Smith, R. v [2017] EWCA Crim 1174

[2017] EWCA Crim 1174

Case No 2017/02022/B4

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

Venue ON APPEAL FROM THE CROWN COURT AT BIRMINGHAM, Royal Courts of Justice, Strand, London, WC2A 2LL

Date 31/07/2017

Before

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

MR JUSTICE GOSS

SIR WYN WILLIAMS

Between

ReginaRespondent

Kathryn Helen SmithAppellant

J Butterfield QC for Appellant

Christopher Hotten QC for Respondent

Hearing Hearing dates: 30 November 2016, 14 March 2017 and 12 July 2017

Judgment Approved

Lord Thomas of Cwmgiedd CJ:

[1]Between the end of February 2016 and 11 April 2016 the appellant was tried at the Crown Court at Birmingham with her co-defendant, Matthew Rigby, for the murder of her child AJ on 1 May 2014, the alternative offence of causing or allowing the death of a child and cruelty to a child.

[2]The appellant was convicted of murder and cruelty to a child and sentenced to life imprisonment with a minimum term of 24 years. Her co-defendant, Rigby, was convicted of causing or allowing the death of a child but acquitted of the other charges. He was sentenced to imprisonment for 3½ years.

[3]The appellant’s application for leave to appeal against her conviction for murder was referred to the Full Court by the Registrar. The course of the application has been somewhat unusual since the referral. On 30 November 2016 we heard full argument on behalf of the appellant and respondent upon the grounds of appeal against conviction then advanced. At the conclusion of the hearing we reserved our judgment; we also granted an application to extend time to appeal against sentence. Written grounds of appeal against sentence were then filed and served. On 14 March 2017 we re-convened. At this hearing we heard argument about the appeal against sentence. We were also informed, however, that the respondent had recently disclosed material which had a bearing upon the appeal against conviction. Accordingly, we gave directions for the filing of any additional grounds of appeal and material in support. We sat again on 12 July 2017 when we heard further argument about the appeal against conviction.

[4]This judgment deals with all grounds of appeal advanced in relation to conviction. It also determines the Applicant’s appeal against sentence.

[5]The principal issues on the appeal against conviction relate to comments made by the judge during the defence closing speech, the fairness of the summing-up and facts wrongly presented to the jury as being accurate. It is said that these matters render the Appellant’s conviction for murder unsafe.

Factual background

[6]The appellant was born on 13 December 1992 and was, therefore, 21 at the time of AJ’s death. The appellant gave birth to AJ when she was 19 on 15 July 2012. AJ’s father was Ricky Booth. Her relationship with him ceased and about 6 months after AJ’s birth the appellant began a relationship with another man. During the course of 2013 that relationship, too, came to an end. However, due to the violence displayed by that man towards the appellant and the effect of that upon AJ, AJ was placed with foster carers from June to October 2013. The evidence as to the period between AJ’s birth and her being placed with foster carers was that far from the appellant displaying any signs of violence towards AJ, there was praise from professionals for her bonding and warmth to AJ.

[7]In October 2013 AJ was returned to the appellant who began a relationship with Rigby who was 19 at this time, having been born on 10 January 1994.

Events in the period between October 2013 and 1 May 2014

[8]It is necessary to refer to the period between October 2013 and the date of AJ’s death on 1 May 2014 because the appellant and Rigby were specifically charged under Counts 4 and 5 in the indictment with cruelty to a child, spanning the period October 2013 to 1 May 2014. This period is important, too, because the prosecution relied on the events during this period as part of its overall case that the appellant and Rigby were jointly involved in the murder of AJ.

The evidence of Ricky Booth and Naomi Pantell

[9]The evidence on which the prosecution relied in the period until 21 February 2014, when Rigby and the appellant moved from the flat in the housing complex for young women at Swadlincote, Derbyshire to a home in Stretton, Derbyshire, was the evidence of Ricky Booth, AJ’s father, and Naomi Pantell, a neighbour from September 2013 in the housing complex at Swadlincote. She had known Rigby (who had previous convictions for offences of violence) for some years and had introduced him to the appellant.

[10]The evidence of Ricky Booth who visited AJ at the appellant’s flat and took her for weekends can be highlighted by reference to two events. i) In about November 2013 when he was bathing AJ he noticed dark brown bruising on her outer thigh running down towards her knee. His mother had also seen this. He had taken photographs of it. Ricky Booth and his mother gave evidence to the effect that this mark had been reported to the social worker responsible for AJ. The social worker had no record of the conversation. ii) In December 2013, when the appellant had dropped AJ off for the weekend, the appellant had pointed out marks on AJ’s face which looked like finger marks or a handprint. He said that the appellant sought to explain these marks by saying that they had been caused while AJ was sleeping in her cot. He had taken photographs of the marks as soon as the appellant had left as it looked like the mark from a slap. The photographs taken in November and December 2013 were before the jury; the copies with which we were provided were of very poor quality.

