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Child Protection: Shaken Baby Syndrome

My Lords, I thank the noble Earl and the noble Baroness for their welcome for this report. There is a great deal in what they said with which I wholeheartedly agree. For example, I entirely agree with the noble Baroness that we need justice for parents and for children. Sadly, there are cases where parents or others in charge of children do them unlawful violence. The law must be there to protect those children. Equally, I agree that the law must operate in such a way that only proper cases are brought and that we must strive to avoid anything which approaches a miscarriage of justice. I therefore agree with the noble Baroness that it is vital for there to be no presumption. However, I take slight issue: there should be one presumption throughout all these criminal cases—the presumption that the suspect is innocent until proven guilty by evidence. I am sure the noble Baroness would agree with that. Perhaps I may turn to the questions posed by the noble Earl. In his very erudite observations on my report, he pointed to the present state of evidence in relation to shaken baby syndrome. In one sense he is right. There is no laboratory evidence to prove what happens if you shake a baby in a particular way. That is for the very obvious reason that no one would conceivably think of conducting such an experiment. But the leading experts to whom the noble Earl referred both gave evidence to the Court of Appeal, which was able to judge their opinions and weigh them against contrary points of view. One very important factor impressed the Court of Appeal and has always seemed to me to be significant. If there were the possibility of children suffering such catastrophic injuries as to cause internal bleeding within the skull, bleeding behind the eyes or brain swelling as a result of everyday occurrences, one would expect the casualty wards of our hospitals to be filled with children who had suffered such injuries but had survived. That is not the experience of paediatricians. It is a powerful factor and tells one what is actually happening. However, a critical point made by the Court of Appeal in what was a very wise judgment was that because of the state of medical evidence, it is necessary to look at all the facts and evidence of the case, not just automatically to take the view that the presence of particular injuries means there must be criminal responsibility. The noble Earl then asked me whether the guidance will reflect those key findings. The guidance being issued today by the Director of Public Prosecutions to prosecutors, which will be publicly available, deals in detail with the judgment of the Court of Appeal and precisely those indications. He also asked about the work being done by the Council for the Registration of Forensic Practitioners on the training for forensic pathologists. I am not sure that that is a matter for the council. Certainly the Home Office recognises that the issue of training for forensic pathologists is important and work is under way to deal with it. He also asked me, by reference to the example I gave in the report of the sort of case where the conviction appeared to be safe, whether those might include cases where the previous fractures sustained by the children were ambiguous because of bone structure. Those reviewing the cases had before them all the available papers, including medical reports, which will have been put in at the trial and relied upon by defence experts. I anticipate that if a defence expert thought it was arguable that a fracture was not the result of unlawful violence but something else, it would have come out in the report. However, I shall take away the question and consider it. The noble Earl went on to ask me about current cases. At the time I issued the first review, I also announced that the Director of Public Prosecutions had called for a review of all pending cases. Six in particular were looked at, and of those three were dropped. The Director of Public Prosecutions looked personally at those cases with the exception of one where he had a personal conflict of interest. As a result that case was looked at by the Director of Casework. The matter was taken very seriously and of course the guidance being issued to prosecutors today indicates that this issue is to be taken seriously, as it very properly ought to be. Finally, he referred to the difficult issues that arise in the family courts. The House has discussed those. They do not give rise to precisely the same questions; the issue of the welfare of the child comes into the consideration, not just the question of criminal responsibility. He will recall that at the time of the Cannings judgment, guidance was given by my ministerial colleagues to local authorities to undertake a review of decisions they had made. I cannot tell him precisely what has happened in that department since the decision of the Court of Appeal, but I will pass on his question to my ministerial colleagues and come back if I can give the assurance that he seeks. The noble Baroness, Lady Walmsley, asked about the process of review and whether it looked at all the evidence. It looked at all the evidence that was available to the prosecution; of course, it cannot look at evidence that may be available to the defence. Somebody may occasionally think there is something suspect about a case but says it is for the defendant to determine whether he wants to take it further. Sometimes the defendant or the defendant’s advisers may be in possession of information the prosecution does not have which casts a very different light on that person’s culpability. In some cases—I am not including these three cases—the defendant, following a conviction, may admit responsibility. The noble Baroness rightly picked up an infelicity of language in the Statement. I will put the matter this way: in all the 85 cases—except the three I mentioned—a careful review has been performed of all the evidence to be satisfied that the convictions appear to the reviewers, on the information they had, to be safe. If the Statement appeared to leave a little gap, that was not the intention. The noble Baroness then made the point, with which I thoroughly agree, that experts must not set themselves up as advocates. They are not paid; they are not hired guns for one side or another. They should be objective, acting within their own sphere of expertise, seeking to help the court reach a just solution. I have no doubt that when the courts give guidance to juries, they will follow exactly the same line. What if experts do not disclose what they ought to disclose? First, they will not get work in the future, which is a pretty important consideration. As to whether their professional bodies may take action against them, that is a matter for them. In extreme cases, others might even take action against them for making a deceptive statement. I hope that I have dealt with all of the questions that have been raised. Again, I thank the noble Earl and the noble Baroness for their welcome.