W, R v [2006] EWCA Crim 2723

Case No 200601453/C1[2006] EWCA Crim 2723
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 17th October 2006
Strand
London, WC2
B E F O R E:
SIR IGOR JUDGE
(THE PRESIDENT OF THE QUEEN'S BENCH DIVISION)
MR JUSTICE HOLLAND
MR JUSTICE GOLDRING
Between
R E G I N ACrown-v-
Between
EMMA W
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR M MEEKE QC appeared for APPELLANTMR G MERCER QC appeared for CROWN
J U D G M E N T

SIR IGOR JUDGE: This is an appeal by Emma W, who on 30th January 2006, in the Crown Court at Truro before His Honour Judge Rucker and a jury, was convicted of cruelty to a person under 16 years of age. On 29th March she was sentenced to 6 months' imprisonment suspended for 2 years.

[2]Her co-defendant was her husband, Warren W. He was convicted of inflicting grievous bodily harm on the same person, on two counts. They were alternatives to counts alleging that he had caused the same child grievous bodily harm with intent. He was sentenced to a total of 18 months' imprisonment suspended for 2 years. A verdict was not required in his case on a count alleging cruelty to the same child.[3]The particulars of offence in count 6, which was the count which involved this appellant, were that between 15th December 2003 and 18th February 2004, having attained the age of 16 years and being responsible for A, a child under 16 years of age, she "wilfully assaulted, ill-treated or neglected the said [A] in a manner likely to cause her unnecessary suffering or injury to her health."[4]Warren W and Emma W were married in March 2003. They lived in a small flat at 2 KE, Bodmin, with the appellant's twin daughters from a previous relationship, who were born in July 2000 and their baby, A, who was born on 15th December 2003.[5]On 17th February 2004 Warren W telephoned the local hospital and asserted that he had rolled onto A and thought that there was something wrong with her ribs. He was told to bring her to hospital. He did so. Examination of the baby revealed that she had sustained 22 non-accidental fractures to various parts of her body, mainly her ribs, but also to her skull, shoulder, wrist and leg. She had also suffered a bite to her cheek.[6]The Crown's case was that Warren W was responsible for those injuries which were the result of deliberate assault. There were at least -- and we emphasise that -- two violent distinct episodes during the three to four week period before the baby's admission to hospital for which he was responsible. It was alleged against him that he had caused her grievous bodily harm with intent by fracturing her skull (count 1) and her ribs (count 3). The charges of unlawful infliction of grievous bodily harm in counts 2 and 4 were alternatives.[7]So far as the appellant was concerned, it was alleged that she had been cruel in particular respects, which spelled out in detail before the jury at the start of the case. The prosecution case summary reads:
"Count 6 is a charge of cruelty against Mrs W put on the basis that, in the absence of evidence that she was the person responsible for assaulting or ill-treating [A], she was guilty of wilful neglect in: (i) Failing to take steps to protect her over the relevant period when she must have known that she was at risk. (ii) Failing to obtain medical attention for her earlier when she must have known that she was suffering from her injuries, or may have sustained serious injury."
[8]It is clear from that case and the way the Crown advanced it at trial that the emphasis was on failure to take appropriate steps or obtain medical attention when she, the appellant, knew that the child was at risk.[9]The defence case on behalf of the male defendant was that there had been an occasion on 30th January when A's head had accidentally bumped on a chair as he was dealing with the two older children, the twins. He told the appellant what had happened, in effect, waking her up while she was asleep in bed. After an initial period of crying A had seemed normal and content. He also said that on 17th February 2004 he had fallen asleep while feeding her and accidentally rolled onto her. The injury to her face was caused by contact with a bottle top. He told the appellant what had happened on this occasion and in due course they took her to the hospital after noticing a crackling sound. He denied that he deliberately assaulted or wilfully neglected A. In effect, there were two incidents in which, by accident, she had sustained some unspecific injury.[10]So far as the appellant was concerned, taking it in the round for the moment, she denied any wilful neglect of A on the basis that she had no reason to disbelieve her husband's account of events. As far as she was aware, A had shown no discomfort after the incident attributed to the impact between the baby's head and the chair, and they had sought medical opinion after that incident. She was unaware of any damage which her husband might have inflicted which caused the baby's rib fractures and when that occurred, again, they had sought medical advice.[11]The Crown's case was that in the course of the interviews by both parents and in the course of their evidence they had provided a lying explanation in order to avoid the obvious answer; that the child had been deliberately assaulted and that the appellant had wilfully neglected her.[12]In this particular case it is necessary to deal with the evidence in some detail. The midwife gave evidence that she had known the family since the appellant had given birth to her twin children. The last occasion when she had seen the appellant and A was just at the turn of the year 2003/04. On that occasion the appellant had shown her a small bruise on A's ear and the midwife explained that she was concerned because the appellant had been unable to provide any explanation of how this injury had occurred. She asked for her opinion about it. There was a discussion about A being left unsupervised with older children and whether this might be causing any problems, and if we may say so, that was a perfectly reasonable and sensible line to take. The midwife's recollection was unclear, but she remembered making attempts to inform a health visitor about this mark, but she recorded that she had no concerns about the way in which the appellant was parenting A and, indeed, no problems were apparent to her in relation to the husband. Both, she thought, interacted very well with the children.