39-l (1993) 1-l CR.App.R.(S.

SALL Y LORRAINE EMERY (AND ANOTHER)

COURT OF ApPEAL (The Lord Chief Justice, Mr. Justice Roch and
Mr. Justice Kay): November 3,1992
Cruelty TO child-mother of child failing TO protect child from I'iolence by father-
length of sentellce.
Four years' detention in a young offender institution for cruelty to a child by fail-
ing to prevent violence to the child by the child's father reduced to 30 months.
The female appellant was convicted of cruelty to a child. She was the mother of a
child who died at the age of 11 months. The child was found to have many injuries.
including fractured ribs and a rupture of the bowel. The medical evidence was that
the injuries were the result of several weeks of severe physical abuse. The appellant
and the child's father each blamed the other for the injuries to the child; the jury
acquitted the appellant of assault occasioning actual hodily harm but rejected her
defence of duress. She was sentenced on the basis that she had failed to protect
the child from the father. Sentenced to four years' dctention in a young offender
institution.
Held: (considering Broad)' (1988) 10 Cr.App.R.(S.) 495. Pelling (1988) 10
Cr.App.R.(S.) 185. Simpson (1991) 12 Cr.App.R.(S.) -D! and Ace (1991) 12
Cr.App.R.(S.) 533) although the defence of duress was rejected by the jury. evi-
dence that the female appellant was subject to a condition in which she was unable
to resist or stand up to the father of her child. as a result of his treatment of her. was
relevant in mitigation. The offence clearly called for a substantial sentence, but the
sentence of four years was heavy when compared with sentences passed in other
cases. A sentence of 30 months' detention in a young offender institution would be
substituted.
Cases cited: Broady (1988) 10 Cr.App.R.(S., 495. Pelling (1988) 10
Cr.App.R.(S.) 185. Simpson (1991) 12 Cr.App.R(S.) 431. Ace (1991) 12
CrApp.R.(S.) 533.
References: cruelty to child. Current Sentencing Pra([ice B2-7.3C.
Miss H. Kenlledy, Q. C and Mrs. F. Oldham for the female appellant.
LORD TAYLOR C.J.: On January 22. 1992. these appellants were convicted on
a retrial of offences relating to the death of her child. Chanel. aged 11 months.
They had been tried initially on a charge in each case of cruelty to a person under
16. Towards the latter end of the trial there was added in respect of each of the
appellants a charge of assault occasioning actual bodily harm. so as to enable the
jury to decide which of the two had inflicted the violence which clearly resulted in
the death. In the event the appellant Brian Hedman was convicted of assault occa-
sioning actual bodily harm and the appellant Sally Emery was acquitted of that
charge. Both were convicted of the initial charge of cruelty to a person undcr 16.
They were sentenced as follows: Brian Hedman. for the cruelty offence. eight
years' detention in a young offender institution: and for assault occasioning actual
bodily harm. four years' detention, those two sentenccs to be concurrent. making
eight years in his case; the appellant Sally Emery was sentenced to four years'
detention for the cruelty offence. also to be served in a young offender institullon.
Brian Hedman now appeals against his conviction by leave of the single judge.
Sally Emery does not challenge her conviction. but she appeals against ~entence by
lea\'e also of the ~ingle judge.
C.A. SALLY LORRAINE EMERY (Lord Taylor c.J.) 395

The appellants' daughter Chanel was born on Januarv 1~. 1990. She was taken to
hospital by ambulance on December 26.1990. On arriv~1 she was found to be dead.
Because of obvious bruising on her body. a police investigation was launched. The
post-mortem examination revealed a large number of injuries. including many frac-
tures of the ribs. Most importantly. there was a rupture of the bowel. which led to
peritonitis and cau5ed death. It was the opinion of the pathologist that the rupture
could only have been caused by a blow. It was apparent from the injuries taken as a
whole that the child had been subjected to several weeks of severe physical abuse.
Both appellants were arrested and were interviewed. Each denied any knowl-
edge of the circumstances surrounding Chanel's death. In their final interviews.
huwever. each blamed the other for the injuries.
Both gave evidence at the trial. Again each maintained the other was responsible
for abusing the child. The only direct evidence against each appellant came from
the other. Most of the other prosecution witnesses were members of the two appel-
lants' families.
