Summary of the decision by the Court of Criminal Appeal to quash the conviction for murder of Kimberley Hainey

The appellant was convicted by a majority of the jury on 15 December 2011 at the High Court in Glasgow of murdering her baby son Declan by wilfully ill-treating and neglecting him and failing to provide him with adequate nourishment and fluids and by leaving him alone for excessive periods of time unattended.  She was sentenced by the trial judge, Lord Woolman, to life in prison and was ordered to serve a minimum period of 15 years before being released. 

The post-mortem carried out on the child following the discovery of his body was to the effect that the cause of death was unascertained.  That conclusion was supported by a number of eminent medical witnesses who gave evidence at the trial.  The Crown case relied, to a significant extent, on the evidence given by two persons, Professor Susan Black and Dr Craig Cunningham, both forensic anthropologists based at the University of Dundee.  These witnesses, in reports produced at the trial, and in evidence given in court spoke to their having seen evidence in the skeleton of the child of two things.  The first was presence of what are called Harris lines on his bones.  The second was evidence of erosion of his cortex.  Both of these phenomena, the witnesses originally contended, were consistent with the child in question having been subject to malnutrition and maltreatment before death.  Neither of these witnesses, however, had any medical qualifications.  Their expertise is in forensic anthropology.  That discipline equipped them to speak, as experts, on the possible age of the child at the date of his death, he having been discovered only some time thereafter.  These witnesses came to accept, however, that notwithstanding what they had said about the subject of cortex erosion, they were not qualified to speak about this.

Their evidence on Harris lines conspicuously failed to take into account relevant, up to date, scientific literature which posed significant doubt as to whether the appearance of such lines on the bones of a young child provided satisfactory evidence that that child had been malnourished or otherwise maltreated.  The medical witnesses who gave evidence at the trial were to the effect that the presence of these lines on the bones did not assist in answering the question as to the cause of death of the baby.

Notwithstanding the fact that both Professor Black and Dr Cunningham, in the event, at the trial, denied any expertise regarding the condition of cortex erosion and its significance, the trial judge in his directions to the jury did not tell the jury that anything that they had said in that respect should be ignored but rather left it to them to make of it what they could.  That was, in the court’s opinion clearly a misdirection by the trial judge.

Moreover, standing the amount of medical evidence that arose in relation to the question of the presence of Harris lines and the limits of expertise and experience of Professor Black and Dr Cunningham, taken together with the fact that the cause of the child’s death was an unascertained one, the judge failed in his directions to the jury to provide them with the assistance required for them to resolve the nature and number of issues raised in a case of this kind.  That failure was significant and also amounted to a misdirection by the trial judge.

For the foregoing reasons, the conviction of murder required to be quashed.

The court also had doubts as to whether or not, in the circumstances, the judge had given adequate directions as to what might constitute murder in the particular circumstances of this case as opposed to the appellant having possibly caused the death of the child by neglect.

In their judgment the court also pointed out that when the Crown decides to prosecute a case, like the present, which is to a material extent dependent on expert evidence, it is essential that the person/s upon whose expertise the Crown seek to rely are truly expert and experienced in relation to the matters they are called upon to speak about.  The court also raised the possibility that some thought might require to be given to adjusting the rules of criminal procedure to provide a means for identifying clearly pre-trial the key issues in respect of which expert evidence is to be sought, so that those issues can be clearly identified in advance of the trial and the witnesses in question can be seen to have appropriate experience and expertise to enable them to be regarded as experts speaking on the matters in question.

 Read the full Opinion


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