B e f o r e :
LORD JUSTICE MUNBY LORD JUSTICE KITCHIN and SIR STEPHEN SEDLEY ____________________
____________________
Mr Frank Feehan QC and Ms Alexa Storey-Rea (instructed by Wollen Michelmore LLP) for the appellant father Ms Frances Judd QC and Ms Hayley Griffiths (instructed by Wansboroughs) for the respondent local authority Hearing date : 12 November 2012 ____________________
HTML VERSION OF JUDGMENT ____________________
Crown Copyright ©
Lord Justice Munby :
This is an appeal, pursuant to permission granted by the judge, from findings of fact made by Her Honour Judge Katharine Marshall in the Swindon County Court and set out in a reserved judgment handed down on 31 August 2012. The judge had been conducting a fact finding hearing as part of care proceedings brought by a local authority in relation to two children: L, a boy born on [a date in] 2008, and M, a girl born on [a date in] 2011. The fact finding hearing had occupied seven days between 6 and 19 June 2012.
The conundrum
It was not and is not disputed that when M was admitted to hospital on 3 August 2011, when she was just five months old, she had three (possibly four) fractured ribs, those fractures having occurred on at least two occasions, and fractures to her skull. What lifts this case out of the ordinary – indeed makes it unprecedented and thus unique in the experience of the very distinguished experts who gave evidence – is that although M had indubitably suffered complex bilateral skull fractures, described by one of the experts as "spectacular", she had not suffered the very serious brain injuries which would be expected to accompany fractures of such severity.
At the very beginning of her judgment the judge described the case as "most unusual and difficult." She explained why (paragraph 2):
The expert evidence
The judge read and heard evidence from four very experienced experts: Dr Stephen Chapman, Consultant Paediatric Radiologist at Birmingham Children's Hospital (report dated 5 November 2011, letter dated 4 December 2011 and addendum report dated 28 January 2012), Mr Peter Richards, Consultant Paediatric Neurosurgeon at the John Radcliffe Hospital, Oxford (report dated 31 March 2012), Dr Katharine Halliday, Consultant Paediatric Radiologist at University Hospital Nottingham (report dated 12 April 2012) and Professor Nicholas Bishop, Professor of Paediatric Bone Disease at the University of Sheffield and Honorary Consultant Paediatrician at the Sheffield Children's NHS Trust (report dated 8 May 2012 and addendum report dated 11 May 2012). All four experts participated in an experts meeting, conducted by conference telephone and chaired by the guardian's solicitor, on 15 May 2012. The fact finding hearing began as I have said on 6 June 2012.
To put the expert evidence in context: The mother gave an account of an incident on 16 July 2011 when she squeezed M's chest to avoid dropping her as she fell out of the bath. The father gave an account of having dropped M on 2 August 2011 when she hit her head on a low table before she hit the floor.
M was x-rayed on 3 August 2011 and again on 5 August 2011. Dr Halliday and Dr Chapman were agreed that the older rib fractures, to the left 5 th and 6 th ribs, were likely to be some 2-4 weeks old when x-rayed and so to have occurred according to Dr Halliday (working back from the x-ray on 3 August 2011) between 6 and 20 July 2011 or, according to Dr Chapman (working back from the x-ray on 5 August 2011) between 8 and 22 July 2011. The more recent fracture, to the left 8 th rib, could be dated more precisely because of changes in its appearance between the two x-rays. Dr Halliday and Dr Chapman were firm in their view that this fracture could not have occurred less than four days before the second x-ray, in which case the father's account of what he said happened on 2 August 2011 could not be an explanation for any of the rib fractures.
In contrast to the position in relation to the rib fractures, the experts were all agreed that skull fractures cannot be aged from the appearance of the fracture lines.
Against this background, it is convenient to start with Mr Richards' report. For present purposes the key passages in his report are paragraphs 2.2, 2.4, 2.8 and 2.9. I set them out in full:
It was following this report that Professor Bishop was asked to report. His opinion as set out in his first report was clear:
In his addendum report he said:
I appreciate that "what is said at an experts' meeting is not strictly evidence in the case" (per McFarlane J in Oxfordshire County Council v DP, RS & BS [2005] EWHC 2156 (Fam), [2008] 2 FLR 1708, para 109), though it can of course be put in cross-examination or re-examination. But it is convenient, setting the scene for the evidence that was given by the experts at the trial, to see how this aspect of the matter developed at the experts' meeting on 15 May 2012.
