202401229 B2 - [2025] EWCA Crim 945

We propose to summarise only some of the evidence that was called. Transcripts of the oral evidence are not available, but we have been able to study the witness statements and reports of these various experts as well as the Judge’s exemplary summing-up.

Professor Milroy, who had provided a statement in 2005, gave oral evidence in March 2024. He said that there were no documented external injuries, and no suggestion of any soft-tissue swelling. Although often seen in cases of non-accidental injuries of babies, there was no evidence in Molly’s case of either rib or lower limb (metaphyseal) fractures. Professor Milroy agreed that in 2005 this was a pure “triad” case with no external injuries and no other injuries which might support this being an abusive head injury. But the gist of Professor Milroy’s evidence was that it was not just the elements of the “triad” that could prove a traumatic cause but rather their combination with the absence of another explanation. He accepted that in the world of pathology, of which he is part, there is much more scepticism as to whether these three groups of injuries are caused by shaking alone. Finally, Professor Milroy did not accept that Molly’s ventouse delivery could have been the cause of her injuries.

Dr Wright also gave evidence in March 2024. He said that there was no good evidence of pre-incident health problems and he repeated his opinion that these were non-accidental injuries. In reaching that conclusion, he said that he had looked at the whole picture. He agreed that there was no evidence of external bruising and that a full skeletal survey disclosed negative findings. Asked about the findings on CT scan of a larger than expected subarachnoid space on the right side, Dr Wright accepted that a benign enlarged subarachnoid space (“BESS”) caused by excess fluid can increase the risk of a subdural bleed, but he rejected the hypothesis that this space could have been caused by a bleed at birth: there was no evidence of a vestigial membrane. Finally, Dr Wright accepted that tests had not been carried out in 2005 to exclude a number of rare conditions including Von Willebrand disease, Factor VII deficiency and Ehlers-Danlos Syndrome.

Dr Roger Malcolmson, a Consultant Paediatric and Perinatal Pathologist, provided a report in August 2020 concerning the histopathological examination of Molly’s eyes. He concluded that there was no evidence of congenital or other pre-existing natural disease processes affecting her eyes. He found that the eye pathology findings in the case could be summarised as showing phthisis of the left eye, gliosis of the right retina and bilateral atrophy of the optic nerves. These findings were consistent with historic head trauma.

In a further statement in response to a report from Dr Scheller (a board-certified Paediatrician and Child Neurologist in America), Dr Malcolmson opined that he considered it highly unlikely that the pattern of retinal haemorrhages described shortly after events on 19October 2005, associated with a uniliteral peri-macular retinal fold, was the result of a natural intracranial pathological event. In cross-examination, Dr Malcolmson was prepared to accept that “there may be very rare examples” of instances where a peri-macular fold is caused by something other than trauma. Further, the findings described by the treating ophthalmologist at the time of the index incident, while asymmetrical, were otherwise typical of those seen in Abusive Head Trauma (“AHT”) in infants. In his oral evidence, Dr Malcolmson added that the fact that the damage to the eyes was not symmetrical did not help him in determining whether or not this was AHT. Overall, in his opinion AHT would therefore seem to be the most likely explanation for the eye pathology findings.

Dr Daniel du Plessis, a Consultant Neuropathologist, examined at post mortem Molly’s brain, spinal cord and spinal dura. He confirmed the presence of an old, extreme hypoxic ischaemic brain injury caused by sudden unexpected respiratory arrest. In his opinion, this injury happened on 19October 2005 at around 11.00am when Molly suddenly and unexpectedly collapsed into a state of respiratory arrest. He noted that the distribution of this injury (what he called a multicompartment bleeding) correlated with the scans taken at hospital on the day of Molly's admission on 19October 2005. Dr du Plessis opined that the cause of the unexpected respiratory arrest was a traumatic head injury, more specifically a non-accidental head injury event. He noted that the so-called “triad” of injuries was present and provided some discussion as to the controversy concerning whether the “triad” provided absolute proof of non-accidental injury. He noted, however, that the “triad” was not an isolated finding in this case and went on to describe a number of additional injuries that further supported a finding of non-accidental injury. He concluded, looking at the whole picture including the absence of a natural disease process, that the evidence confirmed a traumatic head injury as being the cause of Molly’s respiratory arrest on 19October 2005, and that the collective findings were consistent with a non-accidental event involving forceful shaking with or without a head impact on a soft surface.

Looking beyond the “triad” of injuries, Dr du Plessis said that there was evidence of spinal subdural bleeding which he described as a key feature. He accepted that the blood which had left scar tissue in the spine may well have been due to cranial bleeding, but said that in his opinion it did not matter what the source of the bleeding was. The fact of a spinal subdural bleed is indicative of non-accidental trauma. Dr du Plessis said that there were many research papers, the vast bulk of which lay in the field of radiology, which supported that strong association. In cross-examination, however, Dr du Plessis accepted that there was a need for more research in this area.

On a similar theme, Dr du Plessis also relied on the evidence of bleeding in the nerve roots in the spine. This evidence was not part of the “triad”. These bleeds may have been the direct result of trauma but they may have been caused by the hypoxic-ischaemic injury to the brain. On this second hypothesis, this evidence could not logically add to the “triad”. Dr du Plessis conceded that what he described as tract selective axonal injury in the spinal cord in the neck could have been caused by the global brain injury.