Akinrele, R. v [2010] EWCA Crim 2972

[2010] EWCA Crim 2972Case No 2009/06420/B3IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT IPSWICH
HIS HONOUR JUDGE CLEGG AND A JURY
T20097161
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/12/2010
Before
LORD JUSTICE THOMASMR JUSTICE OPENSHAWMR JUSTICE SPENCER
Between
ReginaRespondentOlusola Dayo AkinreleAppellant
Mr A Rawley QC and Mr C Burton for AppellantMiss Y Coen QC and Mr S Thomas for RespondentHearing Hearing dates : 5, 6 & 7 October 2010
Judgment

Introduction

[1]On 7 November 2006, Leeya was born at Peterborough District Hospital to Kelly Inman and the appellant, her partner. She was their second child, their first child having been born on 2 July 2005. At 16:12 on 18 December 2006, Kelly Inman made a 999 call about Leeya who had become floppy and had difficulty in breathing. An ambulance team attended and she was taken to the Peterborough District Hospital. Later that night she was transferred to Addenbrooke’s Hospital in Cambridge for intensive paediatric care. She never recovered and died on 30 December 2006.[2]The appellant and Kelly Inman were charged subsequently with her murder and other offences, including causing or allowing the death of a child contrary to s.5 of the Domestic Violence, Crime and Victims Act 2004 (the 2004 Act). At a third trial that took place before HHJ Clegg and a jury at the Crown Court at Ipswich, the appellant was on 5 November 2009 convicted of murder; Kelly Inman was acquitted but had earlier pleaded guilty to the offence under s.5 of the 2004 Act of allowing the death of a child. The appellant was sentenced to life imprisonment with a minimum period of 16 years less time on remand; Kelly Inman was sentenced to three years imprisonment less time on remand.[3]The appellant appeals with leave of the Single Judge. The appeal, which has been advanced before us with great determination and skill by Mr Rawley QC, may be summarised as having two principal grounds: i) The case was not properly summed up by the judge; in essence it was said that the summing up was unbalanced, favouring Kelly Inman as opposed to the appellant, that the appellant’s defence was not put properly to the jury and the medical evidence was not correctly summed up. Indeed the judge had shown the appearance of bias against the appellant throughout the proceedings. ii) The conviction was not safe as in judgments given before and after the trial before HHJ Clegg, Parker J, a judge of the Family Division of the High Court, had concluded in family proceedings that Kelly Inman was an untruthful witness who manipulated her evidence; as her evidence was central to the case against the appellant, the conviction could not be safe. The appellant also sought leave to appeal on an additional ground, namely the failure by the judge to direct the jury correctly on intent. Before examining each of the grounds in turn, it is necessary to say more of the background.