The issue was first discussed before Dr Halliday joined the meeting. Mr Richards said:
Asked whether they all agreed that there were "extensive skull fractures, with minimal brain injury seen on the films?", both Mr Richards said Dr Chapman said "Yes". Professor Bishop said:
A little later Mr Richards said this:
The following interchange then followed:
Dr Chapman agreed:
Professor Bishop said "I'd agree with that." Asked, "So it would be very difficult to speculate as to what it was that caused the injury?", Mr Richards said:
The discussion returned to this topic after Dr Halliday came on line. Mr Richards said "The degree of fracturing we all consider is spectacular, outside of our usual expertise", to which Dr Halliday said "Yes." Mr Richards continued, "it's odd that there's such extensive fracturing, not much scalp swelling, and a seemingly happy baby" to which Dr Halliday responded:
The significance of this discussion for present purposes is perhaps two-fold. First, all the experts had addressed this issue during the experts' meeting, so it was not coming to them 'out of the blue' at the trial. Second, the experts had been left baffled at the end of the meeting, so it is reasonable to imagine that they were thinking about it in the three weeks that elapsed between the experts' meeting and the trial.
During the trial Mr Richards gave evidence on 7 June 2012, Dr Halliday and Dr Chapman (in that order) on 12 June 2012 and Professor Bishop on 13 June 2012.
Examined in chief by Mr John Ker-Reid on behalf of the guardian, and referring to what was found when M was x-rayed, Mr Richards said:
A little later he added:
And then:
Mr Richards was cross-examined by Mr Anthony Kirk QC on behalf of the mother:
Mr Richards was then cross-examined by Mr Frank Feehan QC on behalf of the father. I need not set it all out, for necessarily it traversed ground already covered by Mr Kirk:
Mr Feehan returned to the point towards the end of his cross-examination:
Dr Halliday was cross-examined by Mr Kirk. She agreed with what Mr Richards had said at the end of his cross-examination on this point by Mr Kirk (see paragraph 16 above). She went on:
Asked by Mr Kirk whether this was "without parallel in terms of medical reporting and medical annals" she replied:
Dr Halliday was cross-examined by Mr Feehan. Referring to Mr Richards she said:
Dr Chapman was cross-examined on the point by Mr Feehan:
Towards the end of cross-examination, Dr Chapman said this:
And then at the very end:
Cross-examined by Mr Kirk, Dr Chapman associated himself with what Mr Richards had said at the end of his cross-examination on this point by Mr Kirk.
Professor Bishop was cross-examined by Mr Kirk:
A little later there was this interchange:
Cross-examined by Mr Feehan, Professsor Bishop said this:
He was asked by Mr Feehan, "how can you explain the extent of skull fractures, given the lack of brain injury?" He replied:
His response to the next question was:
He was asked by Mr Feehan "what else might be an explanation for what we see?" Professor Bishop's answer was "I think you are asking me to speculate beyond the limits of my expertise."
The expert evidence – summary
I have deliberately set out the expert evidence relating to the skull fractures at some length. It is important to see exactly what these very experienced and distinguished experts were and were not saying. But it is also important to be able to get a 'feel' for the case and to see – we can only read it on the printed page; the judge of course could watch and hear – not merely the care with which skilled counsel confronted each of them in turn with the central conundrum in the case but also the very evident difficulties they all had in coming to any answers.
That said, what the judge was presented with at the end of the day was a marked uniformity of expert opinion:
i) M had "spectacular" fractures of her skull.
ii) What I will call 'conventional' medical opinion, based on very extensive experience, would have expected such extensive fractures to be accompanied by: (a) extensive brain damage, (b) extensive swelling of the scalp (c) pain and (d) a patient presenting as either dead (or dying) or unconscious and requiring intensive care.
iii) In contrast here, M had no significant brain injury, only minimal scalp swelling and presented as apparently pain-free and reasonably well, "a seemingly happy baby".
iv) In the experience of all four experts M's case was unique: none of them had ever seen such a case and none was identified from the literature.
v) None of the experts was able to come up with any explanation that went beyond what each acknowledged was mere speculation.
In sum, M's skull fractures were inexplicable.
The language used by these very experienced experts is striking. A selective anthology includes, as we have seen, such phrases as: "cannot be determined", "remain unexplained", "something strange going on", "very odd and unusual", "it does not add up" (Mr Richards); "several things … extremely unusual", "can't really explain them", "without parallel", "very, very unusual", "extremely unusual" (Dr Halliday); "an awful lot of inexplicable things" (Dr Chapman); "very unusual, in fact, unique", "a very unusual presentation", "surprising", "I don't have any good answer", "I can't answer and I can't begin to speculate" (Professor Bishop); "unprecedented" (Mr Richards, agreed by Dr Halliday, Dr Chapman); "speculation" (Professor Bishop, Dr Chapman). The judge was entirely justified in characterising the case (paragraph 2) as "not just unusual … but inexplicable."