[11]It was Naomi Pantell’s evidence that she looked after AJ two or three times a week for the appellant. Her evidence was that AJ was not being fed enough and did not have a proper sleep regime; that the appellant slapped AJ on the legs three or four times a week, depending on whether the appellant had had cannabis. She saw bruising on AJ’s back sometime after Christmas 2013. She also saw bruising to her back that had the appearance of fingertip bruises.

The incident on 3 February 2014

[12]The most serious incident that occurred before 1 May 2014 was what happened on 3 February 2014. Both Rigby and the appellant were with AJ in the flat until the appellant went out; on her account it was to do some shopping and on Rigby’s subsequent account it was to purchase cannabis. At about 4 p.m. a 999 call was made by Naomi Pantell; paramedics attended at the flat occupied by the appellant and Rigby. They found AJ lying on her back in the lobby with Rigby leaning over her performing chest compressions. AJ was making some effort to breathe unaided and did not feel floppy. When asked what had happened Rigby told them that she had been in her cot and suddenly gave out a high pitched scream. AJ was taken to the ambulance. As it was about to leave, the appellant came back and went with AJ and Rigby to hospital. The paramedics thought that AJ may have suffered a febrile convulsion. On examination at the hospital there was no visible sign of bruising; she was found to have swollen tonsils which were considered by the medical staff to have caused a fever which in turn could have caused her to convulse.

[13]At the trial there was expert evidence that there was no evidence of febrile convulsions from what had been discovered subsequently. Evidence of a subdural haemorrhage was found on the post mortem examination of AJ. The overwhelming likelihood was that this injury had occurred at this time as a result of head injury. Medical evidence was to the effect that the subdural haemorrhage could have occurred instantly or it could have been delayed in its onset. If the latter had occurred, it did not matter that the appellant had gone out before AJ collapsed as the injury that caused the subdural haemorrhage could have occurred before she went out.

The move to Stretton

[14]The argumentative relationship between the appellant and Rigby continued after the move to Stretton, Derbyshire on 21 February 2014.

[15]On 29 March 2014 AJ was taken to hospital. A significant lacerated wound was found to the inside of her lower lip. The appellant’s explanation was that she had slipped in the bath. Neither the appellant nor Rigby told the hospital of what had happened on 3 February 2014.

[16]On 4 April 2014 the police were called to the house because of a dispute between the appellant and Rigby. The appellant made a complaint about Rigby’s conduct but retracted it the following day. She told Social Services she was not going to see Rigby any more but would not sign an agreement to that effect.

[17]On 24 April 2014 AJ was seen by a health visitor at a child development clinic. She had a bruise to the bridge of her nose caused, according to the appellant, when AJ had fallen whilst using a potty. There was also a red mark to her knee.

[18]The post mortem examination which took place after the death of AJ on 1 May revealed that there must have been a number of serious injuries in the one or two weeks prior to 1 May. These included: i) bruises to the buttocks; deep tissue sampling showed these had been caused more than 24 hours before AJ’s death; ii) significant bruising to the back; examination showed there were two points of trauma which had been caused at different times; iii) bleeding to the lungs that had occurred at least 24 hours prior to death; iv) an old rib fracture between one and two weeks prior to death.

Events of 1 May 2014

[19]On the morning of 1 May 2014, the day AJ died, the appellant and Rigby went shopping with AJ. They returned home. As we explain at paragraphs 26 to 28 there was a dispute between the appellant and Rigby as to who was in the flat in the period during which AJ must have sustained the very serious injuries from which she died.

[20]At 16:03 there was a 999 call. Paramedics attended at 16:10 and found AJ naked on the living room floor with Rigby performing chest compressions. AJ was cold to the touch, she was taken to the hospital and pronounced dead at 17:00.

[21]The extensive post mortem and other forensic examinations carried out after AJ’s death revealed not only the injuries to which we have referred at paragraph 18 but that the cause of death was a fatal injury to the heart which had caused the heart tissue to be torn bringing about severe internal bleeding. In addition to that fatal injury there was also recent injury to the ribs close to the spinal column and other fractures to the ribs and bruising to both lungs, all of which occurred within a short time prior to death.

[22]The medical evidence was clear that the tearing of the heart tissue and the other injuries were caused by heavy impact to the body either through stamping or forceful compression onto a hard surface. When asked to explain the prior injuries and the fatal injuries, the only explanation given by the appellant was that the earlier injuries might have been caused when she fell off her potty. The appellant could not explain the cause of the fatal injuries.