Factual background

(i) The events until the birth of Leeya

[4]The appellant was born in August 1975 in Nigeria. He came to the UK as a student in 1997. His visa expired in 2001 and from that point onwards he was not lawfully allowed to remain in the United Kingdom; he was what is commonly known as an “overstayer”. Between September 2001 and December 2002 he had a relationship with Elaine Ellis whom Kelly Inman subsequently called as a witness in the Family Proceedings to support her allegation of violent treatment at the hands of the appellant; she also gave evidence at the criminal trial.[5]In the spring of 2004 the appellant met Kelly Inman who was 16 at the time. They immediately began a sexual relationship. He moved in to live with her at her parent’s home within a short period. In September 2004 Kelly Inman became pregnant with their first child, Carmel, who, as we have said, was born on 2 July 2005. In 2006 Kelly Inman became pregnant with Leeya and in May 2006 she and the appellant and their first child Carmel moved to live at Lapwing Drive, Whittlesey. On 10 August 2006 the appellant and Kelly Inman were charged with fraud offences and there were appearances at Peterborough Magistrates’ Court later in the year. (ii). Leeya’s short life[6]After Leeya’s birth on 7 November 2006 a midwife visited Kelly Inman and Leeya; her evidence was there were no concerns with regard to either of them. A further visit was arranged on 20 November 2006 but when the midwife attended there was no answer and the blinds were down. That midwife spoke to Kelly Inman the following day by telephone but no concerns were raised with the midwife. On 24 November 2006 a health visitor saw Kelly Inman and Leeya at Kelly Inman’s parents’ address. This was the last time Leeya was seen by a health professional before the collapse on 18 December 2006. No concerns were expressed.[7]Between that visit and her admission to hospital after her collapse on 18 December 2006, Leeya suffered multiple injuries: i) She had 22 fractures to the ribs. The fractures were bilateral and close to the spine. ii) There were a total of five metaphyseal fractures to upper and lower limbs. iii) Her nose and fingers had been bitten; the bites to the fingers had caused underlying fractures to the fingers. iv) She had a fracture to her right femur which produced swelling. v) She had a fracture to her skull. This was initially thought to have been part of a fatal injury but on the Crown’s medical evidence at trial, it occurred prior to 18 December 2006.[8]The medical evidence given at the trial by Professor Malcolm (who was ultimately called by the Crown) was that the fractures occurred between 2 and 12 December 2006; Dr Johnson put the earliest date for the metaphyseal fractures as 7 December and the rib and femur fractures at 9 December; Dr Johnson put the earliest date of the hand fractures as 14 December. During this period it was clear, on the evidence, that although Kelly Inman had charge of Leeya for most of the time, there were significant periods each day when Kelly Inman was out with the older child, Carmel.[9]There was a significant dispute on the evidence as eventually given at trial as to whether it was the appellant or Kelly Inman who was holding Leeya when she collapsed; there was recourse to the tape-recording of the 999 call to which we will return.[10]On Leeya’s admission to hospital on 18 December 2006 although a brain scan was performed, no brain injury was seen at that stage; a provisional diagnosis of sepsis was given. It was not until 19 December 2006, as a result of the concern by the ambulance men, that the fracture of the femur was discovered upon x-ray. The fractures to the hand were found on 21 December 2006, while Leeya remained in intensive care. It was the result of the discovery of the fracture to the femur that Kelly Inman and the appellant were arrested on suspicion of causing grievous bodily harm to Leeya. They were interviewed. Despite the medical care given to Leeya, she died on 30 December 2006. (iii). The period prior to first trial in February 2008[11]As a result of further medical investigations, Kelly Inman and the appellant were charged on 21 January 2007 with causing or allowing the death of a child contrary to s.5 of the 2004 Act. We were told by the Crown in the course of the appeal that this charge, as opposed to the charge of murder, was brought at this stage because, as is apparent from the initial interviews of both Kelly Inman and the appellant, each parent denied any harm being caused to Leeya. Neither sought to blame the other parent or present a picture other than each was a model, caring and loving parent. Indeed it was Kelly Inman’s position in her interview that at the time that Leeya became floppy and had difficulty breathing, she had been in the bathroom with her. The Crown therefore took the position that the evidence at that stage only justified a charge under s.5.[12]During the whole of 2007 it was the position of each, as far as the prosecution were aware, that the death was unexplained. Both parents seemed to be in a cordial relationship with each other. When a defence statement was served by Kelly Inman on 13 December 2007 the position she took was that she did not suspect any person of causing injury to Leeya. Apart from a cold sore and dry skin, she was only aware of swelling to Leeya’s right upper leg which she did not consider to be serious. It was the appellant’s position in his defence statement that he had no knowledge of any injury.