There is a further important point that emerges from the expert evidence. Mr Richards had envisaged as a possible explanation that M might have abnormal bone fragility – that, after all, was why Professor Bishop was asked for his opinion. But Professor Bishop was adamant that there was no such abnormality; M, in his opinion, has a normal skeleton. This left Mr Richards completely at a loss. Professor Bishop's evidence did not make the case easier; it made it more difficult, indeed inexplicable . As Mr Richards had said in his original report, and he never wavered, nor did any of the others gainsay him, "If abnormal bone fragility is excluded, the fractures remain unexplained." But equally, Professor Bishop was unable to come up with any explanation, assuming that is, as he believed, that M's skeleton was normal. The simple fact, given Professor Bishop's evidence, is that none of these very experienced experts had any explanation for what they were seeing. That is the central fact with which Judge Marshall had to grapple. Did she?
There is one other feature of the expert evidence that requires comment. The only material in the medical literature to which the judge was referred was research carried out on the cadavers of small children to determine the height from which they had to be dropped to produce fractures of the skull. This of its very nature did not assist the judge in grappling with the problem that confronted her, namely a very young child presenting with the "spectacular" fractures M had suffered. The mystery was not that M had survived – for Mr Richards was aware of such cases, at least in adults – but the absence of associated trauma. Now I have to say that I would find it very surprising if there is nothing to be found in the literature relating to spectacular skull fractures and only a little less surprising if there is nothing to be found in the literature relating to spectacular skull fractures where there is no associated trauma. Be that as it may, in a case where it was being asserted that something was, from a medical perspective, unprecedented and inexplicable, it would surely have assisted the judge either to be taken to such literature as there is, which might have provided a clue to what had happened, or to be told that an appropriately extensive search of the literature had produced nothing, in which case a finding could more confidently have been made that what had happened was inexplicable.
The judgment
Judge Marshall summarised the legal principles she had to apply largely by reference to the ten principles set out by Baker J in Re JS (A Minor) [2012] EWHC 1370 (Fam) , paras 36-45. No one has criticised her for doing this and she was, in my judgment, well justified in adopting this approach. Baker J's analysis of the authorities is both helpful and, so far as it goes, accurate.
As part of that exercise Judge Marshall referred to what Hedley J said in Re R (Care Proceedings: Causation) [2011] EWHC 1715 (Fam) , [2011] 2 FLR 1384 , para 10. I propose to expand the quotation slightly. Hedley J referred to what Moses LJ had said in R v Henderson; Butler; Oyediran [2010] EWCA Crim 1269 , [2011] 1 FLR 547 , para 1: "There remains a temptation to believe that it is always possible to identify the cause of injury to a child." He continued:
He added this (para 19):
I respectfully agree with every word of what Hedley J said.
In addition Judge Marshall appropriately made reference to what Dame Elizabeth Butler-Sloss P said in In re U (A Child) (Department for Education and Skills intervening), In re B (A Child) (Department for Education and Skills intervening) [2004] EWCA Civ 567 , [2005] Fam 134 , para 23:
Mr Feehan understandably places particular reliance on (i) and (v).
Having dealt with the law, Judge Marshall turned to consider the background, first the general family background and then the events immediately before and after M's admission to hospital on 3 August 2011. She then turned to the medical evidence, commenting (paragraph 48) that:
The judge dealt first with Professor Bishop's evidence, saying (paragraph 49):
In relation to this, three comments need to be made. First, Mr Richards was not merely "perplexed"; he was, as the judge went on to say, "baffled". Second, it was not just Mr Richards who was perplexed and baffled; so were all the experts, as the judge had in fact acknowledged in the previous paragraph. Third, the fact that, on the issue of underlying bone disorder, the judge preferred to rely on Professor Bishop's evidence, did not resolve the case or even make it any easier to resolve. In fact, as I have already pointed out, it made it more difficult.
The judge then considered the rib fractures before turning to consider the skull fractures. She summarised the evidence of Mr Richards, Dr Chapman and Dr Halliday. Of Mr Richards she said (paragraph 61):
Again, I make the point that it was not just Mr Richards who remained baffled.
