202401229 B2 - [2025] EWCA Crim 945

We may summarise these from the Agreed Facts in the manslaughter trial.

Molly Niland was born on 21 July 2005, along with her twin brother. She was delivered vaginally with ventouse assistance at 40 weeks gestation. Her birth weight was within the normal range. The medical notes documented no other complications of labour. Thereafter, Molly lived with her parents, the Applicant and Sally Ashmore, and her twin brother at an address in Rotherham.

At a “birth visit” which took place on 4 August 2005, the health visitor recorded no concerns regarding Molly’s feeding and her passing stools and urine. There was evidence of slight jaundice. Molly was said to be “alert when awake”. It was also noted that the house was clean and tidy and no apparent concerns were expressed.

On 6August 2005, Molly’s recorded weight had risen. On 10 August the same health visitor noted that Molly (and her brother) were still slightly jaundiced but after a telephone call to the GP, she was advised that all was fine and there was no need for concern.

At 23:21 hours on 10 September 2005 Molly attended the out-of-hours service in Doncaster and was seen by a doctor. The examination note recorded “slightly pyrexial, good colour, some grunting present while breathing. Chest sound clear”. The diagnosis was recorded as “Viral URTI only” and drugs were prescribed. A follow up message recorded “Admitted to hospital”. Molly left the out-of-hours service at 23.25 hours.

At 23.40 hours, Molly attended Doncaster Royal Infirmary with her parents. The reason for admission, as recorded in the admission notes, was a suspected “pyrexia” and “breathing difficulties”. Molly was examined and an audible grunting was noted. She was admitted overnight for observations. There was no raised temperature, and no abnormality of breathing noted. The following morning, Molly was discharged home.

On 12 September 2005, at the GP surgery, Molly was examined for her routine six weeks old child health check-up. No concerns were noted. Three days later Molly had her first injections.

On 4 October 2005, Molly and her twin brother attended the baby clinic with both her parents. She was now over double her birth weight. Two days later, Molly was taken to her GP surgery and presented with “nasal catarrh/acute croupy cough since last night”. Nasal drops were prescribed.

On 7 October 2005 Molly was taken by her parents to Doncaster Royal Infirmary having reported concerns about a non-fading rash to the GP out-of-hours service. After being reviewed by paediatric doctors, Molly was discharged home on the following day.

On the 17 October 2005, Molly was taken to the GP surgery. Her mother expressed some concern about Molly in that she had a cough and was chesty. A GP examined Molly’s chest, which was said to be clear. Reassurance was given as well as the second stage of routine vaccinations.

On 18 October 2005, Molly, her twin brother, mother and maternal grandmother attended the baby clinic where a nursery nurse was also present. They were seen by a heath visitor. Molly seemed a little tearful, but her mother explained that Molly was hungry, and that this was normal. Molly’s head circumference was recorded at 40.4cm, which one of the experts instructed at the manslaughter trial said was in the 90^th percentile. The health visitor had no concerns with the family and was more than happy with the coping mechanisms displayed.

On 19October 2005, the Applicant was on his own looking after Molly and her twin brother. At 11.14 hours the Applicant made a 999 call in which he reported that Molly had turned white and stopped breathing. At 11.46 hours Molly arrived at Barnsley Hospital where a CT scan was performed. The findings were of “[r]ecent subdural and subarachnoid haemorrhage on the left side extending from the left temporal region to the occiput and vertex. No fracture identified. Relative hypoplasia of the right side of the brain.” A scan of Molly’s abdomen and chest was also undertaken. No fractures were seen. Molly was then transferred to Sheffield Children’s Hospital where she was admitted at 17.00 hours.

Later that evening, Molly’s subdural space was drained to relieve raised intracranial pressure by inserting a tap into the subdural space. At 02.34 hours on 20 October 2005 a further CT scan was undertaken. This scan was reviewed by a radiologist who concluded there was no evidence of a skull vault fracture or of an overlying soft tissue injury. Internally, “[t]here are bilateral supra-tentorial shallow subdural haematomas larger over the left convexity than the right and extending into a parafalcine distribution particularly posteriorly. There is also probably some posterior fossa subdural haemorrhage.”

According to a medical record timed at 09:10 hours on 20 October:

“I have several conversations with mum and dad over the night shift. Both appear to be very worried and distressed by Molly’s condition. I explained that she had a serious injury to her head and brain and this has led to swelling and bleeding. I said that it was likely that this could affect her brain for some time and that she may be left with permanent brain injury but I could not predict the extent of it. Mum repeatedly said that they wouldn’t have deliberately done anything to harm Molly. She kept going over her actions of the previous few days and tried to think if she could have done anything or if anything had happened that could have led to this. She mentioned a soft toy that was hanging near the swing seat she had been in yesterday – asked if that could have hit her head. I explained that small knocks or gently rocking wouldn’t cause this level of damage. Mum received a phone call from Molly’s maternal grandmother this morning and learnt that they would not be able to have Molly’s twin brother, back at home at present. Mum became very distressed at this. She said she could not bear to lose her children and didn’t understand why we were doing this. Dr Stack was also present at this time and explained that something must have happened to have caused the injury and that it would probably have happened yesterday although [he] could not say at what time. After he left, I continued to talk to mum about this. She went over all of her activities with Molly until she left and could not think of anything that could have hurt her. However, she said, “it must have been me” several times. She said that Steve (Molly’s dad) had only left her for a second to go to the toilet. She said that Steve couldn’t have hurt [Molly] because he loves her so much is a great dad and would have said if he had accidentally knocked her head. At the bedside mum and dad again discussed the events with me, focusing on the fact the injury would have happened yesterday. Steve said that when he came back into the room Molly was lying on a blanket on her mat on the floor but was curled up, was white and wasn’t breathing. He phoned 999 and then shook her to try and start her breathing. He phoned 999 and then shook her to try and start her breathing again. Mum asked him to describe how he shook her, he said “he was in shock, it wasn’t gentle but it wasn’t really rough either”. He also said if I’d knocked her head or dropped her I would have told them on the 999 call so I could help to make her better.”

A MRI scan was conducted at 18.30 hours on 20 October 2005. This showed “a tiny shallow subdural in the posterior fossa and further subdural and subarachnoid blood over the left cerebral hemisphere.”

On 21 October 2005, a full skeletal survey was undertaken. There was no evidence of skeletal injuries, and the skull x-ray suggested some sutural widening consistent with increased intracranial pressure.

A further CT scan on 23October 2005 was reviewed by a radiologist. This noted “still acute left sided subdural and subarachnoid blood.”

The Applicant’s account to Social Services on 20 October 2005 was that all had been usual, Molly was hungry, crying and refusing her bottle. The Applicant said that he had placed Molly on the floor with a blanket over her and had fed Molly’s brother. He then returned to Molly and made attempts to feed her again. She would not feed and continued crying. He placed her back onto the mat and went upstairs to the toilet. He was away for no more than three minutes and on his return saw Molly on her side pure white and gasping for breath. He picked her up and shouted her name and then phoned for medical assistance.

The Applicant, then aged 22 and with no previous convictions, was interviewed on 20 and 21 October 2005. He maintained his account that Molly had been crying since she woke for her feed and had struggled to “latch on” when feeding. He had left her for just a couple of minutes to go to the toilet and when he returned her back was arching, her toes pointed, and she was struggling to breathe. He added that he may have shaken her gently to try and revive her, but he did not assault his daughter.