Factual and Procedural Background
The appeal against conviction was heard on 15 July 2026 and refused the same day, with reasons issued later in writing. [Para 13] The Appellant had been convicted after trial of attempting to murder a child born on 15 April 2021 by shaking him, pinching his face, or otherwise inflicting trauma to his head, causing severe injury, permanent disfigurement, and danger to life. The trial judge imposed a sentence of seven years' imprisonment, and there was no appeal against sentence. [Para 15][Para 17][Para 18]
The case was circumstantial and depended on the exclusion of other possible assailants, the Appellant's own account of events, and expert medical evidence. [Para 21] The narrative before the court included an incident on 29 April 2021 when the child was said to have fallen from a changing mat, a further incident on 1 June 2021 when facial marks were observed, later vomiting and lethargy, and the child's eventual admission on 23 July 2021 with a markedly enlarged head and intracranial haemorrhage. [Para 22][Para 23][Para 24][Para 26][Para 27][Para 29][Para 31][Para 32] The child underwent surgery, further investigations ruled out a bleeding disorder, metabolic cause, broken bones, and eye injury, and he was later discharged into kinship care. [Para 33][Para 34][Para 35]
The Appellant later gave varying accounts of a fall while carrying the child, including accounts to the child's mother, police, and others, and he accepted in cross-examination that he had lied repeatedly about the 1 June incident. [Para 36][Para 41]
The sifting judge granted leave to appeal only in relation to aspects of Dr Forrester's evidence and the extent to which the charge addressed the evidence, and the court explained that this should have been specified more clearly under section 107(7) of the Criminal Procedure (Scotland) Act 1995. [Para 66][Para 67][Para 68][Para 69]
Legal Issues Presented
- Whether any parts of Dr Forrester's evidence, or the Crown's reliance on them, went beyond her expertise and caused a miscarriage of justice. [Para 67][Para 68][Para 69][Para 71]
- Whether the trial judge's treatment of the medical evidence in the charge was unbalanced or otherwise amounted to a misdirection. [Para 64][Para 68][Para 134]
Arguments of the Parties
Appellant's Arguments
- Dr Forrester was said to have strayed beyond her expertise when discussing post-immunisation symptoms, damaged bridging veins, and indicators such as changing histories and developmental inconsistency, and the Crown was said to have relied on those matters in address. [Para 72][Para 79][Para 80][Para 83][Para 85][Para 88][Para 90]
- The trial judge's corrective intervention was said to have come too late to cure the prejudice, because the Crown speech had already been delivered before the judge's later correction. [Para 61][Para 62]
- The charge was said to have gone beyond a fair summary by reinforcing the Crown case and overloading the jury with technical detail. [Para 63][Para 92]
Respondent's Arguments
- Dr Forrester's evidence was said to fall within her forensic paediatric expertise, except for a brief answer on timing after immunisation that she herself identified as outside her area, and the judge intervened immediately in the jury's presence. [Para 94][Para 96]
- Her evidence about changing histories, developmental inconsistency, and delay was said to be ordinary professional practice rather than expert opinion, and the Crown was entitled to use it as circumstantial evidence. [Para 96][Para 113][Para 114]
- The judge was said to have acted within his discretion in summarising complex medical evidence, and the charge was said to be balanced when read as a whole. [Para 98][Para 100][Para 142]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Christie v HM Advocate [2024] HCJAC 52, 2025 SCCR 365 |
A recent example of discussion of the criteria for admitting expert evidence. |
The court noted that expert evidence was required in this case and said it was unnecessary to discuss the admissibility criteria in detail. [Para 104] |
| Bovill HM Advocate [2003] SCCR 182 |
Delay in giving an account, or lying about events, may itself be circumstantial evidence for the jury. |
The court relied on this authority when holding that the Crown was entitled to invite the jury to treat the Appellant's delay and false accounts as evidence of guilt. [Para 114][Para 121] |
| Geddes v HM Advocate 2015 JC 229, [2015] HCJAC 10 |
A trial judge may need to distil complex medical evidence into a manageable form, provided the summary is balanced. |
The Appellant relied on it to argue that the jury had been overloaded, but the court used it to support the proposition that a careful summary of long medical evidence can be appropriate. [Para 92][Para 138] |
| Liehne v HM Advocate 2011 SCCR 419, [2011] HCJAC 51 |
It can be a misdirection to leave technical evidence unframed for the jury. |
The court referred to it as part of the general law on jury charges, but held that the present charge did not suffer from the defect identified in that case. [Para 136][Para 143] |
