202304552 B1 - [2025] EWCA Crim 1051

The prosecution case (as later accepted by the jury) was that both defendants played a part in what occurred. The events took place in a small open plan caravan where, it was said, each defendant must have been aware of what the other was doing. The inference the prosecution invited the jury to draw was that both defendants must have been involved in the physical attack on Alfie or, at least, supported and encouraged the other in what he or she did.

The bite mark was not a direct or indirect cause of death. Its significance to the trial lay in the fact that neither defendant accepted playing any part in the fatal attack on Alfie in the caravan that night and impliedly blamed the other for the entirety of what had occurred. The jury were invited to conclude that, on the facts of this case, only two people could have been responsible for any bite mark to Alfie’s body. The applicant and Jack Benham were the only people to have spent time with Alfie in the period leading up to his death. The jury were therefore invited to conclude that, if they accepted that the mark to Alfie’s back was a bite mark and Jack Benham could be excluded as the biter, the mark could only have been left by the applicant. Were the jury to conclude that the applicant had bitten Alfie that night, her assertion of lack of involvement would be dented.

We should mention that there was other evidence touching on the issue of biting. First, a text exchange between the defendants in October 2020. The applicant sent Jack Benham a text in which she said “the little shit bit my arm this morning. It fucking hurt”. He replied, “lol, bite him back, babes, just not as hard”. She then texted, “he finds it funny. I've tried”. His reply was, “bite hard you have to once I bet”. She responded, “yeah but I don't want to have to do that”. In evidence, she denied that she had ever bitten Alfie. She said that she had nibbled him but not in a malicious way. She accepted that it was possible that she had left a mark. Secondly, Jack Benham said that on the night of Alfie’s death, he had bitten him but not hard enough to leave a mark. In short, each defendant at trial accepted some deliberate contact between their teeth and Alfie’s skin but both denied that this was done with such force as to cause injury.