[13]The cordial relations between the appellant and Kelly Inman continued into the early part of 2008; there was before the jury at trial a bundle of letters exchanged between them, including a Valentine’s Day card on 14 February 2008 which bore out an apparently strong and loving relationship between them. (iv). The first criminal trial and the events following it[14]On 20 February 2008, the first trial of the appellant and Kelly Inman commenced in Cambridge; the indictment charged them with the offence under s.5 of the 2004 Act. On the third day of the trial Kelly Inman served a new defence statement in which she said that she did not feel to have been able to tell the truth at the police interview, when asked whether the appellant had been violent to her. She said that he had been both physically and verbally aggressive towards her on a number of occasions. A preliminary medical report was served in the following week by Kelly Inman’s lawyers in which the conclusion was expressed that there was sufficient evidence for the issue of battered women’s syndrome (BWS) to be explored by full psychiatric evaluation. An application was made by Kelly Inman to adjourn the trial and that was granted.[15]Subsequently Dr Mezey, an expert in BWS, was instructed. Statements were prepared for care proceedings that had been commenced in the Family Division of the High Court; these included statements from Kelly Inman, the appellant and Kelly Inman’s parents. In June 2008 a paediatrician’s report by Dr K Ward served in the Family Division proceedings made clear that her view was that the injuries suffered by Leeya were non-accidental, that the head injury was non-accidental and the baby would have collapsed almost immediately after the head injury. At about the same time Kelly Inman mentioned to a prison officer that the appellant was holding the baby at the relevant time.[16]Whilst preparations were being made for the hearing in the Family Division of the High Court, a decision was made re-fixing the criminal trial for 2 March 2009; a fact finding hearing in the Family Division proceedings had been fixed for January 2009.[17]In October 2008 Kelly Inman served a fresh statement in the Family Division proceedings and in November a third defence statement in the criminal proceedings. Both were to the same effect in that Kelly Inman said that Leeya was with the appellant when she became floppy and that he would not pass her to her. It was her case that the appellant had told her to say, “She was with you. People won’t believe me because I’m a man.”[18]In March 2008, the Crown decided in the light of Kelly Inman’s change of position to charge both with murder; it could take advantage of provisions of s.6 of the 2004 Act under which the question of whether there was a case to answer was not to be determined until after the conclusion of all the evidence. On 31 October 2008 HH Judge Clegg formally allowed the amendment of the indictment to this effect. (v). The fact finding hearing in the High Court : the first judgment of Parker J – 27 February 2009[19]Although the appellant had asked for an adjournment of the fact finding hearing in the High Court, that hearing commenced on 12 January 2009 before Parker J. The fact finding hearing lasted some six weeks and the judgment setting out detailed factual findings was given on Friday, 27 February 2009, with the criminal trial due to begin on the following Monday, 2 March 2009.[20]Parker J found that Leeya was an unwell baby for whom no medical attention was sought. A number of deliberate injuries had been inflicted upon Leeya. Very shortly before her collapse on 18 December 2006 there was a head injury caused as a result of either shaking or head impact or both. Parker J found, however, that although both Kelly Inman and the appellant were actively aware of exactly what had happened, she could not decide which of them caused which injury. Nonetheless the judge was satisfied that Leeya was Kelly Inman’s arms at the point of collapse, but that finding did not mean she had caused the fatal head injury as the child may have been passed to her very soon after the injury had occurred. The judge was satisfied that neither parent had told her the truth about what had happened; both knew what had happened but neither would tell the judge.[21]Parker J reached those findings by concluding that Kelly Inman’s account was untrue and that she had lied in her evidence. Her reasons can be summarised: i) She rejected Kelly Inman’s evidence that she was a virgin when she met the appellant as medical records showed that she had been prescribed contraceptives and taken a pregnancy test. She rejected as concocted by Kelly Inman and her family, the assertion that the medical records might have, in error, attributed the visits to the doctor to her sister; her sister had been put up to give the evidence in an attempt to mislead the court. She concluded that Kelly Inman’s parents and her sister had been active in seeking to present a false and misleading account to the court. She was in no doubt that Kelly Inman had lied consistently and in detail about it. ii) Kelly Inman’s evidence in relation to what had happened on 18 December 2006 was untrue. The judge could not accept an innocent mother in a state of distress could possibly have had the ability to concoct or confabulate the statement that she gave in her police interview. iii) She accepted the evidence of Elaine Ellis, the appellant’s girlfriend in 2001-2 to whom we referred at paragraph 4, that the appellant had assaulted her, kicking her in the head, breaking her thumb, stabbing her with scissors, bursting her ear drum, scratching her index and middle fingers and biting her. However she did not accept that the evidence of Dr Mezey taken with that of Dr Mason (instructed by the CPS) established that Kelly Inman’s loyalty to the appellant could be explained by any violence he had inflicted on Kelly Inman. The evidence did not allow the judge to exonerate Kelly Inman for the responsibility for what had happened. Her will had not been overcome by the appellant.[22]The judge also went on to find that Kelly Inman’s parents had lied to her on a number of occasions and significantly tailored their accounts in the evidence to the court.

