Before the LORD CHIEF JUSTICE, Mr JUSTICE SELLERS, and Mr JUSTICE BARRY

The Court allowed the appeal of Thomas Rymell, aged 31, from his conviction at Durham Assizes of the murder of his son, aged two years and four months, for which he had been sentenced to death.

Their Lordships substituted a conviction of manslaughter and sentenced the appellant to seven years' imprisonment.

The main grounds of the appeal was misdirection by Mr Justice Oliver in that he had not put to the jury that it was a case in which manslaughter should be considered.

Mr E L Mallalieu, QC and Mr R P Smith appeared for the appellant ; Mr G de P Veale QC and Mr Denis Robson for the Crown.

On behalf of the Crown it was conceded that in the summing-up manslaughter had hardly been mentioned to the jury, and that it had not been explained to them.

JUDGEMENT

The LORD CHIEF JUSTICE, delivering the judgement of the Court allowing the appeal, said that from one point of view it was a case in which it was impossible to resist a feeling of sympathy towards the appellant, who had recently been left a widower with four small children ; according to the evidence he was a good father.

He had called at the house of a neighbour with whom he had left the child for the day to take him home and put him to bed.

Unfortunately he was under the influence of drink, not to any great extent, but to some extent, and it was possible that had it not been for that this dreadful occurrance would not have taken place.

No one but the appellant knew what had taken place, but from his own evidence it appeared that, maddened by the child's screaming or crying, he undoubtably struck him in a brutal manner and damaged his face seriously.

No doubt the injuries to the child and the photographs would cause a strong feeling of revulsion in the minds of the Judge and jury, and there was, therefore, all the more reason for a careful summing-up.

Mr Justice Oliver always summed up with great care, but in this case there was the difficulty that the blows on the face, shocking as they were, had not caused the child's death, which was the result of rupture of the liver.

How the rupture of the liver took place was unexplained during the course of the trial ; there was no medical evidence that the cause was some physical violence.

The suggestion was that it was caused by a kick, but there was no bruise or anything else to suggest a kick.

It could have been caused in a variety of ways - for instance, by a fall from the bed and a violent landing on the buttocks or by coming into violent contact with the bedpost.

The child had in fact fallen off the bed.

No one had suggested that the appellant intended to kill the child, but if he had been guilty of actions calculated, in the mind of a reasonable man, to cause grievous bodily harm and death resulted he would be guilty of murder.

He struck the child on the face and, if the child had lived, a jury could quite properly have convicted him of causing grievous bodily harm - but that grievous bodily harm was not the cause of death.

"INSUFFICIENTLY EXPLAINED"

The Judge told the jury that they must be quite satisfied that the appellant caused the rupture of the liver, but he did not tell them that they must come to a conclusion as to how the liver was ruptured and if it was caused by a fall off the bed, and whether a reasonable man would not have anticipated that striking the child in the face would have led to him falling off the bed in such a manner as to rupture his liver.

The case was much the same as that where one man struck another who fell and fractured his skull; in cases of that sort where a man caused death, but not with malice aforethought, manslaughter was the proper verdict.

In the opinion of the Court it was clearly a case in which manslaughter should have been left to the jury, and in no uncertain terms.

One of the defences was drink; that could not possibly be supported because the appellant knew what he was doing and had made a detailed statement of the events of that night to the police.

There was no evidence on which a jury could find that he was incapable of forming an intent.

Another defence was that he had in some way overlaid the child while asleep.

That was a most improbable story and one a jury would not be likely to accept.

The real defence was that is was not murder but manslaughter, and the Court felt that, although a verdict of murder could have been found by the jury, the law of manslaughter had not been sufficiently explained to them.

Accordingly, in order to prevent any possible miscarriage of justice, the Court felt that they should exercise their powers and alter the conviction to one of manslaughter.

Appeal allowed; sentence of seven years' imprisonment for manslaughter.

Information transcribed from "The Times", 24th November 1953