Judge Marshall then turned to an evaluation of the background evidence. Finally, and for present purposes this is the crucial part of her judgment, she set out her findings in relation to M's injuries. She said (paragraph 71):
She went on to say that "There are a number of puzzling factors in this case." So there were; but some matters, amongst them the most important, were not merely puzzling but inexplicable. The first group related to the parents' behaviour on 3 August 2011 and the following day. In the course of dealing with that, and specifically in relation to the account the father gave to the police on 4 August 2011 of the incident he alleged had happened on 2 August 2011, the judge said this (paragraphs 78-79):
I repeat the point I have already made in paragraph 34 above.
The judge then considered how the parents' evidence more generally fitted the medical evidence in relation to the fractures. She then grappled with what she said was a conundrum that could be explained only by speculation (paragraphs 82-83):
Judge Marshall set out her conclusions in three paragraphs that I should quote in full (paragraphs 84-86):
Finally, Judge Marshall turned to consider whether she could identify which of the parents was the perpetrator. She said she could not (paragraph 87):
The appeal
The judge, as I have said, gave permission to appeal. The father's appellant's notice was filed on 7 September 2012. It contained four grounds of appeal and sought an order for a new trial. The mother's notice followed a little later. It adopted the father's grounds of appeal. The appeal came on before us on 12 November 2012.
The father was represented, as below, by Mr Frank Feehan QC and Ms Alexa Storey-Rea, who had filed a most helpful skeleton argument. The mother, although present, was not represented. Mr Anthony Kirk QC and Miss Shona Rogers, who had appeared for her below, had filed a skeleton argument saying that they adopted and endorsed the submissions contained in the father's grounds of appeal and skeleton argument and explaining that separate representation could not be justified in a case where the mother was publicly funded. In fact Miss Rogers was present, pro bono, with a watching brief and to support the mother. I am grateful to her for this, as I am sure the mother is also. The local authority was represented by Ms Frances Judd QC, who had not appeared below, and Ms Hayley Griffiths, who did. The children's guardian was, perfectly appropriately in the circumstances, neither present nor represented, but Mr John Ker-Reid, who had appeared for her below, filed a most helpful skeleton argument.
The parents' submissions
The parents' central submission, articulated and elaborated with great skill by Mr Feehan, is that Judge Marshall never really grappled with the fact that the experts found M's presentation to be inexplicable and that she failed adequately to address the parents' case that there was, on a proper consideration of all the medical evidence, good reason to conclude that M had some unknown and undiagnosed disorder of her bones. The possibility of such a disorder, Mr Feehan submits, simply could not be ruled out, not least in the light of Professor Bishop's reference to what he called the "Donald Rumsfeld question" and his acknowledgement that "there is a possibility that she could have a hitherto unknown and undiagnosed metabolic bone disorder" and that "every year that goes by we find some new disorder or other that can give rise to a problem with your bones." Putting the same point rather differently, the judge, Mr Feehan says, failed to heed what Dame Elizabeth Butler-Sloss P had said in In re U (A Child) (Department for Education and Skills intervening), In re B (A Child) (Department for Education and Skills intervening) [2004] EWCA Civ 567 , [2005] Fam 134 , para 23, and failed to give adequate weight to what Hedley J had said in Re R (Care Proceedings: Causation) [2011] EWHC 1715 (Fam) , [2011] 2 FLR 1384 , para 10.
More specifically, Mr Feehan says, Judge Marshall never explained how the various deficiencies in the parents' evidence could justify a finding against them when, as the judge herself recognised (paragraphs 2, 86), the skull fractures were "inexplicable", their causation "a mystery" and the explanation "unknown."
The local authority's submissions
Ms Judd, in her equally skilful submissions on behalf of the local authority drew attention to what Mr Richards had said in paragraph 2.8 of his report, where he had identified possible explanations, if some bone fragility syndrome was ruled out, involving events of which a carer would have been aware. She identified a number of significant discrepancies in and difficulties with the parents' evidence which, she submits, entitled Judge Marshall to reject it. She identified various features in the case which, she says, "are all hallmarks of non-accidental injury." Nothing that the parents had described could, she submits, properly explain either the rib fractures or the skull fractures.