[13]When she was cross-examined she said that she thought the bruise she had been shown was a small injury but a significant one, and she repeated that the appellant was anxious because she was unable to explain it. That was that.[14]On 30th January 2004 the baby was taken to the general practitioner, a Dr Eddy. The husband was expressing concerns about the shape of A's head. The doctor was unable to detect anything obviously wrong, apart from slightly red swelling on the right-hand side of the head. She thought that A looked well and seemed happy and contented and showed no signs of injury or inflammation. She had no positive recollection of having been told about a blow to A's head and she was certainly not told of any significant blow because she would have sent A to hospital for proper examination and analysis. When she was cross-examined she accepted that she might have been told about a bump or bang; she repeated that the baby showed no signs of discomfort or distress. She added that she had palpated the baby's head when examining her and, in her view, the baby would have shown distress if she had had a fractured skull at this time. She described A as "a bright, cheery little baby". It is significant of course that she believed that distress would have been shown if the baby's skull had been fractured and the head had been palpated.[15]On 17th February the parents arrived at hospital. The baby was asleep sucking her dummy. The nurse noticed a circular bruise on one cheek and a mark under the opposite eye. The husband was saying that he had rolled onto A while she had a bottle in her mouth. This examination was rather more revealing than the examination by the general practitioner. When the baby was undressed down to her nappy for the purposes of an examination, the nurse described how she became very distressed and cried and screwed up her eyes. This was no ordinary baby crying, it was such that it was not possible for the medical practitioners to listen to the baby's chest. But on examination to the baby's side the nurse heard a crackling sound. She arranged for her attendance at accident and emergency due to concern about possible consequential breathing difficulties. She found no obvious marks on the baby.[16]Another nurse took the details when the parents brought the baby to the accident and emergency department. They said that they had attended hospital because A's ribs were making a funny noise and that the husband had fallen asleep on her while he was feeding her and had woken up to find her in pain, with a bruise on her face. In addition to bruising on her face, the nurse noted that A had bruising to the rib area and haemorrhages in both eyes. She was in discomfort, very distressed and crying, and her ribs were abnormal to the feel and made a cracking sound when they were felt. This nurse noticed that A would not make eye contact with anyone and she described the child looking "scared." She was a paediatric nurse. During her experience in this profession, she had never seen a child as young as A looking or avoiding looking in this way.[17]After A's admission to hospital she made a gradual improvement. She was discharged on 2nd March. She was then smiling, making normal eye contact again and had colour in her cheeks. The nurse noted that the strongest analgesic available was prescribed for her, which was extremely unusual given her age.[18]There was expert evidence from a consultant paediatric radiologist, Dr Thorogood. He examined the baby on 17th or 18th February, at any rate in the period immediately after the baby's admission to hospital. The injuries found were, however one attempts to be moderate in language, highly alarming. First, the skull fracture. There was a wide fracture to the baby's skull. Generally speaking such fractures to a baby's skull are hairline fractures. The force that would have been required to cause the fracture that Dr Thorogood observed would have been substantial. He would have expected to find bruising and swelling. But at the time of his examination there was minimum soft tissue injury and swelling. In his judgment, a considerable ridge of extensive swelling would have occurred within minutes and certainly hours of the injury at the time. He concluded that that fracture had not occurred in the preceding few days and, in his opinion, it had occurred between one and three weeks prior to the examination.[19]He was made aware, and considered the visit to the general practitioner on 30th January. He noted that the general practitioner may have found a degree of swelling which could have been related to the underlying fracture. In his view the skull fracture was unlikely to have been caused from a fall of a metre or less, and would have needed a powerful, forceful blow or contact against a hard object, such as concrete or a slate stone floor.[20]He was shown photographs of the chair against which the father had said that A's head had been bumped. Dr Thorogood said that the injury he found could have been caused if A had been swung forcefully against and then struck the metal parts or wicker and metal parts, but in fairly dramatic language he suggested it would have taken a deliberate attempt to crash the child's head against the chair for this skull fracture to have occurred as a result of an impact between the head and the chair itself. He thought the baby might well have been concussed, and even lost consciousness. There would have been swelling for four to five days afterwards. The baby would have been irritable for several days.[21]Dr Thorogood examined the baby. He found 14 fractures to the ribs in an advanced state of healing. They, in his view, had occurred at least two weeks before the examination. There were three further rib fractures; they were more recent. They had occurred in the previous two to three days but more likely two days. He concluded that there must have been at least two occasions when the injuries had occurred but he also said that there could well have been more than two separate incidents. As we emphasise, at least two occasions.