202401229 B2 - [2025] EWCA Crim 945

Section 74 of the Police and Criminal Act 1984 (“PACE”) governed the admissibility of the Applicant’s 2006 conviction in the manslaughter proceedings. Under sub-section (3), there was a rebuttable presumption that the Appellant by virtue of his guilty plea was guilty of the offence of manslaughter unless the contrary was proved by him. That meant proof on the balance of probabilities, and no issue is taken with the Judge’s direction on this issue.

The jury were further directed, accurately, that the issue for decision was as follows:

“Has the defendant proved that he is not guilty of the offence of inflicting grievous bodily harm, that is say that it is more likely than not that:-

a.

He did NOT deliberately use unlawful force on Molly on 19^th October 2005.

b.

At the time of doing so he did NOT have either:

i.

the intention of causing Molly some injury, however slight; or

ii.

was NOT aware of a risk that he might cause Molly some injury, however slight, but took that risk; or

c.

that the force by him did NOT cause Molly grievous bodily harm (which means really serious harm).” (para 16 of the written legal directions containing the Route to Verdict)

The Judge directed the jury that they must consider all the evidence they had heard and not just the expert evidence. In relation to the medical evidence, the Judge added this:

“In this case you have heard a good deal of expert evidence about the so called “triad”. … You have heard that the significance of these findings has been, and continues to be, the subject of vigorous controversy and debate by medical professionals throughout the world. When considering the issues in this case you must take into account all the evidence which you have heard concerning the significance of the medical findings in this case. Given the controversy and debate you will need to exercise special caution when considering the medical expert evidence in this case.” (para 27 of the written legal directions)

In crystallising the issues between the parties arising on the medical evidence, the Judge explained that the Crown’s case was not limited to the “triad” – Dr du Plessis had identified other relevant findings, and its experts had also relied on the absence of a possible alternative cause. It was the defence case that Molly’s brain findings were the consequence of an ongoing complication which had arisen either from the circumstances of her birth or some naturally occurring event which was not diagnosed or capable of being diagnosed. The Judge pointed out:

“You will need to be careful to take into account here that current medical science cannot always explain everything and that medical science develops over time.” (para 29 of the written legal directions)