Sally Clark: A miscarriage of justice

Professor Meadows told the jury that the chances of two instances of Sudden Infant Death Syndrome (SIDS) happening in the one family were 1 in 73 million; he equated it to “the chances of backing four 80 to 1 winners of the Grand National in successive years.” In the middle of what was very complicated medical evidence this was a very easy statistic for the jury to understand. For the jury, faced with no actus reus, no mens rea nor an apparent cause of death it was a statistical smoking gun, and it sealed Sally Clark’s fate. This statement provided something definite to hold on to, but it was wrong and totally misleading. The Court of Appeal judges in their Judgment stated,

“putting the evidence of 1 in 73 million before the jury with its related statistic that it was the equivalent of a single occurrence of two such deaths in the same family once in a century was tantamount to saying that without consideration of the rest of the evidence one could be just about sure that this was a case of murder.” 

Professor Hill also points out that,

 “such figures can have a huge impact not only on jurors, but also on prosecution witnesses in that they can become so convinced, on the basis of mathematical misconceptions, that the accused must be guilty that they become blinded to evidence in support of innocence.”

The statistic was taken from the Confidential Enquiry for Stillbirths and Deaths in Infancy (CESDI), a comprehensive study of deaths of babies in particular regions of England between 1993 and 1996. In this report, it is estimated that the chances of a randomly chosen baby dying a cot death are 1 in 1,303, with the odds falling to around 1 in 8,500 if the child is from an affluent, nonsmoking family, with the mother over 26. The authors go on to say that if there is no connection between cot deaths of siblings then we can estimate the chances of two siblings from such a family both suffering a cot death by squaring 1/8,500 - giving 1 chance in 73 million. There is no doubt that the occurrence of two such deaths in the same family will be a rare event, but according to Ray Hill, who carried out a comprehensive analysis of the CESDI data, such deaths are not independent and therefore these figures are erroneous and undermined the safety of the convictions.

“Genetic and environmental factors will be the same in both cases and so, after the first cot-death, the odds on the second would be considerably reduced. If there were a genetic predisposition towards cot-deaths, and recent research at the University of Manchester provides strong evidence for the existence of a cot-death gene, then the odds would be dramatically reduced, to a fraction of the 73 million estimate. In short, Sir Roy Meadow made a calculation which no bookmaker in the land would regard as valid.”

Hill continues, asking whether or not the statistics have any relevance to the guilt of the accused and, more importantly, whether the jury think they have any relevance.

Some press reports at the time stated that this 1 in 73 million was the chance that the deaths of Sally Clark's two children were accidental. This interpretation is a serious error of reasoning known as the Prosecutor's Fallacy. According to the Royal Statistical Society,

“there is a real possibility that without proper guidance, and well-informed presentation, frequency estimates presented in court could be misinterpreted by the jury in ways that are very prejudicial to defendants.” 

At the original trial Meadows did not make it clear to the court that he was not a statistician, therefore the figures that he presented became part of his evidence. Did the jury mistakenly understand the 1 in 73 million figure as the odds of Sally Clark being innocent? If coming from an affluent, non smoking family lowers the risk of SIDS, in the jury’s mind does this mean the odds of death resulting from deliberate harm are increased?

 

 

 

Counsel summarised Williams’ pathology as “That catalogue of errors of findings and interpretations fills me with horror that this is the foundation of this woman being charged with murder."

The murder convictions of Sally Clark and Angela Cannings were overturned after failures in expert witness testimony. A review of 300 infant death convictions follows and the Court of Appeal is hearing the cases of four people convicted of killing or harming babies.

Expert witnesses as a ‘hired gun’ rather than as scientists. Do juries put too much trust in expert testimony?

Chief executive of the GMC Finlay Scott “The public must be confident that doctors and other professionals who give evidence in court proceedings can if necessary be held to account by their regulator.”

There is a broad public interest principle at stake, Attorney General Lord Goldsmith told the BBC: “People need to know that when experts go into court, they're there to help the court and that if they exceed proper professional boundaries they may be subject to disciplinary action by their professional bodies.”

GCM fitness to Practice Panel

Scottish law-there, the laws of evidence are different. Any crucial fact must be corroborated by two sources, so a conviction could not come on the evidence of one alone.

The jury system is inherently flawed. The view that randomly chosen members of the public are the best judges of fact varies depending on the nature of the offence. In serious criminal trials involving complex medical evidence, it may be argued that the average juror’s ability to process the mass of information presented to them is significantly reduced.

It is a vital instrument in the maintenance of our democracy. Public involvement in the justice system increases transparency and independence; however, the issue of complex cases does call into question its abilities. A solution to this problem could be to follow the Swedish model where a separate decision making body for cases considered to be complex is in place. Only cases where abuse is obvious reach the court. John Batt, defence solicitor for Sally Clark, believes the proper way to deal with infant death cases is to adopt an investigative rather than adversarial approach. In a protocol established by Professor Peter Fleming, a leading expert in this field, when a baby dies with no apparent cause first the post mortem should be done by a paediatric pathologist not an adult pathologist and secondly within twenty four hours a full history is taken by a paediatrician, not a police officer. Once both of these procedures have been carried if there are any unusual findings, all the necessary professionals will be brought in and if it is decided foul play may be a possibility it is only then that the police and social services will be called in.

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