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After the Court of Appeal: R v Harris and others [2005] EWCA crim 1980
  1. M Mackey
  1. Burton Copeland, Solicitors, Manchester, UK;

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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 the March issue of this journal, Richards et al have attempted an analysis of R v Harris,1 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 encephalopathy, 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 (SBS), 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 …

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  • Competing interests: 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.