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• After the Court of Appeal:R v Harris and Others [2005] EWCA Crim 1980
  Mike Mackey
  Published on: 22 March 2016
• Re: Shaken Baby Syndrome
  James R Le Fanu
  Published on: 22 March 2016
• Child Abuse: Diagnosis, reporting and investigations
  Lalith E Chandrakantha
  Published on: 22 March 2016
• Inflicted head injury in infants - issues arising from the Geddes hypothesis
  Jonathan A G Punt
  Published on: 22 March 2016

• Published on: 22 March 2016

  After the Court of Appeal:R v Harris and Others [2005] EWCA Crim 1980

  • Mike Mackey, Lawyer

  Dear Editor,

  Analysis of judgements in the Criminal Division of the Court of Appeal is not usually carried out by doctors or even groups of eminent doctors. In this journal (Perspectives 21.02.06) Mr Richards and his colleagues have attempted an analysis of R v Harris and, with respect to them, have fallen into many errors. Given that their article may leave readers with the impression that the veracity of the “tri...

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  Dear Editor,

  Analysis of judgements in the Criminal Division of the Court of Appeal is not usually carried out by doctors or even groups of eminent doctors. In this journal (Perspectives 21.02.06) Mr Richards and his colleagues have attempted an analysis of R v Harris and, with respect to them, have fallen into many errors. Given that their article may leave readers with the impression that the veracity of the “triad” now bears the Imprimatur of the Court and that in itself might influence opinion or diagnosis, it may be of assistance to consider these four appeals, the questions posed and the judicial opinions which actually were expressed.

  After briefly reviewing the proceedings, Mr Richards poses a question “So where does this leave shaken baby syndrome?” The answer, we are told : “the triad of encephalopothy, subdural haemorrhages and retinal haemorrhages as an indicator of head injury has withstood the test of time and it has not been undermined by these proceedings”. That is the truth. It is not the whole truth. The Court was never asked to rule on whether the triad was an indicator of head injury. The Court was concerned with the sole issue of whether the convictions were safe In turn that depended on the central assertion by the Crown and its witnesses that, given the existence of the triad, there had to follow the conclusive diagnosis of shaken baby syndrome, which in turn meant that there had to be trauma as a result of violence which, of itself, indicated an intention to do harm or serious harm.

  The initial question was whether the triad alone was diagnostic of shaken baby syndrome.

  That was the essential question and, as one can divine from the judgement, the answer definitively was in the negative: (judgement para 175) “We turn then to the inferences which it is proper to draw. We do so with great caution, mindful both of the gravity of the matter and that (as already underlined) the mere presence of the “triad” does not automatically or necessarily lead to a diagnosis of NAHI and/or a conclusion of unlawful killing. All the facts of the individual case must be taken into account.”

  This was a landmark judgement, of great significance to those involved in these sorry cases. Rather than considering how it was that their lordships suggested that “SBS” should be abandoned in favour of “NAHI” (with its careful abandonment of “shaking”), one needs to put into context the history of the SBS hypothesis. In his conclusions, Mr Richards correctly asserts “the separation of therapeutic and investigative aspects of the condition may be advantageous to all”. These sentiments are to be applauded as they touch on one of the core objections to the SBS theory as it stood and was used in court prior to these appeals. The theory crossed the line between the therapeutic and investigative. Time after time, in cases in which there was no evidence of trauma other than the “triad” it was asserted that a) the triad was diagnostic of trauma by shaking, b) that such shaking had to be extremely violent and sustained (thus evidencing malevolent intent) and finally, in fatal cases, c) that if the child became ill whilst in the sole charge of a carer, that carer was responsible.

  There can be no doubt that in many, many cases severe trauma was demonstrated conclusively by reference not only to the triad, but also to other injuries, or even evidence of events to support violence as the cause. Nevertheless, any reasoned view would accept that whilst the guilty may protest innocence, the protestation of innocence is not in itself an indicator of guilt. The problem with the triad/ SBS theory could be encapsulated in the logic that, if shaking, or even shaking with impact was the only possible explanation of the triad, anything other than shaking/impact had to be a lie, or put another way, itself an indicator of guilt. Any alternative explanation of the triad, anything other than impact/shaking was deemed unacceptable. This was said to be so even if the triad itself was the only “evidence” of trauma.

  For a number of years there was no serious challenge to what had become an established doctrine, even though, as the Court noted, the “triad itself is a hypothesis” (judgement para 69). Mr Richards notes that eventually challenges were made in the papers now widely known as Geddes I,II, and III (1-3). From the perspective of a practising lawyer, the effect of Geddes I and II was that the Crown no longer made the bold assertion of “extreme and repeated violence”. Rather on the basis that axonal damage is extremely uncommon in infants with NAHI, it was suggested that “little or no trauma need be involved”. One may observe that, even in the appeals, no one challenged the veracity of the conclusions reached in Geddes1 and II.