(v) The second criminal trial

[23]That judgment having been given on Friday, 27 February 2009, the criminal trial commenced the following Monday, 2 March 2009. On 3 March 2009 Kelly Inman pleaded guilty to allowing the death of Leeya contrary to s.5 of the 2004 Act, putting forward a basis of plea that was not accepted by the prosecution. The count of causing or allowing death was amended so that there was a count of causing death on which she continued to be tried and a count of allowing death to which she had pleaded guilty. The following week, on 9 March 2009, Kelly Inman served an amended defence statement in which she admitted she ought to have been aware of the significant risk of serious physical harm to Leeya by the actions of the appellant. She accepted she failed to take steps to protect Leeya. She gave an account of violent incidents in the days before the death of Leeya. She said that on 18 December, after she had been out twice, the appellant said he was going to wash Leeya’s face; she went downstairs, but the appellant shouted at her and she found Leeya in his arms in a floppy condition. After the close of the prosecution case Kelly Inman’s lawyers sought to adduce bad character evidence in relation to the appellant. In the light of this, the solicitor and junior counsel who jointly represented them decided they were professionally embarrassed. The trial had to be abandoned and was re-fixed for 1 September 2009 at Ipswich.[24]All counsel wrote to the Presiding Judge of the South Eastern Circuit asking that HH Judge Clegg remain as the trial judge “as he was uniquely well placed to conduct the re-trial. His handling of this complex and demanding case so far has won the confidence of counsel, both instructing solicitors and the defendant which is why we make this request”. HH Judge Clegg was nominated by the Presiding Judge to hear the re-trial.[25]Following a request from the appellant, a hearing took place on 10 July 2009 in which the judge considered an application by the appellant to change his legal representation for a second time. A note of the hearing was provided to us and formed the basis of a submission to us that Judge Clegg had at this stage evinced considerable unfairness in the way in which he had treated the appellant. We have read the note of the proceedings that day and can find no basis whatsoever for criticism of the judge. He was very properly investigating the reasons why it was said the appellant wished to change his representation. The judge refused the application but on a subsequent application for a transfer of legal aid to new representatives that application was granted.[26]On 31 July 2009, just over a month before the date fixed for the commencement of the trial there was a directions hearing in relation to the service of any new defence expert evidence on behalf of the appellant. The judge was given reassurance that late change in the representation would not affect the imminent trial date. (vi). The third and final criminal trial[27]It is not necessary for us to describe the course of the trial save in one respect. Assurances were given and deadlines laid down for the service of expert evidence on behalf of the appellant. On 21 September 2009 the prosecution case was concluded; Kelly Inman’s case was concluded on 24 September 2009. The appellant then gave evidence.[28]At the conclusion of his evidence the appellant’s legal team disclosed for the first time a short preliminary expert’s report from Dr Ayoub, a clinical radiologist practising in central and southern Illinois and an associate professor at South Illinois University; that report was followed closely thereafter by a report from Dr Marvin Miller, Professor of Paediatrics at Wright State University School of Medicine in Dayton, Ohio and a report by Dr Waney Squier, a Consultant and clinical lecturer at the John Radcliffe Hospital at Oxford. These sought essentially to put forward the case that Leeya’s fractures had occurred as a consequence of “temporary brittle bone disease”. The case was then adjourned to enable the prosecution to consider this evidence. Dr Squier, Dr Ayoub and Dr Miller were called, Dr Ayoub and Dr Miller giving evidence by video link. The Crown were then given permission to recall some of their medical witnesses and call further medical evidence.[29]The judge summed up over three and a half days. The jury returned verdicts of not guilty on Kelly Inman on the counts of murder and causing the death of a child and found the appellant guilty of murder. (vii). The sentencing by Judge Clegg[30]In sentencing Kelly Inman on 6 November 2009 for the offence under s.5 to which she had pleaded guilty Judge Clegg said he would sentence on the basis that all the injuries were inflicted by the appellant at a time when she was out or at hospital. After finding that she had, shortly before Leeya’s death, ample grounds for suspecting what was going on, he found that the reason that Kelly Inman did not take Leeya to the doctor was that for the two and a half years Kelly Inman was with the appellant the appellant subjected her to a regime of domestic tyranny through physical, sexual and psychological abuse; he had been very impressed by the evidence of Elaine Ellis who described being subjected to an almost identical regime. He found that Kelly Inman was in love with the appellant whom he described as a bully and had put her head in the sand, putting her own emotional needs before those of her child. He considered that she was not quite at the bottom end of the scale of criminality but fairly near it.[31]On 19 February 2010 he sentenced the appellant. He made clear he was quite satisfied that the appellant had inflicted serious injuries upon Leeya and that he was alone upstairs with Leeya when he committed the act that killed her. (viii). The second judgment of Parker J : 9 March 2010[32]Kelly Inman made an application to Parker J, in the light of the verdict and the sentencing remarks of Judge Clegg, that Parker J should re-visit the findings of fact made in her judgment given on 27 February 2009 which we have summarised at paragraphs 20-22 above. After considering the consequences of the decision in the criminal trial, she concluded that she was bound by the verdict of the jury against the appellant. At paragraph 67, the judge said:
“But the jury’s verdict is not in conflict with my findings. Although I am bound by the not guilty verdicts in relation to the mother, I accept that in these circumstances my finding that either could have inflicted the fatal assault cannot stand. For the reasons which will appear later in this judgment, there is no other reason to undermine my finding that I could not find who was the perpetrator or to exonerate the other of perpetration.”
[33]Parker J concluded that she was not bound by the observations of Judge Clegg on sentencing and that she had difficulty with his finding that the mother could not have known of the fractures. She pointed out that Kelly Inman’s account to the jury was different in a number of material respects from that which she had given in the Family Division proceedings and that no-one explored with Kelly Inman the differences between that and the account at the criminal trial. Judge Clegg had had to act on the basis of the evidence before him, even though her judgment had been available to him. She then went on to conclude: i) There was no evidence to change the view that she had formed which we have set out at paragraphs 20-22 above as to what had happened on 18 December 2006. She reviewed the account that Kelly Inman had given during the course of both the criminal and Family Division proceedings and concluded at paragraph 87:
“I am quite satisfied that [Kelly Inman] has altered and adapted her story in the way that she has hoped would best suit her purposes at the time. She pleaded guilty to the section 5 offence within the days of the conclusion before me. Her case before me was that she had no real ground to suspect the father of any ill treatment of the children. As I have said, in her basis of plea and in subsequent position statement she admitted that there had been injuries which she should have observed and for which she should have obtained medical treatment. In the end she admitted that she had regarded the hearing before me as in effect a damage limitation exercise.”

