K, R. v

Where the evidence permits more than one adult to be the perpetrator of serious injury to a child, the existence of competing possible perpetrators does not automatically make a conviction unsafe. The evidence must, however, be assessed with particular care, and the jury must be made aware of material weaknesses in the case identifying the defendant.

A summing-up may render a conviction unsafe where it omits important evidence supporting the prosecution’s identification case, fails to warn that an alternative possible perpetrator may have an interest in blaming the defendant, and does not fairly summarise the defence case. The overall fairness and safety of the verdict must then be reassessed.

The appellant was convicted at Cardiff Crown Court of inflicting grievous bodily harm on a two-year-old child and of cruelty to a person under 16. The prosecution alleged that, while alone with the child, he had violently shaken her. The defence maintained that he had not used unlawful violence and that the child might previously have been injured.

On appeal, the principal issue was the safety of the grievous-bodily-harm conviction. The mother was the only other possible adult perpetrator. The appellant contended that the Recorder’s summing-up had not adequately addressed the evidential difficulties in identifying him as the assailant. A further ground challenged cross-examination concerning his marriage, and a separate point concerned the character direction.

1. Appeal allowed. The conviction for inflicting grievous bodily harm was unsafe and was quashed. The cruelty conviction was also quashed because of its consequential connection with that conviction. No retrial was ordered.

2. The Recorder had been entitled to permit cross-examination concerning what the appellant had told the registrar on his marriage in the United Kingdom. In any event, the Recorder’s direction that the jury should attach little significance to that issue removed any possible prejudice. That ground disclosed no basis for impugning the convictions.

3. In a case in which two adults might have inflicted a child’s injury, a conviction does not become unsafe merely because there is some evidence against each adult. The evidence identifying the defendant must nevertheless be approached cautiously, and the jury must understand the weaknesses of the prosecution case.

4. Here, the prosecution’s identification case depended materially on the mother’s account that she left the child well, and on the ambulance witness’s evidence about the appellant’s account. The summing-up did not mention either matter. Had the Recorder addressed the mother’s evidence, he should also have warned the jury that, as the only other possible perpetrator, she had a potential interest in attributing responsibility to the appellant.

5. The Recorder also said that he would return to summarise the appellant’s evidence in full, but did not do so. In the context of an anxious case involving two possible perpetrators, those omissions meant that the court could not say that the conviction was safe.

6. The court noted that any defect in the character direction, considered alone, would not have justified allowing the appeal. In view of the time already served and the need for any retrial to proceed swiftly, the court declined to order one.

• Court of Appeal (Criminal Division): By [2004] EWCA Crim 1365, allowed the appeal, quashed the convictions on counts 3 and 4, and made no order for a retrial.

• Crown Court at Cardiff: On 28 July 2003, convicted the appellant of inflicting grievous bodily harm and cruelty to a person under 16. He received three years and six months’ imprisonment for the first offence and three consecutive months for the second.