Infant Death Cases: Attorney-General's Review

– in the House of Lords at 11:00 am on 21st December 2004.

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Photo of Lord Goldsmith Lord Goldsmith Attorney General, Law Officers' Department, Attorney General (Law Officers) 11:00 am, 21st December 2004

My Lords, with the leave of the House, I wish to make a Statement on my review of infant death cases.

On 19 January this year, the Court of Appeal published its judgment allowing the appeal of Angela Cannings against conviction for murder of two of her children. Following that judgment, I did two things. First, I asked the Crown Prosecution Service to review all current cases where a parent or carer was being prosecuted for killing an infant aged under two. The Crown Prosecution Service has done that and has decided not to proceed in three of those cases. Those are the current cases. Secondly, I have, as the House will be aware, established a review of past cases where a parent or carer had been convicted of killing an infant under two in the past 10 years.

The aim of my review was to identify whether other cases of infant homicide bore the hallmarks described by the Court of Appeal in the Cannings case as making a conviction potentially unsafe. I instructed the reviewing team to identify any cases where there was concern, even if it was not strictly a so-called sudden infant death syndrome case. That identification process involved all CPS areas and the Home Office homicide register.

A total of 297 cases of past convictions have been identified and reviewed. Of those, in 180 cases I propose to take no further action as I consider that they give no cause for concern. The fact that I do not propose to take any further action on these cases in no way precludes the defence appealing to the Court of Appeal, if it has not already done so, or applying to the Criminal Cases Review Commission (CCRC).

In 28 cases, action has been taken as I considered that there was cause for concern in those cases. We have notified our concern to the defence solicitors, notified the CCRC and notified the Court of Appeal. It is now for the defendant to decide whether to take the case to appeal either directly or through the CCRC. The fact that these cases have been referred does not mean that the conviction will automatically be overturned. It means that it will be looked at again by the CCRC, if the defendant so wishes. Either the CCRC or the defendant may make a reference to the Court of Appeal. At that point, it will be for the CPS to decide whether it will resist such an appeal. Of those 28 cases, three are convictions closely analogous to the case of Angela Cannings—that is, sudden infant death cases. In the other 25 cases, there were other concerns about the medical evidence.

Of the 297 cases reviewed, there are 89 cases which we have identified as shaken baby syndrome cases and which I have decided not to refer at this stage. Although shaken baby syndrome cases differ in a number of respects from sudden infant death syndrome cases, there is a similarity in that there has been a growing medical controversy about the identification of the cause of the injuries.

Knowledge of shaken baby syndrome will continue to grow over time and I appreciate that any determination that I make on these cases is based on current knowledge. I am aware that the Court of Appeal is to consider four joined cases on shaken baby syndrome in summer 2005 and there is the prospect that it will give general guidance on shaken baby syndrome issues. If that is the case, I shall of course consider very carefully, for these cases, any conclusions the court draws from its considerations. Again, in these, as in all cases, it is open to the defence now to appeal or to refer to the CCRC.

My report and the accompanying report to me by the Central Review Team, which I established, explain the procedures and processes by which the review has been conducted. I would like to express my gratitude to the review team and to those who provided assistance to it.

Young and vulnerable children need the protection of the law. Yet if unfair accusations or, worse still, wrongful convictions for the death of a child occur, it increases the tragedy of what is already a devastating event.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

My Lords, I thank the noble and learned Lord the Attorney-General very much indeed for his Statement on these matters of grave and widespread concern. I have a number of questions arising out of what the noble and learned Lord has just said.

First, on pending cases into sudden infant death, I understand that the review identified three in which it was decided not to go ahead with the prosecution on the ground that it would not be safe to proceed. Can the noble and learned Lord tell the House how many other pending cases there are?

Secondly, the scope of the review went back 10 years. That was,

"both practicable and realisable and should ensure that all persons still in custody were included in the review".

Can the noble and learned Lord be confident that that period did, in fact, cover all persons who were still in custody?

Thirdly, I understand from the noble and learned Lord that 279 cases were investigated in the course of the 10 years. The Central Review Team identified 28 which gave,

"sufficient cause for concern in relation to the medical evidence relied upon at trial so as to warrant further consideration".

The facts of only three of these cases were similar to those in the case of Angela Cannings; 25 cases concerned what is described as other medical evidence. What is that other medical evidence and what steps is the noble and learned Lord taking with regard to it?

