The prosecution asserted that that a nosebleed that Christopher had had around the third and forth of December, was consistent with a prior attempted smothering. In their opinion, for so much blood to have got into the lungs as a result of the nose bleed, urgent hospital treatment would have been required, which they claimed the Clarks’ did not seek. Evidence of a four minute phone call to a doctor however from the hotel room in which the Clark’s were staying on the day of Christopher’s nosebleed was presented to the court by the defence in order to prove this accusation as being wrong. The prosecution also indicated that the cut on Christopher’s lip was diagnostic of deliberately inflicted injury which suggested abuse shortly before his death. The prosecution alleged that damage to Harry’s brain as well as retinal hemorrhages and a previous broken rib all indicated that he too had suffered abuse (please refer to Appendix One for full details).
In response however, the defence asserted that Dr Williams had initially told police that the bruising and cut lip suffered by Christopher were due to resuscitation, but strangely his opinion had changed at trial . They also argued that the blood found in his lungs did not definitely indicate smothering as it is an occurrence often found in cot death cases. The defence did not deny that the nosebleed did occur. They asserted that on the day that it took place; it was extremely unlikely that Sally would have attempted to smother Christopher as she had brought him to London to show him to friends. The defence also indicated that health officials when on home visits always recognized a strong bond of love between mother and baby, proving it highly unlikely for her to kill her child (ren).
In relation to Harry the defence produced findings which indicated that the conclusion of his death being “smothered” was wrong as there were no reports indicating tears to the brain nor were there reports of there being subdural hemorrhages in the spine which are classic signs of smothering. Dr Keeling however, a prosecution expert did believe that there was damage to the brain but the defence experts Professor Berry and Dr Rushton firmly disagreed. The defence also pointed out that the evidence given by Dr Smith was not consistent with her statement. Dr Williams's evidence on the spinal injuries was classed unreliable and it was also found that there were no retinal hemorrhages as the defence took the evidence about retinal hemorrhages to a real expert on babies' eyes, Professor Philip Luthert of Moorfield Eye Hospital in London who had found that there were not any. The old fracture to Harry’s rib which occurred between one and four weeks of age, healed naturally which the defence argued, though unexplained is not unknown in young babies and had neither caused any discomfort or in fact his death.
Similar circumstances of the boys’ deaths were also brought to the attention of the jury by the prosecution. They highlighted points such as the babies being around the same age when they died, that they were found “lifeless” around the same time and that at each time the babies were found, Sally was alone. The prosecution also used circumstantial evidence against Sally as they claimed that she was a career girl that she was depressed because of moving across the country and she was found of consuming alcohol which were possible explanations as to why she would want to kill her sons.
The infamous statistic produced by Sir Roy Meadow that the probability of two cot deaths occurring in one family was one in seventy three million was also used against Sally Clark. He claimed that,
“Even when an infant dies suddenly and unexpectedly in early life and no cause is found at autopsy, and the reason for death is thought to be an unidentified natural cause (Sudden Infant Death Syndrome - SIDS), it is extremely rare for that to happen again within a family. For example, such a happening may occur 1:1,000 infants therefore the chance of it happening within a family is 1:1,000,000. Neither of these two deaths can be classed as SIDS. Each of the deaths was unusual and had the characteristics of a death caused by a parent."
In defence to Meadow’s statistic, Professor Berry pointed out that the risk of a child dying of SIDS was inherently greater in a family that had already had a SIDS death. Dr Rushton also responded to ‘Meadow’s Theory’ by saying,
"…While the occurrence of two unexplained sudden infant deaths in a family always raises concerns as to whether or not there is an unnatural cause of the deaths, there are families in which such deaths do occur following unexplained but presumed natural causes."
As SIDS or ‘cot death’ was extremely under-researched, it was therefore much harder for Sally Clark’s defence team to prove her innocence as the jury found the accused guilty for the murder of Christopher and Harry (Please refer to Appendix One for full details of the trial). One reason for this may have been the importance that the jury had placed on the ‘expert’ evidence and ‘statistic’ given by Sir Roy Meadow because of the extremely high status that he had gained for the research he had carried out on Munchausen’s syndrome by proxy, where parents draw attention to themselves by harming their children.
