Gay & Anor, R v

Fresh expert evidence may be received under Criminal Appeal Act 1968, section 23 where it is capable of belief and supplies a credible alternative explanation which may have affected the jury’s verdict. Evidence is not excluded merely because it overlaps with evidence called at trial, where it is materially connected to a distinct and substantial new hypothesis.

The Court of Appeal must make its own assessment of safety, while testing whether the new evidence might reasonably have affected the jury. A genuine conflict between reputable experts does not of itself require a trial judge to withdraw the case from the jury; normally the jury must evaluate that conflict in the context of all the evidence.

The appellants were convicted at Worcester Crown Court of the manslaughter of a child placed with them with a view to adoption. They were acquitted of murder. The manslaughter conviction depended in substance on the prosecution case that the child’s severe hypernatraemia resulted from the unlawful administration of a large quantity of salt.

The appellants sought to appeal on joint-enterprise and burden-of-proof grounds, and relied principally on fresh medical evidence. The new expert rejected salt poisoning and advanced a possible alternative explanation involving dysfunction of the hypothalamic mechanisms regulating sodium concentration, thirst and water retention.

The central issues were whether that evidence should be received under section 23 of the Criminal Appeal Act 1968 and, if received, whether it rendered the manslaughter convictions unsafe.

1. Appeals allowed on the fresh-evidence ground. The Court granted leave on ground 2, received the evidence of Dr Walters, and quashed both convictions for manslaughter. The renewed applications for leave on the joint-enterprise and burden-of-proof grounds were refused.

2. On joint enterprise, the trial judge was entitled to consider the whole evidential picture. The evidence of the appellants’ shared care of the child during the material period, their common difficulties in coping, their anger, and their concealment of matters from the authorities was capable of supporting a jury finding of joint enterprise. The direction made clear that a lie concerning the cot related to the alleged head trauma, not to salt. Read as a whole, the summing up did not permit lies to fill any evidential deficiency.

3. The directions on burden of proof were correct when read as a whole. The prosecution retained the burden throughout. The instruction that the jury had to be sure that the defence expert was wrong did not reverse that burden, because the defence expert’s position was that he could not be sure that salt had been ingested. To reject his conclusion, the jury necessarily had to be sure of the prosecution case.

4. Under section 23 of the Criminal Appeal Act 1968, Dr Walters’s evidence was capable of belief. Although his hypothesis was rare and faced substantial difficulties, it was supported to some extent by scientific literature and could not be dismissed as untenable. It offered more than a repetition of the defence case at trial: it supplied a positive alternative explanation for the hypernatraemia, which the prosecution expert could not exclude.

5. There was a real possibility that a jury faced with the competing hypotheses would have reached a different conclusion on manslaughter. The new evidence therefore might afford a ground for allowing the appeal. It was admissible, and the failure to call it at trial had a reasonable explanation because its potential significance had not been recognised despite reasonable diligence.

6. Applying the guidance in R v Pendleton [2002] 1 WLR 72, the Court made its own assessment of safety and tested it against the likely effect on the jury. The convictions were unsafe. A conflict between reputable experts would nevertheless have remained a matter for the jury; it would not have required withdrawal of the prosecution case.

• Court of Appeal (Criminal Division): In [2006] EWCA Crim 820, leave was granted on the fresh-evidence ground, the appeals were allowed, and the manslaughter convictions were quashed. Renewed applications for leave on the joint-enterprise and burden-of-proof grounds were refused.
• Worcester Crown Court: Following a trial before Pitchers J and a jury, the appellants were convicted of manslaughter and each sentenced to five years’ imprisonment. They were acquitted of murder. No verdict was entered on the alternative cruelty count.