Ground 2: Direction on similar fact evidence

93. A related ground of appeal concerns the judge's directions to the jury on the issue of similar fact evidence. In his summing up the judge said this:

"If you are sure that the defendant killed one of these babies on the evidence relating to that child's case, what you must not do is to say that simply because she killed one of them, she must have killed the other one as well. That would not be a proper or fair way of approaching the matter and it is an approach which the law forbids. But if you are sure that the circumstances of one unnatural death are so similar to the other death as to provide real support for the conclusion that the other death was unnatural too, in the sense that you can safely exclude the possibility of coincidence, then you would be entitled to rely on that in deciding whether that other death was also unnatural".

94. Mr Bevan does not complain about that wording. Nor could he sensibly do so, since the terms of the direction were agreed between counsel and the judge before the start of the summing up. Moreover the direction given was more favourable to the appellant than was strictly necessary. The jury were told that they should be sure of guilt in respect of one death before taking the circumstances of that death into account in relation to the other death. In our judgment, for the reasons we have set out in considering the issue of severance, it would have been open to the judge to direct the jury that they were entitled to take the circumstances of both deaths into account when deciding guilt in respect of either death.
95. Complaint is made, however, of two passages in the summing up where the judge was describing the prosecution case. It is said that the prosecution's approach was erroneous and that the judge effectively endorsed it and thereby invited the jury to consider the matter on an erroneous basis. In the first passage the judge said this:

"Now, members of the jury, the prosecution you will recollect invite you to look at the circumstances of both deaths together and to say that they share similarities which would make it an affront to common sense to conclude that either death were natural. They suggest that it is beyond coincidence that history could repeat itself in such a similar way. Well, I will identify for you in a moment the similarities on which the prosecution rely, but it is for you to assess those similarities and to decide whether the circumstances of each death do in fact provide the support for the inference that both deaths were unnatural by excluding the possibility of coincidence".

96. We see no basis for complaint about that passage. Again it was in a form that had been agreed between counsel and the judge before the summing up. There was nothing wrong with the prosecution case as summarised. Most importantly, the judge made clear that this was a summary of the prosecution case. His own direction to the jury followed soon afterwards and the jury can have been in no doubt that it was in the later passage that the judge was directing them as to the approach that they should follow.
97. Towards the end of his summing up the judge gave the jury a brief reminder of the main elements of the prosecution case and the defence case. He reminded them of the reliance placed by the prosecution on Professor Meadow's evidence that all of the features for an unnatural death rather than a SIDS death were applicable in the case of these two babies, on the statistical evidence as to the probability of two SIDS deaths within the same family, and on the similarities between the two deaths -

"which the prosecution suggest make it beyond coincidence that these two deaths were natural deaths".

98. A little later, in reminding the jury of the defence case he said this:

"You were told, quite correctly, that what you must not do is to conclude that if the defendant killed one baby she must have killed the other. That would be quite wrong. It was suggested that the only safe approach was to look at the death of each child independently and only if you reach the conclusion that the defendant killed one child should you ask yourselves whether that helps you in relation to the other child."

99. Mr Bevan submits that the judge failed to direct the jury that the defence approach was correct and that the jury must have been left with the impression that they were entitled to look at both deaths together for the purpose of determining guilt in relation to each. As we have said, we do not think that it would have been an error to leave the matter on that basis. But in any event we do not accept that that is what happened. The judge's reminder of the prosecution case reflected his earlier summary of that case and did nothing to undermine the clear direction he had previously given the jury on this issue. His reminder of the defence case provided an echo of that direction and was almost the last thing that the jury heard. The jury cannot have been led into thinking that they were being directed to follow the prosecution approach and to reject the defence approach.
100. This ground of appeal therefore also fails.