Sally’s defence team applied for an appeal on the grounds of severance, the direction of similar fact evidence and the use of statistics. It failed on the first two grounds in that it was held that the judge’s ruling on severance was legally impeccable and that the jury cannot have been led into thinking that they were being directed to follow the prosecution approach. An appeal was however granted on the use of statistics (please read from section seventy eight, appendix one for more details)
Roy Meadow was heavily criticized for producing the statistic that the odds of one family suffering the loss of two babies through cot death are 'seventy three million to one' as not only was it was prepensely wrong but it also made it increasingly harder for mothers to prove their innocence for the ‘unknown’ death of their child. The Royal Statistical Society asserted that Meadow should never have acted as an expert statistician when quite simply he was not. Peter Donnelly, a professor of statistical science at Oxford University said “It is poor science. It is not rigorous, it is just wrong”. Professor Meadow's opinion as to the deaths being unnatural was founded in part on the statistical evidence cited in breach of the guidelines R v Doheny & Adams (1997) in which the judge failed to warn the jury against the "prosecutor's fallacy" which was referred to in R v Deen Times (1994). “Meadow’s fallacy” therefore sufficiently satisfied the requirements for an appeal.
On appeal, the judge accepted that inaccurate statistical arguments had been made but did not quash her conviction on the grounds that Meadow’s statistic had not misled the jury:
“(We) are not persuaded that…the Crown…submitted to the jury that the odds against the appellant being innocent were seventy three million to one against. The submission would in our judgment have been obviously fallacious, and had it been made, we would have expected Mr. Bevan for the defence to have objected, the judge to have upheld the objection, and the one in seventy three million figure would have gone as an unnecessary distraction. That there was no such application suggests the lack of impact of (the one in seventy three million figure quoted in the summing up)”
In January 2003, new ground breaking evidence was discovered which was used in Sally’s defence. Research carried out by Dr Drucker in Manchester University identified a “cot death gene”. He worked on the theory that cot deaths happen because the babies' defences against infection do not kick in when the mothers' own defence system in their blood fades after eight weeks which leaves leaving them vulnerable to infections. He called for changes to make sure consistent tests are done and that tissue and blood samples are taken when babies die to ensure other mothers are not wrongly accused in the future. This theory was therefore relevant to Sally’s defence as it explains a possible reason for the death of Christopher and Harry.
The most significant and vital evidence however which would set Sally free were the medical reports discovered by Mr. Clark which had been withheld from the prosecution, police, defence and jury by Dr Alan Williams. These “secret” reports showed the presence of the staphylococcus aureus bacteria in Harry’s central spinal fluid, physically proving that the infant was not in fact a victim of murder and that Sally was in fact suffering a miscarriage of justice . (Please refer to section 111-125, appendix two for more details) The counsel drew attention to the observations of Lord Bingham in Pendleton (2002):
"The Court of Appeal can make its assessment of the fresh evidence it has heard, but save in a clear case it is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard. For these reasons it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe."
On appeal, therefore, Sally Clark was freed from prison after three years but “if the results had been made known at the trial, Sally Clark would not have been convicted of murdering Harry or his dead brother Christopher” . The Court of Appeal also held that they were quite sure that the statistical evidence should never have been before the jury in the way that it was when they considered their verdicts but if there had been a challenge to the admissibility of the evidence, then the judiciary would have excluded it altogether (please refer to section 177, appendix two for more details). Sally Clark’s case therefore became a benchmark in preventing further miscarriages of justice in court proceedings through the use of expert witnesses and the weight attached to their evidence.
Sir Roy Meadow was called as a witness to provide his knowledge in relation to pediatrics as he was expert in this field. He, in addition to this, however provided the court with statistical data as he claimed that the odds of one family suffering the loss of two babies through cot death were 'seventy three million to one'. It was held in Turner (1975) that evidence given by expert witnesses must be of their own fields of experience. As Meadow is not an expert statistician, he therefore provided information quite simply that he should not have which is legally unacceptable. It was also held in National Justice Compania Noviera v Prudential Assurance that an expert should tell the court if they did not have experience of a certain area being questioned or if they had insufficient information on which to base a properly researched conclusion, which in the case of Clark, Professor Meadow did not.