[22]He gave, as his expert opinion, that it would be extremely unusual for a baby to fracture her ribs by herself when she was immobile. That was the position with A. He suggested that this was a rare occurrence, even in road traffic accidents. A high degree of force would be required to fracture the ribs. He also noted the number and nature of the rib fractures in A and, in his view, they were the result of application of considerable force, probably by squeezing. In his judgment the injuries had been caused by fingers pressing hard into the baby's back. This could not be described as normal handling or parenting. He was unable to accept an explanation that they had resulted when the father had fallen asleep on A. The sort of pressure that that would have created would have caused fractures to the side of the ribs, not to the back of the ribs, as he had found. He added that fractured ribs did not necessarily cause bruising, but could cause a great deal of pain and would be extremely tender for a few days.[23]He then dealt with the fracture of the baby's shoulder blade. This was as a healing fracture to the outer half of the right shoulder blade. It was extremely unusual to find such a fracture in babies and children. In his opinion, this injury was the result of a wrench or pull with a twisting motion to the baby's right arm. It would have involved quite considerable force. He found it difficult to date this particular injury. He took note of the healing process and thought that the injury was quite recent. He added that any movement of the arm of this baby would have caused significant distress for several days afterwards, and the baby would have been in obvious pain and distress.[24]The next injury was a fracture of the right wrist. This was a healing greenstick fracture. Dr Thorogood thought that this injury was of a similar age to the older fractures of the rib. It was caused by this bone being twisted or bent, in a similar action to that which was required to break the shoulder blade. The doctor was not saying that the injury to the right shoulder blade and the injury to the right wrist had occurred at the same time. In his view, the fracture to the right wrist occurred about two to four weeks before his examination. It could not have resulted from normal parenting. In his view the baby would have been very distressed for several days after this injury was sustained.[25]The final fracture injury involved the left leg, where the posterior corner of the tibia was fractured. That in the doctor's judgment would have been caused by non-accidental and deliberate application of force by twisting the baby's leg.[26]Overall, therefore there was a considerable range of time over which these various injuries could have occurred. There was what was described, and we have emphasised this point already, as an absolute minimum of two separate incidents but there could have been many more. He agreed with the view expressed in a report by Dr Galbraith, a medical practitioner, who said that the rib fractures would have caused A distress at the time when they occurred and she would have cried and screamed for some minutes. They would have remained tender and may have caused further discomfort for up to a week and -- and significantly in this case -- the discomfort and tenderness would have been much worse whenever the baby was bathed or changed.[27]Dr Thorogood was cross-examined and agreed, in the context of the rib fractures, that "they would have caused [A] distress at the time they occurred. This distress would have lasted some minutes and A would have cried and screamed following the initial injury." He then went on to deal with the discomfort arising when the baby was bathed or changed, and in this context, added:
"If a carer had not witnessed the fracturing occurring, they may have been aware there was something wrong with [A] but not necessarily the reason why. A non perpetrator would not be expected to realise that [A] had rib fractures, they may have mistaken her distress as simple childhood ailments such as colic. These types of fractures are difficult to detect clinically."
This was a passage relied on at trial and indeed before us by Mr Meeke QC, on behalf of the appellant. Plainly, it was critical evidence from the appellant's point of view, and went to the issue whether she knew or must have known that the child was in distress. That was the point of adducing this evidence and then relying on it.[28]Dr Galbraith examined the baby on the morning of 18th February. She noticed a 3 centimetre area of bruising to the left cheek. This consisted of two separate semi-circular bruises with a spared centred. According to the account given to the doctor by the parents, the bruise had appeared the previous morning. In her view, however, the yellowing of the bruise showed that it was rather older than that, at least two to three days old. Significantly, too, this injury had been caused by a human bite to the cheek. It was unlikely to have been caused by a bottle top, which was the explanation offered by the husband. What is more, the pressure required to cause the mark would been very firm and sustained. If it was a bottle top that had been used, it would have caused a different type of bruise.[29]Dr Galbraith added that she, too, could not accept that the fracture of the baby's skull had been caused by an accidental impact; it would have required a violent impact with a hard surface. It would have been very unlikely that the baby would not have cried at the time of the injuries. They would all have caused her a great deal of pain. She would have screamed and have been very distressed, particularly whenever she was handled.[30]She accepted what in truth was no more than a comment in cross-examination, but one which was, again, adduced before the jury, that the medical and health visitor records for this family expressed no concerns.[31]The appellant was interviewed on 20th February. It is unnecessary to set out the whole details of her interview, but she denied the offence and provided an account which largely, but not entirely, was repeated before the jury. The transcript of her evidence indicates that during the course of the interview there were a number of hesitations:
"...a couple of weeks ago that...the only thing that.....um, Warren caught her head on the chair 'cos um, he come in crying to me one morning saying, 'I've, I've, I caught her head on the chair'. Um, it didn't come up into a lump immediately, um, a lump came up and we took her to see Dr Eddy, our GP, um, who checked the lump and that and said it was fine, there was no bruise on it you see.'"
