Law Report: Expert evidence not admissible: Regina v Strudwick and another - Court of Appeal (Criminal Division) (Lord Justice Farquharson, Mr Justice Owen and Mr Justice Latham), 21 December 1993

Expert psychiatric evidence that a mother's failure to protect her child from violence might be due to the fact that the mother was herself abused was not admissible where the child showed brutal, not subtle, signs of ill treatment and the mother had denied the signs of the child's abuse.

The Court of Appeal allowed the appellants' appeals against convictions for manslaughter but dismissed their appeals against convictions for cruelty to a child.

The child died in September 1991 from two blows to the abdomen. Her body was found to have 170 bruises. She lived with her four-year-old brother and the appellants, her mother's boyfriend, Kevin Strudwick, and her mother, Katie Merry. The appellants were charged with manslaughter and with offences of cruelty to a child under the Children and Young Persons Act 1933.

The first appellant admitted smacking the child but denied injuring her. The second appellant blamed him for the death, saying he did not know his own strength and also said some of the injuries were caused by the brother's toy sword. Prosecution witnesses gave evidence of having seen bruises on the child. Other witnesses gave evidence that they saw nothing suspicious.

The trial judge rejected the appellants' submission that the prosecution could not prove who had caused the injuries which killed the child, on the grounds that both had used or seen violence used on the child and both had told lies about injuries. He also ruled that evidence of two experts, a psychologist and a psychiatrist, which explained that the second appellant's failure to protect her child was because abuse she herself had suffered rendered her incapable of responding to her child's suffering, was not admissible.

James Townend QC, Stephen Shay and Heather Hallett QC (Registrar of Criminal Appeals) for the appellants; Richard Camden Pratt (CPS) for the Crown.

LORD JUSTICE FARQUHARSON, giving the court's judgment, said that the allegations made by the second appellant against the first in police interviews were not evidence against him. There was no real evidence which identified him as the one who delivered the fatal blows to the child or that he was supporting the child's mother in an attack by her.

The possibility that he filled one of those roles or was even acting in concert with the second appellant was clear. One or other of them was responsible for the injuries, but which? The history of assaults during the summer provided background material but did not assist on the vital issue. Lies, if they were proved to have been told through a consciousness of guilt might support a prosecution case but on their own did not make a positive case of manslaughter or any other crime.

Similar considerations applied to the second appellant. She clearly had the opportunity to assault the child but the evidence did not establish that she did or that she encouraged the first appellantto do so. The Crown had not made out a prima facie case of manslaughter against the appellants and those convictions would be quashed.

As to the admissibility of the expert evidence, the question for the judge was whether the response of the second appellant to her child's suffering was something which could be understood and evaluated by a jury or whether they would need expert assistance.

If the allegation had been that the signs of ill treatment were subtle, but the sort which any normal mother would have acted on, there might be force in the submissions that the jury required expert assistance. However, the jury had heard that the child was showing brutal signs of ill treatment for a long time and that the second appellant had denied such signs. There was nothing which a jury would be unable to deal with unaided by the experts. The appeals against the cruelty counts were dismissed.