In Ahluwalia, which concerned a woman who was a victim domestic violence being convicted for the “provoked” murder of her husband, it was held that the trial judges should be able to separate what is deemed as good science from that which is deemed bad. In R v Clark however, the trial judge failed to separate Meadow’s wrong statistical data from relevant data which could have influenced the decision of the jury due to the high status that Roy Meadow possessed at that time. It was only in her first appeal that the judges accepted that there were inaccurate statistical arguments but in their opinion, however they believed that the seventy three million to one figure would not have misled the jury.
It was held in Maguire (1992) that materials which may have some bearing on the offence charged and the surrounding circumstances of the case including the results of all tests, must be made known to the disclosure officer. In the case of Clark, pathologist Dr Alan Williams failed to disclose vital evidence which indicated fatal bacteria in Harry’s system and thus a valid reason for his death. The importance of disclosing all relevant evidence, as held in Maguire, was reiterated in Ward (1993) as the Court of Appeal held:
“Our conclusion overall on the three heads of appeal is therefore
that, in the failure to disclose evidence, some in the possession of the police, some in the possession of the scientists and some in the possession of the DPP, there were material irregularities at the trial; and that, having regard to that nondisclosure added to the fresh evidence we have heard, the convictions were all unsafe and unsatisfactory. We therefore allow the appeal and quash the convictions of Miss Ward on all counts.”
Dr Williams was also in breach of section twenty seven of the Criminal Justice Act 2003 as he failed to truly testify to his findings as well as providing a cause of death (please refer to appendix three to access this section of the Criminal Justice Act 2003). He also violated the Criminal Procedures and Investigations Act (1996), for which he was punished by the General Medical Council for serious professional misconduct.
The acquittal of Sally Clark, which was two years ago (29th January 2003), has had a major influence on court proceedings which involve children in both the Criminal Courts and Civil Courts. Her case caused the Courts to question the reliability of expert witnesses in trials. The expert evidence given by Sir Roy Meadow which was proved to be a fallacy in Sally’s case provided hundreds of other mothers the opportunity to stand trial once again in an attempt to prove their alleged innocence.
It was the case of Angela Cannings however, who appealed her conviction of the murder of her children in light of Sally Clark’s acquittal that was the ultimate benchmark for law reform. The decision to quash the conviction in Clark and Cannings, which was taken by the criminal division of the Court of Appeal, also caused the civil courts to question the issues of credibility of expert medical evidence and the necessary standard of proof where Munchausen’s Syndrome by Proxy was diagnosed. The Civil courts were therefore asked to consider the impact of the Cannings and Clark decisions where the making of a care order relies heavily upon the expert evidence as well as the relevant standard of proof as in Criminal courts it must be “beyond all reasonable doubt” and in Civil courts it rests upon “the balance of probabilities”. It was held in the appeals of Re: LU and Re: LB that when approaching more difficult cases, judges should refer to Lord Nicholl’s speech in Re: H (minors) Sexual Abuse (1996 AC 536) in which he laid down guidelines in relation to the standard of proof.
R v Clark also provided our courts with important issues to consider when considering evidence at a trial. These were that recurrence is not, in itself, probative, that particular caution is necessary in any case where the medical experts disagree, that the court must always be on guard against the over dogmatic expert, the expert whose reputation or amour propre is at stake, or the expert who has developed a scientific prejudice and that the judge in care proceedings must never forget that today’s medical certainty may be discarded by the next generation of experts.
The most significant change to the law however in relation to R v Clark and R v Cannings is that a jury is no longer entitled to convict and a guilty verdict cannot be deemed safe unless a natural cause of death, whether explained or unexplained, can be excluded as a reasonable possibility in a criminal trial for murder in relation to sudden infant deaths. Lord Justice Judge concluded in Cannings that in cases like hers
‘If the outcome of the trial depends exclusively or almost exclusively on a serious disagreement between distinguished and reputable experts, it will often be unwise, and therefore unsafe, to proceed. If a murder cannot be proved, the conviction cannot be safe. It is simply not enough to be able to establish even a high probability of guilt.’