The explanations given by the appellant and Rigby for the events of 1 May

[23]At the time the paramedics attended, the appellant and Rigby explained that AJ was prone to febrile convulsions. AJ had felt unwell and had taken herself to bed. They heard a noise and went to see her; she was bright red, twitching and then collapsed.

[24]At the hospital the appellant said that it was her fault; she should have called the ambulance sooner but Rigby had told her not to.

[25]On 2 May 2014, before the post mortem results were known, the appellant gave an account as a witness. She said that after AJ had gone to bed, she tucked her in. She went to check on her after 10-15 minutes; AJ was awake and asked for some juice. She went to the kitchen to get her some. Up to that point Rigby was outside in the garden working on the fence. He then came in. They went to check on her and found AJ was lying there stiff and blue. It was, the prosecution say, significant that at this stage the appellant’s case was that Rigby was in the garden during most of the afternoon.

[26]After the post mortem examination both were arrested on 4 May 2014. The appellant gave a similar account when questioned under caution, save that she said Rigby came into the house with her after they had been together in the garden.

[27]In her evidence to the court, the appellant said Rigby was in the house during much of the afternoon and he was alone with AJ during part of the time.

[28]It was Rigby’s account both in the interviews that had taken place at the same time as those of the appellant and in evidence that he had been in the garden until the moment that they went to look for AJ and found her collapsed.

The issue for the jury at the trial

[29]Although the appellant did not concede that the cause of death had been the rupture of the heart, there was no other medical evidence. Before us it was not disputed that this must have been the cause of death.

[30]In effect, therefore, the real issue for the jury was whether the prosecution had proved that both of them had a part in the joint infliction of the fatal injury or whether the prosecution had proved that either the appellant or Rigby had inflicted the fatal injury.

The issues on the appeal against conviction

[31]The judge had prepared a very careful route to verdict and careful written directions. No criticism was or could be made of them.

[32]At the hearing on 30 November 2016 the primary issues were whether the effect of the judge’s intervention during the defence closing speech and certain parts of her summing-up had unfairly weighted the case against the appellant so that it could not be said that the conviction was safe. At the hearing on 12 July 2017 the Appellant sought permission to adduce fresh evidence the effect of which was to demonstrate that the jury had been mis-informed about important factual matters. Ground 1: The judge’s intervention in the presence of the jury during the defence closing speech The commencement of the closing speech

[33]The closing speech for the appellant began at 12:45 on Thursday, 31 March 2016. After stressing the importance of the burden of proof and outlining the course he proposed to take during the remainder of his speech, Mr Butterfield QC turned to consider the indictment. In the course of his review of the indictment he made the point that as Counts 2 and 3 charged the appellant and Rigby respectively with causing or allowing of the death of a child, the prosecution could not be confident that murder could be proved against either of them. He said:

“So, in short, if none of the other four counts, Counts 2, 3 [causing or allowing the death of a child], 4 and 5 [cruelty to a child] of the indictment, is a joint charge, but then we build up to the centrepiece of the prosecution case, Count 1 [murder], where we do see suddenly a joint charge, that’s contrary to the consistent approach elsewhere. Their own indictment calls out to you a lack of belief in the suggestion that joint offending can confidently be proved on Count 1. And when we see count 1 standing at the [inaudible] inconsistency, that’s when it’s revealed to us. Why are they jointly charged in count 1, therefore? Not because the evidence strongly establishes joint offending: not at all. Because the prosecution have found themselves dithering indecisive and inconsistent about who actually did kill [AJ]. That’s the reality of it. So that’s the structure of the indictment itself, and I will try and make good each one of those descriptions and criticisms in due course. Let us start then with the individual counts …”

Let us start then with the individual counts …” The judge’s intervention

[34]The judge then intervened and said that the court should break for lunch. After the jury had left the judge said that she had not interrupted counsel but had nearly done so, as she was not sure the way in which he had put the comment to the jury was entirely fair. Counts 2 and 3 had been alternative charges to Count 1 and would have had to have been left to the jury, even if not on the indictment, to cater for the possibility that the jury were not sure which one of them had killed the child. She went on to say that she would have left these counts to the jury; she did not think it right to suggest that the fact they were alternative charges was indicative of indecisiveness on the part of the prosecution. She continued:

“And if that suggestion is left to the jury I will feel obliged to correct it.”

Counsel replied:

“I understand, My Lady.”

