BACKGROUND BRIEFING

At the Court of Appeal today, Lord Justice Gage, Mr Justice Gross and Mr Justice McFarlane dismissed a challenge to the established theory on how Shaken Baby Syndrome (SBS) injuries occur.

The established theory suggests SBS injuries are likely to be caused by inappropriate shaking of an infant. This theory has underpinned prosecutions for causing SBS injuries in Britain and abroad for many years.

The 'unified hypothesis', of which Dr Jennian Geddes is the most prominent exponent, suggested an alternative cause for SBS injuries which did not involve significant shaking at all, so could potentially make a number of convictions unsafe.

Dr Geddes gave evidence in court herself. She admitted she did not think she had the hypothesis quite right, that it was never intended to be put before a court, that she was sorry the hypothesis had been presented as fact in other court cases and that she was unhappy to think cases might be thrown out on the basis that her hypothesis was fact.

Lord Justice Gage handed down judgment today at the Court of Appeal. He said "The unified hypothesis can no longer be regarded as a credible or alternative cause of the triad of injuries" (a term for the three typical injuries which point to SBS). The established theory therefore remains unchallenged and the convictions it has led to remain safe on that basis.

A number of appeal hearings had been grouped together as they had a central issue of Shaken Baby Syndrome in common. All the cases had cited the unified hypothesis as one of the basis of their appeals and all four were dismissed on that point. But the appeals were allowed to continue anyway because each had its own additional issues. The judgments were as follows:

• Alan Cherry (manslaughter ) - conviction upheld
• Lorraine Harris (manslaughter) - conviction quashed
• Michael Faulder (grevious bodily harm) - conviction quashed
• Raymond Rock (murder) - conviction upheld for unlawful killing but reduced from murder to manslaughter

The central issue leading to Lorraine Harris's conviction being quashed was new scientific evidence coming to light since her trial which cast enough doubt on the amount of force being required to cause the injuries to potentially affect a jury's decision. Michael Faulder's conviction was quashed partly because a consensus has emerged since his trial that impacts rather than shaking had caused the injuries which now leaves several alternative explanations. Raymond Rock's conviction was judged to be safe for unlawful killing, but with sufficient doubt coming to light on the necessary degree of intent to commit murder, the alternative verdict of manslaughter was substituted. Alan Cherry's conviction remained safe.

Three of the appeals had previously been included in the 2004 Attorney General's Review of Infant Death Cases: Alan Cherry and Lorraine Harris were sent letters advising there was concern over the safety of their convictions, which led to their appeals, while Raymond Rock had already applied to appeal. Meanwhile the fourth appellant, Michael Faulder, had his case reviewed by the Criminal Cases Review Commission.

The CPS originally prosecuted all these cases under the criteria defined in the Code for Crown Prosecutors - that the evidence at the time was sufficient to obtain a realistic prospect of conviction and that it was in the public interest to put the matter before a court.

This judgment comes in the wake of recent debate over the credibility of expert witnesses. In the interests of clarity, the credibility of the established theory put forward by prosecution expert witnesses for many years has now been judged to be strong so it would be misleading to suggest otherwise. The Court did not decide that any new guidance on expert evidence needed to be given in light of these cases, but did reiterate in some detail the current guidance and advice on the use of expert witnesses and also of using a hypothesis to explain a given set of facts. The tests applicable in the civil and family courts have now been formally adopted into the criminal courts.

Background to unified hypothesis versus established theory on SBS

This key issue, in very simplified terms, regarded a challenge by the appellants to the established theory on Shaken Baby Syndrome injuries which has been accepted for many years.

The established theory is that shaking a baby with sufficient force typically produces a combination of three internal head injuries:

• brain encephalopathy
• subdural haemorrhages
• retinal haemorrhages

These three internal injuries, known as the triad, are also typically caused by blows to the head of sufficient force - the "jerking" of the brain inside the skull is comparable. However a blow to the head would also cause external injuries - cuts or bruises etc. If those external injuries are not also present, the internal injuries must have been caused by shaking of sufficient force.

The challenge to the established theory was based on a hypothesis of which Dr Jennian Geddes and Dr Helen Whitwell are the most prominent proponents. The hypothesis originally suggested these internal injuries could be caused by less forceful shaking (ie. possibly not enough to be a criminal act), and more recently suggested they could be caused by no shaking at all. The hypothesis suggested instead that a movement of the head so as to obstruct breathing could cut off oxygen to the brain, which in turn could create pressure, leading to the brain swelling which could cause subdural and retinal haemorrhages - ie. the same three internal injuries referred to in the established theory.

The CPS maintained that if the hypothesis was to be correct - ie. that these internal injuries could be caused in the normal handling of an infant without inappropriate shaking - then there would be large numbers of injuries and deaths to infants generally. That phenomena has never been reported.

Notes to Editors

For further details, please contact the CPS Press Office on 020 7796 8105.