She went on:
"A lump came up here, [indicating we deduce it the right side of A's head] there was no bruising on it, er, we took her to the doctors."
She said:
"When the swelling had gone down, it was about three days, um, and then a bruise come up which started by the front of her sideburn."
She then explained the rib injuries:
"When I went to pick her up to give her her feed, um, I could just h, I could hear it as well as feel a kind of um....a crunch, um, a kind of um.....I dunno, it makes my stomach turn. You know when people click their fingers, um, Warren [that is her husband] does it with his neck and it makes my skin crawl, it's the kind of noise of cracking bones. Um, and I felt it and I was like, you know, what the hell's this, kind of thing. Um, she got a bit upset then, so it was obviously hurting her. Um, so um, I gave her a feed, when she was sat down and not being moved and, she was fine."
Then she described giving her a bottle.[32]On 13th July, she was interviewed again. It was now some 5 months or so after the baby had been taken into hospital on 17th February. In this interview according to the note, it is not verbatim, the appellant confirmed that A had been in her and husband's care since she was born and that she had only been alone with her mother, twice, for a total of about three hours. During the day both she and her husband cared for the baby but at night one or other of them did so. She said there were three significant events: when her husband banged A's head on the chair; when husband rolled on top of her; and when the music machine in the cot fell off. As to the first incident, it was put to her that that had happened on 30th January. She said she had not seen it take place. She suggested that this had happened at lunchtime-ish when she was cooking the tea. That was the difference between what she had said a few months earlier. She said she heard A cry. Her husband came in and said that A's head had been caught and a lump came up. He took A to the doctor while the twins ate their dinner. She then said she heard A crying. She went into the living room. She saw her husband looking at the baby trying to calm her down. A had a bottle and was sat in a baby chair. Within about 20 minutes the lump had come up so they telephoned the doctor. After that visit A was okay. After the swelling went down, a bruise appeared. The baby appeared her usual self, but was not really interested in her food and was a little more sleepy.[33]She was asked about the rattling sound she had described in the earlier interview which was timed, according to that interview which we have quoted in the week before 17th February, when A had a cold. She said that the sound was not necessarily different from the sound she had heard on the 17th, just that it was less loud. She could not really say in relation to the incident with the chair whether it was lunchtime or breakfast, but it was the evening and they were both up.[34]She was asked about the bruise on the baby's face. In the context of the visit to hospital on the 17th February, she said she had first seen it between 9.00 and 9.30 in the morning of that day, when her husband had woken her up. It was a dark like a fresh kind of bruise, not in a solid circle but misshapen. She commented that the baby bruised easily.[35]On the 17th February, at about 1 o'clock she picked A out of her chair and noticed that her ribs cracked. She said that A was taken to her parents and she was asked why she had delayed taking the baby to hospital if the noise was horrible. She said that she did not think anything was fully the matter with A, and once A was in her arms she was still again. She then stated that when she picked A up her ribs did not click at that time, only later. If they had done earlier, then she would have acted sooner.[36]With that evidence it was submitted to the judge that there was no case for either defendant to answer. We, of course, are only concerned with the present appellant.[37]The judge rejected the submission. The submission is in effect repeated before us. The starting point for the submission is that it would not have been open to jury on the evidence to convict this appellant unless such neglect as may have occurred was also proved to be the result of wilful neglect. The essential elements of the offence required proof that she knew or must have known that the child was at risk of or may have suffered injury.[38]The learned judge's attention was drawn to the decision of the House of Lords in R v Sheppard (1981) 72 Cr App R, [1981] AC 394. We need do no more than highlight the passage which

the judge saw from the opinion of Lord Keith, which was cited to the judge:

"I turn now to consider the meaning of the adverb 'wilfully' which governs and qualifies 'neglects' and all the other verbs in section 1(1)[of the Children and Young Persons Act 1933, as amended]. This is a word which ordinarily carries a pejorative sense. It is used here to describe the mental element, which, in addition to the fact of neglect, must be proved in order to establish an offence under the subsection. The primary meaning of 'wilful' is 'deliberate.' So a parent who knows that his child needs medical care and deliberately, that is by conscious decision, refrains from calling a doctor, is guilty under the subsection. As a matter of general principle, recklessness is to be equiparated with deliberation. A parent who falls to provide medical care which his child needs because he does not care whether it is needed or not is reckless of his child's welfare. He too is guilty of an offence."
