Practice and Procedure


PUBLISHED October 15, 2003

A conviction for inflicting GBH was safe as there had been no error in refusing a submission of no case to answer and the judge had not misinterpreted expert medical evidence, however given the circumstances a sentence of two years was manifestly excessive and 12 months would be substituted.Appeal with leave of the single judge against conviction for inflicting grievous bodily harm imposed at Cardiff Crown Court on 9 May 2003 and appeal against the sentence of two years' imprisonment. On 3 December 2002 the defendant's ('D') girlfriend went out and left him to look after her two and a half year old son ('V'). D decided to bath V and V suffered severe burns covering 34 per cent of his body, from his waist to his feet, from the water in the bath. It was the prosecution's case that D had deliberately put V into the bath intending to inflict GBH. D contended that whilst running the bath he had taken V's nappy off and gone to throw it away. He heard screams and found V in the bath, he contended V must have climbed in himself. He called for help immediately and assisted the paramedics. The prosecution relied on two medical experts who gave evidence that the burns were consistent with false immersion in the water. If V had climbed in himself it could be expected that the burns would have been less severe and there would have been splash marks. When cross-examined, the experts stated they could not rule out the possibility the child climbed in the bath himself. At the close of the prosecution's case, a submission of no case to answer was made which was rejected. D appealed conviction and sentence on the grounds that the judge erred in law in rejecting the submission of no case to answer as she had misinterpreted the expert evidence. Further, the summing up was inadequate as the judge over emphasised the strength of the prosecution's evidence. The sentence was manifestly excessive given the basis of sentencing was that D had recklessly placed V in hot water without checking the temperature and there was no suggestion he intended the injury.HELD: (1) When considering the judge's ruling that there was a case to answer there was no way she misinterpreted the evidence of the experts. Neither did she give too little weight to their acceptance that V could have climbed into the bath himself. It was a matter for the jury and the judge was right to leave it to them to decide. (2) When summing up the judge gave a standard direction on the approach the jury should take to expert evidence. She then went over the evidence in detail reminding the jury of the important points both of the prosecution and the defence case. The conviction was therefore safe. (3) The case involved serious recklessness causing serious and permanent injury to V and a prison sentence was inevitable. However, given the mitigation of D's good character, his young age and the fact that he was poorly equipped for family life the sentence was manifestly excessive and would be reduced to 12 months' imprisonment.Decision accordingly.