[35]The judge then continued “So I would like you to think about that over the short adjournment, Mr Butterfield. You can make a perfectly fair point about the joint nature of the charges, the later charges, and the absence of the joint nature of the later charges, but I am distinctly unhappy about the suggestion that the jury should think that there is indecisiveness on the part of the prosecution because they have quite properly left to them alternative counts on the basis that they might not be sure who killed the child and they might not be sure that it was joint enterprise murder. All right? So I am not going to say any more about it, but I am gong to leave you think about it.” The judge’s direction to the jury

[36]The transcript then records the court adjourned at 12.58 p.m. and resumed at 2.05 p.m. It appears from the transcript that after the judge had come into court the jury returned and the judge started speaking immediately. We were told by counsel for the appellant and the respondent that after the judge came in she nodded to the usher to bring the jury into court without making enquiry of Mr Butterfield QC or saying anything to him. Once the jury were seated she said:

“Ladies and gentlemen, before Mr Butterfield continues to address you, I need to say something to you. You have heard that all the legal directions in this case come from me. All right? The first thing I need to say is this. If there is not sufficient evidence on any count on the indictment on which a jury like yourselves properly directed by the judge could properly reach a verdict of guilty then the judge has a duty to withdraw that count from the jury and direct that they enter a verdict of not guilty. All right? That has not happened in this case. That means that there is sufficient evidence for you to consider on each of the counts in this case. The second thing that I have to say is that the inclusion of alternative counts on an indictment is perfectly normal, it is a perfectly proper thing for the prosecution to do, and it caters for the eventuality (which happens time and time again in cases across the country) that the jury may not be sure that the prosecution has proved its case on the primary way in which it puts its case and that some lesser charge may be proved. So, the existence of an alternative charge on the indictment tells you absolutely nothing as to the prosecution’s belief in the strengths or weaknesses of its case, as counsel knows full well. Thirdly, in any event, the only views about the strengths and weaknesses of the prosecution’s case that matter are your views, the twelve of you. Not my view, not counsel’s view, not the prosecution’s view: your view. It is your decision whether these defendants are guilty or not guilty. It is your decision whether the prosecution has proved its case to the criminal standard you have heard about to make you sure on each of these. It will not help you one iota to speculate as to what (if anything) the prosecution thinks about the case of why the charges are framed the way that they are. All right? That is all I have to say on the matter. Yes, Mr Butterfield.”

Yes, Mr Butterfield.”

[37]Mr Butterfield QC did not ask for any time to consider what had been said but continued with his speech. We were told by counsel for the respondent that he had done so in a manner, entirely properly, which did not display any concern or irritation at the way in which the judge had acted and spoken. He had continued in a dignified and fair manner. We accept that that is to the credit of Mr Butterfield QC.

The submissions made to this court

[38]Four points were taken on the appeal. i) It had not been suggested by the appellant that there was no case to answer. The judge should not, therefore, have raised this. In R v Smith & Doe

(1987) 85 Cr App R 197

this court, it was said, had made it clear that a jury should not be told of the result of a rejected submission that there had been no case to answer. ii) The fact that the judge had said after her comments in the second paragraph, “as counsel knows full well” would have been perceived as a direct and personal attack on the integrity of counsel which inevitably had the effect of diminishing him and therefore the appellant in the eyes of the jury. This was particularly significant in a case where there was a “cut-throat” defence between Rigby and the appellant. iii) Although the judge was correct in telling the jury that the strengths and weaknesses of the case were ultimately for the jury, she was implying that it was improper for the defence to comment as Mr Butterfield QC had done in his submissions. iv) The judge had not told counsel what she was going to say or asked him what he had to say before speaking as she did, even though she had indicated that he should think about it. The overall effect had been to inflict maximum damage on a fair reception of the defence speech and conveyed to the jury that improper points were being deliberately being taken by the defence, so damaging the credibility of the defence case of the appellant during the trial.

[39]It was the position of the respondent that whilst the judge should have put to counsel what she was about to say before she spoke to the jury and that it would have been better for her not to have said, “as counsel knows full well” at such a critical point in the case, the effect of her remarks had not been to undermine the defence submission or make the conviction unsafe. It was said by the respondent that although it would have been wiser of the judge if the matter had been dealt with very shortly during the summing-up, the remarks had no overall adverse effect on the appellant’s case.

Our conclusion

[40]We accept, as counsel for the respondent submitted to us, that the judge should have put to counsel what she intended to say before saying it and it may well have been the better course to have let the speech continue and made the point shortly in the summing up.

[41]However, the effect of the intervention and direction to the jury has to be judged by reference to its effect on the safety of the conviction.

[42]First, the fact that it might have been better to put the matter to counsel is of no relevance to the safety of the conviction. What matters is its effect.