The judge went on to conclude at paragraph 90:

“The mother’s evidence to me has provided further material on which I find that she had deliberately manipulated and lied.” ii) The Family Division had heard significantly different evidence from which to make an assessment of Kelly Inman’s credibility than that which had been before the jury. The evidence had permitted her to take a wide-ranging view of Kelly Inman, her family background and the interplay between family members. Her findings were made upon material which was not placed before the jury and it had been particularly important, when considering Kelly Inman’s credibility, that the whole family had acted in concert in tailoring their evidence at Kelly Inman’s behest; this arose in particular in relation to the mother’s sexual history and her account of the events of 18 December 2006. iii) Parker J noted that Dr Mezey was not called at the criminal trial as Dr Mezey’s opinion had been dismissed by her in her judgment of 27 February 2009. She concluded at paragraph 91: “I am convinced that the mother has further tailored and altered her account in order to run a case in front of the jury that she thought was going to be more successful than the one before me.” iv) Parker J then reviewed the evidence that had been given at the criminal trial in relation to anal sex which Kelly Inman had alleged had taken place without her consent. Parker J concluded that she was not persuaded that the anal sex had been a matter in which she was an unwilling party. She was critical of the way text messages dealing with anal sex had been put to the appellant during the trial, when he had no time to think about his response, but he must have known how damaging they were to him and he had had every reason to lie. The judge concluded in respect of this issue at paragraph 99: “The mother has a track record as an inventive liar who can change her ground swiftly when she wishes. The father may be more educated than the mother, but he is not so agile a thinker.” v) Leading counsel for Kelly Inman in the Family Division proceedings had abandoned in closing submissions a case of BWS. The judge commented at paragraph 107: “That concession itself seems to me to typify the extent to which the mother is prepared to manipulate and alter her case in order to achieve what she thinks is the best outcome.”
[34]Against that factual background we turn to the issues in the appeal.[35]It is important, when considering this first ground of appeal, to have in mind the very different cases that were being made by Kelly Inman and the appellant at the third criminal trial. At that trial it was Kelly Inman’s case that Leeya had died as a result of the appellant’s violence towards her; that she, Kelly Inman, had given a lying account initially of what had happened; the truth was that shortly before her death the appellant (who had been violent throughout to both Leeya and Kelly Inman) had been holding Leeya in the moments before she became floppy. Kelly Inman also accepted that on the evidence the fatal injury must have occurred within moments of the child becoming floppy.[36]In contrast it was the appellant’s case that Kelly Inman had been a loving parent, that neither Kelly Inman nor the appellant had caused any injury to Leeya; that although Kelly Inman had been holding Leeya in the moments before she became floppy, nothing had been done to Leeya which had caused her death. On the contrary it was his case to the jury that the death had occurred from a natural cause. We were told by Mr Rawley QC that the appellant had wanted to advance a case that the hospital had been negligent, but no evidence could be found to support such a contention. It was therefore not advanced before the jury.[37]Their contrasting cases meant that counsel for Kelly Inman would seek to cross examine the witnesses to show that the appellant had been violent to Kelly Inman and to Leeya and had held Leeya at the time she became floppy, whereas Mr Rawley QC as counsel for the appellant could only cross examine Kelly Inman and her witnesses on the basis that she had been untruthful as to who was holding Leeya at the time before she became floppy and as to the appellant’s violence towards her. He could not put a case of violence inflicted on Leeya by Kelly Inman. Furthermore it meant that a full challenge had to be made by the appellant to the Crown’s case on the medical evidence as to the nature of the injury, whereas in essence that was not disputed on behalf of Kelly Inman.