Emery said in evidence that Brian Hedman had routinely and severely abused
not only Chanel but herself. She said that she had been unable to act to protect her
daughter. because of the fear in which she held Brian Hedman.
At the conclusion of her evidence an application wa~ granted allowing her to call
expert evidence in support of her defence. which was one of duress. She denied that
she had inflicted any blows on Chanel. She explained her failure to seek any help
for Chanel. which was the basi~ of the cruelty charge. on her fear of Brian Hedman
and the fact that. according to her. she had totally lost her capacity to act indepen-
dently of him.
Two experts were called on behalf of the appellant Emery: Or. Stuart Turner. a
psychiatrist who speciali~es in response to serious trauma of various kinds. includ-
ing domestic violence. and a psychologist, Sandra Horley. who had some 13 years'
experience working with abused women.
The effect of their evidence was that medical science recognises a condition
known as post traumatic stress disorder. which can result from prolonged serious
violence and abuse. particularly of a woman by her partner. It comprises what is
known 10 the doctors as ··learned helplessness." and the condition is more gener-
ally known as a ·'battered woman syndrome .. ' Its features include an inability to
resist or stand up to her abuser. a flat hopelessness. coupled with a dependence on
the abuser. which makes her unable to leave. unable to seek help and suffer from
feelings of guilt. Sometimes another feature is the excusing and minimising of the
violence inflicted upon her by her abuser in order to enable her to cope. Another
symptom is a flatness and monotonous tone of speech.
It was the opinion of the doctors called on behalf of the defence that the appel-
lant Emery was a typical example of that condition.
On behalf of Hedman Or. Orr was called. She is a consultant psychiatrist at
Broadmoor with considerable experience in this field. She accepted that the appel-
lant Emery did suffer from depression as a result of abuse. but not to the degree
which would have undermined her autonomy and independence of action.
The jury were sure by their verdict that Hedman administered the violence to the
child and they acquined 1\·llss Emery of that. However they clearly did not accept
the defence doctors' assessment of the degree of incapacity suffered by Miss Emery
as a result of Hedman's abuse. In other words they rejected the defence of duress.
It is convenient to deal first with the sentence passed upon Emery and the appeal
against it.
Miss Kennedy. who appeared at the trial and has appeared today on behalf of the
appellant. puts forward essentially four grounds of appeal. Fir5t of all she reminds
396 (1993) 1.t CR.App.R.(S.)

the Court that the findings of the jury show that they accepted no violence was
inflicted by the appellant upon the child.
The basis of the conviction. so far as she was concerned. was her failure to take
steps to protect the child by seeking help either from doctors or from police or
familv. There was clear evidence that she was seeing members of the family fairly
frequ'ently in the period running up to those vital days during which the final viol-
ence occurred. 1\·loreover she was herself working until a short time before the vital
days, so that there was opportunity for her to consult others had she wished to do
so.
The second ground of appeal is that the appellant is of previous good character.
She was onlv 19 at the time and she was inexperienced Insufficient regard. it is sub-
mitted, was 'paid to that factor.
The third ground. and perhaps the most important in the submission of I\tiss
Kennedy. was that the learned judge in passing sentence paid insufficient regard to
the relationship between these two appellants. and in particular to the medical evi-
dence as to the effect of that relationship on the mental state of Miss Emery.
Fourthly. Miss Kennedy has drawn our attention to a number of other cases. It is
unnecessary to deal with them in detail, but we mention them so that they may be
identified: Broad.\' (1988) 10 Cr.App.R.(S.) 495; Pelling (1988)10 Cr.App.R.(S.)
185: Simpson (1991) 12 Cr.App.R.(S.) -131; and Ace (1991) 12 Cr.AppR.(S.) 533.
Miss Kennedy submits that in regard to those cases the sentences were considerably
less severe than the sentence passed here. and this sentence was therefore high.
even without consideration of any psychiatric factors impairing responsibility.
We have come to the conclusion first. that the learned judge did not give suf-
ficient consideration to the medical evidence in approaching the question of sen-
tence. The jury's rejection of the defence of duress meant they rejected the
proposition that the appellant had lost her freedom of will to act independently. It
did not necessarily amount to a total rejection of the medical evidence. that the
appellant was suffering at least some effects of the abuse by Hedman over a period.
Even Dr. Orr accepted that the appellant was depressed.
