Pink, R. v

A conviction founded on disputed expert medical evidence remains safe where the jury received an adequate direction, were entitled to accept the prosecution evidence, and the alternative explanation did not account for material findings.

Jurors must decide a case only on material aired in open court and available to both parties. Unauthorised internet research may render a verdict unsafe if it may have prejudicially influenced the jury. Its effect must, however, be assessed in context. Material favourable to the defendant which could not affect the safety of the conviction will not justify intervention.

The applicant was convicted at Northampton Crown Court of manslaughter following the death of his five-month-old son, Bobby, and was sentenced to four years’ imprisonment. The prosecution alleged non-accidental head injury. Its expert evidence identified subdural and retinal haemorrhages and brain damage. The defence relied on an alternative explanation of accidental overlaying and asphyxia.

The application for leave to appeal against conviction was referred by the Registrar to the full court. The applicant contended that the judge had inadequately directed the jury on the medical evidence, particularly the so-called triad of injuries. He also relied on a document given to trial counsel by a juror after the trial, which indicated internet research into technical issues.

1. Application for leave to appeal refused. The judge’s directions did not require the jury to convict merely because two features of the medical triad were present. The direction made clear that the prosecution still had to make the jury sure that the death resulted from non-accidental head injury.

2. The jury were entitled to accept Professor Luthert’s evidence that the retinal haemorrhages were most likely caused within 24 to 48 hours of the collapse. That evidence, taken with the remaining evidence, could establish the third feature of the triad. The defence hypothesis of overlaying could explain the encephalopathy caused by asphyxia, but did not explain the fresh bleeding between the brain hemispheres and, if the ophthalmological evidence was accepted, did not provide a sensible explanation for the retinal haemorrhages.

3. Accordingly, the medical evidence was sufficient to support the verdict and the criticisms of the prosecution experts and the summing-up disclosed no basis for interference.

4. The court applied the principle stated in Karakay [2005] EWCA Crim. 346. A jury must not take account of material which has not been publicly presented at trial and made available to both parties. Internet research falls within that prohibition. Although such conduct may make a verdict unsafe where it may have adversely affected the defendant, the document here contained material favourable to the applicant. It could not affect the safety of the conviction.

• Court of Appeal (Criminal Division): The application for leave to appeal against conviction was refused.
• Crown Court at Northampton: On 9 June 2005, the applicant was convicted of manslaughter by an 11 to 1 majority and sentenced to four years’ imprisonment. He was acquitted of a separate count of cruelty to a child under 16.