Fourthly, of the remaining cases, 89 were categorised as shaken baby syndrome. As your Lordships are well aware, there is growing disagreement in the medical profession regarding the nature and pattern of such injuries. What is the current medical evidence that is undermining those 89 prosecutions? What research is being undertaken into the syndrome? Given that the Court of Appeal in the summer of 2005 will consider five of those cases, will the noble and learned Lord take the matter further in the next six months?

Fifthly, will the noble and learned Lord take into account the views of Angela Cannings herself and announce a public inquiry into similar cases?

Sixthly, on cases of parental abuse that are heard in the family court—20 times the number of those heard in criminal courts and where the test is on a balance of probabilities rather than beyond reasonable doubt—is the noble and learned Lord aware that, every day, children are being taken from their parents largely on unsupported medical evidence? Does the noble and learned Lord plan to look into this matter, as well as into criminal matters, and into the nature of expert evidence in such cases?

Finally, following the Angela Cannings case, the NSPCC wants to see the recommendations made by the Independent Review of Coroner Services implemented as a matter of urgency. Does the noble and learned Lord agree?

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Minister, Home Affairs, Shadow Minister, Welsh Affairs

My Lords, we on these Benches very much welcome the report and congratulate the noble and learned Lord the Attorney-General on the speed with which he set up the inquiry and the thorough methodology behind the Central Review Team which carried out the investigation. We welcome the stress placed by the noble and learned Lord in his report on the effect of unjust convictions, both on the people concerned and on the general public. He echoes the words of Lord Justice Judge in his judgment. It is worth quoting them: Lord Justice Judge concluded his judgment in the Cannings case by saying:

"In a criminal case, it is simply not enough to be able to establish even a high probability of guilt. Unless we are sure of guilt the dreadful possibility always remains that a mother, already brutally scarred by the unexplained death or deaths of her babies, may find herself in prison for life for killing them when she should not be there at all. In our community, and in any civilised community, that is abhorrent".

This case is a warning to those who suggest that expert evidence can be reduced to a single expert who simply assists the court. It is very important to realise that, at present, experts on both sides, whether for the prosecution or for the defence, regard themselves as non-partisan. Your Lordships may feel that this case establishes that it is right that a defendant should have her own expert and, if on legal aid, be provided with the necessary funds for that.

The report of an expert instructed by the defence, or at least the fact that a report has been obtained, will now be disclosed to the prosecution. I hope that the Attorney-General can confirm that the prosecution—the CPS—will follow the guidelines of Lord Justice Judge when he said,

"if the outcome of the trial depends exclusively or almost exclusively on a serious disagreement between distinguished and reputable experts, it will often be unwise, and therefore unsafe, to proceed".

I hope that that will be a guiding light in the CPS. When there is a disagreement, it is important that expert evidence on either side should be firmly tested by cross-examination and that the finders of fact, whether magistrates or a jury, should have all the assistance that they can obtain.

The noble Lord, Lord Kingsland, referred to the civil aspect. Of course, on 21 January, the day after the Attorney-General instituted his inquiry into criminal cases, the Solicitor-General, Miss Harriet Harman, announced a care case review into the very important civil aspect of the case that the noble Lord, Lord Kingsland, so graphically described, where children had been removed from their mother or from their parents as a result of medical expert opinion that has not been fully tested in the family court and decided on the balance of probabilities. Perhaps the Attorney-General can tell the House the progress of the Solicitor-General's care case review and when we can expect its findings.

Another important step was instituted. On 6 September last the joint working group, set up by the Royal College of Pathologists and the Royal College of Paediatrics and Child Health, chaired by the noble Baroness, Lady Kennedy of The Shaws, produced a report called Sudden Unexpected Death in Infancy. It contained a protocol involving a multi-agency approach to the investigation of cases where it is thought that a death has been caused by one or other of the parents or guardians.

Has that protocol been adopted generally? I appreciate that it is only three or four months since the report came out. The protocol called for training for CPS lawyers and recommended that no prosecution should be brought without reference to the multi-agency final professional review. Can the Attorney-General tell us whether the training has commenced and whether that principle of referring to the multi-agency final professional review is firmly in the minds of the CPS?