  Geddes 111 provoked much debate. Whether Dr Geddes herself ever gave evidence on the paper prior to the appeal is unknown. However, on the appeal itself, she accurately recorded that like SBS theory, Geddes 111 “itself is a hypothesis”. The Court examined the hypothesis (despite the fact that it applied to only one of the four cases before it) and found it wanting. Dr Geddes herself had conceded that it was meant to stimulate debate, that refinement was needed. She regretted the fact that it may have been put forward as fact. Quite rightly, without further research and refinement, never again will Geddes 111 be advanced by way of explanation.

  But what of the triad hypothesis? To paraphrase Mr Richards’ question, “where does that leave us?” The question was whether the triad was diagnostic of shaking/impact and the court held that it could not be. (judgement para 70) “Whilst a strong pointer to NAHI, on its own we do not think it possible to find that it must automatically and necessarily lead to a diagnosis of NAHI”

  That leads to the impression that the court considered there sometimes may be explanations for the triad other than NAHI, as it is now to be known. Careful consideration of the rest of the judgement demonstrates that this impression indeed is correct.

  Mr Richards notes: “Two appeals were upheld on the grounds of process, not medical evidence” and “two appeals were upheld largely on the basis of presentation of the medical evidence rather than medical facts” Regrettably, this is a fundamental error and misunderstanding of the legal process. In fact these two appeals centred on “fresh evidence”. In each case, the defence argued that their fresh medical evidence might explain the findings other than by shaking/impact. This was no question of “process”, it was a question of “medical fact”.

  One may forgive Mr Richards’ error. In order to allow the appeals, the court did not require to decide the fresh medical issues before it. (Indeed, on more than one occasion, their lordships indicated that they themselves could not resolve issues between experts of repute). Rather they were concerned to address other well defined questions: a) was this evidence which was not reasonably available at trial? b) was this evidence capable of belief and finally c) could this evidence have affected the decision of the jury. In this regard one must remember that in a criminal trial, questions of fact, including medical fact are for the jury.

  In each of the successful appeals the defence argued that there was evidence, medical evidence, which explained the findings other than by way of shaking/impact. The court had to decide if that evidence, tested in cross examination before them, was capable of belief. As a matter of law, had their lordships concluded that the defence evidence was not capable of belief or that the scientific assertions were untenable and could not be found to be persuasive (and thus affect the jury’s decision), the appeals all would have been dismissed.

  The appeals were upheld.

  So where indeed does all that leave us? Firstly, no one should consider that the triad is conclusive of abuse by shaking/impact or indeed any other form of abuse. Alone, it may be an indicator of NAHI, not diagnostic of it. Secondly, each case is to be decided on its own facts. Such facts include matters such as history given by the carer, which should not routinely be discounted. (judgement para 149) “The clinical history is perhaps the most important clinical tool available to the clinician and to reject the carer’s version of events in favour of another requires the highest possible level of medical evidence. After all, the Doctor is effectively accusing the carer of lying.”

  Finally, as Dr Jaspan reminded their lordships there can never be absolute certainty in these matters. (judgement para 159)

  “Because in medicine there is never a hundred per cent certainty. So, if I was asked is there a hundred per cent certainty that it could happen, I would have to be honest and say no, there must be almost the freak situation where that could happen”.

  References:

  (1) Geddes JF, Vowles GH, Hackshaw AK, Nickols CD, Scott IS, Whitwell HL. Neuropathology of inflicted head injury in children. II. Microscopic brain injury in infants. Brain 2001; 124(Pt 7):1299-1306.

  (2) Geddes JF, Hackshaw AK, Vowles GH, Nickols CD, Whitwell HL. Neuropathology of inflicted head injury in children. I. Patterns of brain damage. Brain 2001; 124(Pt 7):1290-1298.

  (3) Geddes JF, Tasker RC, Hackshaw AK, Nickols CD, Adams GG, Whitwell HL et al. Dural haemorrhage in non-traumatic infant deaths: does it explain the bleeding in 'shaken baby syndrome'? Neuropathol Appl Neurobiol 2003; 29(1):14-22.

  Michael Mackey is a criminal defence lawyer, who had no involvement with the cases subject to this appeal, but has conducted the defence in other “shaken baby” cases.

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  Conflict of Interest:
  None declared.

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• Published on: 22 March 2016

  Re: Shaken Baby Syndrome

  • James R Le Fanu, General Practitioner

  Dear Editor,

  The suggestion of Peter Richards et al that the ‘term’ Shaken Baby Syndrome be abandoned is of the utmost significance and merits further comment. (1) Shaken Baby Syndrome is not a ‘term’, it is a self validating diagnosis where the ‘syndrome’ of retinal and subdural haemorrhages in a young child is deemed characteristic of violent intentional ‘shaking’ - equivalent in force (allegedly) to a high...

