In R v AD [2020] EWCA Crim 849 the Court of Appeal quashed Mr D’s convictions for sexual assault and assault by penetration after hearing fresh evidence which undermined the medical evidence which had led to the prosecution.  The case joins a long list of seemingly water-tight convictions subsequently quashed on appeal after the expert evidence on which they were based turned out to be seriously flawed.  Despite the somewhat bland tone of the report

 Mr D had been convicted in 2017 of the offences allegedly committed against a 4 year old girl, and sentenced to 10 years’ imprisonment.

Most of the evidence came from a senior consultant paediatrician at Alder Hey hospital in Liverpool, Dr Linda Teebay. She had examined the girl and concluded that she had scarring on her hymen which was, she told the jury, “diagnostic evidence of penetration.” Her opinion was primarily based upon what she described as a “scarred” hymen.  The anogenital examination had been carried out entirely correctly using a colposcope, a camera which both magnifies and records the examination. The dispute was over the interpretation of the findings.

The original defence team had instructed Jason Payne-James, a respected forensic physician (although not a specialist paediatrician) who had agreed with Dr Teebay, albeit without being made aware of a far more cautious opinion from a second (though more general) paediatrician who had also been present at the examination, whose original opinion had been that the hymen might have been “a normal variant.” As a result Dr Payne-James was not called at the trial and Dr Teebay’s evidence went unchallenged.

In her evidence, Dr Teebay also appeared to bolster her evidence by referring to the fact that her opinion had been “peer reviewed.”  Exactly what this peer review had involved was never established as the two peer reviewing doctors were not called as witnesses. Certainly they had not reviewed her written report, which was not completed until three months after the “peer review” had taken place. 

Following his conviction Mr D instructed Chris Saltrese, a Liverpool solicitor specialising in the defence of serious sexual allegations.  He wanted to instruct the Los Angeles based paediatrician Prof Astrid Heger, widely acknowledged as the world’s leading expert on injuries to the prepubertal hymen. 

However, he hit a snag. Alder Hey hospital refused to send a copy of the colposcopy recording to Prof Heger. Instead they insisted that any doctor wishing to review the colposcopy had to come in person to Alder Hey Hospital. “I have checked with Dr Teebay herself,” said Alder Hey, and the rule was “absolute.”  This dramatically reduced the pool of available experts to those able to travel to Liverpool to view the colposcopy.

In fact Alder Hey’s policy was contrary to guidelines published by the Faculty of Forensic and Legal Medicine (FFLM) and the Royal College of Paediatrics and Child Health which make specific provision for encrypted copies of intimate images to be sent to defence medical experts.

Eventually an expert was found who was able to visit Alder Hey. Unfortunately his expertise was more focussed on colposcopy in the context of sexually transmitted diseases than child sexual abuse. Nevertheless he examined the colposcopy recording, and produced a report which was highly critical of Dr Teebay’s methods and conclusion. In his view the child had an entirely normal hymen. 

On the basis of this fresh evidence Mr D applied for permission to appeal out of time.  The application was referred by the Registrar to the full court.

The CPS objected to the admissibility of the fresh evidence on the basis that the newly instructed defence doctor was not sufficiently expert in the interpretation of colposcopy, an unattractive argument given the restrictions that Alder Hey had placed on anyone else being able to view the relevant colposcopy, but also, as it turned out rather a counter-productive one. 

The CPS’s refusal to concede the new expert’s expertise, coupled with doubts over what material the original defence expert had in fact been shown, prompted Mr D to apply to the Court under S.23 (1) (a) of the Criminal Appeal Act 1968. This under-used subsection gives the Court of Appeal power to “order the production of any document, exhibit, or other thing connected with the proceedings, the production of which appears to them necessary for the determination of the case.”  The matter came before Rafferty LJ who immediately ordered that Alder Hey hospital send the colposcopy recording to Professor Heger in California.

On examination of the colposcopy, Prof Heger’s opinion was that the child’s hymen was normal in every respect. There was no scarring, and in fact according to Prof Heger hymens do not scar. A hymen is composed of mucosa tissue, similar to that inside the mouth, that heals quickly, without scarring. They can of course tear, and the tear will heal (normally very quickly), but not with scar tissue, and without the torn edges joining back together as would occur in a skin wound.

A further side issue arose, because Prof Heger wanted to illustrate her opinion with colour stills from the colposcopy. The prosecution objected, because, as Dr Teebay said, it was “not appropriate for lay people to see these images. They will not be able to interpret them.”  That of course is correct, but when there is a dispute between experts as to the interpretation of findings it is surely better for the fact-finder to see the actual images rather than make a decision based upon line drawings and verbal descriptions. The Court of Appeal agreed, and allowed Prof Heger to include the photographs in her report to the Court.  As Dr Heger put it “why should the court look at a cartoon when a photograph is available?”