[43]Second, it is clear from the decision of this court in R v Smith & Doe that, although the jury should not be told of the ruling of the judge that there is a case to answer, the effect on the safety of the conviction depends on the circumstances of each case. R v Smith & Doe was a case where the issue was one of identification; it is possible in such a case to see that a jury might be unfairly influenced by a judge’s view on the prosecution evidence but this case is quite different. The evidence put forward by the prosecution clearly raised a case to answer.

[44]Third, the point made by counsel for the appellant that the fact there was an alternative to Count 1 was a bad point. It did not show indecisiveness.

[45]Fourth, the only point of concern was the use of the words “As counsel well knows” when speaking to the jury. As this court said in R v Ekaireb

[2015] EWCA Crim 1936

at paragraph 62, the conduct of a trial before a jury requires professional conduct by all advocates in speeches to a jury. In this case, we consider that Mr Butterfield QC had made an error of judgment in making the point he did and that the judge was quite correct in raising the matter with him as it is vital to the proper conduct of trial by jury that all advocates observe the highest standards in speeches to the jury. However, we can discern no grounds for imputing to Mr Butterfield QC that he had acted unprofessionally; what he had done was an error of judgment. Fairness would also suggest that such criticism, if ever to be made in front of the jury, should have been raised with him first. We shall return to the effect of this on the safety of the conviction after we have considered the second ground of appeal.

Ground 2: The summing up

[46]As we have said, no criticism was made of the legal directions. Nor was any criticism made of the summing up of the medical evidence or the events of 1 May 2104 and the explanations given by the appellant and Rigby of the events of that day.

The criticism of the judge

[47]The criticism was directed at the judge’s summary of the evidence of the matters occurring in the period between 8 October 2013 and 1 May 2014. It was submitted that the evidence relating to that period was not relevant simply to the charge of cruelty to the child, but, as we have explained, to the critical question of whether it was the appellant or Rigby had inflicted the fatal injuries on AJ.

[48]The criticism made was that the passages in the summing-up dealing with the evidence of Ricky Booth and Naomi Pantell conveyed the impression of systematically belittling every factual point relied on by the defence of the appellant during the trial to an objectionable degree. It was suggested to us that this section of the summing up resembled a second prosecution speech and gave the jury the impression that the judge favoured the prosecution case on this important aspect of the evidence.

[49]We were taken to the passages complained of in the context of that part of the summing up as a whole. It is only necessary to refer to three passages, as they are representative of the several passages of which compliant was made i) One example was a passage where the judge was summarising the defence case which was to the effect that Naomi Pantell had done a “hatchet job” on the appellant. It was said that the judge’s comments bolstered the credibility of Naomi Pantell and did not leave to the jury in a fair and impartial manner that the assessment of the credibility was for them. Reliance was placed on the passage which concluded with the judge saying:

“Even if there are areas of her evidence which may be inconsistent or unreliable, as I have said to you before, it is not all or nothing with witnesses; it is up to you how much of their evidence you accept and how much of it, if any of it, you reject. So look at Miss Pantell’s evidence in the round and say to yourselves: is she reliable enough? Do we accept what she says to us about the matters the prosecution rely on?” (Emphasis added)

ii) Another example was the judge’s comment in relation to the evidence of Ricky Booth and his mother to which we have referred at paragraph 10.i) as to reporting the matter to the social worker who had not recorded it.

The judge said:

“[The social worker] we know made no record of any such conversation on the Social Services computer, but he did accept that he had spoken to Ricky Booth on a number of occasions. And whilst [the social worker] was generally extremely good at entering notes on the computer more or less immediately, we do know that it took him twenty days to transfer to the computer his notes about his discussion [with a person at the Housing Association]. May be [the social worker] was less scrupulous about noting conversations about matters he considered to be unimportant. (Emphasis added) [Ricky Booth’s mother] was absolutely firm in her evidence that she was present when her son made this phone call and a later phone call to [the social worker]. Did [Ricky Booth’s mother] seem to you to be a straightforward honest witness, or did she seem to you to be a woman who was willing to tell lies on oath in order to back up her son?” (Emphasis added)

iii) The remarks to which we have referred at paragraph 10.i) had been explained by the appellant as being the result of the use of cheap baby wipes which had brought her skin out in a rash. The judge commented “.. a red rash caused by baby wipes is unlikely to cause the person who has used the cheap wipes first of all to call to his mother to inspect the marks and then to photograph them for his own self-protection in case somebody accused him of injuring his daughter. In any event (and this is a matter for your experience) would somebody usually use baby wipes not only on the bottom but all the way down the child’s leg? These marks according to both witnesses were noticed when [AJ] was in the bath not when her nappy was being changed. You might think that a mother like [Ricky Booth’s mother] would be able to tell the difference between a purple bruise and red marks caused by nappy wipes even if her son wouldn’t. These are all matters you might want to take into account when assessing the value of that evidence.” (Emphasis added) The position of the prosecution

[50]It was accepted by the prosecution that the judge may have gone further in some of these comments than other judges would have gone. But looked at overall and in the context of other references to these witnesses the comments had not had any adverse effect on the fairness of the trial or the safety of the conviction.

