202401229 B2 - [2025] EWCA Crim 945

The prosecution obtained medical evidence from five experts, only four of whose reports we need summarise.

Dr Neil Wright was the Consultant Paediatrician who had care of Molly after she was admitted to Sheffield Children’s Hospital on 19October 2005. He spoke to Molly’s parents who confirmed there had been no neonatal problems. He noted that the initial CT scans showed acute intracranial bleeding and subdural haemorrhages. Dr Wright observed that “the combination of retinal haemorrhages, a macular fold/retinal tear, and evidence of acute subdural haemorrhages and fresh intracranial bleedings suggested significant trauma to the brain”. He further noted that neither of Molly’s parents had offered any explanation as to how she sustained her brain injuries and that both of them stated Molly was fit and well on the morning of her admission to hospital. In his opinion, the clinical picture and injuries were consistent with non-accidental injury, and he thought it most likely Molly was shaken. As to the timing of the injuries, given their serious and extensive nature he felt that it was probable Molly would have become ill within a very short space of time after the injuries were inflicted.

Mr Patrick McMullan, a Consultant Neurosurgeon, examined Molly on 19October 2005. He confirmed that Molly had suffered a widespread death of her brain tissue, together with severe and irreversible brain damage. In his opinion, the likely mechanism was shaking.

Dr Jane Marr, a Consultant Ophthalmologist, examined Molly on 20October 2005. Her findings were of four distinct retinal haemorrhages to the right eye and extensive multiple haemorrhages throughout the entire retina to the left eye. There was also a large macular fold to this eye. Dr Marr opined that, in the absence of infections or known disorders, the findings were “strongly indicative” of a forceful injury or repetitive shaking type injury. Dr Marr subsequently confirmed that macular folds, together with retinal haemorrhages and brain trauma, could lead to a “confident diagnosis” of shaking injury.

Professor Christopher Milroy, a Home Office Pathologist, reviewed Molly’s medical records in 2005. In his opinion, Molly was apparently well before being admitted to hospital where she was found to have suffered subdural haemorrhage with associated retinal haemorrhage in the macular fold. There were no external injuries. In the absence of a medical cause, these findings had to be considered traumatic in origin.

It may be understood that these experts did not express their conclusions with identical conviction. In relation to a traumatic cause, in other words shaking, the gradations of opinion were from “likely” to “confident diagnosis” to “had to be considered traumatic”. The familiar “triad” of (1) subdural haemorrhages and intracranial bleed, (2) retinal haemorrhages, and (3) encephalopathy (or, as Dr Wright put it, severe encephalomyelopathy) was not being advanced by the Crown as absolute proof of guilt.

According to the pre-sentence report, which was not in evidence in the manslaughter trial following an objection made by Ms Lewis:

“2.8

In interview Mr Niland explained that he had fed both children at approximately 10.30am. They continued to cry after feeding and he put Molly on the floor and went upstairs to use the toilet. When he came downstairs two minutes later Molly was lying on her side and her back was arched. He tells me that he did not know what was wrong. She appeared lifeless and he half picked her up and moved her back and forth as if to rouse her gently. He phoned for an ambulance and continued to follow instructions from the operator. He stated that whilst on the phone, Ms Ashmore arrived home. He denies shaking the baby vigorously. However, he has acknowledged that his response to her distress was to shake her. He disclosed having very limited experience in caring for babies and I believe that he would have felt at a loss as to what to do.

2.10

[There is no para 2.9] In committing the offence Mr Niland demonstrated naive behaviour as he failed to consider how his actions could impact upon the health of his daughter. Mr Niland now recognises that he was reckless as to the harm that could result and that he had a “momentary loss of control” due to his own frustration and inexperience.

2.11

To his credit, Mr Niland has admitted committing the offence and in my assessment takes some responsibility for causing the injuries sustained by the victim. In response to victim awareness issues the defendant admits the injuries to the victim are gravely serious and shows significant remorse for his actions and how these have, and will continue to, impact upon his daughter. However, he continues to struggle with accepting that his actions caused such extensive injuries.”

Although it is correct, as Ms Lewis submitted, that on the Applicant’s account the shaking of Molly occurred after her collapse, what he told the probation officer is inconsistent with the case he advanced to the jury.