Photo of Lord Goldsmith Lord Goldsmith Attorney General, Law Officers' Department, Attorney General (Law Officers)

My Lords, I am grateful to both noble Lords for their welcome of this report. I particularly thank the noble Lord, Lord Thomas, for what he said about the thoroughness of the methodology. It has been a painstaking exercise. The Angela Cannings case really sounded a warning. It seemed important to me not to leave it to chance as to whether cases in which there might be a miscarriage of justice would be picked up by a defendant reading about it in a newspaper and wondering whether his or her case might be affected, but to try to identify all the cases which could be covered.

It was quite a major process to identify, retrieve, review and then refer the cases. So I am very grateful to the Home Office, the police, the CPS, the Law Society and the CCRC, who were involved. It has produced the results which I have identified.

I agree with the noble Lord, Lord Kingsland, that this is a matter of widespread and grave concern. I share that unease. That is why I acted as I did to set up this review. I turn to the noble Lord's questions. He asked about pending cases. Fifteen cases were identified at first and a further five cases were identified by the police, making a total of 20. They were reviewed by the CPS and 14 were found not to be sudden infant death syndrome cases at all. The remainder were considered personally by the DPP and one case by one of the senior officials. Out of those six cases, three were stopped.

Secondly, the advice to me was—and I accept it—that taking 10 years as the period for convictions would result in all cases where defendants were still in custody being caught within the net. I have no reason to believe that that is not right. Of course it is perfectly possible for anyone who for some reason falls outside that precise net to bring the matter forward, to bring it to me or to take it directly to the CCRC.

The noble Lord asked about the 28 cases. As he rightly says, three of those are closely analogous to the Angela Cannings case. The other 25 cases, in which there was an issue about medical evidence, are not sudden infant death cases, but cases in which a key issue such as the cause of death or the timing of death was heavily dependent on expert evidence where there was a serious disagreement between distinguished and reputable medical experts. For example, in one case the issue was whether the cause of death was a fall or a blow. It was apparent that there was an injury to the infant's head.

In some other cases the medical evidence relates to the health or the mental state of the defendant. That can be important, particularly where a plea of guilty has been tendered. I hope that gives enough indication of the sort of cases. I emphasise again that the fact that we have concern does not in any way automatically mean that the convictions will be overturned, but we recognise the concern.

The noble Lord asked about shaken baby syndrome cases. In the report now available I have attempted to summarise broadly the medical controversy. In short, shaken baby syndrome cases involve clear evidence of physical injury in the sense of typical injuries such as brain damage, often bleeding into the eyes and sometimes fractured ribs. The medical controversy is that the view has been that those injuries only occur as a result of severe, excessive and obviously inappropriate shaking, and sometimes impact as well, of a child. There is a theory—and I think it is fair to say that it is not proven—that lesser force than that, indeed, most recently no force at all, is capable of giving rise to those same injuries. I set out that controversy more in the report.

I hope that the Court of Appeal, which is in the best position to test these alternative theories, will do that in the course of the cases which will take place next year.

The noble Lord asked whether I would take account of the views of Angela Cannings. I have met her and will meet her again in the new year. I shall listen very carefully to her appalling experience, which nobody should have to go through. I have no intention to order a public inquiry into her case or others.

The family courts—the noble Lord, Lord Thomas, asked about the matter as well—are not directly within my ministerial responsibility. The Department for Education and Skills, where the Minister for Children is to be found, issued a circular asking councils with social services responsibility to undertake a review both of all current cases and cases where there was a care order still in force in favour of a local authority.

Both stages of that review have been completed and the results have been published and placed in the Library of the House. I could give further details of that if noble Lords want me to, but essentially the results of those reviews have already been published. That is the answer to the noble Lord, Lord Thomas, who asked about what my right honourable friend the Solicitor-General said.

The noble Lord, Lord Kingsland, asked also about the report into the operation of Coroners' Courts. I am not in a position to give up-to-date information on the Government's response to that report. Again it is outside my ministerial responsibilities. I will ensure that a letter is sent to the noble Lord giving as much information as possible at this stage.

The noble Lord, Lord Thomas, made the point, with which I entirely agree, that these cases demonstrate the importance of expert evidence—from whichever side it is called—being objective, in order to assist the court in reaching a just verdict. An expert is not there as a hired gun or as an advocate for one cause or another, but in order to help the court to reach a just verdict. I think that there is much force in what the noble Lord says about cases which demonstrate that sometimes if the defence did not have its own expert, certain issues might not be fully ventilated. I take that point.

