Appeal over toddler death verdict

By John Sweeney
BBC News

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When toddler Kyle Fisher fell mortally ill in 2004 while being looked after by babysitter Suzanne Holdsworth the police concluded that she must have murdered him - and a jury agreed.

The murder conviction against Holdsworth, now 37, from Hartlepool, rests on the assumption that Kyle was fundamentally a healthy little boy.

But this assumption, it now turns out, may be mistaken.

On Monday Newsnight is to broadcast fresh evidence in a troubling case, a day before the High Court will hear Holdsworth's appeal.

Fits can kill

Kyle had something immediately and obviously wrong with him. His right eye drooped. The jury had seen a photograph of his poorly eye but had little idea what lay behind it.

What the jury did not know was that behind the drooping eye lay major brain damage from a year-old eye injury - nothing to do with the babysitter.

Nor did the jury hear that two surgeons had examined Kyle six months before he died.

I think it should have been investigated further Sharon Birch

They planned to operate on the brain injury and noted their concerns in Kyle's medical notes. The brain damage could cause Kyle to fit and fits can kill.

Nor did the jury hear that a senior officer on the case, Acting Detective Sergeant Sharon Birch, had read the medical notes and asked that statements be taken from the two surgeons.

For reasons that have yet to be explained, the murder inquiry did not take statements from the surgeons. Mrs Birch was removed from the inquiry.

Holdsworth, from Hartlepool, looks haggard in the police photo taken shortly after her arrest.

The mother-of-two has always denied harming Kyle - but after a jury heard the Crown's case that she must have smashed Kyle's head against a banister with the force of a 60mph car crash, she was convicted in March 2005 and sentenced to life imprisonment.

Kyle Fisher was due to have an operation on his eye socket

The Kyle murder inquiry was led by Cleveland's super cop, Det Supt Tony Hutchinson - so famous for cracking the Canoe Man pseudo-cide of John Darwin that a clip of him appeared on Have I Got News For You.

The force magazine boasted of a "relentless investigation" into Kyle's murder.

Tomorrow that investigation will come under scrutiny at the Appeal Court.

If the banister was the murder weapon, why was there no blood, DNA, hair or skin on it? Why was there no dent on the banister?

But the most troubling questions centre on Kyle's eye. He had suffered an injury to his eye in March 2003 when he was in the care of his mother, Clare Fisher.

We had potentially useful information and we should have been asked to give a statement Professor Avery

Over months, Kyle's eye started to droop and in February 2004 he was seen by face surgeon Professor Brian Avery and brain surgeon Sid Marks.

Professor Avery told Newsnight the eye-socket "bone had somehow been fractured and the brain was herniating down from the brain cavity into the eye socket and the reason why the eye was drooped was because the brain was pushing down on top of the eye."

The Appeal Court will hear from experts such as neuro-radiologist Dr Philip Anslow and neuro-pathologist Dr Waney Squier who will say that scarred brains can cause fits and fits are potentially lethal.

Convicted

Professor Avery, a dean of the Royal College of Surgeons, said Cleveland Police "certainly didn't get in contact with me. Mr Marks says that he cannot recall anyone contacting him and certainly neither of us completed a statement or anything like that."

I asked him whether that was right in the context of a murder inquiry?

Prof Avery replied: "No, I think we should have been contacted and we had potentially useful information and we should have been asked to give a statement."

Sharon Birch, then an acting detective sergeant, had read the medical notes and suggested that statements should be taken from the two surgeons.

She told Newsnight: "I think it should have been investigated further and looked at - to be ruled out or proven significant."

Suzanne Holdsworth was sentenced in April, 2005

That did not happen. Mrs Birch remained deeply worried about the case and later told a senior officer of her concerns.

That led to the trial being halted for two days and she was questioned, she says, by prosecution, defence and the police in the absence of judge and jury.

She says she may have got some details wrong, but she says she argued that Kyle's eye merited further investigation.

The trial continued, Holdsworth was convicted and Mrs Birch later left the police.

Det Supt Hutchinson has made no comment on the case.

Cleveland Police say the appeal is the proper venue for the new defence arguments to be tested and the defence at the trial knew of Mrs Birch's concerns but did not call her as a witness.

John Sweeney's report will be on Newsnight, which broadcasts at 2230 BST on BBC Two on Monday