SL, R. v

A finding in care proceedings does not determine whether a person is criminally responsible for the same events. The family court lacks jurisdiction to convict or acquit, and the prosecution is neither a party to nor able to appeal from its decision. A later criminal prosecution is therefore not abusive merely because it may produce findings inconsistent with the care judgment.

The prosecution must nevertheless reflect carefully on the earlier judgment. If the trial judge requests an explanation for continuing the prosecution, the Crown should provide one in brief unless proper grounds require otherwise. Parallel care and criminal proceedings should be closely coordinated to reduce procedural and evidential difficulties.

The appellant was convicted at St Albans Crown Court of manslaughter and offences involving serious injuries to his infant son. Earlier care proceedings concerning another child had considered substantially the same evidence. In those proceedings, Hedley J could not determine which parent had inflicted the injuries and treated the cause of death as unascertained.

Beatson J refused to stay the prosecution as an abuse of process. The appellant contended that inconsistent findings by two competent courts would affront public justice and that the Crown's decision to proceed was unreasonable. Further grounds challenged evidence concerning an anal fissure, the method of proving the offender's identity, the sufficiency of the manslaughter evidence, the sequencing of the jury's deliberations and the overall safety of the convictions.

1. The appeal was dismissed. The care judgment did not determine the appellant's criminal responsibility. Care proceedings under the Children Act 1989 determine a child's welfare and whether the statutory threshold for protective orders is met. They do not place a parent at risk of conviction or acquittal. The family court was therefore not competent to decide the criminal proceedings.

2. No plea of autrefois acquit, issue estoppel or double jeopardy arose. The Crown was not a party to the care proceedings, could neither test the evidence as prosecutor nor appeal the result, and remained constitutionally responsible for deciding whether to prosecute. The possibility of findings inconsistent with the care judgment did not make the prosecution an abuse of process. R v Steidl and Baxendale-Walker and R v Stocker were wrong so far as they suggested otherwise.

3. A family judgment of this kind is inadmissible at the criminal trial. It may nevertheless be examined on appeal to determine whether it reveals admissible fresh evidence bearing on the safety of a conviction. Its conclusion does not itself constitute such evidence.

4. The Crown should reflect carefully on an earlier care judgment and apply the public-interest test. Although the ultimate prosecutorial decision remains for the Crown, a trial judge may seek an explanation. A brief explanation should then be given and will normally suffice unless there are grounds for impugning it. This supervisory inquiry forms part of judicial control of the court's process.

5. The evidence concerning the anal fissure was admissible as part of the overall picture of injuries and the foundation for expert opinion. Its probative value was not outweighed by potential prejudice. The judge properly limited its use and accurately explained the competing expert views.

6. The prosecution may call other known persons who had an opportunity to commit an offence and invite the jury to decide whether each can be excluded. That course does not reverse the burden of proof. There was also sufficient evidence of unlawful killing to leave manslaughter to the jury, and the judge's requirement that an earlier injury first be proved against the appellant afforded him additional protection.

7. Parallel care and criminal proceedings require close liaison, coordinated directions where possible, timely disclosure and efficient listing. Their coexistence does not justify delaying care proceedings without detriment to the child.

1. Court of Appeal (Criminal Division): By [2006] EWCA Crim 1902, dismissed the appeal against conviction and upheld Beatson J's refusal to stay the prosecution.
2. Crown Court at St Albans: Beatson J refused to stay the indictment as an abuse of process. A jury acquitted the appellant of murder but convicted him of manslaughter and two offences involving injury to the child.
3. Family Division: In earlier care proceedings under the Children Act 1989, Hedley J could not identify which parent had inflicted the injuries and treated the cause of death as unascertained.