The noble Lord asked about the guidelines set down by Lord Justice Judge. There is an important qualification here. Lord Justice Judge in the Cannings case gave his judgment in terms of a particular category of case and not in respect of all cases in which there is a disagreement between experts. In many cases juries are well able to determine disagreements between experts. But he said that in particular categories of cases—where one is at the frontier of medical knowledge and where the case depends entirely on medical evidence—there is a particular danger. I can assure the noble Lord that, certainly in cases of sudden infant death, the CPS is taking account of that guidance. That is why three of the cases were stopped.

Finally, the Government welcome the report of the noble Baroness, Lady Kennedy. Strands of departmental work are taking place at the moment in relation to her recommendations. I am sure that at an appropriate moment we will make sure that the results of those departmental strands, including those by the Crown Prosecution Service, are made known to your Lordships.

Photo of Lady Saltoun of Abernethy Lady Saltoun of Abernethy Crossbench

My Lords, is the noble and learned Lord aware that an unfortunate side effect has been the propensity of social workers and some doctors to assume the worst when a child is brought in with an injury? When their child injures itself, many parents are now terrified to take it to the doctor, because they are afraid that they will be accused of having battered the child and that the fact of their child having injured itself will not be believed. In fact, one young couple I know were so frightened to take their child to the doctor that they drove him 200 miles to the mother's father, who, luckily, happened to be a doctor. That will lead to children suffering and possibly dying from injuries needlessly.

It is also very important that we remember that it is not only the mother—the parents—of a child who has died who suffer appallingly. As the noble Lord, Lord Kingsland, said, it is also the other children who, in most such cases, are taken into care and then put up for adoption. Even if the parents are later cleared, those children, having been adopted, can probably never be restored to them.

Photo of Lord Goldsmith Lord Goldsmith Attorney General, Law Officers' Department, Attorney General (Law Officers)

My Lords, I absolutely agree with the noble Lady that it is extremely important that parents whose child suffers an injury seek medical attention where appropriate. I hope that the review that I have undertaken will give confidence that the law is determined to see that, although children need protection, it is only in cases where there is clear evidence of unlawful conduct that a parent need worry about any form of criminal prosecution. I hope that that is clear.

I also entirely agree with the noble Lady that, although the loss of a child is a tragedy for the parents, it can deeply affect other members of the family as well. She mentioned siblings, but there are others too—grandparents and other close relatives—who may be devastated and suffer grave loss as a result of such tragedies. So I entirely agree with the noble Baroness about that as well.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative

My Lords, while congratulating the noble and learned Lord the Attorney-General on what seems to be his exemplary handling of this matter, may I ask about the 28 cases in which he has told us that cause for concern has been identified so as to warrant further consideration? Will he be able to ensure that in all cases in which the convicted defendant decides to go directly to the Court of Appeal, legal aid will be available? That would seem to be only just because, in the circumstances, no blame for what may have happened can possibly be said to have attached to the defendant.

Photo of Lord Goldsmith Lord Goldsmith Attorney General, Law Officers' Department, Attorney General (Law Officers)

My Lords, the noble and learned Lord makes a very important point. As he will know, having occupied this position, the Attorney-General does not control the legal aid budget but, if any case is brought to my attention in which it appears that one of those 28 persons wants to go to the Court of Appeal and there is a difficulty about legal aid, I will certainly do my best to make representations to correct the situation, and do so quickly.

Photo of Lord Chan Lord Chan Crossbench

My Lords, in welcoming this report, there are obviously lessons here for the medical profession in particular—for paediatricians and doctors in accident and emergency units. Will the noble and learned Lord issue some advice for doctors arising from his review?

Photo of Lord Goldsmith Lord Goldsmith Attorney General, Law Officers' Department, Attorney General (Law Officers)

My Lords, I am grateful for the noble Lord's question. There are a number of strands of work which both are being and need to be undertaken. There is the question of accreditation of appropriate experts. There is the question of training of appropriate experts. That is partly for the professional bodies that either exist at present or are being set up, such as the council of forensic pathologists, to take into account.

It is also extremely important that the message is sent out—it is there already but it is so important that it needs to be emphasised—that the purpose of expert evidence, whether from a doctor or any other experienced person, is to assist the court to reach a just verdict. It is important to disclose information that may be counter to one's opinion, to demonstrate the doubts that there may be in relation to the opinion, and at all times to strive to give the court the best help that one can to reach that just verdict. That is perhaps the most important message.