In his sentencing remarks the learned judge said this:
"It is difficult to understand how it was possible for you to have stood by and
watched the agony day by day of your small child. The fact of the matter is that
you allowed her to die and you had much opportunity to prevent it. You
decided instead that your own interests came first. I pass upon you the least
sentence that I can in all the circumstances and that is one of four years deten-
tion."
In those remarks the learned judge made no reference to the medical evidence
Moreover. his statement. "It is difficult to understand how it was possible for you to
have stood by and watched the agony day by day." does not seem to acknowledge
the explanation put forward by the doctors. which would still have been relevant by
way of mitigation. even though rejected by the jury as a total defence.
Secondly. we think the differential between the sentence passed on Miss Emery
and that imposed on Hedman was insufficient. Thirdly. we think that the sentence
of four years was heavy when compared with sentences passed in other cases to
which we have referred.
Having said that. the case clearly called. in our vie\\'. for a substantial period of
imprisonment. The appellant had ample opportunity to seek help from others.
which would have ended the ill-treatment of this chIld. and her ultimate death
would have been avoided. The jury's verdict showed that she could. and should
have done so. It cannot be too clearly emphasised. as MISS Kennedy has herself said
to us. that a parent's paramount duty is to protect hi~ or her child. Failure 10 do so.
CA. SALLY LORRAINE EMERY (Lord Taylor Cl.) 397
with results such as occurred here, cannot be excused by other pressures that there
may have been upon the mother, unless they were such as to render her incapable
of action. Still less can such failure be excused by a mother putting her relationship
with her partner, or even her own protection. before the life and health of her
child, as the learned judge found wa~ the case here.
Bearing all those matters in mind we consider that the appropriate sentence in
the present case was one of 30 months. We substitute the sentence of 30 months'
detention for the sentence of four years initially imposed. To that extent Miss
Emery's appeal is allowed.
(The court heard SIIbmissiolls in relation to Hedman)
We have already described the nature of the defence put forward on behalf of
I\liss Emery, namely duress due to her suffering from post traumatic stress disorder
caused by abuse over a period from the co-defendant. Miss Kennedy ~ought to call
evidence to describe the medical condition upon which she relied. That application
was opposed on the grounds that medical evidence should not be admitted to deal
with matters within the knowledge and experience of jurors, and which required no
medical exposition.
That proposition is well established in law, having been laid down in the well
known case of Turner (197-1) 60 CLApp. R. 80. In that case Lawton L.J. giving the
judgment of the Court said:
"Jurors do not need psychiatrists to tell them how ordinary folk who are not
suffering from any mental illness are likely to react to the stresses and strains of
life. "
However, this case was not. in our judgment. one which fell within that category
to which Lawton L.J. referred. The nature of the condition for which Miss Emery's
advisers contended was something with which Juries would not necessarily be fami-
liar. The medical expertise relating to this form of stress disorder is of compara-
tively recent development. It is complex and it is not known by the public at large.
Accordingly we are quite satisfied that it was appropriate for the learned judge to
decide that this evidence should be allowed.
Of course there must be limits on the nature of the evidence which can be given
by medical experts in this context. The learned judge was well aware of that and in
giving his ruling he made it clear how far the evidence should be allowed to go. He
said this:
"The abuse alleged has to be in excesss of the stresses and strains of life well
understood by the average person. Sally Emery has told a story of persistent
and, in my view, horrific abuse by Brian Hedman both towards her and the
child. I ha~'e no need to set out tho~e allegations here. There is potential expert
evidence to the effect that if she is right. her will could well have been crushed.
That would afford her a good defence.

Therefore. without further explanation or understanding, the jury's lack of

understanding might lead to a gUilty verdict, whereas if they were to consider
the expert evidence which seeks to explain her conduct. they must find her not
guilty. It follows from that that in my Judgment the effects of abuse of the scale
and persistence she describes might well not be within the capacity of a jury to
understand unassisted by expert evidence."
He went on:
··l\Ir. Coker cautiously and correctly points out the danger that the jury might
use the expert evidence to decide if Sally Emery is telling the truth. That is a
matter for strong direction which the jury will receive. .. The jury will be
told to decide if Sally Emery is telling the truth and only if they consider that
398 (1993) 14 CR.App.R.(S.)

she is. then they consider the evidence of the experts to decide if that evidence
helps them to the view that she was acting under duress, the burden being. of
course, upon the Crown to prove that she was not.
