During the initial trial, there were nine days of very complex and conflicting medical evidence for the jury to digest, some of which Stephen Clark, an experienced lawyer, struggled to understand. In the middle of this medical confusion, within a few moments of discussing SIDS, Roy Meadow told the court that the chances of this happening is Sally’s case was 1 in 73 million, it could only happen once in a century. This statistic, unlike all the other complicated medical evidence was easy to understand. It was terribly wrong and it sealed Sally’s fate. It was a statistical smoking gun, and in one sound-bite the jury had a compelling case against Sally Clark. The defence chose not to use an expert statistician to challenge Meadows figure. This decision cost Sally her freedom. The actual figure is in fact five instances in three years! The truth would surely have affected the jury’s decision and with this mathematical error so prominent in deciding the verdict, the conviction is unsafe.
Microbiologist Dr David Drucker who has helped to identify the SIDS gene, says of Meadow’s Law (and he is not a lone voice) “It’s scientifically illiterate”. No one is suggesting that mothers never kill their babies. But Meadows law tars all mothers who have suffered multiple infant deaths as murderers.
Prior to Sally’s arrest, baby Christopher Clark was found dead at eleven weeks of age. Christopher was said by the pathologist at the time to have died from a lower respiratory tract infection, and examination by experts since that time have indicated that the most probable cause of death was a lung disease called idiopathic pulmonary haemosiderosis. Death was certified as "natural causes".
Baby Harry Clark was found dead at eight weeks of age. Dr Williams commissioned lab tests on Harry immediately after his death, which found lethal levels of bacterial infection in his body, which were present during his life, showing that the baby died of natural causes. Examinations by experts have shown that the cause of death was staphylococcal infection, or a disseminated staphylococcal infection. This is an infection which progresses quickly and without any obvious pre-existing illness. It is a recognised cause of S.I.D.S and is a natural disease; no other conclusion could be sustained.
There is clear medical evidence that both babies died from natural causes, albeit different ones and not at their mother's hand, yet eighteen months later at the trial, the jury asked TWICE whether any blood tests had been carried out on Harry to show whether he had died from natural causes, once during the evidence given by Professor Tim David, and again during cross examination. But Dr Williams said there had not been. This is a contravention of The Human Rights Act Art 6. Dr Williams told the jury that there was no evidence of infection and also no evidence that the child died as a result of natural disease. However he was not disclosing the results of the tests he had commissioned which showed a natural cause of death. The jury were aware that Dr.Williams findings were the subject of much criticism, but how would the knowledge of failure to disclose vital evidence have affected their view of his competence, honesty and reliability to give evidence as an expert?
The other flawed expert evidence involved the testimony of Professor Green, another pathologist employed by the Crown. Dr. Williams and Professor Green came to the conclusion that the deaths of the children were due to their being smothered, even though initially they had suggested shaking as the cause of death. The retraction and revision of their opinion concerning the cause of death came after being challenged by a pathologist for the defence regarding flaws in their evidence.
Expert witnesses occupy a special position in court in that they may give evidence of opinion as well as fact. Danger can arise when the jury is unclear as to which is which, as their evidence is regarded as somehow infallible and the pristine truth. So-called experts are a mixed bag, a worrying number are ready to advance opinions in fields of expertise well outside their own. This leads to advise which is at best ‘unhelpful’ and at worst ‘misleading’.
The pivotal evidence which has persuaded the Criminal Cases Review Commission to refer Sally's case back to the Court of Appeal turns on the reliability of Dr Williams, as the medical evidence contained in his report which was not disclosed at the original trial shows that Harry, the second baby to die had suffered from a natural disease which had almost certainly killed him.
During the trial there were numerous other flaws identified in the Crown's pathological evidence and, although attempts were made to counter them, the evidence was deemed sufficient to be ‘beyond reasonable doubt’ by the jury and, later, passed muster with the Court of Appeal which held the medical evidence incriminating Mrs Clark to be 'overwhelming'. The prosecution also painted a sinister picture of family life in the Clark household, they said Sally was tired, depressed and had resented the interruption that the children had made to her career. Nothing could have been further from the truth but the defence were never given the chance to respond to the character assassination.
There is no doubt that with days of conflicting forensic evidence at the initial trial, the Crowns case was very much bolstered by the testimony of such an eminent paediatrician. However, I would like to point out that throughout this case the prosecution did not believe that the deaths of the two babies were from S.I.D.S. they thought it was murder. Also, the defence agree that the two deaths were not S.I.D.S. They say that Christopher's death was recorded by the doctor, as lung infection, which would mean it was not SIDS; and Harry's death was caused by bacterial infection, which would mean it was not SIDS.