(i) The summing up of the medical evidence

[38]It is convenient we think first to consider the complaint in respect of the way in which the judge summed up the medical evidence. However that complaint must be seen against the background of the way the medical evidence was adduced at the late stage of the trial as we have set out at paragraph 28 above. There is one further factor which we must mention.[39]The substance of the evidence given by Dr Ayoub and Dr Miller was that Leeya had suffered from temporary brittle bone disease. Theories as to this condition had been put forward by Dr Colin Paterson some years ago; he had been struck off by the General Medical Council in 2004 following his evidence in a series of cases in the Family Division about this condition; it was found that he had ignored crucial evidence in advancing his theories. It is clear that his views were discredited in the United Kingdom and no medical evidence could be obtained in the United Kingdom to that effect. Dr Miller and Dr Ayoub were therefore approached by Mr Rawley QC. He accepted their theories were not in line with mainstream medical thinking.[40]In the ordinary course of events, it seems to us that the judge should have considered whether there was a sufficiently reliable scientific basis for their evidence to be admitted before a jury in England and Wales. However, the judge did not do that. We are sure that he took the exceptional course of permitting the evidence to be served at the time at which it was and to proceed without examining whether the evidence was sufficiently reliable to be put before the jury, because he wished to be as fair as possible to the appellant. The judge’s actions in this respect are therefore wholly inconsistent with a case that he was biased or had the appearance of bias against the appellant.[41]In the circumstances it is not for us to comment on whether there was a sufficiently reliable scientific basis for the evidence to be adduced, though no doubt in any future trial in England and Wales where such an issue is raised the judge will give detailed consideration to that issue. Nonetheless the course which Judge Clegg took meant the medical evidence the appellant wished to adduce was thus before the jury.[42]The evidence for the Crown (which, as we have said, was not in essence disputed by Kelly Inman) was, by the end of the trial, that the injuries which we have described at paragraph 7 above were not accidental and that Leeya had died as a result of a head injury caused either by shaking or possibly as a result of a soft blow. The Crown called a number of experts who did not agree on the precise cause of the fatal head injury. Evidence was given by Professors Bishop and Malcolm in relation to their examination of the fractures. It is not necessary for us to set out their eminent qualifications, for once the evidence was properly before the jury (as it undoubtedly was) it was for the jury, provided the summing up was fair, to reach their conclusion on the respective cases of the appellant and the Crown.[43]In our judgment the criticisms of the summing up of the medical evidence by the judge are, on analysis, wholly unfounded. We begin by saying that the judge properly drew to the jury’s attention that the fact that Dr Miller and Dr Ayoub were in a distinct minority did not mean they were wrong. He then carefully and fairly analysed the case as put forward and all the details relating to it. It is not necessary to lengthen this judgment by setting them out. It is sufficient for us to say that there is no substance whatsoever in this aspect of the criticism of the judge. (ii). The lack of balance in the summing up and the failure to put the defence case[44]It was Mr Rawley QC’s next submission that a reading of the summing up showed how unfair it had been and how the judge had failed to put the defence case. Indeed, at the trial on the last day of the summing up, he had complained to the judge that the summing up had been unbalanced in the sense that it was unfavourable to the appellant; it had been constructed to be favourable to Kelly Inman and biased against the appellant; that the judge had gone through the defence of the appellant with what appeared to be a contemptuous attitude in that it emphasised the points made in the cross examination of the appellant while dealing much more favourably with the case of Kelly Inman.[45]It is apparent from the exchange that then occurred that the judge thought that the appellant had given a deeply unfavourable impression when giving evidence. He therefore said that he would add to his summing up the following:
“Some of you may feel that the appellant has come out of this case as a less than sympathetic character. Just because somebody is selfish and unpleasant does not of necessity mean that they are guilty. You will not convict [the appellant] on any count on this indictment unless you are driven to that sure conclusion by the evidence and not by sentiment.”
