202403291 B4 - [2025] EWCA Crim 1135

The grounds of appeal against conviction:

The appellant submitted that her convictions are unsafe on two grounds: first, because the judge when answering the jury’s question erred in providing information which had not been adduced in evidence, and which went to a central issue as to the reliability of the prosecution’s expert evidence; and secondly, because the judge demonstrated bias and hostility to the defence, the appellant, her witnesses and the intermediary who assisted her.

In support of the first ground, Miss Wass submitted that the jury’s question went to the heart of the defence criticism of Dr Bunn, namely that Dr Bunn did not have the full picture when drawing her conclusions, which were unreliable as a result. When asked whether she accepted that it was in interests of justice to read the list of what had been considered, since it was a neutral and incontrovertible record, Miss Wass suggested that there was a difference between what Dr Bunn had been sent and what she had considered. She submitted that the judge should have restricted himself to reminding the jury of the evidence which had been given, namely the general statement made by Dr Bunn during her evidence in chief and the response given by her in cross-examination (quoted in paragraph 24 above). Miss Wass observed that although Dr Bunn could have been asked by the prosecution to give the detail of the material upon which she based her report, she had not been, either during her evidence in chief or in re-examination.

As to the second ground, Miss Wass submitted that there were many examples of the judge showing impatience with the defendant. She readily accepted that she could not have complained about one occasion alone, but submitted that the judge’s repeated interventions, taken together, conveyed an impression of hostility to the defendant and to the defence case, which would have impacted upon the jury’s decisions. Miss Wass gave a number of examples, including what she submitted was the judge displaying a wholly unsympathetic attitude towards the appellant when there was a photocopying problem as the appellant was about to start giving her evidence; preventing counsel from showing the whole of a short video recording which the defence sought to adduce as evidence of the appellant bringing C’s condition to the attention of medical professionals; speaking sharply to the intermediary when she went to pick up some papers which the appellant had knocked over in the witness box; asking questions of C’s grandmother in a manner which gave the impression that the witness was dishonest; and interrupting defence witnesses in a manner which the judge had not adopted with prosecution witnesses, and which gave the impression that their evidence was not significant. Miss Wass pointed to the fact that when a cousin of the appellant was called as a character witness, and began to speak effusively about the appellant’s qualities as a mother, the judge interrupted the witness and told her not to make a speech. Miss Wass also submitted that when Dr Bunn was called to give evidence for the third time, the judge prevented Miss Wass from asking legitimate questions in cross-examination.

For the respondent, Miss Osborne KC relied in relation to ground 1 on the decision of this court in R v Dunster [2021] EWCA Crim 1555, [2022] 1 Cr. App. R. 12 as authority that a jury can be given further information where the interests of justice require. Miss Osborne submitted that the question asked by the jury gave rise to a concern that they may have been mistaken as to the material which Dr Bunn had considered, so that it was incumbent on the judge to avert that possibility. She argued that the correct position was clear to all parties, as Dr Bunn had clearly set out in her report what she had seen and all of that material had been disclosed, by hyperlinked list. The two most important pieces of information she had noted were the e-notes and the electronic records from the E hospital. The judge reminded the jury of the evidence that she had seen no other records, in particular those from the previous admission at the D hospital. Since that was the point being relied upon by the defence in Miss Wass’s closing speech, Miss Osborne submitted that there was no prejudice to the defence by the list from Dr Bunn’s report being read to the jury. To the extent that the judge went beyond the list by giving the date span of the notes from the E hospital, Miss Oborne submitted that the dates were readily apparent from the e-notes and electronic records and were in that sense equally incontrovertible.

As to ground 2, Miss Osborne submitted that many of the judge’s interventions occurred in the absence of the jury. She suggested that those which were made in the presence of the jury were of a type commonly experienced during a trial, and made submissions as to the specific instances on which the appellant relied as examples. Miss Osborne submitted that the judge had made significant adaptations to accommodate the defendant’s vulnerabilities, as the jury would have seen: the appellant was permitted to sit with counsel, rather than in the dock; she was given the assistance of an intermediary whilst giving evidence; and she was permitted to have a support dog with her whilst giving evidence.