Pausing there, this was not a case in which recklessness was in issue at any stage. As the quotation from the Crown's opening indicates, here the allegation was the appellant knew perfectly well what the situation was. Returning to the opinion of Lord Keith, he went on:
"But a parent who has genuinely failed to appreciate that his child needs medical care, through personal inadequacy or stupidity or both, is not guilty."
[39]The submission before the judge and in effect renewed before us, was that there was no direct evidence that the appellant knew that A had suffered any injury requiring medical attention to a greater extent than her parents actually sought for her. There was, according to this submission, nothing to contradict the appellant's account given in interview of what her husband had told her about what we shall describe as the "accidents", which A had experienced. Reliance was placed, for understandable forensic reasons, on the way in which Dr Thorogood had accepted the observation about how a non- perpetrator might or might not have been alerted to or by the rib fractures.[40]Taking these points in detail is unnecessary. The judge was invited to consider Dr Thorogood and Dr Galbraith's concerns about the difficulties of identifying the rib fractures; Dr Eddy's examination of the baby's skull; and the absence of any diagnosis by a nurse of fractures, there was therefore no sufficient evidence that, the appellant, could have known or did know of her injuries. The Crown relied on the long catalogue of injuries sustained by the baby, deliberately inflicted, on the Crown's case and eventually by the jury's verdict, by the husband, in at least two serious attacks on the child while his wife was at home in a very small flat. The Crown also relied on the evidence of Dr Thorogood that the child would have shown serious signs of distress and pain beyond anything normal after the various injures were inflicted on the child.[41]The appellant's accounts in interview, that nothing untoward had happened, that this was in effect a calm, peaceful, trouble free home beyond, of course, the natural and wear of tear of twin children and a small baby, that all these injuries were to be explained as accident, as she was told by her husband, and that there was nothing in the child's condition to alert the mother to what was happening was simply untrue.[42]The judge dealt with some of these issues in his ruling when he found that there was a case to answer. He acknowledged the submission, made on behalf of the appellant, that there was nothing to contradict, broadly speaking, what his client, that is the appellant, had said in interview. But he pointed out that the prosecution were describing this account as untruthful, "lies like the account, innocent account given by the father". He also took account of the submission based on Dr Thorogood and Dr Galbraith's concession that if you had not seen the infliction of the injuries, you would not necessarily know why a particular baby might be crying because babies do cry for all sorts of entirely innocent reasons. He also took account of the fact that the child was taken to the doctor on 30th January and to hospital on 17th February. He then addressed this question:
"...looking at the evidence overall, these appalling injuries over a short period of time in a very limited space, can the Jury infer from that evidence, being satisfied that she has not told the truth to them either through the interview or through evidence, if she gives [evidence], she must have failed to protect the child from what was happening to it and failed to provided adequate material medical aid in all the circumstances, in the sense that it was either not enough or it was too late."
It is true that in those observations the judge did not reflect the analysis by Lord Keith in the passage in the speech in Sheppard to which reference has been made. The question for us, however, is whether he was right to conclude that there was a case to answer.[43]We have no doubt that there was a case for this appellant to answer. Two adults cared for the baby, on the evidence, over a short period. Taking the matter as generously as possible in favour of the appellant, on at least two occasions the baby was the victim of very serious violence. By 17th February she was damaged, with no less then 22 non-accidental fractures, to the head, the ribs, the shoulder, the wrist and the leg, and what we shall describe as "quite an old", in context grotesque, bitemark to her cheek, which simply must have been apparent. The appellant cared for the baby. She bathed her daily. She carried out all the necessary maternal care, the details of which need no elaboration. Yet, according to the account she gave to the police in interviews, she knew nothing about what was actually going on in her house, in particular, what her baby was suffering. In our judgment, it was open to the jury to conclude that the account that she gave in interview was untrue. They had to examine all the evidence in its overall context and decide where the truth lay. If the case had stopped at that stage, without further evidence, in our judgment, it would undoubtedly have been open to the jury to convict her. In those circumstances, if the judge had withdrawn the case from the jury, he would have been usurping its proper function. Accordingly, the judge was right to leave the case to the jury and this ground of appeal must fail.[44]Following the rejection of the submissions on behalf of the defendants that there was no case to answer, the father gave evidence. He explained that he wanted to take an equal share in the caring arrangements for the child. A routine developed between him and his wife in which they shared the care on a one night on one night off basis.