Conclusion

[51]We accept that there is some force in the criticism made by Mr Butterfield QC of some of the passages to which he referred us. As the prosecution accepted, other judges would not have made the comments. Although they did not relate to the central issue in the case, the evidence given by Ricky Booth and Naomi Pantell were important matters to be taken into account in determining whether it was the appellant or Rigby who had inflicted the fatal injuries in the context of the “cut-throat” nature of the defence cases.

New Ground:Fresh evidence in relation to erroneous Facts presented to the Jury

[52]At the trial evidence was adduced before the jury that: i) AJ was weighed on 3 February 2014 and her weight was found to be 10.01 kilograms; ii) AJ was weighed post mortem and her weight was found to be 8.994 kilograms and iii) a blister discovered on AJ’s finger in or about the beginning of January 2014 had been caused during a period of time when she was being cared for by the appellant.

[53]Following AJ’s death the Derbyshire Children Safeguarding Board instigated a serious case review. The purpose of the review was to identify necessary improvements to professional practice and to consolidate areas of good practice. One of the persons who provided information to the Board was Dr Patricia Field, a Consultant Orthopaedic Surgeon of many years experience. Dr Field informed the Board that the evidence which she had seen did not establish that AJ had been weighed on 3 February 2014 and did not establish her weight was accurately recorded at 10.01 kilograms. She also cast doubt upon the accuracy of AJ’s weight as recorded at post mortem. It also transpired that information obtained during the course of the review demonstrated that, at the time AJ was caused to suffer a blister to her finger, she was in the care of her natural father.

[54]There was no dispute before us but that we should receive this new evidence under s.23 of the Criminal Appeal Act 1968. We are quite satisfied that it is appropriate to do so and we turn to consider its significance.

AJ’s weight as recorded on 3 February 2014

[55]It is now common ground between the appellant and respondent that AJ was not weighed on 3 February 2014. Mr Hotten QC, on behalf of the prosecution, expressly concedes that the information provided to the jury as to her weight on that date was wrong.

[56]Mr Butterfield QC points out that this issue was of significance during the course of the trial. There is no doubt that AJ was weighed on later dates and before her death and her weight as recorded on those occasions was less than 10.01 kilograms. At trial, therefore, it was being asserted that AJ had suffered a significant loss in weight between 3 February 2014 and her death. Put shortly it was being submitted to the jury that the evidence demonstrated that she had lost 1 kilogram over a time period of about six weeks.

[57]During the course of her summing up the learned judge made reference to this issue in two discrete parts of her summing up. She did so in the context of a review of the medical evidence (see transcript page 124 (g) and (h)) and also in the context of the evidence given by Naomi Pantell.

(g) to (a) the learned judge said:

“Miss Pantell said that [AJ] lost weight after her return. The evidence from the medical records does show that there was a substantial weight loss after the incident on 3 February but when she was weighed in the hospital on that date she was still on the 25th centile ….”

[58]It is to be noted that the learned judge did not remind the jury, specifically, of the suggestion that AJ had lost approximately 1 kilogram over a period of six weeks. Nevertheless she told the jury that there had been a substantial weight loss.

[59]In his written response and oral submissions Mr Hotten QC acknowledges that AJ was not weighed on 3 February 2014 and, in consequence, the reliance placed upon an apparent weight from that date was misplaced. However he submits that there was still a substantial body of evidence (identified in paragraph 4 of his written submissions dated 18 June 2017) which demonstrated that during the period 3 February 2014 to the date of her death AJ failed to thrive. His stance is that the evidence taken as a whole demonstrates that beyond reasonable doubt.

[60]We have given anxious consideration to this issue. We understand Mr Butterfield’s submissions that a jury might well be influenced by the suggestion that a young child had lost one kilogram in weight over the space of six weeks while in the care of her mother when considering whether the appellant or her co-accused was responsible for the fatal injuries.

[61]That said, we are persuaded that the medical evidence presented to the jury did point, without doubt, to the conclusion that AJ failed to thrive in this crucial period.

[62]It is also our view that the evidence of Dr Field does not undermine, substantially, that conclusion. Dr Field’s review of the medical evidence led her to the view that although she could discern no evidence of weight loss there was evidence of “suboptimal growth at times”. It is instructive, in our judgement, that Dr Field plotted her own weight chart. She reported that the chart showed “some slight discrepancies against Dr Ward’s reported centile positions”.