Although, there has been numerous changes made to the law in relation to Sally Clark’s miscarriage of justice, it is still clearly evident that there is room for improvement as for example, the issue as to whether one expert should be able to hold the key to the decision making process has still to be resolved. I also believe that there should be stricter penalties, through legislation, for expert witnesses who fail to disclose relevant evidence to a case. In R v Clark, Sally and her husband were denied significant evidence by pathologist Dr Williams, which proved her innocence. Her husband was also accused of murdering his children by shamed pediatrician Dr Southall and yet with all both Dr Williams and Dr Southall faced only a disciplinary hearing by the General Medical Council for professional misconduct. Overall, it has only been two years since Sally’s conviction was quashed and there are many more changes required through legislation in order to prevent further miscarriages of justice similar to that tragically suffered by Sally Clark.
The case of Sally Clark is of extreme significance to Britain’s legal system. Her case has brought to light many important factors that the judiciary must adhere to when dealing with trials associated with murder and manslaughter of children. Her case underlines the requirement that judges must not only weigh up very carefully the expert evidence that is being given but they must also look beyond it as well as being aware of all the surrounding evidence of the case.
Sally’s second appeal was fundamental to other mothers who were wrongly convicted of murdering their children as it provided them with the opportunity to appeal on the ground’s of “prosecutor’s fallacy” in that Sir Roy Meadow’s statistic that the odds of a family losing two children to cot death is “seventy three million to one”, was quite simply “bad science”.
The most significant outcome of these miscarriages of justice is that no longer can anyone be convicted in a criminal case on expert witness alone without proper physical evidence. This was a much needed revolutionary change to the way in which expert evidence is used in Britain’s Courts. It is however tragic that it had taken the imprisonment of innocent and grieving mothers to highlight the dangers associated with expert witnesses.
Books
Dennis, I. (2002) “The Law of Evidence”, (2nd ed.) Sweet and Maxwell
Tapper, C. (2003) “Cross and Tapper on Evidence”, (10th ed.) Lexis Nexus UK
Cases
R v Cannings (2004) EWCA Crim 1
R v Clark (2000) EWCA Crim 54
R v Clark [2003] EWCA Crim 1020
Internet Sites
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Appendices
R v Clark (2000) EWCA Crim 54
R v Clark [2003] EWCA Crim 1020
Criminal Justice Act 2003, section 27.
. This website was useful to me as it focused on the use of expert witnesses in court proceedings. Its approach to this issue was different from other sources that I had used as it blamed the court’s handling of evidence for miscarriages of justice to occur, rather than the evidence itself. This source therefore enabled me to contrast and discuss different opinions later in this piece of work.
. This source provided me with the full case history relating to Sally Clark from 1996 – 2003. It was therefore helpful in that it provided me with background information in relation to Sally Clark and it helped me to ‘piece together’ the occurrence of the main events in Sally’s case. However, as the case history was written by Sally’s father, I did treat it with caution in order to avoid bias.
. This source, written by Sally’s father Frank Lockyer provided me with useful knowledge in relation to the chronology of events in Sally’s case. I did not however hold it highly reliable due to biased opinions but overall it did put forward some important points and facts that had been raised by both the defence and prosecution in Sally’s trial.
. This was an excellent source for me to use as it contained many newspaper articles that covered Sally’s case from beginning to end. It had articles from the Guardian, The Times and The Independent newspapers. These articles covered the main events of Sally’s trial, her first appeal, second appeal and finally her acquittal. Its content and usefulness were of a high standard.
. This source contained a script of an interview between Roy Meadow and Margarette Driscoll where they discussed the issues of cot deaths and the use of statistics in court. As Roy Meadow seldom agrees to interviews this source provided me with the ability to actually be aware of his opinions and beliefs, first hand, rather than reading statements proposed by his representatives.
. This was an excellent source for me to use as it contained many newspaper articles that covered Sally’s case from beginning to end. It had articles from the Guardian, The Times and The Independent newspapers which all covered main events of Sally’s case.
. This source, which I found by searching the BBC News’s website, gave me an up to date insight into the research carried out by Dr Drucker which attributed to Sally’s acquittal. It informed me that scientists had looked at the DNA of 23 babies who had died from cot death or sudden infant death syndrome and compared it with the genetic make-up of normal babies; from which they found a common gene. This useful source therefore enabled to gain a deeper understanding of the evidence used by Sally’s defence team.
