Burridge v R.

On an appeal relying on fresh evidence, the Court of Appeal must decide for itself whether the conviction is unsafe after evaluating that evidence with the trial evidence. The possible effect on the trial jury is only a useful cross-check in a difficult case.

Fresh expert evidence may leave the finding that unlawful force was used intact, yet make a murder conviction unsafe if it materially weakens the evidential basis for inferring an intent to cause really serious injury. A conviction for manslaughter may then be substituted.

In sentencing unlawful-act manslaughter, the court must reflect both culpability and the fact that unlawful violence caused death. The victim’s extreme vulnerability is a substantial aggravating feature, although manslaughter must not be sentenced as murder.

The appellant was convicted at Plymouth Crown Court on 4 March 2008 of murdering his eight-week-old son, Rees Burridge, and was sentenced to life imprisonment with a 13-year minimum term.

The prosecution case relied on medical evidence of acute brain and eye injuries, old and recent rib fractures, and the absence of an adequate innocent explanation. On appeal, the appellant sought to adduce fresh expert evidence concerning the fracture of the right fifth rib. He also advanced complaints about trial counsel, an unused DVD interview with the child’s mother, bad-character evidence, and the summing up.

The central issues were whether the fresh evidence rendered the murder conviction unsafe and, if so, whether the court should order a retrial or substitute manslaughter.

1. Appeal allowed in part. The court granted leave only in respect of Professor Malcolm’s fresh evidence. It rejected every other ground of appeal. The conviction for murder was unsafe, but the evidence remained sufficient to establish unlawful violence and manslaughter. The court quashed the murder conviction and substituted a conviction for manslaughter.

2. Under Criminal Appeal Act 1968, section 23, the court must first decide whether fresh evidence should be received in the interests of justice. If it is received, the decisive question is whether, assessed with the rest of the evidence, it raises a reasonable doubt about guilt. The appellate court bears that responsibility itself. The likely effect on a jury is only a check where the safety assessment is difficult: R v Pendleton [2001] UKHL 66 and Dial v State of Trinidad and Tobago [2005] UKBC 4.

3. Professor Malcolm’s evidence provided a credible alternative analysis of whether the fifth right rib had been weakened before its recent fracture. It did not realistically support the suggestion that the head injuries and other findings arose from an unknown medical cause, or that the rib injuries resulted from the CPR described by the appellant and nurse. The jury’s conclusion that unlawful force had been used therefore remained safe.

4. However, the fresh evidence softened the prosecution evidence that the fifth-rib fracture was through normal bone and required considerable force. Given the lack of evidence as to the force required to cause the fatal head injuries, there was a real risk that the jury used that fracture as a proxy for the appellant’s intention. The court could not be sure that the murder verdict, rather than manslaughter, remained safe.

5. The decisions not to call Dr Squier, to address the unused DVD, and to agree the admission of contextual character evidence disclosed no error rendering the verdict unsafe. The DVD was not admissible as a reliable innocent account and could not explain the rib fractures. The judge’s summing-up direction about the absence of defence expert evidence was proper when read with his clear direction that the burden remained on the prosecution.

6. For sentence, unlawful-act manslaughter must reflect the gravity of a death caused by violence without treating it as murder. The court applied the approach in R v Wood [2010] 1 Cr App R(S) 2 and Attorney-General’s Ref No. 60 of 2009 (Appleby and others) [2010] 2 Cr.App.R.(S) 46. The victim’s age and vulnerability, earlier non-accidental fractures, and the appellant’s conduct aggravated the offence. Mitigation included the absence of an intention to kill, lack of premeditation, good character, and army record. A sentence of 10 years’ imprisonment, with seven days’ pre-sentence custody credited, was imposed.

• Court of Appeal (Criminal Division): Allowed the appeal against murder only to the extent of substituting manslaughter. It rejected the remaining grounds and imposed a determinate sentence of 10 years’ imprisonment.
• Crown Court at Plymouth: On 4 March 2008, Royce J and a jury convicted the appellant of murder and imposed life imprisonment with a 13-year minimum term.