The judge also had some factual errors drawn to his attention by Mr Rawley QC and the other counsel; he made some corrections.[46]The argument that Mr Rawley QC advanced before us on this issue can be summarised in the following two points: i) When the judge had summed up the evidence of the appellant he had interpolated on a number of occasions evidence that contradicted that given by the appellant; in contrast when he had gone through the evidence of Kelly Inman he had made interpolations only on or two occasions. ii) The judge had not put properly before the jury the case that had been made against Kelly Inman; it was to the effect that not only was she telling lies but she had constructed her whole case so as to exonerate herself and implicate the appellant.[47]As to the first point it appeared at first sight to have a substantial basis. It was right to say that the judge did interpose on a number of occasions accounts which conflicted with the appellant’s evidence when summing up the appellant’s evidence. However an analysis of the evidence, which was put before us in her able argument by Miss Coen QC, shows that what the judge was very properly doing was summarising the evidence for the jury. There were many occasions on which evidence had been adduced before the jury conflicting with the evidence that the appellant had given. In contrast the occasions on which evidence had been adduced in a manner that contradicted Kelly Inman were far fewer. The judge was therefore merely reflecting the evidence that had emerged in the way in which he summed the case up. Furthermore it is clear that the manner in which the judge dealt with the contrasting accounts was entirely factual and in no way displayed any unfairness towards the appellant.[48]As to the second point, it is important to point out that at the very outset of the summing up the judge, in accordance with the practice followed by some judges, reminded the jury of the case for each of the appellants. He made it quite clear that it was the appellant’s case that Kelly Inman was lying when she said that it was the appellant who was with Leeya at the time of her collapse. It seems to us there can have been no doubt that the jury understood that.[49]It is, however, said that the judge did not go further and set out for the jury the evidence on which the jury could have concluded that Kelly Inman had behaved in a way that had led Parker J to conclude that she had manipulated her evidence, had behaved dishonestly in relation to her virginity and had set about presenting a false case against the appellant. As illustrative of that, Mr Rawley QC relied upon a passage in the summing up where the judge gave the direction on lies. After contrasting the evidence each had given which was said to be untruthful in relation to who was holding Leeya, he continued:
“There is another type of lie and that is the lie which has no direct bearing on the issues you have to decide at all. There have been a number of lies in this case, and I will pick out two one for each defendant as examples. Kelly Inman: she admits lying on oath in the family proceedings when she said she was a virgin when she met [the appellant]. [The appellant] he admits telling the most awful lies about his father to the immigration solicitors in order to try and obtain asylum in this country.”
[50]It was said by Mr Rawley QC that the judge not only failed to explain to the jury the significance of the lie that Kelly Inman had made in the Family Division proceedings by omitting to make it clear to them that it was part of a fabricated account supported by her family, but had merely stated it was a lie on oath. In contrast to what he described as the “awful lies” told by the appellant.[51]Before turning to examine whether the judge had failed to characterise the evidence in relation to Kelly Inman’s lies about her virginity correctly, it is right to point out that we do not think the judge was in any way unfair in characterising the lie that the appellant had admitted in relation to his father. It is sufficient to state that the lie was contained in a letter sent on his instructions by the solicitors to the UK immigration authorities; in that letter he had falsely alleged that his father had murdered his mother in Nigeria and that he would be at risk of similar treatment if he was returned from the United Kingdom to Nigeria.[52]As to the way in which the judge summed up the evidence in relation to Miss Inman’s lie about her virginity, we have carefully considered the evidence before the jury. We are quite satisfied that the judge summed the matter up fairly. Neither of Kelly Inman’s parents gave evidence at the trial before Judge Clegg nor did Kelly Inman’s sister. There was, therefore, no evidential basis for the judge to sum up to the jury that her family had in any way been implicated in the lie that she admitted. Nor, in contrast to the way in which the evidence had been adduced before Parker J, was there any real attempt to put to Kelly Inman an account based on documents which showed how the lie she had made had come about. In short, the evidence before the jury was not the same evidence as had led Parker J to the conclusion she reached and therefore there was no basis for the judge to sum up the case to the jury in the terms in which it was urged upon us by Mr Rawley QC he should have done.[53]In our judgment the judge summed the case up properly on the evidence before him and we can see no basis upon which it can be said that the summing up was unbalanced. (iii). Bias[54]Mr Rawley QC suggested that the judge had summed up the case in a staccato voice when putting the appellant’s case in contrast to the normal voice the judge had used when summing up the case against Kelly Inman. In the light of that submission we directed that counsel listen to the tapes. This was done and that position was not pursued.[55]We would simply add that in our judgment the summing up of Judge Clegg was a clear and careful analysis of the evidence to which we would like to pay special tribute. It was entirely fair and balanced and correctly reflected the state of the evidence before him. The criticisms made are in our judgment on analysis wholly unfounded.[56]We are quite satisfied that there could be no perception of bias on the part of Judge Clegg, let alone any bias. As we have set out, his decision to admit the appellant’s medical evidence demonstrates how fair he had been.