Photo of Baroness Walmsley Baroness Walmsley Shadow Minister, Home Affairs

My Lords, I ask the noble and learned Lord to cast his mind forward to the 28 cases, and even the 89 shaken baby cases and the surviving children of the family. What systems will be put in place to decide on the future of such children, should the defendant be acquitted in future? What structures will be put in place to support the family in its reintegration? Will the best interests of the child be paramount and what sort of support will be given to the family for the future, which will clearly be difficult, and to any future children born to that family, following the enormous trauma to the mother?

Photo of Lord Goldsmith Lord Goldsmith Attorney General, Law Officers' Department, Attorney General (Law Officers)

My Lords, the noble Baroness asks very important questions; I recognise that immediately. She also rightly identifies the key consideration on the civil side, the family side: the best interests of the child should determine the outcome. As for the structure for considering the position in the event that a conviction is overturned, I believe that the existing requirements to review care plans would be appropriate.

We have already debated in this House the difficulties where, for example, a child has already been adopted and the problem that one then has about unsettling arrangements that have been made for the child. That is very different from a criminal case, but those who are responsible generally for the welfare of families—often local authorities—will need to look sensitively at the case of any such people to consider whether any changes need to be made, what support the family requires and how that can be given.

Photo of Baroness Masham of Ilton Baroness Masham of Ilton Crossbench

My Lords, in how many cases of shaken baby syndrome is alcohol involved? When I was a member of the board of visitors of a young offenders' institution, one young man said to me that when he came back from the pub, the baby was crying and he used to pick it up and shake it. He was very worried about that. I wonder how many similar cases there are involving shaken baby syndrome and alcohol.

Photo of Lord Goldsmith Lord Goldsmith Attorney General, Law Officers' Department, Attorney General (Law Officers)

My Lords, I cannot answer that precise question, but I regret to say that I must agree with the noble Baroness that there are parents who commit acts of violence against children exacerbated by alcohol. There is no doubt about that, and very sad it is too. We must keep in mind that children need the protection of the law precisely because there will be circumstances, which may include being the worse for wear for drink, that will lead a parent to do something that involves unlawful violence.

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

My Lords, I declare an interest as the deputy chairman of the Children and Family Court Advisory and Support Service. Does the noble and learned Lord acknowledge the serious difficulty of making assessments in such cases and recognise how carefully the social work profession and doctors have to work towards making decisions? Does he also acknowledge that, although we are concerned about any injustice to parents, there is an equal danger that social workers may become so concerned about the consequences of their actions that they may not take appropriate action to protect children, which is the primary task that we must take forward?

Photo of Lord Goldsmith Lord Goldsmith Attorney General, Law Officers' Department, Attorney General (Law Officers)

My Lords, I readily acknowledge both points made by the noble Baroness. It is a difficult and heavy responsibility for those who are charged with the welfare of children to weigh up, on the one hand, the risk of making a wrong judgment against a parent and, on the other, ensuring the protection and safety of the child in question. I pay tribute to the high professionalism of those who carry out that difficult job.

Photo of Lord Lewis of Newnham Lord Lewis of Newnham Crossbench

My Lords, the noble and learned Lord took the figure of 10 years for looking into these cases. Is there a significant possibility that a group of people beyond that period will have to live with that accusation, which is very difficult for them to accept? I realise that one can go so far, but 10 years takes a 20 year-old into a 30-year period. There could still be a significant number of people who are accused and basically innocent.

Photo of Lord Goldsmith Lord Goldsmith Attorney General, Law Officers' Department, Attorney General (Law Officers)

My Lords, first, as I said in answer to earlier questions, the advice that I received, which I have no reason not to accept entirely, is that 10 years would pick up all those cases where someone was still in custody. One must bear in mind that 10 years in prison is normally the equivalent of a 20-year prison term, which would be a very long term for a case of domestic murder of a child. I notice that the noble Lord, Lord Condon, who knows a lot about the issue, is nodding in agreement. There is no reason to believe that it was not the right figure to take; it had to be practical.

Secondly, the provision in no way prevents someone who believes that he or she has been wrongly convicted taking the matter to the Court of Appeal, the CCRC or even referring the case to me for possible further consideration. One possible benefit of making the matter known publicly is that someone may see it in the newspapers, and if they harbour the sort of concern to which the noble Lord refers, they can take it up.