So since neither prosecution nor defence thinks a double-S.I.D.S. is the explanation, the probability of double-SIDS is completely irrelevant to the case. The jury should have been directed most strongly to disregard any statistics relating to double-SIDS.
During the trial the jury clung onto two things - Professor Meadow's flawed statistical evidence and Williams flawed medical evidence. The statistic was subsequently rebutted, and has been rubbished by the professional body for statisticians, and the judge directed the jury to discount it, but it ran constantly through the trial, and we know that for the 10 of the 12 jurors who found Sally guilty, it was hugely influential.
At the Appeal hearing, the defence realised that the incorrect use of the statistics in the original trial had had a large part to play in the guilty verdict. They countered this with the statement that the jury should have been warned about the ‘prosecutors fallacy’ The mathematical community give the label ‘prosecutors fallacy’ because it is a trap into which highly intelligent people often fall, and it is easy to see how the jurors fell into such a trap. The jury were faced with deciding between two events, a natural double-death or a double murder. It is given that the prosecution was saying that the odds against the natural explanation are impossibly highso, the murder explanation must be true.
The appeal court judges concluded that "In the context of the trial as a whole, the point on statistics was of minimal significance and there is no possibility of the jury having been misled so as to reach verdicts that they might not otherwise have reached." They also chose to second guess the statistical comprehension of the jury and said regarding the prosecutors fallacy: “It is stating the obvious to say that the statement ‘in families with two infants, the chance that both will suffer true SIDS deaths is 1 in 73 million ‘IS NOT THE SAME AS’ if in a family where there have been two infant deaths, then the chance that they were both unexplained is 1 in 73 million. It is clear that the second statement does no follow on from the first. You do not need a label ‘The Prosecutor’s Fallacy’ for that to be clear to the jury.
I disagree with those judges. I don’t think that that is clear at all, I don’t even understand their explanation!
I believe that Sally Clark will eventually be proven innocent and this case recognised as a miscarriage of justice when the full details of both trials are brought to light. Especially the prosecution not disclosing the key findings of the lab report pointing to the potentially fatal infection in baby Harry. Professor James Morris, leading pathologist, and consultant at the Royal Lancaster Infirmary added “no other cause of death is sustainable” And yet, throughout this trial, the jury remained in the dark about this evidence of Sally’s innocence. This is in direct contravention of The Criminal Procedure and Investigations Act 1996.
This non-disclosure is all too similar to the cases of the Maguire seven and the Birmingham Six. In the case of the Maguire seven, the defendants were condemned upon the results of hand swabs which tested positive for nitro-glycerine. It was not disclosed at trial that each swab had under gone a different test which proved negative, even though these results were recorded in the same book. Similar scientific tests were carried out by the Royal Armaments Research and Development Establishment and were never mentioned, or revealed to the defence. This bears a striking resemblance to Sally’s case as does the fact that during the nine months leading up to her trial requests made by the defence for copies of the medical reports were either ignored or refused.
At the trial of the Birmingham Six, the expert witness Dr Skusse’s positive test results for nitro-glycerine arose from cross contamination from the sticky tape used for wrapping samples. This was dismissed as irrelevant by the scientist and remained undisclosed at the trial. The disclosure of this evidence of cross-contamination destroyed Dr Skusse’s credibility and formed part of the basis for the quashing of the convictions in 1991.
When the Court of Appeal accepted the evidence of the pathologist Alan Williams, it was supported by only one of the experts, against five eminent defence experts, and in critical respects also, three of the prosecution's experts, (one against eight), this is a paradox that bewilders medical and legal observers alike.
Matters excluded at the trial as irrelevant and prejudicial, namely character assassinations were introduced only in Judgment, which meant that Sally team were not given the opportunity to refute. This is an affront to natural justice, particularly when the many character witnesses waiting would have confirmed Sally as an impeccable mother. Equally disturbing is the presumption by the Appeal Court that Sally and Steve lied. Given opportunity, there are independent witnesses who will confirm that they did not.
The analysis on double cot death shows that that true statistics are more like I in 4 which is much more frequent than the jury were led to believe. Yet when this tragic event occurred, it was regarded as such an unlikely event that justice was allowed to be turned on its head, and the burden of proof reversed. Sally Clark was somehow expected to prove her innocence rather than the prosecution prove her guilt. It is not clear how Sally could have done this when SIDS, by definition is a natural sudden infant death for which no adequate explanation can be found.
When Sally’s conviction is quashed, Article 5(2)-(5) of the Human Rights Act 1998 states that ‘Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.’
The payment of compensation is now covered under section 133 of the Criminal Justice Act 1988. This states that when a person has been pardoned on the grounds that newly discovered facts show beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation to the person who has suffered punishment as a result of such conviction.