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  Dear Editor,

  The suggestion of Peter Richards et al that the ‘term’ Shaken Baby Syndrome be abandoned is of the utmost significance and merits further comment. (1) Shaken Baby Syndrome is not a ‘term’, it is a self validating diagnosis where the ‘syndrome’ of retinal and subdural haemorrhages in a young child is deemed characteristic of violent intentional ‘shaking’ - equivalent in force (allegedly) to a high speed road traffic accident or being dropped from a second storey window.

  Parents have no defence against this diagnosis for if such force is indeed necessary to cause their child’s injuries then by definition their testimony of some preceding accidental event - such as choking or a short fall – is deceitful.

  Inevitably then virtually all parents accused of SBS are convicted so ‘overwhelmingly on the balance of probabilities’ they too must be guilty.

  The only reason I can see for Richards et al to abandon the diagnosis must be that they now recognise there might indeed be some alternative explanation for this pattern of injury – prompted no doubt by the recognition that SBS is not (as its name suggests) a single discreet syndrome but encompasses three different forms of neuropathology of acute and chronic subdurals and the thin subdurals of hypoxic encephalopathy, with different proposed aetiologies for the associated retinal haemorrhages. (2,3)

  These diverse forms of neuropathology are clearly incompatible with the supposed unitary mechanism of violent shaking, but are however eminently compatible with the previously denied parental testimony of the clinical events leading up to their child’s injuries. (4)

  Yours sincerely

  James Le Fanu
  24 Grafton Square, London SW4 0DB

  References:

  1. Richards P G, Bertocci G E, Bonshek R E et al. Shaken Baby Syndrome. Arch Dis Child 2006; 91: 205-6

  2. Geddes J F, Plunkett J. The evidence base for the Shaken Baby Syndrome. BMJ 2004; 328: 719-720

  3. Aryan H E, Ghosheh F R, Jandial R et al. Retinal haemorrhage and paediatric brain injury: etiology and review of the literature. Journal of Clinical Neuroscience 2005; 12: 624-631

  4. Le Fanu J, Edwards-Brown R. Subdural and retinal haemorrhages are not necessarily signs of abuse. BMJ 2004; 328: 767

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  Conflict of Interest:
  None declared.

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• Published on: 22 March 2016

  Child Abuse: Diagnosis, reporting and investigations

  • Lalith E Chandrakantha, Consultant Community Paediatrician
  • Other Contributors:
    • Robert Sunderland, Andrew Williams

  Dear Editor,

  Sir, Richard et al (1) suggests abandoning the term Shaken Baby Syndrome and point out that it may be advantageous to separate the therapeutic and clinical investigative aspect of the condition. We believe that such an approach, extended to all forms of abuse perhaps combined with mandatory reporting, is likely to resolve the present crisis in child protection. Present system is failing to safeguard ch...

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  Dear Editor,

  Sir, Richard et al (1) suggests abandoning the term Shaken Baby Syndrome and point out that it may be advantageous to separate the therapeutic and clinical investigative aspect of the condition. We believe that such an approach, extended to all forms of abuse perhaps combined with mandatory reporting, is likely to resolve the present crisis in child protection. Present system is failing to safeguard children and reassure doctors of their own safety.

  We suggest that in all forms of child abuse there should be a clear separation of clinical care of the child from forensic and criminal investigations. Children who are abused may present to hospital with variety of symptoms and signs. Our approach to such children should be primarily clinical in nature. In clinical practice we undertake various investigations to define our diagnosis. In a suspected case of meningitis we investigate to find out both the causative organism and in some instances why the child is prone to such an infection. We should have a similar approach to children whose clinical condition suggests abuse. Diagnosis such as Shaken Baby Syndrome or MSBP implies causation that paediatricians are unable to make in clinical setting. Therefore we suggest that such terms are abandoned in clinical practice. The clinical diagnosis may be fractures, salt toxicity, developmental impairment etc.

  In majority of those situations treatment of clinical condition does not require investigations by social services or the police. We refer those children to Authorities in the best interest of the child. It is at that point our therapeutic relationship with parents start to strain. The college reassurances that the present legal system provides adequate safeguard provides little comfort to the majority of practicing paediatricians in the light of recent events.

  The investigations require expertise in understanding relevance of clinical signs in a legal context or forensic medicine. Majority of paediatricians has no formal training in forensic medicine. The GMC reminds us that it is good medical practice that we stay within our capabilities.

  It is time that we rethink our approach to child protection with regard to diagnosis, reporting and investigations.

  References:

  1. Richards PG et al Shaken baby syndrome: Arch Dis Child 2006:91:205 -206

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  Conflict of Interest:
  None declared.