| Hainey v HM Advocate 2014 JC 33, [2013] HCJAC 47 |
Another authority on the handling of complex technical evidence in a charge. |
The court cited it alongside Liehne and then rejected the complaint that the present charge lacked balance. [Para 136][Para 143] |
| Younas v HM Advocate 2014 SCCR 628 |
There is generally no requirement to rehearse expert evidence in full; what is required is a route to verdict and, at most, a succinct balanced review. |
The court relied on this authority to uphold the judge's effort to distil the medical evidence for the jury. [Para 138][Para 142] |
| Sim v HM Advocate 2016 JC 174, [2016] HCJAC 48 |
Directions must be read as a whole, and alleged imbalance must be judged against the overall tenor of the charge. |
The court adopted these propositions when assessing whether the judge's charge was unfairly weighted. [Para 139][Para 142] |
| Snowden v HM Advocate 2014 SCCR 663 |
An imbalance argument must be substantial and must go to the whole purport of the charge. |
The court used this as part of the framework for rejecting the submission that the charge favoured the Crown. [Para 141][Para 142] |
| Scott v HM Advocate 1946 JC 90 |
Cited for the proposition, repeated in Snowden, that a complaint must be substantial. |
The court referred to it as part of the line of authority on imbalance in a jury charge. [Para 141] |
| Keaney v HM Advocate |
Directions should not be examined in isolation. |
The court cited this authority, together with Withers, in explaining that the charge must be read as a whole. [Para 141] |
| Withers v HM Advocate 1947 JC 109 |
The charge is not to be scrutinised as if the jury had not heard the evidence and speeches. |
The court relied on this proposition when rejecting the criticism of the judge's summary of the medical evidence. [Para 141][Para 142] |
| Beck v HM Advocate |
Directions should not be read like a conveyancing document or penal statute. |
The court quoted this as part of the general approach, via Sim, to reading the charge contextually. [Para 140] |
Court's Reasoning and Analysis
The court began by noting that expert evidence was plainly required, but that the admissibility criteria did not need to be rehearsed again in detail. [Para 103][Para 104] It then addressed the first complaint about Dr Forrester. [Para 106] On the immunisation point, the court held that the jury heard the witness acknowledge that timing of adverse symptoms was outside her area of expertise, and the trial judge immediately stopped the evidence in the jury's presence; because the Crown made no further use of the point, there was no miscarriage of justice. [Para 106]
On the bridging-vein question, the court held that Dr Forrester gave no evidence at all once she said that matter was beyond her expertise. [Para 107] On the history-indicator evidence, the court rejected the submission that she had strayed beyond her expertise: the court characterised this as ordinary professional practice, in which she was simply identifying factors that might prompt an investigation in child protection work. [Para 109][Para 110]
The court further held that the Crown was entitled to invite the jury to treat the Appellant's delayed and inconsistent accounts as circumstantial evidence, including the fact that his accounts could be viewed as inconsistent with the child's developmental stage. [Para 111][Para 112][Para 113][Para 114] It accepted that some of the trial judge's directions on this topic were actually favourable to the Appellant, but concluded that those directions were mistaken because they treated admissible circumstantial evidence as if it were to be disregarded altogether. [Para 116][Para 117][Para 119][Para 121]
As to the judge's later directions on Dr Forrester, the court held that the judge was wrong to tell the jury that she was in no position to opine on the history-indicator evidence and that it was inadmissible, because that evidence was within her experience rather than a specialised opinion. [Para 123][Para 125][Para 126][Para 128][Para 129][Para 130] Even so, the court concluded that no miscarriage of justice arose from the evidence or from the way it had been treated. [Para 130]
Turning to ground 2, the court accepted that the trial judge had discretion whether to summarise the medical evidence. [Para 134][Para 135] Applying the authorities on balanced jury directions and routes to verdict, the court held that the judge was entitled to distil highly technical evidence into a manageable form and that the summary was not unbalanced when read as a whole. [Para 136][Para 138][Para 139][Para 142][Para 143]
Holding and Implications
APPEAL REFUSED. The court held that there was no merit in grounds 1(a), 1(b), or 1(c), and no substance in ground 2, so the conviction was left undisturbed. [Para 131][Para 133][Para 144] No broader implications were identified in the opinion beyond disposal of this appeal. [Para 144]