Post mortem weight

[63]This point is a short one. Dr Field points out that the weight of 8.944 kilograms was measured at least a day after AJ’s death. That being so she was “not confident” that she could “interpret this in terms of a living weight”. We take that to mean that she did not regard AJ’s weight as measured on the day after her death as being a reliable indicator of her weight immediately prior to death.

[64]As Mr Hotten QC points out, the jury heard uncontradicted evidence from a paediatric pathologist, Dr Martin, who actually saw the body of the AJ, that the weight was reliable. Dr Ward has expressed the view, post trial, that the weight as recorded on the day after death is more likely to overestimate rather than underestimate AJ’s weight immediately before death.

[65]We say, now, that we do not consider that the safety of the appellant’s conviction is undermined, in any way, by Dr Field’s opinion that AJ’s weight on the day following her death may not have been the same as her weight immediately prior to death.

The blister to the finger

[66]Mr Hotten QC acknowledges that the evidence now demonstrates that this injury, however caused, occurred when AJ was with her natural father.

[67]At trial the respondent argued that(a) the injury was non-accidental and

(b) it had occurred when AJ was with the appellant. The defence case was that the injury may have been accidental and, however caused, was not the result of any unlawful act on the part of the appellant.

[68]In her summing up the judge dealt with this issue, primarily, at transcript pages 97 (c) to 98 (d). The material parts are as follows:

“The evidence of Dr Ward about this was that it could be a burn or a friction mark where the roofing, the covering of the skin, had been rubbed off. Nobody has ever given any explanation for AJ coming by that particular injury. Dr Mistry made notes at the time …. She said that AJ appeared happy and content and that she demonstrated a good relationship with her mother. …. Dr Mistrys conclusion was that this injury was more likely to be due to accidental causes, but that non-accidental causes could not be excluded. In her evidence when she was asked about this she said that she would expect a child to express pain when the injury occurred and that a carer would notice. Ricky Booth had the care of AJ the previous weekend. She was back in her mother’s care for at least a couple of days before this inspection took place. In fact this is the period that [the appellant]’s lawyers make a great deal out of to criticise Ricky Booth and his recollection that there was a time in January when he had the child for a full week and they said that that cannot possibly be true because these records show that she was back in her mother’s care just after the weekend, that he had her for the Thursday, the Friday, Saturday, picked up again on the Sunday. If Mr Booth is inaccurate about that there are a number of explanations, one of which is that the periods that he and his mother both remembered for AJ staying a bit longer might have been a different one, but even if they had both got it completely wrong, it may not matter in the overall scheme of things, you might think, because the evidence here is indicative that the injury to AJ was likely to have occurred more recently than over the weekend. You also note that Mr Booth was not asked about this injury; it was [the appellant] who was asked at the hospital; that nobody from social services asked him at the earlier meeting which led to the child protection medical. Of course it is important to bear in mind that you are looking at patterns and that children of course can stumble onto something hot and burn themselves or splash themselves with a burn liquid or have a friction blister and this injury in and of itself may not appear to be sinister: it is just the overall pattern that is relied on by the prosecution as indicating non-accidental injury.”

[69]Mr Butterfield QC complains that the learned judge was steering the jury towards a conclusion that the injury was non-accidental. Further she was describing the evidence relating to the blister in such a way as to undermine criticisms which had been made by counsel for the appellant about the quality of the evidence of Ricky Booth.

[70]We are quite satisfied that this issue was entirely peripheral. Over the course of time AJ was subjected to very significant and ultimately fatal injuries. We simply do not accept that any significance attaches to this very minor injury. Certainly, in our judgement, the fact that the blistered finger occurred when AJ was with her father rather than the appellant as is now established does not undermine the safety of her conviction.

Overall conclusion on safety of conviction

[71]We have to view the judge’s intervention during the defence speech and the comments made by the judge in the summing-up in the context of the totality of the trial and the summing up as a whole. In that context, we have already emphasised that no criticism is made of the summary of the evidence in relation to the critical events. It is also to be noted that, on a number of occasions, the judge made comments favourable to the appellant and her case. By way of example, she told the jury to make due allowance for the circumstances in which she was placed when she gave her first statement to the police; the judge referred to a number of strands of evidence demonstrative of her good care of AJ and concern for her when she was not in her care. So far as Naomi Pantell’s evidence and her reliability was concerned, in addition to the passages complained of, the judge also commented “Certainly you may think she is demonstrably wrong when she says that [AJ] had no toys to play with.” For there was clear evidence that AJ did have toys.