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• Published on: 22 March 2016

  Inflicted head injury in infants - issues arising from the Geddes hypothesis

  • Jonathan A G Punt, Consultant Paediatric Neurosurgeon (retired)

  Dear Editor,

  Richards et al (1) are to be commended for condensing the essence of the complex issues argued before the Court of Appeal last year, and for making eminently sensible suggestions for the role of doctors in the future. However, there are some matters that are a proper cause for concern that remain to be addressed.

  Firstly, there is the manner in which contentious medical hypotheses are put befor...

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  Dear Editor,

  Richards et al (1) are to be commended for condensing the essence of the complex issues argued before the Court of Appeal last year, and for making eminently sensible suggestions for the role of doctors in the future. However, there are some matters that are a proper cause for concern that remain to be addressed.

  Firstly, there is the manner in which contentious medical hypotheses are put before the lay public. No person who has ever spoken to the Press will be unaware of the fact that (s)he has no control over what subsequently appears in print or over the airwaves. Whereas one might wish that the Press would ask the question "Is this good science?", before launching into headlines such as "Gentle shaking 'may kill babies'" (2), "Gentle shaking can cause fatal brain damage in babies, research shows" (3) and "Even mild shaking ‘puts baby at risk’: Research could aid appeals against child killing convictions" (4), the prudently astute doctor will appreciate that the prime objective of a news editor is to sell his story. If, as has been asserted, learned articles contain the basis of a hypothesis merely "meant to stimulate debate" (5), then the authors of those articles must surely have a duty to correct any recital of their work that puts it higher than they had intended.

  Secondly, the three papers that constituted the "unified hypothesis" raise questions as to the quality of the peer review process to which they were subjected prior to publication. In particular, as pointed out elsewhere (6), the second of these papers contained a statement that could not be supported by the data, namely " ... it may not be necessary to shake an infant very violently to produce stretch injury to its neuraxis." It is remarkable that such an unfounded assertion, carrying powerful implications, was permitted to go forward in a distinguished scientific journal. It would be of interest to learn whether the first two papers were reviewed prior to publication by any practitioner who had clinical care of babies and infants in life. As to the third paper, it should have been apparent to the reviewers that the viability of the "unified hypothesis" espoused therein was dependent upon the credibility of the assertions made in the first two papers, yet even at this point, by which time there was open controversy, the matter went apparently unchallenged.

  Thirdly, it is noted that despite frequent challenges to the scientific validity of the "unified hypothesis" from most of the relevant disciplines, in scientific and in medico-legal fora, it was not until the matter came before the Court of Appeal that there was any hint of an acknowledgement that the hypothesis was flawed. The reliance that was being placed upon their publications can hardly have escaped the notice of the authors of the hypothesis. Notwithstanding the representation made to the Court of Appeal by the lead author that she "would be very unhappy to think that cases were being thrown out on the basis that my theory was fact" (5), the practical effect of the papers was to introduce a suggestion of reasonable doubt in an unknown number of cases in criminal and civil proceedings, as must have been known to the authors over a number of years. Yet where in a scientific journal, are we to read a glimmer of doubt, let alone a retraction, prior to the Court of Appeal hearing? Or how long the authors had had it in contemplation that their hypothesis was wrong? It is difficult to accept that no such inkling had arisen until the hearing. It is a sad day for medical science if mature reflection that leads to an amended view only comes to light under the rigours of cross-examination.

  Conflict of interest: I have acted as an independent expert witness in criminal and family proceedings in a large number of cases of possible inflicted head injury, including two of the cases before the Court of Appeal, and I have been remunerated from time to time for such work.

  References:

  1. Richards PG, Bertocci GE, Bonshek RE et al. Shaken baby syndrome. Arch Dis Child. 2006;91: 205-206.

  2.Anon. Gentle shaking 'may kill babies'.http://news.bbc.co.uk/1/hi/health/1387061.stm BBC News, June 13, 2001.

  3. Arthur C. Gentle shaking can cause fatal brain damage in babies, research shows. The Independent, June 14, 2001.

  4. Meek J. Even mild shaking ‘puts baby at risk’: Research could aid appeals against child killing convictions. The Guardian, June 14, 2001.

  5. R v Harris; R v Rock; R v Cherry; R v Faulder [2005] EWCA Crim 1980, [at para 58].

  6. Punt J, Bonshek RE, Jaspan T et al. The 'unified hypothesis' of Geddes et al is not supported by the data. Pediatric Rehabilitation. 2004;7:173-184.

  I remain, yours faithfully

  Jonathan Punt MB BS FRCS FRCPCH DipLaw Consultant Paediatric Neurosurgeon (retired)

  PO Box 6016 Keyworth Nottingham NG12 5RP

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  Conflict of Interest:
  None declared.

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