We looked last year at the conviction, and sentence, of Kathryn Smith for the murder in 2014 of her 22 month old daughter Ayeeshia.
On 31st July 2017, the Court of Appeal handed down judgment in her appeal, dismissing the conviction appeal but reducing the sentence.
You can see details of the case in our previous post (as well as the judgment itself – always required reading in any case).
Originally, there were two grounds of appeal put forward. The first one (paras 33-35 and 40-45) related to criticism against the defence advocate levelled by the Judge part way through his speech.
In brief, the QC had pointed out that the Prosecution were alleging murder jointly against Ms Smith and her partner, with causing or allowing as alternatives against both defendant separately, commenting that this shows that the Prosecution themselves weren’t sure what had happened, so how could a jury?
The Judge was not too impressed with this, feeling that it was misleading, and too the opportunity of a lunch break to raise this with the advocate. When everyone was back, the Judge (without warning) spoke to the jury to correct what she felt was the false impression.
The Court of Appeal concluded that although the Judge should not have done this without going through it with the advocates, it did not make the conviction unsafe. This is perhaps not unsurprising.
The second ground related to the summing up (paras 46-51) and suggested that the Judge had gone beyond what was allowed by way of comment. This is a very difficult argument to succeed with, and did not succeed here.
However, during the proceedings there was further evidence that came to light that showed the factual basis of part of the Prosecution case was wrong, most significantly in relation to the weight of Ayeeshia (it was suggested that she had lost 1kg prior to her death, with the implication being that this was indicative of a course of mistreatment by Ms Smith).
This gave rise to a new ground of appeal – namely that the fresh evidence undermined the safety of the conviction (paras 52-70).
The Court of Appeal looked at this, but concluded that it did not as it would not have made a difference to the jury.
And so the conviction for murder was upheld.
On a conviction for murder the only sentence is a custodial sentence for life. The question for the Judge was the tariff to be served. In Ms Smith’s case it was set at 24 years.
The Court of Appeal were more sympathetic to this argument (paras 74-86), and concluded that the increase from the starting point of 15 years was too great in all the circumstances. It was tentatively concluded that in a case such as this, the minimum term should not go above 20 years only where there are very serious aggravating features.
Those were not present here, and so the minimum term was reduced to 19 years.