Ground 2 – The safety of the conviction

[57]As we have already indicated, the submission put before us by Mr Rawley QC was that it was clear that the conviction of the appellant could not be regarded as safe in view of the conclusion both before the trial and after the trial by Parker J that Kelly Inman’s evidence was that of a manipulative liar.[58]It seems to us that there are two issues to examine. i) Could the jury have convicted even if they disbelieved Kelly Inman? ii) If the answer to that question is no, what is the effect of the conclusion of Parker J? (i). Could the jury have convicted if they disbelieved Kelly Inman?[59]In our judgment the jury could safely have convicted the appellant if they regarded the evidence of Kelly Inman as wholly untruthful. It is clear on an analysis of the evidence that the appellant faced a formidable difficulty in denying that any intentional injury had been caused to Leeya and in saying that Kelly Inman was a loving parent. The medical evidence that the injury was deliberate was overwhelming. The jury must, therefore, have taken the view that in denying that, the appellant was being wholly untruthful. It is inconceivable, given the small house in which the appellant and Kelly Inman lived, that he could have been unaware either of deliberate injury having been inflicted or the effect of such injury on Leeya; the medical evidence was clear that Leeya must have been in severe pain and highly distressed. In denying that the appellant was plainly being untruthful.[60]Secondly, the evidence of the 999 call strongly pointed to showing that the appellant was with Leeya when she had collapsed. He admitted that he had lied about being halfway up the stairs and the account of why he was upstairs for a significant period during the 999 call was wholly implausible. Third, the evidence that Elaine Ellis gave of his violent nature was compelling. Her account of him having bitten her was supported by medical evidence of bite marks. Fourth, the evidence of a central heating engineer who had called at the house on 14 December 2006, four days before the collapse of Leeya was that the appellant had been irritated and aggressive in respect of Leeya’s crying.[61]In our judgment, taking all of this evidence together, there was ample evidence upon which the appellant could properly have been convicted without in any way relying upon the evidence of Kelly Inman. If her evidence was untruthful and invented, in our judgment it can make no difference to the safety of the conviction. (ii). The significance of Parker J’s findings[62]In the circumstances, it is not necessary for us to consider at length the consequences of Parker J’s findings. It is, however, clear from the decision in R v Levy [2006] EWCA Crim 1902; [2007] 1 Cr App R 1 that there is very distinct difference between criminal and Family Division proceedings relating to the same events. In Levy Hedley J had concluded at first instance in a fact finding judgment before the criminal trial that he had been unable to say on the evidence whether one parent was more likely to have inflicted the injuries than the other; that it had been a grave failure of parenting for which both must bear responsibility. The Crown had proceeded despite Hedley J’s findings against the father with the mother giving evidence for the prosecution. An application was made to the trial judge, Beatson J, that the indictment should be stayed as an abuse of process on the basis that the Crown was wrong to assume that the mother did not cause injury or death and she could not therefore be put forward as a witness of truth; and that it was contrary to public policy for one competent court to make a finding which was factually contrary to the finding of another competent court on the same facts. Beatson J rejected that submission.[63]On appeal, after a very careful analysis of principle, Sir Igor Judge, then the President, concluded that there was no abuse of process. The Crown were entitled to proceed. The Family Division was not responsible for criminal proceedings. A decision in such proceedings could not prevent the Crown in a proper case bringing criminal proceedings.[64]It was submitted to us by Mr Rawley QC that the present case went much further. In Levy the judge had not made any finding that the mother was untruthful. In the present case the judge had made clear findings both before and after the trial that Kelly Inman was a manipulative liar. In the light of those findings the verdict of the jury could not be considered safe.[65]We cannot accept that submission. We will deal with the matter briefly as the issue does not, in the light of our finding that the conviction is safe notwithstanding that Kelly Inman may have given untruthful evidence. First, it seems to us, as Mr Rawley QC accepted, the conclusion of Parker J could not have been admitted in evidence at the criminal trial. It was for the appellant, with the benefit of those findings, to adduce the primary evidence upon which Parker J had relied. As we have pointed out, that did not happen as Parker J made clear in her subsequent judgment. Thus the evidence which led Judge Clegg to the conclusion we have set out was different in many material respects to that which had led Parker J to the opposite conclusion.[66]Second, it seems to us, that there is nothing in the subsequent judgment of Parker J which amounts to fresh evidence we should admit under s.23 of the Criminal Appeal Act 1968. In David D and Philip J [1996] 1 Cr App R 455, the Court of Appeal were asked to consider at a directions hearing whether the judgment of a Family Division judge, who had heard Family proceedings after criminal proceedings in which defendants had been convicted of very serious sexual offences against children, should be admitted as fresh evidence. The court concluded at 431:
“We have come to the conclusion that as a matter of principle a judgment of a judge who has considered issues which are identical or are similar to the issues tried by the jury in criminal cases or which bear on those issues, may, in appropriate circumstances, be considered by this Court. We give one example only. Suppose the issues heard by the jury and by Connell J. in this case had been identical, which they certainly were not; suppose the defendants had been convicted on the evidence of the children alone. A family judge subsequently hears family proceedings and is left in no doubt, having heard the children giving evidence, that they are not telling the truth and that the defendants were wrongly convicted. It is, in our judgment, inconceivable that this Court would not consider the contents of the judgment of a judge who heard the family proceedings and Mr Elias conceded that this must be correct.”
In the subsequent substantive hearing of the appeal which took place in this Court on 3 November 1995 (unreported) the judgment of Connell J was relied on only to a very limited extent. It was contended that adverse findings made by Connell J in relation to the reliability of certain witnesses showed that the trial judge in the criminal trial had acted wrongly in admitting that evidence and that the decision of the judge in the criminal trial could not stand as reasonable in the light of the findings made by the Family judge. As Swinton Thomas LJ, in giving the judgment of the court pointed out, not only was the court deciding different issues, but the two judges did not hear the same evidence.[67]In our judgment, which we express very briefly for the reasons we have given, the conclusion reached by Parker J was reached on different evidence. That different evidence was given before the third criminal trial; the evidence given to Parker J in the subsequent trial added little that was new. There was thus no fresh evidence, only a reaffirmed conclusion of the same judge. In those circumstances, as there was no fresh evidence from the second trial before Parker J, we do not see how this court could reach the conclusion that there was anything to admit under s.23 or that in the circumstances the conviction was unsafe. It is, in our view, very important to bear in mind that it is possible for two different tribunals to reach differing conclusions where there is no certain basis upon which it can be clearly ascertained which person is telling the truth. That is even more likely to occur, as in the present case, where the evidence is different and the evidence which Parker J had acted on was available to be called at the criminal trial. There is, in our system of justice, no reason to prefer the decision of a judge to that of a jury on a matter such as this. This court’s ability to consider, as we have carefully done in this case, evidence that was placed before the jury to see whether it was entitled to reach the conclusion that it did provides in our judgment a safeguard in relation to the decision of the jury.

Application to appeal on the direction of intent

[68]We will deal with this point briefly. The judge, it is accepted, gave an impeccable direction on the meaning of intent. It is submitted, however, that the judge by using the language he did went on to imply that a jury could consider intent on an objective rather than a subjective basis. In our view it is clear that the judge gave no such direction and no criticism can properly be made of it.

Conclusion

[69]As we have already said, every point that could properly be taken was taken by Mr Rawley QC who conducted the appeal with great thoroughness and skill. However, for the reasons that we have set out. we dismiss this appeal. The conviction of this appellant was safe and soundly based on the evidence before the jury; there was no new evidence or other factor which causes us to doubt the safety of the conviction.