Ms Judd submits that Judge Marshall was entitled to prefer Professor Bishop's evidence to that of Mr Richards, while remaining, as she did, says Ms Judd, acutely conscious of Mr Richards' evidence and the dilemma he had identified. The judge directed herself to what Dame Elizabeth Butler-Sloss P and Hedley J had said. What she said about causation being a "mystery" and the explanation "unknown" was merely a reference to the fact that the parents had not given a truthful account as to what had happened. The judge's inference that the injuries were non-accidental was, Ms Judd submits, a proper finding that was open to her on all the evidence before her, as were her findings as to when the skull fractures were most likely to have taken place. The judge, she says, carefully had regard to all the evidence in the case and was scrupulously fair in her approach. The judge appropriately gave herself a Lucas direction (see R v Lucas (Ruth) [1981] QB 720). In all the circumstances, Ms Judd submits, Judge Marshall was acting within the bounds of her discretion and making findings that were open to her on the evidence. This court, she says, cannot and should not interfere.
In support of these submissions, Ms Judd points out that Judge Marshall was steeped in this case in a way an appellate court never can be: see Re A (Fact-Finding: Disputed Findings) [2011] EWCA Civ 12 , [2011] 1 FLR 1817 , paras 36-38. And appropriately she reminded us of what Lord Hoffmann said in Piglowska v Piglowski [1999] 1 WLR 1360 , 1372, and urged us to resist what Lord Hoffmann had identified as the temptation to resort to narrow textual analysis as a means of finding fault with the judgment under scrutiny.
The guardian's submissions
Mr Ker-Reid in his measured and thoughtful submissions suggests that:
M's presentation and the parents' lack of credibility, he says, made the issue of timing "very problematic, imprecise and unsafe" for the experts and the judge, but Judge Marshall was entitled, he says, to take the view that the parents' accounts were unreliable on "context, timing, effect and consequences." He acknowledges that on the issue of the skull fractures, and given the evidence, the judge was faced with a "very difficult decision" in the light of the authorities.
Mr Ker-Reid says that Judge Marshall's analysis was "sound and careful." She directed herself to the arguments and the relevant authorities. She balanced, he says, the "very difficult and probably unique elements of the case" with what he submits was the clearest and most reliable evidence that there was no bone abnormality and with the parents lack of credibility, honesty and reliability. There was, he submits, clear evidence of serial inflicted injury of the ribs. In conclusion, he submits that the judge's "sound analysis provides, on a difficult balance, the prevailing merit argued by the local authority for this judgment to remain undisturbed on appeal."
Discussion
I should at once pay tribute to the care and skill with which Judge Marshall went about the exceptionally difficult task facing her. Her judgment, if I may say so, is impressive and, in all respects save one, compelling. But for one crucial factor it would, I suspect, have been impregnable. If, in addition to the other factures, M had had only a simple skull fracture then the judge's findings would in all probability have been unassailable.
As it is, many of her findings cannot, I suspect, sensibly be challenged. Thus, even allowing for the fact that M's presentation was medically inexplicable, I think Mr Feehan would have faced a very uphill task if he had tried to argue (though he did not need to) that the judge was not entitled to conclude, as she did (paragraph 84), that:
That was not a finding driven by the medical frame of reference; it was, in large part, as the judgment explains, based on difficulties in the parents' own evidence. Similarly, it is difficult to challenge what the judge said a little later (paragraph 85):
But, of course, the case was not as simple as that.
For present purposes one can, I think, start with two propositions which I shall assume, even if not necessarily accepting: first, that the judge, for the reasons she gave, was entitled to rely on Professor Bishop's evidence; second, and again for the reasons she gave, that the judge was entitled to reject the parents' evidence. But where did this leave her? Facing the central conundrum that all the experts were baffled – none could explain M's presentation in the light of the skull fractures – and, as I have already pointed out, that her acceptance of Professor Bishop's evidence did not resolve the case, it made it more difficult.
In addressing that central conundrum Judge Marshall, in my judgment, fell into error. One can see the three facets of that error developing gradually through the key passages in her judgment. In the first place (see paragraphs 49, 61), by focusing on Mr Richards she tended to downplay the fact that, as she had previously recognised (paragraphs 2, 48), all the experts were baffled. Second (see paragraphs 49, 79), she failed to appreciate (or if she did appreciate it she failed to address) the fact that her acceptance of Professor Bishop's evidence did not resolve the case but made it more difficult. Third, and crucially (see paragraph 86), she failed to explain how she was able to move direct from acceptance that:
to a finding in the very next sentence that:
In relation to this, I should make clear that I cannot accept Ms Judd's reading of what the judge was saying here. After all, at the very beginning of her judgment (paragraph 2) Judge Marshall had described M's presentation as "not just unusual … but inexplicable", and in my judgment she was, for the reasons I have already given, entirely justified in characterising the case in this way. That was, after all, the effect of the expert evidence. She had, correctly, acknowledged (paragraph 48) that all the experts found it a "particularly perplexing and unusual case" and (paragraph 85) that there were features of the case "that are indeed perplexing." So if, when she was describing causation as a "mystery" and the explanation as "unknown" (paragraph 86), Judge Marshall was meaning no more than that the parents had provided no adequate explanation – and that is not how I read her words given what she had said elsewhere in her judgment – her analysis would be liable to the further criticism that she was at this point simply not engaging at all with the substance of the expert evidence.
