This is a succesful appeal decided by the Lord Justice General, and Lords Eassie and Brodie.
On 7 April 2006, after a trial lasting over 5 weeks, the appellant was convicted of the following- “on various occasions between 14 October 1982 and 20 December 1982 both dates inclusive, at [various locations in Edinburgh] you did assault J.S., born 14 May 1982, now deceased…and did cause her upper airways to be obstructed by means unknown, restrict her breathing, all to the danger of her life; and (2) on 20 December 1982 at [a location in Edinburgh] you did assault J.S., born 14 May 1982, residing there, and did obstruct her upper airways by means unknown, restrict her breathing, suffocate her and kill her”. The deceased was the appellant’s daughter.
The case was referred to the High Court in 2010 by the Scottish Criminal CAses Review Commission.
In the appeal it was stated inter alia (1) that the trial judge had misdirected the jury by failing to set out for them the expert evidence which they would require to accept in order to convict and (2) that in the circumstances of this case there was an infringement of the appellant’s right under Article 6(1) of the European Convention to a reasoned judgment.
The child who died was seven months old at the time of her death. Prior to her death, she had attended hospital on a number of occasions having had what the appellant described as “turns”.
There was no direct evidence that on any occasion the appellant had assaulted the child. The Crown case at trial turned substantially on medical inferences that the child had on each occasion, including the last which led to her death, been subjected to deliberate obstruction of her airways.
The Court went at some length through the numerous medical experts who had given evidence on either side.
The appellant’s primary ground of appeal was that there had been misdirection by the trial judge. It was submitted that, standing the complex nature of the case and the divergence in the expert opinion, the trial judge ought to have analysed the evidence in greater detail and offered more guidance to the jury. A number of English authorities provided helpful guidance. In complex cases directions should provide structure, focussing the issues and any material disputes which had to be resolved: one could not rely on the speeches of counsel. The requirements of a fair trial demanded that a jury’s decision be reached on a logically justifiable basis. Thus, in cases involving expert medical evidence, they should, where relevant, be directed on the need before convicting to reject any realistic alternative explanation for the cause of death and on the need for caution in relation to developing medical science. An analogy could be drawn with the trial judge’s duty, in ensuring a fair trial, to give legal directions independently of the manner in which parties presented their case.
In an associated ground of appeal it was submitted that, in the circumstances of the present case, the failure of the jury to provide reasons for their decision had denied the appellant a fair trial in terms of article 6 of the European Convention on Human Rights.
The Crown opposed the appeal. It was submitted that there had been no mis-direction, although accepted that if there had been then there would have been a miscarriage of justice. There might be cases in which it was incumbent upon a trial judge to give specific directions, but that was not so in the present case. While it had involved a number of experts, they had given evidence over five weeks and that evidence had been tested by senior counsel, who had then addressed the jury: in the circumstances there had been ample opportunity for the exposition of the material issues which had to be resolved. Indeed, in a complex case it was often counter-productive for a trial judge to revisit the evidence or focus on particular points; to do so could complicate matters and distract a jury’s focus from other relevant evidence.
In relation to article 6, in the present case, the evidence had been heard in public, recorded and rigorously cross-examined. The indictment made clear the facts which had to be proved and the jury were aware that the onus lay on the Crown in that regard. Moreover, the right of appeal ensured due consideration that there had been a logically justifiable basis for the verdict returned. In all of the circumstances it could not be said that the appellant had been denied a fair trial.
Their Lordships considered the matter, starting with the comments of Lord McCluskey in Shepherd v HM Advocate 1996 SCCR 679.
They then said “Cases involving the deaths of infants allegedly at the hands of a parent or other carer are amongst the most difficult, and potentially the most complex, of all cases coming before the criminal courts. In many such cases, and the present is such, there will be no direct evidence of criminal conduct by the accused towards the child. The case will largely, if not exclusively, depend on inferences to be drawn from medical testimony. In this field, while knowledge advances, there remain many uncertainties. Establishing the cause of a sudden infant death may be very difficult and in some cases may not be possible. If criminal liability is to be brought home to the accused it will be necessary to exclude not only any natural explanations for the death suggested in the evidence, but also any realistic possibility of there being an unknown cause.”
“Where there is on the evidence a realistic possibility of there being an unknown (currently unknowable) cause of death, as there was on Professor Morris’ evidence, the jury should be reminded that this must be excluded before they can convict. Also, of course, the jury will require, before they can convict, to exclude any natural cause of death which is positively suggested in the evidence. This may be obvious, but the jury should be reminded of it. The way in which a jury approaches its deliberations upon the issues before it will be a matter, ultimately, for them to decide; but in a case of the present kind it will be incumbent on the judge to give them guidance. Even where counsel for the prosecution and for the defence have in their speeches fully explored the technical evidence (and they did not do so here), it will be for the trial judge to provide a succinct, balanced review of the central factual matters for the jury’s determination. Where natural causes for the death are suggested in evidence, an appropriate starting point may be to remind the jury what these are, giving a brief explanation of the evidential basis for each of them, and directing them that, if they are persuaded of them or if any evidence with respect to them gives rise to a reasonable doubt about the accused’s guilt, they are bound to acquit. ”
The Court commented that the numerous medical experts had produced a variety of different explanations for the death. It was for the Crown to establish beyond reasonable doubt that the actings of the Appellant were responsible for the death. In view of the competing and innocent explanations from the Appellant’s experts, the Court saw that it was for the trial judge to assist as far as possible with jury’s assessment of the evidence. “The task which it was, in our view, incumbent on the trial judge to perform was not an easy one. There was a risk that, in seeking to identify the position of each of the principal experts, errors might be made. But the fact that the task was difficult does not mean that it was unnecessary. The failure to undertake that task in this case amounted in our view to a material misdirection. It is not disputed that, if we came to that view, the result was that there had been a miscarriage of justice and that the verdict would require to be quashed. We accordingly allow the appeal and quash the verdict.”
The Court did not therefore need to rule on whether the jury required to give reasons for the verdict but they repeated that, in the Scottish system, there is no need for a jury to explain its verdict. However, “it is central to these decisions that the jury’s verdict is not given in isolation but in a framework which includes the presiding judge’s charge to the jury. It accordingly follows that, if in the circumstances of the particular case that aspect of the framework is materially inadequate, the verdict may be vulnerable to challenge under Article 6.” If called upon to do so in this case, they would have found that the failure to direct the jury regarding the technical evidence would have infringed the Appellant’s right to a fair trial.
This case shows the challenges faced by the courts in complex and technical cases. Counsel at the trail did not, in any detail, go through the expert evidence so as not to misinterpret it for the jury. The trial judge clearly felt the same. Appeals can arise where a judge does review the evidence, and one party feels that this has not been done fairly.
However, in a case of this complexity and importance, one can see clearly why it was felt that the jury ought to have been given as much guidance as possible.
One can only feel for the appellant, convicted 24 years later of killing her child and now with her conviction quashed. One wonders what action the appellant might now take.