[45]So far as 30th January was concerned, he explained that the appellant was asleep. She had been on night duty that day and the twins were having their breakfast. He made a bottle for the baby and began to feed her. One of the twins was too far away from the table, whilst A was in the crook of his arm, he eased the chair in with his left hand and then felt a bump against his arm; it was caused by the baby's head bumping against the top corner of the wicker and metal chair. She became distressed. She began to cry and scream. He said that he burst into tears and tried to comfort the baby. It took something like 20 minutes to half-an-hour to settle her down, but he did not think that he had hurt her massively. Once the baby had recovered she was all right. He woke the appellant up and he then broke down, telling her exactly what happened. His distress was caused because he had hurt his daughter. The appellant checked the baby and told him not to worry. They discussed whether the baby should be taken to the doctor. A went to sleep, but by midday a bump had appeared on her head. As soon as he noticed that he booked a doctor's appointment. He told the general practitioner that he had bumped the baby's head. The baby seemed quite content and perfectly normal. During the day, she had been bathed, fed and changed. All seemed well. He did not know that he had caused a fracture to the baby's skull.[46]As to 17th February, he was on night duty with the children. A woke up at 5 o'clock. He picked her up. He heard a clicking noise. That was caused by the twins switching on the television. He put them on the couch under a duvet in the sitting room. He put A down, made her a bottle and changed her nappy and then lay on the sofa with her in the crook of his right arm. The bottle top was on the arm of the chair. He fell asleep while feeding her. One of the twins tapped him and said A was crying. When this happened his body was pretty much directly on top of the baby. He picked her up and tried to comfort her. The bottle top was by her face. It had left an imprint and bruise on her cheek. She was crying for 30 to 40 minutes. Eventually she went to sleep in her arms. He placed her in her basket and told the appellant what had happened. Apart from the bruise there seemed nothing wrong with her.[47]Then, at about 1 o'clock when the bottle was due, he picked A up and he noticed a crackling sound which occurred when she was breathing. He also felt and heard it. As the twins had recently had chest infections, and at that time the baby had had a chesty cough for about three or four days, he and his wife were quite worried. They waited for the appellant's parents to return. They only had a Pay as You Go mobile telephone. There was no credit for it. The baby did not seem distressed; she fed and slept. They went to the appellant's parents. They rang the hospital. In due course they took her hospital. On arrival she was asleep, sucking her dummy. When the baby cried at hospital he thought it was because it was cold. He said that he was telling the truth about events and was not covering for anybody.[48]The husband is not an appellant. All we need say about that account is that it was, and the jury must have found it to have been, wholly inadequate to explain all the child's injuries and the distress and pain which the child would have suffered and the distress that she would have exhibited.[49]In evidence, the appellant said that she had believed her husband's account of events. Neither of them had ever done anything to the twins which would cause concern and A was a wanted child; they were very happy. Her husband looked after the baby well. She could not remember the circumstances of 30th January in detail, but she had checked A after her husband told her about the head injury. She had been asleep at the time. She only saw a red mark. It was the husband who was very upset and crying. She had no reason to disbelieve his account of what had happened. They went to see the doctor when a misshapen lump appeared on A's head. After they had seen the doctor, and in the light of the doctor's advice, there was nothing more to worry about. There were no further problems and no sign that A was suffering any discomfort.[50]Then her evidence went ahead to 17th February. At 9 o'clock that morning, while she was in bed, her husband told her that A had been hurt. He explained what had happened with the bottle lid. He was very upset and, again, she believed him. She checked the baby, who now was sleeping peacefully. There were two half-circles on her cheek. The baby had had a chesty cough that week and indeed for that reason her jabs had been cancelled. The baby woke up at 12.00 to 12.30. All that she noticed then was chestiness and a rattling in the chest. She got the baby ready to take the twins to school. She noticed nothing. She changed the baby's nappy. There was no unusual reaction. The baby was asleep when she went in her pram to the twin's school. When she woke up at about 4 o'clock, however, the noise in her chest was louder and there was much more of a clicking sound. This was very different. It made her stomach turn. So they waited for her parents to arrive. Her father was a psychiatric nurse. He advised them to contact the hospital. That is what they did. She never saw her husband do anything to cause A's injuries. She could provide no further explanation for what had happened. Her evidence conveyed the impression of a calm, peaceful home, quite inconsistent with the evidence of injuries and the consequences of the injuries which, by the jury's verdict, they concluded had resulted from assaults by the baby's father.[51]She called evidence from her mother. The mother said that the appellant was a very good mother and the father was a lovely father. So far as the appellant's sister was concerned, she could see nothing to cause concern. The husband was ecstatic about being a father. The baby was a normal, happy baby who did not cry a lot. The sister had never seen her in distress and never saw any marks on her. With that the evidence closed.