202304552 B1 - [2025] EWCA Crim 1051

The events leading to Alfie's death occurred overnight on 27/28 November while the applicant and Jack Benham were alone with Alfie in the caravan in which they all lived. Alfie was last seen alive by other people in the early evening of 27 November 2020. He had no visible physical injuries when he went into the caravan. During that night, there were only two people in the caravan with Alfie: the applicant and Jack Benham. At 11.30 a.m. on 28 November the applicant and Jack Benham left their caravan, carrying Alfie. Alfie was already dead. He was described by those who then saw him as being blue and floppy and he was not breathing. The paramedics, who arrived on the scene 10 minutes later, noted that Alfie already had rigor mortis, hypostasis, and postmortem staining. His death was confirmed by doctors at Margate hospital where he was taken.

The doctor who saw Alfie’s body in hospital noted that Alfie had multiple bruises to his face and a deformity to his left arm and wrist. He caused X-rays to be taken. They showed fractures to the left wrist and right forearm. As a result of those abnormal findings, an investigation into the cause of his death was commenced by the police.

The medical investigation which followed revealed that Alfie had sustained numerous and significant injuries in the period leading up to his death. He had a large number of abrasions and bruises to his face and head, some of which had the appearance of having been caused by fingernails. Two of the injuries to the head and an injury to the left eye gave the appearance of having been inflicted with a curved object. There was evidence of blunt force trauma to the mouth which was likely to have been the result of a compressive injury consistent with his face having been smothered. There was evidence in the form of bruising to the front of the neck and petechial haemorrhages to the left eye and the lining of the mouth, that Alfie’s neck had also been compressed. He had sustained a number of fractures: fractures to the big toes of his right and left feet, fractures to the left and right ulna and radius, a fracture to the fourth toe on his left foot, fractures to his left tibia and fibula and a number of fractures to his rib cage.

The pathologist was able to determine that a number of those fractures occurred within 12 hours of Alfie’s death; the others might have been caused close in time to his death but were certainly caused within the last 72 hours of his life. There was evidence of the presence of cocaine and a metabolite of cocaine in Alfie’s blood and urine. This could have arisen from passive inhalation of the drug or by Alfie touching a surface contaminated with it. The applicant and Jack Benham had consumed cocaine together on the night of Alfie's death.

The pathologist concluded that Alfie had died following a significant and sustained assault resulting in numerous fractured bones. She was unable to determine whether death was caused by asphyxiation as the result of smothering or suffocation, or respiratory dysfunction, a by product of the assault. She recorded the cause of death as “unascertained - unnatural causes”.

Materially for present purposes, the pathologist noted marks to Alfie's body which she thought might be the result of his having been bitten. Those marks were photographed and the photographs were then sent for analysis to Dr Philip Marsden, a forensic odontologist. Dr Marsden also took impressions of the teeth of the applicant and Jack Benham.

He concluded that two injuries, a mark to Alfie's right forearm and another to his back, were “probable” bite marks. A third injury, a further mark to Alfie’s right forearm, he concluded was a “possible” bite mark. He categorised the marks in this way using the scale suggested by the British Association of Forensic Odontologists in their Guideline for Good Practice in Bite Mark Identification and Analysis (2010). This scale sets out the four descriptions which should be used when reporting on a suspected bite make injury: exclusion (the injury is certainly not a bite mark); possible (the patterning of the injury might have been caused by teeth such that it being the result of a bite make cannot be ruled out); probable (the patterning of the injury is strongly suggestive of it having been caused by teeth but an alternative cause cannot be entirely excluded), and definite (there is no reasonable doubt that the mark was left by teeth).

Dr Marsden then compared the three marks to Alfie's body with the impressions taken from the applicant and Jack Benham. In respect of the two marks to Alfie’s right forearm, there was insufficient detail in them for him to be able to say that either defendant at trial could have been, or was not, responsible for making the marks. However, in respect of the injury to Alfie's back, he said that he could exclude the possibility that it had been made by Jack Benham. The mark had been left by someone with a canine tooth which was rotated and out of alignment with its neighbouring teeth. Jack Benham’s teeth did not have those characteristics. The applicant’s teeth however did exhibit such characteristics. He therefore concluded that her teeth could have made the “probable” bite mark to his back and that she could have been responsible for biting her son.

It is important to note that Dr Marsden did not purport be able to make a positive identification of the applicant as the biter. He accepted that there might be other people in the world with similar dentition to hers.