202401229 B2 - [2025] EWCA Crim 945

Ms Lewis submitted that the Applicant’s conviction by his guilty plea is unsafe because he has now established that he did not commit the offence. As we have set out above, her primary formulation of Ground 4 is that the consequence of the jury’s acquittal in the manslaughter trial is that his earlier guilty plea on the s. 20 charge is unsafe. It was said that the jury’s not guilty verdict amounted to a conclusive and binding finding, made on the balance of probabilities, that the Applicant did not cause Molly grievous bodily harm. Thus, “the jury were satisfied on the balance of probabilities that the plea was equivocal and that he did not cause Molly grievous bodily harm.”

Ms Lewis’ alternative formulation was predicated on an acceptance that each of Grounds 1 to 3 could not succeed when taken in isolation, but, when considered as a package, they amount to a series of exceptional or troubling circumstances which compel the conclusion that the Applicant’s conviction based on his guilty plea is unsafe. Ms Lewis made it clear that she was not contending for a new (fourth) category under Tredget principles. Her submission was that the existing three categories are sufficiently flexible to permit a consideration of a combination of unusual features in the overall interests of justice.

Ms Lewis accepted that the evidence bearing on the circumstances surrounding the Applicant’s guilty plea tendered on 1 June 2006 are unclear, due in the main to the paucity of the Applicant’s recollection and the obvious effects of the passage of time, and the lack of available documentary evidence. However, she drew our attention to the Applicant’s denials of guilt at police interview, to social services, and at the manslaughter trial. Ms Lewis argued that the evidence in 2006 amounted to a “pure triad” case, and that there was no other evidence which unequivocally established his admission of guilt by his plea. Further, his guilty plea was entered on the basis of advice that the medical evidence was stacked against him, and in order to get a shorter sentence. As Ms Lewis put it, in the present case “there was no clear admission of guilt, additional and separate, to the plea entered”, and on that basis the case of Young could be distinguished.

As for the factors relied on under the umbrella of Ground 3, Ms Lewis relied on developments in medical science since 2006. In 2009 there had been a meeting of the Royal College of Pathologists due to disagreements within the field on the appropriate interpretation of various aspects of post mortem findings in so-called “Shaken Baby Syndrome”. A consensus statement was produced which was to the effect that the presence of the “triad” amounts to a prima facie suspicion that injuries are due to mechanical trauma including vigorous shaking; all individual elements fall within a differential diagnosis and other possible non-traumatic causes must be considered and excluded; in the current state of knowledge the presence of the “triad” should not be regarded as absolute proof of mechanical trauma; and certain findings would suggest a need for greater caution. Further, in 2016 a literature review undertaken by the Swedish Agency for Health Technology and Assessment of Social Services concluded that there was insufficient scientific evidence on the diagnostic accuracy of the “triad” in identifying traumatic shaking, and there was limited scientific evidence that the “triad” and its components can be associated with traumatic shaking.

Further, Ms Lewis relied on the CPS’s current charging guidelines following the decision of this Court in R v Henderson, Butler and Odeyiran [2010] EWCA Crim 1269; [2010] 2 Cr App R 24. Prosecutors are directed that cases involving the “triad” must be approached with caution, and that medical knowledge is never complete and comprehensive. In particular:

“Where the prosecution is able, by advancing an array of experts, to identify a non-accidental injury and the defence can identify no alternative cause, it is tempting to conclude that the prosecution has proved its case. Such a temptation must be resisted. In this, as in so many fields of medicine, the evidence may be insufficient to exclude, beyond reasonable doubt, an unknown cause.”

Ms Oakley on behalf of the Respondent submitted that it has not been established that the Applicant’s confession of guilt in 2006 was other than freely made, and that the jury’s verdict in the manslaughter trial does not prove to the requisite standard that the Applicant did not inflict grievous bodily harm on Molly in 2005. She drew attention to the various paragraphs in the pre-sentence report to which we have already referred. In relation to Ms Lewis’ alternative formulation, Ms Oakley submitted that one way or another the Applicant had to bring his case within Tredget Category 1 (in relation to Grounds 1 and 2) and Category 3 (in relation to Ground 3) in order to succeed, and that he could not.

We are grateful for the quality, clarity and economy of both counsel’s written and oral arguments.