Smith, R v, Court of Appeal - Criminal Division, July 31, 2017, [2017] EWCA Crim 1174

Resolution Date:July 31, 2017
Issuing Organization:Criminal Division
Actores:Smith, R v

Neutral Citation Number: [2017] EWCA Crim 1174

Case No: 2017/02022/B4 & 2017/00656/B4



Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 31/07/2017






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J Butterfield QC for the Appellant

Christopher Hotten QC for the Respondent

Hearing dates: 30 November 2016, 14 March 2017 and 12 July 2017

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Lord Thomas of Cwmgiedd CJ:

  1. Between the end of February 2016 and 11 April 2016 the appellant was tried at the Crown Court at Birmingham with her co-defendant, Matthew Rigby, for the murder of her child AJ on 1 May 2014, the alternative offence of causing or allowing the death of a child and cruelty to a child.

  2. The appellant was convicted of murder and cruelty to a child and sentenced to life imprisonment with a minimum term of 24 years. Her co-defendant, Rigby, was convicted of causing or allowing the death of a child but acquitted of the other charges. He was sentenced to imprisonment for 3½ years.

  3. The appellant's application for leave to appeal against her conviction for murder was referred to the Full Court by the Registrar. The course of the application has been somewhat unusual since the referral. On 30 November 2016 we heard full argument on behalf of the appellant and respondent upon the grounds of appeal against conviction then advanced. At the conclusion of the hearing we reserved our judgment; we also granted an application to extend time to appeal against sentence. Written grounds of appeal against sentence were then filed and served. On 14 March 2017 we re-convened. At this hearing we heard argument about the appeal against sentence. We were also informed, however, that the respondent had recently disclosed material which had a bearing upon the appeal against conviction. Accordingly, we gave directions for the filing of any additional grounds of appeal and material in support. We sat again on 12 July 2017 when we heard further argument about the appeal against conviction.

  4. This judgment deals with all grounds of appeal advanced in relation to conviction. It also determines the Applicant's appeal against sentence.

  5. The principal issues on the appeal against conviction relate to comments made by the judge during the defence closing speech, the fairness of the summing-up and facts wrongly presented to the jury as being accurate. It is said that these matters render the Appellant's conviction for murder unsafe.

    Factual background

  6. The appellant was born on 13 December 1992 and was, therefore, 21 at the time of AJ's death. The appellant gave birth to AJ when she was 19 on 15 July 2012. AJ's father was Ricky Booth. Her relationship with him ceased and about 6 months after AJ's birth the appellant began a relationship with another man. During the course of 2013 that relationship, too, came to an end. However, due to the violence displayed by that man towards the appellant and the effect of that upon AJ, AJ was placed with foster carers from June to October 2013. The evidence as to the period between AJ's birth and her being placed with foster carers was that far from the appellant displaying any signs of violence towards AJ, there was praise from professionals for her bonding and warmth to AJ.

  7. In October 2013 AJ was returned to the appellant who began a relationship with Rigby who was 19 at this time, having been born on 10 January 1994.

    Events in the period between October 2013 and 1 May 2014

  8. It is necessary to refer to the period between October 2013 and the date of AJ's death on 1 May 2014 because the appellant and Rigby were specifically charged under Counts 4 and 5 in the indictment with cruelty to a child, spanning the period October 2013 to 1 May 2014. This period is important, too, because the prosecution relied on the events during this period as part of its overall case that the appellant and Rigby were jointly involved in the murder of AJ.

    The evidence of Ricky Booth and Naomi Pantell

  9. The evidence on which the prosecution relied in the period until 21 February 2014, when Rigby and the appellant moved from the flat in the housing complex for young women at Swadlincote, Derbyshire to a home in Stretton, Derbyshire, was the evidence of Ricky Booth, AJ's father, and Naomi Pantell, a neighbour from September 2013 in the housing complex at Swadlincote. She had known Rigby (who had previous convictions for offences of violence) for some years and had introduced him to the appellant.

