Appeal dismissed

Appeal fails: paediatrician's evidence caused no miscarriage of justice and the judge's medical summary was balanced

The High Court of Justiciary refused an appeal against a conviction for attempting to murder a baby. It held that the expert's evidence did not go beyond her expertise in any way that caused a miscarriage of justice, that the prosecutor was entitled to rely on the appellant's delayed and shifting accounts, and that the trial judge's review of complex medical evidence was fair.

AA v His Majesty's Advocate, [2026] HCJAC 31

6 min read

Court: Appeal Court, High Court of Justiciary (Scotland)
Decided: Jul 15, 2026
Conviction to this result: 1 year
Sentence: 7 years' imprisonment (no appeal against sentence)

Appeal against conviction refused; conviction and 7 year sentence stand The court refused to set the conviction aside. Other routes may remain.

What happened

The appellant, anonymised as AA, was convicted after a jury trial of attempting to murder a baby born in spring 2021 by shaking him, pinching his face or otherwise causing head trauma. The case was circumstantial. It rested on three strands: other carers were excluded as the person responsible, the appellant's own accounts of things that happened while the baby was in his care, and expert medical evidence. When the baby was about two weeks old, the appellant said he had slid off a changing mat on a sofa. Hospital staff found no injury. About a month later the mother found fingerprint sized marks on the baby's face; the appellant suggested an insect bite. Over the following weeks the baby became lethargic and vomited often. In late July a health visitor was alarmed by the size of his head. Scans showed widespread bleeding and fluid collections around the brain of different ages, and he needed surgery. Tests ruled out bleeding disorders and metabolic conditions. Months later the appellant told the mother he had fallen while carrying the baby on the day the facial marks appeared. His accounts of that fall varied. In evidence he admitted he had repeatedly lied about it to the mother, her family, his own parents and the police. Three medical experts gave evidence, including Dr Marianne Forrester, a consultant paediatrician specialising in child protection. The medical evidence was that the injuries were caused by shaking on more than one occasion. The defence explored birth complications and reactions to immunisations as alternatives; the doctors considered these unlikely.

Procedural history

Apr 29, 2021
Baby taken to hospital after the appellant said he fell from a sofa during a nappy change; no injury found
Jun 1, 2021
Mother noticed fingerprint sized marks on the baby's face while the appellant had care of him
Jul 23, 2021
Health visitor concerned about head size; CT scans at Royal Aberdeen Children's Hospital showed widespread bleeding and fluid around the brain
Jul 24, 2021
Transfer to Glasgow Royal Hospital for Children for surgery to drain blood and fluid
Undated
Appellant charged with attempting to murder the child
Jun 27, 2025
Crown speech to the juryTrial court
Jun 30, 2025
Trial judge's charge to the jury, including corrections of points in the Crown speechTrial court
2025
Jury convicted the appellant of attempted murder; trial judge later sentenced him to 7 years' imprisonmentTrial court
Undated
Sifting judge granted leave to appeal in limited terms on the expert evidence and the balance of the chargeHigh Court of Justiciary (sift)
Jul 15, 2026
Appeal heard and refused on the same day, reasons reservedAppeal Court, High Court of Justiciary
Aug 4, 2026
Written reasons issued: [2026] HCJAC 31Appeal Court, High Court of Justiciary

The offence and its elements

Attempted murder

Common law of Scotland (no statutory provision is cited in the opinion)

What the prosecution had to prove:

The appellant attacked the child, by shaking him, pinching his face or otherwise inflicting trauma to his head. The charge also alleged severe injury, permanent disfigurement and danger to life, but these are charged consequences, not elements that attempted murder requiresdisputedFrom the reasons
The appellant acted with a wicked intention to kill, or with wicked recklessness so extreme as to show indifference to whether the child lived or died. The opinion does not discuss or decide the mental elementnot addressedGeneral law: check the current text

The questions on appeal

Did Dr Forrester give evidence beyond her expertise, and did the prosecutor's handling of it cause a miscarriage of justice?: No. On immunisation timing she began to answer, said in the same breath it was probably not her area, and the judge stopped her at once in front of the jury; the Crown never returned to it. On bridging veins she declined to answer, so she gave no evidence on it. Her account of what prompts a child protection investigation was professional practice, not expert opinion, and the prosecutor was entitled to rely on it.
Was it wrong for the prosecutor to invite the jury to treat the appellant's delays and lies as pointing to guilt?: No. The court held that delay in giving an account, and admitted lies about incidents involving the child, were pieces of circumstantial evidence the jury could consider. The trial judge's direction telling the jury otherwise was wrong, but in the appellant's favour.
Was the trial judge's summary of the medical evidence unbalanced?: No. The medical evidence was crucial and hard to follow. The judge was entitled to distil it, drew attention to defence points, and the court found no imbalance.