Compensation will not be given automatically, it has to be applied for, and ultimately the question of whether she has a right to compensation will be determined by the Secretary of State. If it is to be awarded, the amount will be assessed by an assessor appointed by the Secretary of State.
As a result of research into Sally Clark’s case, I would propose the following reforms of the criminal justice system:
The police and criminal evidence act 1984 is wholly silent on the subjects of forensic scientists and expert witnesses. It should not be acceptable that the defence can employ an expert to say one thing and the prosecution can find one diametrically opposed. How can the jury possibly decide the fate of the defendant by choosing which of the two experts to believe, when both are portrayed as the truth.? Expert witnesses who are obviously extreme and biased should be disallowed in the same way a biased jury members.
If Meadows Law is fatally flawed then there has not just been one miscarriage of justice, but a great number, ruining the lives of countless people who are either in prison or who have had their babies taken away from them. When Sally’s conviction is overturned, all the case that he has given evidence in should be scrutinised.
It should be made the responsibility of the prosecution team to make sure they are in possession of all undisclosed material, so that a professional decision can be made about it. There must be a system of accountability to avoid disputes over who is responsible for passing on / disclosing relevant documentation. The Crown prosecutors should regard themselves as the trustees of information not as the monopoly owners.
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Jury Comprehension of Complex medical Issues. The jury not only represents the public at the trial, but its presence ensures a publicly comprehendable explanation of the case, but in some cases like this one, the medical information was so complex that only the experts were capable of understanding the allegations, consequently there was not an explanation that the jury could understand. I do not think that the public would or should be satisfied with a criminal justice system where citizens stand at risk of imprisonment for lengthy periods following trials where the state cannot explain its evidence in comprehensible terms.
Bibliograpghy.
Justice in Error.
C.Walker & K.Starmer. Blackstone Press. 1993
Criminal Justice and The Human Rights Act 1998.
Cheney,Dickson,Fitzpatrick, Skilbeck, &Uglow. Jordons. Bristol, U.K. (2001)
The English Legal System.
Slapper & Kelly. Cavendish Publishing. London. 2001.
Criminal Law.
Reed & Seago. Sweet & Maxwell. London. 2002.
Websites used
Portia Campaign. ‘The lynchmob Syndrome’.
.uk
.uk
Chapter 11. The Lynchmob Syndrome. Ken Norman. The Portia Campaign.
. In 2001 a high profile manslaughter case in which a dentist and an anaesthetist were accused of killing a 5 year old collapsed when Williams admitted ‘making a mistake’ The Times. 20th Jan 2002.
Guardian.15th July 2001. Gene find casts doubt on double ‘cot death’ murders.
Quote from Tim David,. professor of paediatrics University of Manchester. after analysis of blood tests. Taken from the Guardian 3 July 2002.
Professor Morris. Honorary professor of biological sciences at the University of Lancaster and on e of the country’s leading experts in bacterial toxins in sudden infant death cases. Guardian July 2002.
Glyn Walters retired consultant in chemical pathology.
The Human Rights Act 1998. Artical 6, provides that ‘every one is entitled to a fair and public hearing by an independent and impartial tribunal established by law’. It also states that it is unlawful for a public authority to act in a way which is incompatible with a Convention right; this may be by an act or a failure to act. Public authorities include Courts, Tribunals and any other persons whose functions are of a public nature. Doctors are public authorities in relation to their public health functions. The court or tribunal should have access to ALL evidence. There is a general duty on the court to ensure a fair trial which would require the prosecution to produce all material evidence. Concealment of evidence means that the jury is unable to assess the weight or probative quality of such evidence. The common law adopts the principle that any evidence admissible for the defence must also be admissible for the prosecution.
New Law Journal. Vol 152 No.7044. Aug ‘02’ Convicted by flawed science.’
Page 76. Justice in Error.
JUSTICE. A public Defender (London, 1987), pg 10.
Page 5. Why Sally Clark is probably innocent.
Paragraph 154, R v Sally Clark.Court of Appeal (Criminal division) Case No:1999/07495/Y3
Page 1, para 2.transcript from ‘File on Four’ Documentary. Sept 2000.
Criminal Procedure And Investigations Act 1996,Chapter 25 Part 2. Disclosure.
This part applies where a person is charged with an indictable offence and is committed for trial for the offence concerned. The main provisions of primary disclosure by the prosecutor are that the prosecutor must- (a) disclose to the accused any prosecution material which has not previously been disclosed to the accused and which in the prosecutor's opinion might undermine the case for the prosecution against the accused, or (b) give to the accused a written statement that there is no material of a description mentioned in paragraph (a).
Page 6, Paragraph 3.Cot death or murder? Weighing the probabilities. Ray Hill.