  10. The evidence of Ricky Booth who visited AJ at the appellant's flat and took her for weekends can be highlighted by reference to two events.

    i) In about November 2013 when he was bathing AJ he noticed dark brown bruising on her outer thigh running down towards her knee. His mother had also seen this. He had taken photographs of it. Ricky Booth and his mother gave evidence to the effect that this mark had been reported to the social worker responsible for AJ. The social worker had no record of the conversation.

    ii) In December 2013, when the appellant had dropped AJ off for the weekend, the appellant had pointed out marks on AJ's face which looked like finger marks or a handprint. He said that the appellant sought to explain these marks by saying that they had been caused while AJ was sleeping in her cot. He had taken photographs of the marks as soon as the appellant had left as it looked like the mark from a slap.

    The photographs taken in November and December 2013 were before the jury; the copies with which we were provided were of very poor quality.

  11. It was Naomi Pantell's evidence that she looked after AJ two or three times a week for the appellant. Her evidence was that AJ was not being fed enough and did not have a proper sleep regime; that the appellant slapped AJ on the legs three or four times a week, depending on whether the appellant had had cannabis. She saw bruising on AJ's back sometime after Christmas 2013. She also saw bruising to her back that had the appearance of fingertip bruises.

    The incident on 3 February 2014

  12. The most serious incident that occurred before 1 May 2014 was what happened on 3 February 2014. Both Rigby and the appellant were with AJ in the flat until the appellant went out; on her account it was to do some shopping and on Rigby's subsequent account it was to purchase cannabis. At about 4 p.m. a 999 call was made by Naomi Pantell; paramedics attended at the flat occupied by the appellant and Rigby. They found AJ lying on her back in the lobby with Rigby leaning over her performing chest compressions. AJ was making some effort to breathe unaided and did not feel floppy. When asked what had happened Rigby told them that she had been in her cot and suddenly gave out a high pitched scream. AJ was taken to the ambulance. As it was about to leave, the appellant came back and went with AJ and Rigby to hospital. The paramedics thought that AJ may have suffered a febrile convulsion. On examination at the hospital there was no visible sign of bruising; she was found to have swollen tonsils which were considered by the medical staff to have caused a fever which in turn could have caused her to convulse.

  13. At the trial there was expert evidence that there was no evidence of febrile convulsions from what had been discovered subsequently. Evidence of a subdural haemorrhage was found on the post mortem examination of AJ. The overwhelming likelihood was that this injury had occurred at this time as a result of head injury. Medical evidence was to the effect that the subdural haemorrhage could have occurred instantly or it could have been delayed in its onset. If the latter had occurred, it did not matter that the appellant had gone out before AJ collapsed as the injury that caused the subdural haemorrhage could have occurred before she went out.

    The move to Stretton

  14. The argumentative relationship between the appellant and Rigby continued after the move to Stretton, Derbyshire on 21 February 2014.

  15. On 29 March 2014 AJ was taken to hospital. A significant lacerated wound was found to the inside of her lower lip. The appellant's explanation was that she had slipped in the bath. Neither the appellant nor Rigby told the hospital of what had happened on 3 February 2014.

  16. On 4 April 2014 the police were called to the house because of a dispute between the appellant and Rigby. The appellant made a complaint about Rigby's conduct but retracted it the following day. She told Social Services she was not going to see Rigby any more but would not sign an agreement to that effect.

  17. On 24 April 2014 AJ was seen by a health visitor at a child development clinic. She had a bruise to the bridge of her nose caused, according to the appellant, when AJ had fallen whilst using a potty. There was also a red mark to her knee.

  18. The post mortem examination which took place after the death of AJ on 1 May revealed that there must have been a number of serious injuries in the one or two weeks prior to 1 May. These included:

    i) bruises to the buttocks; deep tissue sampling showed these had been caused more than 24 hours before AJ's death;

    ii) significant bruising to the back; examination showed there were two points of trauma which had been caused at different times;

    iii) bleeding to the lungs that had occurred at least 24 hours prior to death;

    iv) an old rib fracture between one and two weeks prior to death.

    Events of 1 May 2014

  19. On the morning of 1 May 2014, the day AJ died, the appellant and Rigby went shopping with AJ. They returned home. As we explain at paragraphs 26 to 28 there was a dispute between the appellant and Rigby as to who was in the flat in the period during which AJ must have sustained the...

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