[72]Although it would have been better, as the prosecution accepted, if the personal criticism of Mr Butterfield QC had not been made and the summing up had not contained some of the comments on the evidence and the witnesses which it did, we are satisfied that looked at overall, the summing up was both thorough and fair. Whilst the evidence of Ricky Booth and Naomi Pantell was of importance, particularly to the charge of child cruelty, neither saw AJ in the 2-3 months before her death. Of fundamental significance was the inability of the appellant to provide any satisfactory explanation for AJ’s injuries from October 2013 onwards (particularly those found at post mortem) and her repeated changes of account as to the events leading up to her collapse on 1 May 2014. There was ample evidence on which the jury could have reached the verdicts they did.

[73]We conclude that although this is a case in which we should grant leave to appeal on both grounds the convictions were, in our view, safe. Accordingly, we dismiss the appeal.

The appeal against sentence

[74]As we have set out, we extended the time for an application to be made for leave to appeal against sentence and granted her leave to appeal.

[75]The submission made to us on behalf of the appellant was that the sentence was simply too long. Too much weight had been given to aggravating features and too little weight had been given to the mitigating features, including her youth, her immaturity, her vulnerability, her absence of previous convictions, obvious instances of good and appropriate parenting and the lack of intent to kill.

[76]As this Court has said on a number of occasions, little help is gained by comparison with other cases, as the facts of each case vary so significantly; the guidance given to the courts is set out in Schedule 21 to the Criminal Justice Act 2003.

[77]The judge was, however, referred to the decision in Attorney General’s Reference No. 011 of 2014 (R v W)

[2014] EWCA Crim 843

where at paragraph 18 the court again emphasised the importance of a flexible approach, looking at all the facts of the case so as to properly reflect the seriousness of the case before the court. As the court said:

“In a case of this nature, that would plainly include the important fact that a blameless child, deserving of protection, had been killed.”

[78]Where a parent is convicted of killing his or her child, there will be the fact that the killing was in breach of trust and that the victim was vulnerable. In some killings there will be seriously aggravating factors, such as the use of any weapon against the child or the exposure of the child to hard drugs. In other cases such features will be absent.

[79]In this particular case the judge, after spelling out at very considerable length the facts as she found them to be, identified as the aggravating factors, the vulnerability of the child, the breach of trust, the infliction of considerable force and the fact that the blow stuck which killed the child was not an isolated incident of violence. The judge also identified as a less serious aggravating factor the delay in summoning the ambulance.

[80]She identified the mitigating factors as the lack of the intention to kill (though heavily discounted it as a mitigating factor on the basis that the appellant assaulted the child in anger), the appellant’s age and lack of maturity. In having regard to her lack of maturity the judge concluded that this was little mitigation. “It was just a case of venting your anger on a defenceless child.”

[81]She concluded that when a balancing exercise was carried out, the aggravating features significantly outweighed the mitigating features so that they justified a very substantial uplift in the starting point of 15 years. In that way the judge reached the minimum term of 24 years, the equivalent, as she stated, of a determinate sentence of 48 years.

[82]We asked the Criminal Appeal Office for some assistance as to the range of the minimum terms that were imposed in such cases. The number of cases is small and the facts infinitely variable. It cannot therefore be seen that there is any particular range in the sentences imposed in such cases.

[83]In such cases the vulnerability of the victim and the breach of trust involved will be aggravating factors although, as this Court has remarked on other occasions, as these two aggravating factors derive from the relationship of mother to her own child, the court must be careful not to double count. Similarly where the murder is not an isolated incident and the defendant is convicted of other offences, care must be taken to reflect the other offences and the conduct that shows that the killing was not an isolated event. Regrettably, but perhaps unsurprisingly, such cases often have features such as existed in the present case of violence over a period, inadequate parenting, a lack of family support and difficult relationships. As in the present case, on the judge’s findings, death resulted from a violent outburst of temper.

[84]It would not be appropriate, given the nature of Schedule 21, to suggest any level of sentencing because it is the judge’s duty to have regard to all of the factors set out in Schedule 21, whilst reminding judges that this is not an exhaustive list.

[85]However, it is important that a judge does bear in mind proportionality. In sentencing in such cases where the parent was young and, as in the present case, young in terms of immaturity, ordinarily in the absence of unusual aggravating features accompanied by a lack of mitigating features, a minimum term in excess of 20 years would require very serious aggravating features and very careful reflection before such a sentence was imposed.

[86]In our judgement, the minimum term imposed by the judge did not properly reflect the circumstances of the murder, the previous conduct, the other offences of which she was convicted and the mitigating factors. We have also taken into account the further evidence which was placed before us and which we summarised at paragraphs 52 to 73. In our judgement, the minimum term which properly reflected all the factors should have been one of 19 years. We therefore quash the minimum term of 24 years imposed by the judge and substitute for it a minimum term of 19 years, less any time on remand.