I accept that before admitting expert evidence of this kind, great caution
should be exercised when the effect of it may be highly prejudicial to a co-
defendant. but in my Judgment it would be unjust to Sally Emery for this evi-
dence to be excluded."
That was the formal ruling which the learned judge gave and. in discussion with
counsel which immediately followed. the learned judge made it clear that the evi-
dence of the doctors was not to venture into the field of deciding, or helping the
jury to decide, whether or not as a matter of fact what Sally Emery said had hap-
pened to her had in fact happened. It con.:luded at page 32 of the transcript with
this observation from the learned judge, dealing with Dr. Turner's evidence which
was about to be given:
"That is a matter whether he can give evidence about these matters hut it is
what she has said in evidence. For example, let me make it quite clear, she may
well have said something different in evidence from that which she told the
doctor. What matters is what she said in evidence and not what she told the
doctor. Is there any confusion left? Let us have the jury back."
\\'hat happened was that Dr. Turner was then called and l\·1r. Coveney complains
that within two pages of his evidence having started. questions. long questions,
were being put on the basis of what had been said by the appellant Emery to the
doctor in the course of the doctor's interviews with her. Although there were from
time to time attempts from the judge to limit the extent of the evidence given by the
doctors, those attempts were not successful.
Tn particular Mr Coveney complains about two classes of evidence, which he
said were admitted and which should not have been admitted. He gives a number of
references where this occurred Fir~t of all the experts were invited to give evidence
of previous consistent statements made by Miss Emery, that is to say statements
made to the doctors which were consistent with what she said in her evidence in
court. Secondly, the experts were allowed to give evidence in support of the credi-
bility of Emery, which was not a matter on which they were qualified or permitted
to give evidence. Complaint is made that the effect of those two classes of evidence
given by the experts may very well have had an auverse effect on the case for
Hedman.
The evidence should have gone no further than allowing for the doctors to give
an expert account of the causes of the condition of dependent helplessness, the cir-
cumstances in which it might arise and what level of abuse would be required to
produce it; what degree of isolation of the person in question one would expect to
find before it appeared and \\ hat sort of personality factors might be involved.
The issue the Jury had to decide in regard to l\liss Emery was. whether or not the
prosecution had negatived duress. and therefore the question for the doctors was
whether a woman of reasonable firmness with the characteristics of Miss Emery, if
abused in the manner which she said, would have had her will crushed so that she
could not have protected her child. It was not for the experts to go into the question
whether what she had said by way of history as to what abuse had taken place was
true or not.
Mr. Coker made it clear that attempts were made to contain the evidence One
understands that the judge, and for that matter prosecuting counsel would have
been reluctant to curtail in a way which might have seemed to be too insistent by
the jury, the conduct of the case for Miss Emery.
As to introducing previous consistent statements, even if no questions had been
CA. SALL Y LORRAINE EMERY (Lord Taylor CJ.) 399
asked in chief by Miss Kennedy to that end, once the doctors were called, cross-
examination would have taken place by the Crown, and certainly by Hedman's
counsel. to show inconsistencies between what Miss Emerv said in evidence and
what she had said to the doctors. Once cross-examination' along those lines had
taken place, it would have been open to Miss Kennedy in re-examination to deal
with points of consistency in what Miss Emery had said to the doctors as compared
with what she said in evidence. Accordingly, one way or another, once the doctors
were called, that particular class of evidence was likely to have been before the jury
unavoidably. We do not therefore think that particular category of evidence can be
a matter of complaint.
We do, however. consider that the evidence which was admitted (and there are a
number of instances of it) from the doctors supporting the credibility of Miss Emery
should not have been admitted. We consider the admission of that evidence was
irregular.
It is pointed out to us that the learned judge was as good as his word, which we
have already quoted. He said that he would give to the jury a strong direction as to
how they should approach the evidence, and he did so, not just once, but four times
in the course of his summing up. It is necessary to refer to those passages
At page -l7 of the transcript in a lengthy passage, the learned judge said this:
"You have heard evidence given by Or. Stuart Turner and l\-liss Sandra Horley
called in the case of Sally Emery and Or. Orr called in Brian Hedman's case.