[52]The prosecution case was unequivocally, at this stage (and unequivocally because of the way in which the evidence had emerged) that the husband was alone with the child when she suffered all these various injuries. The Crown attributed each of them to the husband. He was responsible. They sought a conviction of the appellant on count 6, on the basis that she knew perfectly well that the husband was ill-treating the baby and, in particular, that she was in need, as she perfectly well knew, of medical attention long before any was sought.[53]The defence case was that on the evidence it would be simply wrong and not open to the jury to convict the appellant on the basis of knowledge. The medical evidence showed that others might well, and reasonably, not have been aware of the injuries. The mother had assisted in taking the child both to the general practitioner and to the hospital. If there was neglect, it was not wilful, in the sense identified by Lord Keith in Sheppard.[54]The first and main ground of appeal arise from what was identified as a failure by the judge, accurately or fully to direct the jury about the ingredients of the offence. In short, that he failed to take account of what Lord Keith had said in Sheppard, adapting it to the facts of this case, where recklessness was not the issue and actual knowledge was, directing the jury accordingly.[55]There is force in the submission that the judge did not expressly direct the jury about the ingredients of the offence. The reality is that he did not give the jury a simple single sentence or two direction that knowledge had to be proved. Given that the case was heard before such an experienced judge, and given in particular that counsel had troubled to draw his attention to Sheppard, that was a surprising omission.[56]The question for us, however, is whether, at the end of this summing-up, there was any risk that the jury might have convicted the appellant, if she lacked or may have lacked the necessary knowledge to be guilty of wilful neglect. It is clear that from start to finish, so far as this appellant was concerned, there was a single issue only. The single issue was whether she failed to take steps to protect her baby over the relevant period when she must have known that her child was at risk of assault or ill- treatment in effect from her father, and whether she failed to obtain medical attention for the child earlier, when she must have known that the child may already have sustained or was suffering from deliberately inflicted injury.[57]That, indeed, was how the summing-up, notwithstanding the omission of a full direction, presented itself to the jury. The judge reminded the jury, in the context of counts 5 and 6, which were the cruelty counts, exactly what the wording was. In particular, in relation to the counts, he told the jury that literally or mentally, and eventually he confirmed that he asked them "deliberately" to cross out the words "assault, "assaulted" and "ill-treated", so as to leave the words "wilful" and "neglect", and he told the jury to focus on neglect. Neglect, he said of a child could take many, many forms and he then explained Crown's case, in this context:
"The parents failed protect this child from assaults and ill-treatment, it was obviously getting from someone."
He then reminded the jury of the prosecution case that they could conclude -- and we omit some of the words -- "that both of them must have been aware of what was going on but failed to provided adequate medical care". He then asked the jury to eschew emotion, given the circumstances of the case and to consider the issue dispassionately. He pointed out that these were difficult cases because the injured person was a child, too young to give evidence.[58]He then addressed the prosecution argument, based on the evidence given both in interview and at trial, by the parents. He addressed the way in which counsel for the father had addressed the jury, and then returned to the prosecution case in that context, and then went on:
"They go on to say that Emma W must have been, must have known, how could it be anything else using your common sense ordinary judgment. Despite what everybody has said in this case doctors and relations she was aware, must have been aware of some or all of these injures. Not necessarily the fractured skull or the ribs but she knew and failed to protect [A] by whatever means were available to her and she failed to make sure that [A] got adequate medical aid."
Then, again, addressing a submission on behalf of the father, he returned back to the issue:
"The prosecution say from all the circumstantial evidence you can be sure they both knew by whatever means the baby had been injured and they both failed in their own individual ways to provide protection or adequate medical aid."
He then turned to the defence case. He addressed it in the context of the husband and reminded the jury that there was general evidence that these were good devoted parents, adding:
"If what they have been saying members of the jury, in your judgment is true, or may be true, you must acquit them both right across the board of this indictment."
Pausing there, of course, we have narrated the full details of the appellant's evidence. Plainly, if that was true or might have been true, she denied any knowledge or means of knowledge of anything that may have happened to her baby, and of anything which suggested that she knew that the baby was at risk or injured or possibly injured.[59]The judge then returned to the father's case that between them, he and the appellant sought medical aid and reminded the jury again that, if they were sure that they were telling the truth, then they should be acquitted, but more important, that if they thought that what the appellant and her husband had said and had been saying all along might be true, then that would mean that the jury could not be sure that they were lying. If they were not sure that they were lying they could not be sure that the prosecution had proved their case. If so, it was their duty to acquit.