At the hearing of the appeal the Court heard evidence from both experts.  Prof Heger’s evidence was summarised in the Court’s judgment:

“The scar to which Dr Teebay referred was a normal variant of a septal remnant or, at the very most, a hymenal bump, which would be part of and therefore attached to the hymen. Not only was there absolutely no scarring of the hymen, there were also no vascular changes. She considers that hymens do not scar, and the layman better understands this when told that their constituent tissue is mucosal, as is that in the mouth. When one bites one’s cheek, it heals without scarring.”

Dr Teebay did not accept that she had been wrong, but conceded – for the first time in 4 ½ years – that the case had caused her considerable “angst.” Moreover, she told the court, before this case she had never previously seen a scarred hymen. As Rafferty LJ laconically put it:

“No suggestion of that singularity had appeared in her reports or her evidence ….”

The Crown’s case rested on Dr Teebay’s evidence:

“The summing-up set out lucidly and unequivocally that the Crown’s case amounted to the evidence of Dr Teebay. Before it could convict the jury had to be sure that hymenal scarring was diagnostic of trauma. No expert evidence was before the jury to contrary effect.

Having heard only from Dr Teebay, whose evidence was confident, unqualified and unshaken by cross-examination, the jury had been left with little real option but to accept her evidence.  But as the Court of Appeal concluded:

“We unhesitatingly conclude that had the jury had the evidence of Professor Heger its verdict might have been different.  As a world class expert, author of a textbook and lead author of a pivotal paper, she would have brought the distinction of her career to her opinion. It was unnecessary for us to consider any Grounds of Appeal save for this primary and fundamental one.”

The Court quashed the conviction, and although, at the suggestion of the Crown, it directed a retrial, within weeks the CPS accepted what had by then become inevitable and offered no evidence. 

The case contains are a number of lessons for criminal practitioners.

1.  In any case depending wholly or significantly upon paediatric (or indeed any other medical) evidence, the choice of defence expert is absolutely critical.  In this case, the decision of the original defence team to instruct Dr Payne-James was a mistake because – despite his distinguished reputation – he lacked the specialist expertise in the interpretation of paediatric anogenital findings that was required.
   
2. The defence should never accept arbitrary restrictions placed on expert witnesses wishing to view colposcopy recordings.  If, as in this case, a prosecution expert or hospital refuses to allow the defence expert to have a complete electronic copy of a recording, they should first be reminded of the FFLM guidelines. If that fails defence solicitors should apply to the Court for the issue of a witness summons under S.2 of the Criminal Procedure (Attendance of Witnesses) Act 1965, for the production of the recording.
   
3. Equally, prosecutors should ensure that hospitals and medical experts do not place unjustifiable restrictions on defence access to essential material. Colposcopy recordings are obviously essential material and prosecutors should see it as their duty to facilitate, not obstruct, defence access to such recordings.  This should apply post-conviction as well as pre-trial.
4. In fresh evidence cases the Court of Appeal has considerable interlocutory powers that are sometimes overlooked.

There are similar lessons for family practitioners.

It may have wider ramifications.  Dr Teebay’s error was only exposed because Mr Dixon was able to instruct a world-renowned expert.  Until the involvement of Prof Heger, and in fact until the day before the appeal was heard, Dr Teebay refused to concede any possibility that she had made any mistake.  Prof Heger is anything but a “hired gun.” She runs a centre for victims of child abuse and domestic violence in Los Angeles and she is regularly instructed by prosecutors in the United States. However, she has made no secret of the fact that she believes British paediatricians are in general too ready to view normal anatomical variations as evidence of child abuse. In Leeds City Council v. YX & others [2008] EWHC 802 (Fam) Holman J said of her at paragraph 88:

“If Professor Heger has a dogma, it is the dogma that doctors should be conservative (her term) and not dogmatic in the diagnosis of sexual abuse. In this she echoes numerous recent comments of our Court of Appeal warning about “… the possible dangers of an over-dogmatic expert approach” and that “… what may be unexplained today may be perfectly well understood tomorrow. Until then any tendency to dogmatise should be met with an answering challenge.” (R. v. Cannings [2004] EWCA Crim 1 at paragraph [22].)

That remains her view.  If she is right we will never know how many families have been broken up and how many innocent men have been condemned as a result of flawed and over-dogmatic medical science.

This case commentary of R v AD [2020] EWCA Crim 849 was written by Matthew Scott, for further information on his practice or please contact Tony George via our switchboard 01962 868161 or email: t.george@pumpcourtchambers.com