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Earl Howe: My Lords, I begin by thanking the noble and learned Lord the Attorney-General for his Statement, which I welcome without hesitation. I also thank him for making available to me this morning an advance copy of his review. I fully acknowledge the detailed work that was carried out into infant death by the central review team, which resulted in the publishing of the review in December 2004. Likewise, I very much welcome the efforts made by the noble and learned Lord to ensure that a timely review of cases of apparent shaken baby syndrome was carried out in the wake of the Court of Appeal's judgment in July last year.
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We are dealing here with the gravest possible matters. The noble and learned Lord echoed the feelings of us all in his review when he said that those individuals who abuse or kill the children in their care—as we know, sadly, such people exist—must be brought to justice and dealt with appropriately. By the same token, I am sure that we all believe that we should do all that we possibly can to ensure that a misplaced prosecution or, worse, a wrongful conviction for murder, manslaughter or grievous bodily harm cannot occur. That means ensuring that the processes and protocols employed by doctors, social workers, the police and other investigating authorities are robust. I very much welcome what the noble and learned Lord had to say about the guidance in that context.
The trouble with so-called shaken baby syndrome is that it is an inexact science, notwithstanding the finding of the Court of Appeal. It is inexact in two senses. In the first place, as the noble and learned Lord said, shaken baby syndrome currently amounts to an accepted hypothesis. As I understand it, there is no agreed body of peer-reviewed evidence that shows that shaking a small child, even roughly, can bring about the triad of symptoms to which the noble and learned Lord referred. The science is also inexact in that the symptoms by which shaken baby syndrome is commonly identified are potentially ambiguous. The work done by Dr John Plunkett, a forensic pathologist mentioned in the noble and learned Lord's review, identified 18 independently witnessed accidental and trivial falls that had produced features allegedly characteristic of shaken baby syndrome. By definition, the brain and retinal haemorrhages in those cases could not have been due to shaking.
The noble and learned Lord's review also mentions the work of Dr Geddes. Although the Court of Appeal felt that Dr Geddes's work was thus far unproven, it is important to stress that it has by no means been discredited. Indeed, it must be considered to be of the utmost importance. Geddes examined brain tissues obtained at autopsy from 53 severely battered children. In only two of those did he discover injury consistent with severe backwards and forwards motion of the brain within the skull. For the majority, the cause of death was oxygen deprivation, which caused a swelling of the brain and bleeding on its surface. The same oxygen deprivation caused bleeding in the eye, and thus accounted for the retinal haemorrhages. Indeed, the triad of symptoms mentioned by the noble and learned Lord can be caused by a variety of quite innocent events or conditions, such as an adverse reaction to vaccination or medication, or simply a difficult birth.
This brings me to my first question; could the noble and learned Lord confirm that the guidance that he mentioned, which was issued to health practitioners and social workers, will reflect the key findings of the Court of Appeal that this triad of symptoms cannot automatically or necessarily lead to a conclusion that an infant has been deliberately shaken? It is, I think, vital for public confidence and infant safety that a parent arriving at the accident and emergency department of a hospital or at a doctor's surgery with
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a child suffering from the type of injuries at issue will not be considered guilty until proven innocent. Can the noble and learned Lord also tell me what work has been done by the Council for the Registration of Forensic Practitioners to promulgate appropriate training for paediatric pathologists?
The noble and learned Lord also mentioned extraneous evidence which led him not to question the safety of quite a large number of the convictions under review. One of those extraneous factors was that the child in question had suffered earlier fractures in his or her life. Is the noble and learned Lord aware of growing evidence that signs of so-called metaphyseal fractures in children are potentially ambiguous? Some are indicative of the deliberate twisting and wrenching of a limb; others are merely signs of abnormalities of growth points in the bone which occur quite naturally. Indeed, there is a body of medical opinion which has identified calcium deficiency in premature infants as a cause of quite normal variance in the radiological appearance of growing bones. If such symptoms were taken as indicative of deliberate harm in those children whom he mentioned, would the noble and learned Lord be kind enough to tell us?
On the present rather than the past, I understand that the review concentrated on two past cases where convictions were secured. Can the noble and learned Lord tell me whether he proposes to instigate a scrutiny of current cases involving not just infant homicide but all cases where shaken baby syndrome might be a factor? Can he also confirm that this review has been carried out personally by the Director of Public Prosecutions, and can he inform the House whether any current cases are being discontinued as a result of such scrutiny?
Finally, I shall touch on one other area of concern which I fully acknowledge is not within the purview of the noble and learned Lord, but I think it would be remiss of me not to mention it. My noble friend Lord Kingsland raised this matter when the review of infant deaths was debated in December 2004. Will the noble and learned Lord assure the House that his ministerial colleagues have under active review cases in which care orders have been made by the family courts and where shaken baby syndrome may have been an issue? Will he assure the House that such cases will be considered in the light of the July 2005 Court of Appeal judgment?
The noble and learned Lord will know that the number of criminal cases are, thankfully, fairly few. But I am aware of many cases in the family courts where children, on the balance of probabilities in relation to the evidence, are taken into care as a preventive measure and, in some cases, are adopted on the evidence of medical experts and others. Where that happens, and there is due cause, it is right that it should happen. Where it happens and the evidence is ambiguous, that should cause us all the gravest possible disquiet. It is important that the lessons learnt from this review should be promulgated just as widely in that forum as they are now in the context of criminal investigations.
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Baroness Walmsley: My Lords, I thank the noble and learned Lord the Attorney-General for repeating the Statement. Unlike the noble Earl, Lord Howe, I did not have the advantage of having a copy of the review, but I do not hold the noble and learned Lord responsible for that. Unlike the noble Earl, I do not intend to concentrate on medical details. The Court of Appeal has the advantage over me in that respect, having pulled together the evidence of the 25 leading experts. However, I have some questions on the very helpful Statement which tells us what the Government intend to do.
On the process of the review, was there a thorough review of all the paperwork from beginning to end, including all the evidence and statements, and not just the CPS notes of the case? On page 4 of the Statement, the noble and learned Lord said:
"In the considerable majority of the remaining SBS cases, other extraneous evidence existed to support the findings of shaken baby syndrome".
Does that mean that in a minority of the 85 cases, there was no extraneous evidence apart from the medical evidence? Why does that justify not considering that those cases gave cause for concern?
We need to ensure that there is justice for parents and justice for children. Sadly, it is known that in a very few cases, parents do harm their children. So it is vital that there are no presumptions whatever. Courts should come to their conclusions solely on the basis of the evidence before them, much of which will inevitably come from expert witnesses who must not see themselves as advocates for one side or the other. They must give their evidence impartially, based on their expertise in their field. I very much welcome the guidance which the Government have prepared for them. But what guidance will be given to the courts on the advice that juries should be given on how to view the evidence and the credibility of those experts?
On page 5 of the Statement, the noble and learned Lord said that the experts,
"will also be required to certify that they have revealed to the prosecution any information that might adversely affect their credibility".
What happens to the experts if they are subsequently found not to have done that?
Finally, how would the measures that the noble and learned Lord has announced today have affected the cases of Sally Clark, Angela Cannings and Trupti Patel? That is their acid test.
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