202401229 B2 - [2025] EWCA Crim 945

We begin with Ms Lewis’ primary submission on Ground 4, namely that the Applicant’s acquittal in the manslaughter trial establishes without more that the 2006 conviction is unsafe.

It is important to bear in mind what the jury’s acquittal in the manslaughter trial did (and did not) establish: it established only that the jury concluded that the Applicant probably did not commit manslaughter (and so logically also the s. 20 offence).

However, for a case to fall into Category 3 so as to render unsafe a conviction based on an (otherwise unimpugned) guilty plea, it must be established that the defendant did not commit the offence. It is not enough to establish that the defendant probably did not commit the offence. Against the background of a valid guilty plea, the relevant premise at this stage, more is needed. As set out above, examples of cases where the necessary threshold is met are those where DNA evidence proves that the defendant must be innocent; or where it can be shown that the defendant could not have been present at the time of the offending.

We add that we do not consider it to be arguable that the jury’s acquittal in the manslaughter trial renders the Applicant’s guilty plea in some way “equivocal” for the purpose of his primary case. That is an issue for us to consider in the context of his alternative submission, and Ground 1.

We turn then to that alternative submission, addressing first each of Grounds 1 to 3 separately, before standing back to consider the position overall.

As for Ground 1, there is no question but that it was the Applicant’s decision, made of his own free will, to plead guilty. He frankly accepted this in cross-examination in the manslaughter trial.

Ms Lewis accepts that the burden then is on the Applicant to establish that the advice that he was given in 2006 was incorrect and that it deprived him of a defence that would probably have succeeded. However, she fairly conceded that it is impossible for there to be any fair or reliable assessment of what advice the Applicant was given. Given the passage of time, no contemporaneous papers now exist; the Applicant’s memory is imperfect; the barrister who advised him in connection with his plea has died; and the different barrister who represented him at the sentencing hearing (the occurrence of which the Applicant does not recall) has no memory of this case.

In any event, even on the Applicant’s account without more, there is nothing to indicate that he was given incorrect legal advice. That issue must be judged with reference to the circumstances and evidence as they presented at the time. The expert evidence in 2006 was, as he was advised, “stacked against him”, and at the time (and arguably even now) there was no alternative explanation for Molly’s injuries consistent with his innocence. Plainly, it was not incorrect to advise the Applicant that a guilty plea would result in a lesser sentence - indeed it was the duty of his representatives so to advise him - and it is (at the least) doubtful whether the Applicant could have been advised that he would receive five to six years’ imprisonment following conviction at trial (when the maximum sentence was five years’ imprisonment) and only nine to twelve months’ imprisonment following a plea. Further, it is difficult to see how the Applicant was deprived by any incorrect legal advice of a defence which would probably have succeeded, as matters stood in 2006.

As for Ground 2, there is no need, either in line with Tredget or general principle, for there to be other evidence unequivocally establishing the Applicant’s acceptance of guilt at the time in order for a conviction based on a guilty plea to stand. It is the Applicant’s public confession of guilt that is the focus. In any event, the matters relied on are at best neutral. Thus, there are passages in the pre-sentence report which point clearly to an acceptance of guilt by the Applicant.

In short, neither Grounds 1 or 2, either alone or together, arguably undermine the safety of the 2006 conviction.

As for Ground 3, it is true that medical science has evolved since 2006 and that the evidential picture is now more nuanced. However, these subsequent developments do not demonstrate that the Crown’s case in 2006 (that this was a case of non-accidental shaking) was wrong. The changing evidential landscape since 2006 might be capable of raising new doubts as to the mechanism of injury, but that is far from being enough to unsettle the conviction. Ms Lewis realistically accepted that a jury properly directed could have convicted the Applicant of manslaughter in 2024. The development of scientific understanding since 2006 falls well short of establishing that the Applicant did not commit the s. 20 offence.

For these reasons, none of Grounds 1 to 3 considered individually afford any proper ground for concluding that the 2006 conviction is unsafe.

We have then stood back and considered them cumulatively in the context of the Applicant’s acquittal in the manslaughter trial. We have been persuaded that it is arguable that, taking account of the Applicant’s acquittal in the manslaughter trial, alongside all of the circumstances identified under Grounds 1 to 3, the 2006 conviction is unsafe.

However, we have reached the clear conclusion that it is not.

The Applicant’s guilty plea in 2006 was entered into of his own free will. It has not been established that he was given any incorrect legal advice at the time, or that he was thereby deprived of a defence that would probably have succeeded. Neither developments in medical science since 2006, nor his acquittal in the manslaughter trial, establish that he did not commit the s. 20 offence. No clear injustice has been done.

It follows that there are no good grounds for finding that the Applicant’s conviction is unsafe.