The prosecution of a teacher for allegedly murdering a baby he was adopting ‘rests on a theory of circumstantial evidence’, a court heard today.

The case against Jamie Varley, 37, over the death of Preston Davey, aged 13 months, has been ‘fatally undermined’ after analysis by alternative expert witnesses, said Nicholas Johnson KC, defending.

Varley is charged with murder, manslaughter, causing grievous bodily harm, sexual assaults, cruelty, making indecent images and sharing one image with his partner and fellow adoptive father, John McGowan-Fazakerley, 32.

Mr Johnson said to jurors at Preston Crown Court: ‘On a fair and detailed  analysis, the proper verdicts are not guilty.

‘This will always be a deeply shocking, tragic case and we can’t bring Preston back. 

‘It would be even more tragic to convict a man of previous good character when you are not actually sure on the evidence and you are filling a gap with emotion.’

Mr Johnson pointed to a 2023 provisional finding that the cause of Preston’s death on July 27 that year was ‘unascertained’.

He said pathologist Dr Alison Armour’s conclusion that Preston’s airways had been blocked by an object placed in his mouth, smothering him to death and bruising his throat was ‘circumstantial evidence’.

It could have been caused ‘inadvertently’ by use of a laryngoscope, a tube used during intubation to attempt to resuscitate the baby boy, Mr Johnson said.

Recalling comments by Dr Armour – referring to the lack of Varley’s DNA – that ‘just because there are no signs of sexual abuse doesn’t mean it hasn’t happened’, Mr Johnson told jurors: ‘You’ve got to be sure about the evidence’.

Mr Johnson said that while it was ‘unlikely an experienced clinician would be clumsy’ but there was an ‘inherent risk’.

He added that while defence expert witness Prof Jack Crane acknowledged Dr Armour’s ‘theories as possible’, he said throat bruising would be ‘more likely from a sharp object’.

Turning to Preston’s lungs, Mr Johnson said it was possible he may have swallowed water but without any entering his lungs due to his gag reflex.

The court heard an alternative theory that Preston – who died on July 27, 2023 – had a seizure from inhaling food into his lungs was ‘consistent with a history of gastro oesophageal reflux’.

Mr Johnson said this was shown by medical records diagnosing him with the condition in January that year before he had been placed with the couple. He was sick on the day he died and sick was found in his lungs.

‘So here you have it, an important mechanism of acute upper airways obstruction that doesn’t involve sexual abuse, supported by Prof Crane,’ Mr Johnson said.

Referring to an earlier seizure on June 15, the barrister added: The prosecution say the only common denominator is Jamie Varley but he would be present as a parent, wouldn’t he? The other common denominator is gastro oesophageal reflux.

‘We start to see how the scientific circumstantial evidence can be explained in another way’.

Mr Johnson added that pelvic injuries could be explained through errors made in cutting slides of tissue for examination, or by more simple reasons such as constipation.

Meanwhile, a bruise to Preston’s bladder could have been caused by Varley’s ‘vigorous’ pushing of Preston’s abdomen to revive him, the court was told.

Turning to an allegation of joint sexual abuse by Varley with McGowan-Fazakerley while Preston was asleep with his head leaning over cot bars at the couple’s home in Blackpool, Lancashire, Mr Johnson said DNA evidence around the cot was inconclusive.

Meanwhile, Preston was ‘a little boy who went to sleep in very strange positions’, he added.

Mr Johnson said one expert witness believed ‘linear’ bruising to Preston could have been caused ‘by gripping rather than slapping’.

The barrister said reference by Varley to having ‘dark thoughts’ of suffocating or drowning Preston to a work colleague 10 days before his death were her incorrectly remembering him talking about his sister’s experience with a baby.

Varley, said Mr Johnson, was a man of good character and that he and McGowan-Fazakerley had not had ‘a single concern’ against them when visited by social workers.

The barrister said Varley’s apparent rough treatment when taking Preston on play equipment was because he hadn’t appreciated the amusements were ‘too old for him’.

Meanwhile, he defended his client’s ‘snap happy’ use of his camera and said naked images including of him in the bath with Preston were not taken for sexual reasons but because they were ‘funny’.

Mr Johnson questioned why, if images were taken for a ‘sexual kick’, he would really ‘keep them on his camera roll’ on his phone – or share some with his mother.

And turning to Varley’s explanation that Preston fell into bathwater from a chair on July 27, he said Varley had dried Preston’s hair and may have kicked a ‘push-up plug’ draining the bath as he rescued and tried to revive him.

Accusing the prosecution of applying ‘selective’ evidence against his client, Mr Johnson said: ‘You can’t empty a tube of smarties, put the red ones back in and say, here’s a tube of red smarties.’

He added: ‘Nobody is saying he’s a perfect person, far from it, but he is not guilty of the offences he’s charged with.’

Co-accused McGowan-Fazakerley’s barrister, Anne Whyte KC, said the most serious alleged conduct by Varley was when he was not at home – and there was a ‘very real dispute’ between medical experts about what happened.

‘There’s no suggestion John McGowan-Fazakerley ever saw Jamie Varley lay a finger on Preston,’ she told the court.

She said that in order to convict him of causing or allowing the death of a child, they would have to find Varley guilty of murder or manslaughter – but jurors would still have to decide he could have ‘foreseen the circumstances’.

The barrister reminded jurors her client had been absent when some of Varley’s allegedly indecent videos were taken, which he only saw in later police interviews.

McGowan-Fazakerley was also at work when Preston was taken to hospital on May 25 with breathing difficulties and not at home on the day of Preston’s death.

Meanwhile, Ms Whyte said there was ‘no scientific evidence’ to support the prosecution’s claim Preston was allegedly sexually assaulted in his cot on July 23 and there was ‘no evidence McGowan-Fazakerley was sexually interested in Preston Davey’.

Ms Whyte said the case was ‘far different’ from an example of an abusive father – regularly high on drink and drugs who becomes gradually more abusive – killing a newborn baby – but whose partner fails to report his behaviour in the meantime.

Instead, she said quoted McGowan-Fazakerley as saying that while he felt he had a ‘loving relationship’ with Varley, ‘Preston’s life was like an iceberg with things beneath the water I didn’t know about’.

But Ms Whyte said Varley’s colleagues, family and social services had not been concerned about visible bruising and other alleged mistreatment, such as Preston being spun too fast and pushed too high on playground amusements.

‘It’s double standards for (McGowan-Fazakerley) to be on notice about bruises when so many other people knew about them and did not deem Preston to be at risk’, she said.

McGowan-Fazakerley had seen ‘a future of stability involving our child and us dedicating ourselves to his care’, Ms Whyte said.

The barrister highlighted messages from June 15, 2023, when McGowan-Fazakerley was flying back from a business trip and Varley had messaged to say Preston was unwell – with McGowan-Fazakerley saying: ‘As long as he’s safe, he will be fine’.

Ms Whyte added: ‘If you need proof that the sins of Jamie Varley, whatever you find them to be, should not be visited on his partner, there it is.’

McGowan-Fazakerley denies causing or allowing the death of a child, sexual assault and cruelty.

The trial continues on Thursday.