. This source provided me with the full case history relating to Sally Clark from 1996 – 2003. It was therefore helpful in that it provided me with background information in relation to Sally Clark and it helped me to ‘piece together’ the occurrence of the main events in Sally’s case. However, as the case history was written by Sally’s father, I did treat it with caution in order to avoid bias.
CLARK, R v . [2000] EWCA Crim 54 (2000), section 7 (c). I obtained this case by using the search engine “Bail II”. The case was highly reliable as it provided me with the actual dialogues that had taken place between the defence, the prosecution and expert witnesses at Sally’s trial.
. This source, written by Sally’s father Frank Lockyer provided me with useful knowledge in relation to the chronology of events in Sally’s case. I did not however hold it highly reliable due to biased opinions but overall it did put forward some important points and facts that had been raised by both the defence and prosecution in Sally’s trial.
CLARK, R v . [2000] EWCA Crim 54 (2000), section 5. I obtained this case by using the search engine “Bail II”. The case was highly reliable as it provided me with the actual dialogues that had taken place between the defence, the prosecution and expert witnesses at Sally’s trial.
. This source provided me with the full case history relating to Sally Clark from 1996 – 2003. It was therefore helpful in that it provided me with background information in relation to Sally Clark and it helped me to ‘piece together’ the occurrence of the main events in Sally’s case.
CLARK, R v . [2000] EWCA Crim 54 (2000), section 6. I obtained this case by using the search engine “Bail II”. The case was highly reliable as it provided me with the actual dialogues that had taken place between the defence, the prosecution and expert witnesses at Sally’s trial. Please refer to Appendix One to access it.
. This source provided me with the full case history relating to Sally Clark from 1996 – 2003. It was therefore helpful in that it provided me with background information in relation to Sally Clark and it helped me to ‘piece together’ the occurrence of the main events in Sally’s case.
CLARK, R v . [2000] EWCA Crim 54 (2000), section 34. I obtained this case by using the search engine “Bail II”. The case was highly reliable as it provided me with the actual dialogues that had taken place between the defence, the prosecution and expert witnesses at Sally’s trial. Please refer to Appendix One to access it.
. I used the search engine ‘google’ in an attempt to find articles in relation to the evidence used in Sally Clark’s case. Luckily, I found an article which outlined the main events of Sally Clark’s trial in 2000.
CLARK, R v . [2000] EWCA Crim 54 (2000), section 6. I obtained this case by using the search engine “Bail II”. The case was highly reliable as it provided me with the actual dialogues that had taken place between the defence, the prosecution and expert witnesses at Sally’s trial. Please refer to Appendix One to access it.
CLARK, R v . EWCA Crim 54 (2000), please refer to appendix one to access this reliable data which I obtained by using the search engine “Bail ll”
. This source provided me with the full case history relating to Sally Clark from 1996 – 2003. It was therefore helpful in that it provided me with background information in relation to Sally Clark
. I obtained this source by searching in “Google”. It enabled me to gain a deeper understanding of Sally Clark’s case.
. This source was useful in that it provided me with relevant articles in relation to Sally Clark’s case.
This source was useful in that it provided me with relevant articles in relation to Sally Clark’s case.
R v Clark [2003] EWCA Crim 1020, I obtained by using the search engine “Bail ll”
. This source was useful in that it provided me with relevant articles in relation to Sally Clark’s case.
Dennis, I. (2002) “The Law of Evidence”, (2nd ed.) Sweet and Maxwell. This book informed me of central principles of the law of evidence and thus introduced me to evidence theory and the analysis of the law. As evidence is a fast-moving subject, this work brought me fully up-to-date with the many significant recent developments in the area.
Tapper, C. (2003) “Cross and Tapper on Evidence”, (10th ed.) Lexis Nexus UK. This book provided me criticism and comment on the law. It drew on numerous recent cases to illustrate the workings of the law and contains major changes brought about by the new legislation relating to for example, the effect on acquittals and the hearsay rule in criminal cases.
R v Cannings (2004) EWCA Crim 1