Kai-Whitewind, R v

A disagreement between reputable experts does not itself prevent a jury from deciding the issue. The observations in R v Cannings [2004] EWCA Crim 1 were confined to the unusual context of multiple unexplained infant deaths and inferences drawn from coincidence. They did not create a general three-stage legal test or neutralise prosecution expert evidence.

Where there is a logically sustainable evidential basis, including pathological findings and their expert interpretation, the jury may decide between competing experts. Fresh expert evidence will not ordinarily be received merely to repeat or improve evidence rejected at trial.

Under the Infanticide Act 1938, the statutory condition remains disturbance of the balance of the mother’s mind through childbirth or lactation; the court nevertheless described the law as outdated and in need of review.

The appellant was convicted at Birmingham Crown Court of murdering her twelve-week-old son. The prosecution relied on pathological evidence of fresh and earlier pulmonary bleeding, a spontaneous nosebleed, and expert evidence that airway obstruction was the most likely explanation. The defence contended that the death was natural or unascertained.

On appeal, the appellant argued that the conviction was unsafe under R v Cannings [2004] EWCA Crim 1 because of conflicting expert evidence. Alternatively, she sought to adduce further medical evidence under section 23 of the Criminal Appeal Act 1968. The central questions were whether Cannings governed a single infant death with pathological findings, and whether the proposed evidence could undermine the safety of the verdict.

1. Appeal dismissed. The conviction for murder was safe. There was ample evidence on which a properly directed jury could conclude that the child died from deliberate airway obstruction.

2. R v Cannings [2004] EWCA Crim 1 did not establish a general three-stage rule applicable whenever reputable experts disagree. Its observations concerned the exceptional setting of two or more unexplained infant deaths in one family, where the prosecution case depended substantially on inferences from coincidence and contemporary medical knowledge was limited. They were primarily guidance about whether such a prosecution should proceed.

3. The case before the court differed materially. It concerned one death and there were significant pathological findings, including old and fresh blood in the lungs and an unexplained nosebleed. Such findings remained evidence of fact even though their significance required expert explanation. A disagreement about their interpretation did not erase them or prevent the jury from evaluating all the evidence.

4. The ordinary Galbraith test applied. A case should only be withheld from the jury where the evidence, taken at its highest, could not support a conviction by a properly directed jury. The trial judge had correctly rejected the submission of no case to answer.

5. Under section 23 of the Criminal Appeal Act 1968, the appellate jurisdiction is not a means of giving a party a further opportunity to call more persuasive experts after similar evidence has failed at trial. The proposed evidence was either available at trial, repetitious, speculative, or incapable of affecting the safety of the verdict. It afforded no ground for allowing the appeal.

6. Obiter, the court held that section 1 of the Infanticide Act 1938 requires evidence that the balance of the mother’s mind was disturbed by incomplete recovery from childbirth or by lactation. No such issue arose on the evidence. The court nevertheless urged a thorough review of the outdated statutory definition, including whether stresses connected with birth and the effect of denial should receive fuller recognition.

• Court of Appeal (Criminal Division): Dismissed the appeal against conviction for murder: [2005] EWCA Crim 1092.
• Birmingham Crown Court: The appellant was convicted of murder on 10 December 2003 before Gross J and a jury.