There is another difficulty with Judge Marshall's judgment which in a sense encapsulates all the others. It is to be found in a passage (paragraph 84) that I have already quoted:
As I have already explained I have no particular difficulty with the first sentence, nor for that matter with the third. But the second sentence, which I have emphasised, presents major difficulties. The judge's refusal to find that there was "something unexplained, beyond current medical knowledge" was not merely inconsistent with what she had said at the outset of her judgment (paragraph 2) and, as I read it, with what she said only two paragraphs further on (paragraph 86); perhaps more to the point it was inconsistent with the expert evidence. At the very least, it was a finding which, given the expert evidence, required much more explanation, a much more convincing process of reasoning, than is to be found anywhere in the judgment.
In these circumstances I conclude that, for all its many merits, this judgment cannot stand. Judge Marshall has simply not explained how, in the light of the expert evidence, she was able to arrive at her final conclusion. It may be that there was, in the light of the evidence, no way in which the judge could have arrived at her conclusion, though that is not, in my judgment, something we can safely and properly decide for ourselves. But certainly, and it is on this basis that, in my judgment, this appeal must be allowed, the judge has not explained how she arrived at her conclusion. That omission, going to the central issue in the case, is fatal and necessarily vitiates her findings.
Standing back from all the detail it might be said that given this collection of injuries – rib fractures caused on two occasions and very severe skull fractures – arising in circumstances where there is no suggestion that anyone other than the parents (or one of them) could have been responsible, and where the parents' accounts and explanations have appropriately been rejected, it was open to a judge to find as Judge Marshall did. So, I have little doubt, it would have been if the case had fallen to be determined in accordance with a conventional medical frame of reference. But it did not, for, to repeat the point, so far as the skull fractures were concerned M's presentation was inexplicable assessed by reference to conventional medical opinion and experience. And it must follow from the inability of conventional learning to explain the skull fractures that the judge's findings in relation to the rib fractures are also vulnerable. So there is, in my judgment, no scope for drawing a distinction and upholding the judge's findings in relation to the one whilst upsetting her judgment on the other.
Conclusions
It was for these reasons that, at the conclusion of the hearing on 12 November 2012, I agreed with my Lords that this appeal had to be allowed.
Mr Feehan and Ms Judd were at one in agreeing that it would not be appropriate for us to substitute our own findings and that if the appeal were to be allowed it could only be on the basis that the matter is re-tried. I agree. I do not, in the circumstances, think it would be appropriate to remit the case to Judge Marshall. The re-trial should, in my judgment, be before a judge of the Family Division, sitting either on circuit or in London as the Family Division Liaison Judge for the Western Circuit, Baker J, may determine.
Careful thought will need to be given to what directions are required for the re-trial. That is not a matter for us to resolve, but for the trial judge who will no doubt wish to have a case management or directions hearing. It may assist, however, if I make two points. First, in the light of what I have already said, an appropriately extensive search of the literature should surely be undertaken. Second, thought needs to be given as to how the expert evidence before Judge Marshall can be condensed or summarised for the re-trial so as to avoid taking the experts over the entire terrain again.
It will of course be for the judge who conducts the re-trial to determine the matter afresh in the light of all the evidence before him or her. It may be that a search of the literature will provide a clue to what had happened, so that the judge at the re-trial is not faced with something quite as inexplicable as Judge Marshall was. It may be that even an extensive search of the literature will produce nothing, in which case the judge may be faced with the same inexplicable mystery as confronted Judge Marshall. In that event, the judge will have to confront the same fundamental issue as Judge Marshall. Is it possible on the totality of the evidence to come to a finding despite the unexplained mystery? And if so, what process of reasoning can safely lead the judge to his finding? Or is the case one where, applying what Dame Elizabeth Butler-Sloss P and Hedley J said, no finding is possible?
Lord Justice Kitchin :
I agree.
Sir Stephen Sedley :
I also agree.