A RADICAL overhaul of the law in shaken baby murder cases is a prospect as a series of landmark appeal cases open this week.

The Court of Appeal will examine the safety of the convictions of three men and a woman accused of violently shaking babies to cause death or serious injury. The cases could undermine the belief in shaken baby syndrome in the same way that the acquittals of Angela Cannings and Sally Clark disgraced theories on cot death killings.

More than 90 other convictions — the majority involving fathers or male carers — may be reviewed and a further 500 Family Division cases could be re-opened. The future conduct of shaken baby prosecutions is likely to be fundamentally changed, and the ruling of the three Appeal Court judges will set a new benchmark. Senior legal sources believe that, in the expected reform of homicide legislation, such cases ought to be downgraded and should not carry a life sentence for murder.

The appeals stem chiefly from a review set up by Lord Goldsmith, QC, the Attorney-General, in the wake of the successful appeal by Mrs Cannings against her conviction for murdering her two baby sons. Of the 297 convictions for the death of an infant examined in that review, one third — or 97 — were identified as raising the issue of shaken baby syndrome.

The four appeals, scheduled to begin on Thursday, will call into question the very existence of shaken baby syndrome which has been a largely unquestioned theory for 15 years. Over nine days, the court will be given evidence from experts from around the world in what is becoming an increasingly polarised and acrimonious medical debate.

Shaken baby syndrome came to public attention in Britain in 1997 when Louise Woodward, a British au pair working in the United States, was convicted of the involuntary manslaughter of a child in her care.

Paediatricians who uphold the accepted view regularly appear at seminars and lectures for police officers, lawyers and members of the judiciary. They argue that there are three telltale signs: swelling of the brain; bleeding between the brain and the skull, and bleeding behind the eyes. Proponents of the theory say that even the most loving parent can cause the injuries during a single, momentary loss of control.

“It is a theory but it is one which is backed up by decades of casework,” said one paediatrician. “In my experience these kind of injuries are only replicated in incidents where there is extreme force used — such as a car accident or a fall from an upper storey window. These three features are clear signs of non-accidental injury.”

But the theory is increasingly being challenged by research which suggests that the three shaken baby characteristics could occur because of causes other than shaking. John Plunkett, an American pathologist, argues that low-level falls can trigger similar bleeding to the brain and eyes. Other scientists have claimed a link between the injuries and vaccinations or medication.

But the hypotheses attracting most attention are those by Jennian Geddes, a neuropathologist, and Helen Whitwell, a forensic pathologist. Dr Whitwell has changed her mind about the syndrome through her research. She previously appeared as a prosecution witness against one of the appellants, Alan Cherry, but will give evidence in support of him at the Court of Appeal.

Dr Geddes and Dr Whitwell have argued that there was often no evidence of damage to the brain apart from that caused by lack of oxygen. That absence of oxygen could have had other causes. Dr Geddes has no doubt that some babies are shaken by their parents and carers. But, she says, some children who have the injuries have no other signs of injury or abuse and in those incidents it would be wrong for the shaking theory to be accepted beyond reasonable doubt.

Writing in the British Medical Journal, Dr Geddes said: “If the issues are much less certain than we have been taught to believe, then to admit uncertainty sometimes would be appropriate. We need to reconsider the diagnostic criteria, if not the existence, of shaken baby syndrome.”

The Five Percenters, a group which supports wrongly accused parents says that such cases “could represent a miscarriage of justice of a scale without precedent in British legal history”. But police are increasingly worried that the use of the Geddes theory in the courts is “muddying the issues” and allowing guilty people to go free.

Michael Mansfield, QC, the leading civil rights lawyer, will represent the four appellants. Richard Horwell, First Senior Treasury Counsel, will appear for the Crown which is fighting the four cases because it says the research is “unproven, untested and unsubstantiated”.

THE CRUCIAL NUMBERS

3 key head injuries said to indicate shaking

4 people appealing convictions this week

90 other criminal cases could be affected

500 Family Court cases may be re-opened

1971 when Norman Gutkelch, Hull neurosurgeon, coined the phrase shaken baby syndrome

15 per cent of babies in recorded cases die

15 per cent recover fully

70 per cent left with disability

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