The judge then returned to Emma W and said that her story, which could be summarised as:

[60]I was aware only what I was told and when I was told what had happened the child got medical aid, was a story according to the Crown's case, tailored to the facts and a straight wall to wall lie.[61]The judge then turned to the expert evidence and the issue arising from that medical evidence. There is a separate point which arises here but we do not need to deal with in this immediate context. What the judge did here was to summarise all the evidence from the doctors, on which the Crown relied, both of course against the husband and against the appellant, including, for example, the consequence of the fractured ribs; that the child would be in a great deal of pain, extremely tender and so on for a number of days. We shall not repeat all that evidence. But he then, having summarised in some detail, and it was important evidence for the consideration by the jury, returned to the critical point in relation to the appellant's case. Not only was the evidence of what she had said to be taken into account but there was also the important passage, so far as the appellant was concerned, of the expert's report, from Dr Galbraith's report that was put to Dr Thorogood which he then adopted. Again, we have read out those passages, but it is perhaps worth reminding ourselves, at this stage of the judgment that, if the carer had not witnessed the fracturing, then she may have been aware that something would be wrong but not necessarily the reason why and that someone who had not perpetrated the assault would not be expected to realise that the baby had rib fractures. They might mistake the distress in the context of the ribs as simple childhood ailments such as colic, because clinically the fractures would be hard today diagnose.[62]The judge then came to deal with the appellant's case. It is suggested that he failed properly to put the defence case. It is therefore convenient to deal with that submission in the course of dealing with the absence of a detailed direction on the issue of wilful neglect. The judge reminded the jury of the appellant's case. First, early on in his summing-up, in the context of examining the case for the prosecution, that the defence case was based on "what both defendants said in interview and what they repeated before you in their evidence". Then, in a long detailed passage in his summing-up, beginning at page 26, he summarised the appellant's case:
"She had done nothing to the twins. As far as she was concerned she accepted her husband's account of matters. As far as she was aware, he had done nothing to the twins to cause any concerns. They were very happy about having the baby."
He then reminded the jury of the way in which she had set out she had accepted everything that her husband had told her. She could find no behavioural problems with the child. She could find nothing to such suggest that the child was suffering from any discomfort and so the summing-up continued for some length. At the end of this part of the summing-up, he repeated that the appellant said she had never seen any injury to A, or her husband do anything to cause the injuries. She herself could provide no explanation for A's injuries beyond what she had said. In our judgment, the submission that the defence was not properly put to the jury is without foundation. What, however, is relevant is that this summary of the defence case again underlined the nature of the issue which the jury had to decide.[63]We are, of course, troubled at the absence of any clear and specific direction based on Sheppard. We have made our observations about that omission. The question which we have asked ourselves, however, is: at the end of the summing-up, reading it as a whole in the context of the trial which had taken place before Judge Rucker, is there any possible risk that the jury will have convicted the appellant unless they were sure that she knew that her child needed appropriate medical attention and that she was at risk of injury?[64]We have considered that closely. We can find no possible risk that the jury may have convicted the appellant on anything other than the basis which we have narrated. On this summing-up, and on the way the case developed, they must have been sure that appellant knew perfectly well that the baby needed medical attention and was at risk. There is no other basis on which this verdict can be understood. In short, therefore, notwithstanding the omission of the direction that should have been given this ground of appeal, does not cause us any doubt about the safety of the this particular conviction, in the particular circumstances, we have outlined at such length.[65]That leaves two further submissions, which we can deal with shortly. It is argued that the judge gave a flawed direction about lies. The narrative has indicated that the issue before the jury was stark: either what the appellant had said was true, or her account of events at her home was untruthful. In reality no "innocent" explanation was offered. It was difficult to see how, on the evidence, any innocent explanation for lies could be derived from the overall picture. However, having summed-up the appellant's account of these incidents, in the context in which the Crown asserted that she had told lies, the judge in fact gave what is now conventionally called a Lucas direction on lies. He reminded the jury that a defendant who was lying might be lying for an innocent reason, "not because they are guilty but for an innocent reason, .... stupidity. In this case perhaps above [and plainly referring to the appellant] trying to protect someone else." It is true the judge did not go on and adopt the course suggested in the judicial Studies Board Specimen directions of identifying any particular individual lie to which the Lucas direction might apply. In truth in this case, we doubt whether any direction was required. There was no need to specify any individual lie to which the innocent explanation might have applied. There is nothing in that ground.[66]The final ground arises from the judge's direction in relation to expert witnesses. Reliance was placed on two decisions of this Court in the context of convictions for murder when the issue to be resolved was diminished responsibility. R v Bailey [1978] 66 Cr App R 31 and Saunders were drawn to our attention.[67]The judge summarised the issue. He reminded the jury in the conventional way about the correct approach to expert evidence. There was a body of evidence here which the jury was entitled to use to convict. They were indeed entitled to reach their conclusion, notwithstanding the carefully balanced concessions made by the experts, to which we have now referred twice. The judge dealt with all that material. In our judgment, there is nothing in that criticism either.[68]In these circumstances, and with apologies for the length of the judgment, this conviction is safe and we shall therefore dismiss the appeal.

SIR IGOR JUDGE: I am asked whether there are any reporting restrictions?

[70]MR MERCER: Our recollection is there is a reporting restriction in relation to A.

SIR IGOR JUDGE: The reporting restriction will remain. A must not be identified.

Cited in 1 later judgment