The law the court applied

Expert evidence and the miscarriage of justice standard

An expert may only give opinion evidence within their field of expertise. The court recorded that there was no dispute that expert evidence was required in this case, and it expressly declined to discuss the criteria for admitting such evidence, pointing to Christie as a recent example of that discussion. The question it answered was whether any miscarriage of justice arose from the evidence or the Crown's use of it.

Christie v HM Advocate [2024] HCJAC 52, 2025 SCCR 365

Lies and delay as circumstantial evidence

An accused person's delay in giving an account, admitted lies about relevant events, and accounts inconsistent with known facts can themselves be circumstantial evidence that a jury may weigh, as distinct from simply rejecting evidence and putting it aside.

Bovill HM Advocate [2003] SCCR 182

Summarising complex medical evidence

Leaving technical evidence entirely at large can be a misdirection, but there is generally no requirement to rehearse evidence. The judge must give a route to verdict, and at most a succinct, balanced review of the central factual matters. Whether to summarise is primarily for the judge's discretion.

Liehne v HM Advocate 2011 SCCR 419, [2011] HCJAC 51; Hainey v HM Advocate 2014 JC 33, [2013] HCJAC 47; Geddes v HM Advocate 2015 JC 229, [2015] HCJAC 10; Younas v HM Advocate 2014 SCCR 628

Assessing a charge for imbalance

Directions are read as a whole in their oral context, not word by word. A complaint of imbalance must be substantial and go to the whole tenor of the charge. The charge is read assuming the jury heard the evidence and speeches, and the judge need not audit the evidence for every point favouring either side.

Sim v HM Advocate 2016 JC 174, [2016] HCJAC 48, para [32], citing Snowden v HM Advocate 2014 SCCR 663, Scott v HM Advocate 1946 JC 90 and Withers v HM Advocate 1947 JC 109

What the court decided

The appeal was heard and refused on 15 July 2026. Written reasons followed on 4 August 2026, delivered by Lord Matthews for a bench of three. The court held that no miscarriage of justice arose from Dr Forrester's evidence or the way the Crown used it. On how quickly symptoms follow immunisations, she began to answer, giving a figure of 24 hours, while saying this was probably not her area; the trial judge stopped her at once in front of the jury, and the Crown never relied on it. On damaged bridging veins she declined to answer, so there was no evidence from her to exclude, and nothing suggested she could not give the evidence that preceded that question. Her description of the factors that can prompt a child protection investigation, such as a changing history, a history inconsistent with the child's development, or a delayed history, was a matter of professional practice and was properly given. The advocate depute was entitled to invite the jury to treat the appellant's delays, lies and inconsistent accounts as circumstantial evidence, following Bovill. The court identified three incorrect directions by the trial judge, all favouring the appellant: telling the jury that the admitted lies and delay were simply evidence to be put aside; telling them that Dr Forrester's evidence about intracranial injuries was inadmissible when only the bridging veins question was beyond her and she had not answered it; and telling them to disregard her evidence about histories. On the second ground, the judge was entitled to distil crucial and difficult medical evidence, drew attention to the defence points, and the court detected no imbalance. The court also noted that the sifting judge's grant of leave was unclear and that the grounds allowed should have been specified under section 107(7) of the Criminal Procedure (Scotland) Act 1995. The decision is a published opinion of the court.

Analysis

This is our commentary, separate from the court’s reasons.

Why the expert evidence ground went nowhere

The court asked one question: did anything about Dr Forrester's evidence, or the Crown's use of it, cause a miscarriage of justice? Two moments mattered, and they were different. On immunisation timing she did give an answer, a figure of 24 hours, while saying in the same breath that it was probably not her area. The judge stopped her immediately, the jury saw it happen, and the Crown never came back to the point. On bridging veins she declined to answer, so there was nothing to exclude. The court's reasons rest on those features: the intervention, the jury's awareness of the limit, and the absence of later reliance. The Crown also argued that no objection was taken at trial and that much of the medical evidence was unchallenged; the court did not state those points as reasons for its decision, so they should be read as submissions rather than findings. The court's reframing of the history evidence is the important move. It treated Dr Forrester's red flags as a factual description of professional practice, not an opinion requiring a recognised branch of knowledge. That distinction allows evidence of this kind to go before a jury without the scrutiny applied to true opinion evidence, and it may well be cited in future child abuse trials. Notably, the appeal did not challenge the underlying medical conclusion that the injuries were caused by shaking. The wider debate about that diagnosis was not before the court, and the opinion should not be read as having addressed it.