Their opinions are based upon the presumption-and I emphasise that word-
that Sally Emery is accurate and truthful when she spoke of Brian Hedman's
violence towards her and Chanel. but whether Sally Emery is telling the truth
about Brian Hedman's violence is for vou and nobodv else to decide. If vou
decide that she is not telling you the tr'uth about that ~'iolence then disregard
completely the evidence of the so called-and I do not say that disrespectfully
but simply to mark them out as different-expert witnesses for they have DO
relevance if you decide that she has been violent towards this little girl. If you
decide that she is telling the truth about Brian Hedman's violence then, and
only then, go on to consider the experts' evidence. Do not accept it even then
without question because it is for you and not any expert to decide the effect
that Brian Hedman's violence would have upon her. They are there to help
you make the decision. The decision, the conclusions are not theirs, and the
evidence must not be approached on the unquestioned presumption that they
are right. It is for you to decide whether their evidence helps you to decide the
matters that are for you. So it is for you to accept or reJect the experts' evi-
dence: for vou to decide if she was subiected to violence as she described and,
if so, what 'if any effect that had upon her. As I have said, beware the experts'
evidence in the way that [ have asked you to approach it with caution. What
you must not do is to use the evidence from the experts to help you to decide if
Sally Emery is telling the truth about the violence. Make that decision first.
First decide whether she is telling you the truth without reference to expert evi-
dence and only if you decide that she was subJect to violence do you go on to
consider the experts' evidence in deciding what. if any, effect it had upon her."
In that passage the learnediudge said several times in different ways and differ-
ent words quite clearly that it was for the jury to decide the facts on the evidence
given by the witnesses of fact and by the evidence of the experts. That was the
matter they had to deal with first and only if they accepted Sally Emery's evidence
as to the violence used, should they then go on to deploy the expertise that they had
been given by the doctors in deciding how to evaluate the effect of it.
There i~ a further passage at page R5, where the learned judge said this:
400 (1993) 1.t CR.App.R.(S.)

.. [ remind you that if you come to the conclusion that she her5elf was violent
towards this baby then you pay no regard to expert evidence: it is irrelevant. It
is only relevant to the question of whether she was acting under duress."
Just before that he said:
"You must judge those assertions of hers against the background of the facts
which you accept. and expert evidence was called in the shape of three wit-
nesses about and only about. I remind you. her defence of duress."
Finally at page 90C. a short time before the jury retired to consider their verdict.
the judge said this:
"That expert evidence is only to be considered if the prosecution have failed to
make you sure that Sally Emery herself used violence. If you are sure that she
did then you do not consider it: it is irrelevant. If you are not sure that she used
violence or if you are sure that she did not use violence. then make your own
assessment of the opinions expressed by the experts when you are considering
whether Sally Emery was acting under duress."
It is pointed out to us that there were a number of respects in which the evidence
of fact simply did not measure up to the level of abuse which the doctors said would
be necessary to create the condition of dependent helplessness.
The evidence of violence perceived by anybody else to I\Iiss Emery was of a
limited nature. It certainly did not involve any serious injury and there was evi-
dence which suggested that she felt able to go out and leave the child in the care of
the co-defendant. knowing. if she is right. that he was abusing the child and might
be doing so in her absence.
There was also a good deal of evidence from which, it would have been open to
the jury. to consider that the co-accused Hedman had been using violence to the
child: evidence. for example, from Miss Emery's mother, of occasions when she
heard cries being stifled whilst the child was in his care. an occasion when the child
was under the bedclothes. and he gave the unlikely explanation that the child had
crawled into that position. and other matters of that sort.
In the end this was eminently a case in which the jury had to decide the truth by
hearing from the only two persons who were in the house and who could have
inflicted violence on the child. or could have sought help. or could have given the
child protection. The jury did hear evidence from both of them and they formed the
view which resulted in their verdicts. They did not accept the evidence of the doc-
tors called on behalf of Miss Emery, certainly to the extent the doctors' evidence
went, because they did convict Miss Emery of the offence of cruelt\' to a child. Thev
rejected the defen'ce of d u r e s s . ' . .
In all the circumstances we are satisfied that. although some of the evidence from
the doctors which was admitted ought not to have been. that irregularity was cured
by the learned Judge's full and very insistent direction. and we are not in any doubt
that the verdict which the jury returned in relation to the charge of assault occasion-
ing actual bodily harm against Hedman was a verdict which was safe and satisfac-
tory.
In those circumstances this appeal will be dismissed.