Schmidt v R.

Where competing expert explanations are central to a criminal charge, the jury must be directed on how the unresolved expert issue bears on the burden of proof. If a possible explanation entails an earlier non-accidental injury for which the defendant could not have been responsible, the jury cannot safely convict unless sure that explanation is excluded.

Other evidence may assist the jury to assess the competing medical explanations. It must not, however, be used to reach a conclusion about the defendant first and then treat the medical evidence as confirmation. A summing up must identify the critical issue and explain its decisive significance rather than merely summarise the evidence witness by witness.

The appellant was convicted at the Central Criminal Court of two counts of inflicting grievous bodily harm contrary to section 20 of the Offences against the Person Act 1861. The prosecution alleged that she had non-accidentally injured an infant while acting as his night nanny.

The medical evidence admitted two explanations for the brain scans: one injury with blood of differing appearances, or two injuries at different times. The appellant could not have caused any earlier injury. The trial judge rejected a submission of no case to answer, but directed the jury in a way said to reduce the significance of the competing medical explanations.

The appellant appealed against conviction and sentence. The central issue was whether the summing up properly directed the jury on the effect of a possible two-injury explanation upon proof of her guilt.

1. Appeal against conviction allowed. The conviction was unsafe and could not stand. The court declined to order a retrial.

2. The Recorder was entitled to reject the submission of no case to answer. The Crown case did not depend solely on the jury preferring one body of expert opinion to another. It also included evidence about the infant’s condition before and after he was in the appellant’s care, and evidence concerning the fractured arm. The Family Division proceedings were irrelevant to the issue for the jury, which had to decide the case on the trial evidence.

3. The summing up nevertheless failed to explain the decisive consequence of the medical dispute. If, after considering all the evidence, the jury thought that the two-injury explanation was or might be true, it could not be sure of the appellant’s guilt. She could not have caused the earlier injury, and that possibility fundamentally affected the inference that she caused the later injury.

4. The direction improperly suggested that the jury could be driven by other evidence to conclude that the appellant caused the injuries and then interpret the neurological evidence as supporting that conclusion. Other evidence could assist in deciding between the medical explanations, but the jury’s conclusion on whether there had been one or two injuries remained critical. The judge should have structured the summing up around that issue rather than merely reviewing the witnesses’ evidence.

5. The appeal against sentence became academic. The court nevertheless indicated that persistent denial of responsibility could not aggravate sentence merely because the appellant had pleaded not guilty. Had the conviction stood, a sentence of two years rather than three years would have been appropriate.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction in [2009] EWCA Crim 838, quashed the convictions, and declined to order a retrial.
• Central Criminal Court: The appellant was convicted on 5 August 2008 of two counts under section 20 of the Offences against the Person Act 1861 and sentenced on 8 September 2008 to concurrent terms of three years’ imprisonment.