A judge who erred in the appellant's favour

The unusual feature of this case is that the appeal court found three misdirections, all of which helped the accused. First, the judge told the jury that rejected evidence is simply put aside and that lies are not evidence for the Crown. The court said this missed the point: an admitted lie about an incident involving the child, and a long delay in mentioning it, are themselves circumstantial facts a jury may weigh. Second, the judge told the jury that Dr Forrester's evidence about intracranial injuries was inadmissible, when the only topic beyond her was bridging veins and she had said nothing about it. Third, he told them to disregard her evidence about histories, which the court held was well within her experience as a matter of fact. A direction that protects an accused more than the law requires will rarely found an appeal, and a ground gains little purchase when the jury have already been told to be more cautious than the appeal court thinks correct.

Complex medical evidence and the charge

The line of authority from Liehne through Geddes gives trial judges a wide discretion over whether to summarise technical evidence. The court said the judge here could well have been criticised had he not distilled it. The practical consequence is that a balance complaint must identify something substantial in the overall tenor of the charge, not simply note that the summary tracked the Crown case because most of the medical evidence was Crown evidence. The court's remarks about the sift are a separate but useful signal: a vague grant of leave produces unfocused submissions, and the court expects leave to be tied to specified grounds.

If this feels close to home

A claim that an expert went beyond their expertise is strongest when the evidence was actually given and relied on, and the jury were not warned. In this case the court found no miscarriage of justice because the judge intervened at once, the jury saw the limit being enforced, and the Crown did not rely on the point afterwards.
In Scotland, an accused's admitted lies and delay in giving an account can be treated as circumstantial evidence, not just as evidence to be discarded. Any appeal about how a prosecutor used such material has to confront Bovill.
A misdirection that favoured the accused will rarely found an appeal. Reviewing a charge means looking for errors that could have harmed the defence in the context of the whole trial.
Complaints about an unbalanced judge's charge need to identify something that affects its whole tenor. The fact that a summary reflects the Crown's medical evidence is not enough when the judge also set out the defence points.
When leave to appeal is granted in general terms, it helps to pin down early exactly which grounds are covered and which passages of transcript are criticised, so the hearing is focused on what the court can actually consider.

What other routes exist Find legal aid

What went wrong

Flawed forensic science Trial judge error

How this was checked

Written by Claude Fable 5.1 (Anthropic AI) from the source below, then independently audited against it by GPT-6-Astra (OpenAI AI) on Nov 1, 2026. Every citation here was confirmed by software to appear in the decision or an official text. No lawyer has reviewed this brief. Our standards

New trial orderedNov 6, 2026

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R. v. C.L., 2026 ONCA 791 · Ontario · Trial judge error, Police or Crown misconduct

ExoneratedSep 29, 2026

Ontario Court of Appeal acquits mother convicted in 2002 on discredited shaken baby evidence

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Appeal dismissedSep 3, 2026

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Citations

[2026] HCJAC 31 The present decision
Christie v HM Advocate [2024] HCJAC 52, 2025 SCCR 365Recent discussion of criteria for admitting expert evidence, which the court did not need to revisit
Bovill HM Advocate [2003] SCCR 182Delay, lies and inconsistent accounts as circumstantial evidence
Geddes v HM Advocate 2015 JC 229, [2015] HCJAC 10Judge's approach to summarising complex medical evidence
Liehne v HM Advocate 2011 SCCR 419, [2011] HCJAC 51Leaving technical evidence at large is a misdirection
Hainey v HM Advocate 2014 JC 33, [2013] HCJAC 47Same result as Liehne on technical evidence
Younas v HM Advocate 2014 SCCR 628No general requirement to rehearse evidence; route to verdict
Sim v HM Advocate 2016 JC 174, [2016] HCJAC 48Basic propositions for misdirection and imbalance appeals
Snowden v HM Advocate 2014 SCCR 663Imbalance must go to the whole tenor of the charge
Scott v HM Advocate 1946 JC 90Cited in Sim on the tenor of the charge
Withers v HM Advocate 1947 JC 109Charge read on the footing that the jury heard the evidence and speeches
section 107(7) of the Criminal Procedure (Scotland) Act 1995Grounds on which leave is granted should be specified

Sources

Appeal against Conviction by AA against His Majesty’s Advocate

This brief is general information about one case. It is not legal advice, and it may not reflect later developments. Read the full reasons and speak to a lawyer about your own situation.