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Cite as: [2000] All ER (D) 1219, [2000] EWCA Crim 54

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CLARK, R v. [2000] EWCA Crim 54 (2nd October, 2000)

Case No: 1999/07495/Y3
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 2nd October 2000

B e f o r e :
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2HD
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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E J Bevan Esq, QC & J Kelsey-Fry (instructed for the Appellant)
R Spencer Esq, QC & M Chambers Esq (instructed for the Respondent)
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As Approved by the Court
Crown Copyright

1. This is the judgment of the Court, to which each member has contributed. On 9 November 1999 at Chester Crown Court after a trial before Harrison J and a jury, Sally Clark was convicted of the murder of her children Christopher (count one) and Harry (count two) when aged 11 weeks and 8 weeks respectively. She appeals against both convictions with the leave of the Full Court, which also gave leave pursuant to s.23 Criminal Appeal Act 1968 for the receipt of fresh evidence.
2. The appellant, who is 35 years old, is a solicitor of previous good character. She lived in Wilmslow, Cheshire with her husband, Stephen, also a solicitor. They had married in 1990. Their first child, Christopher, was born on 26 September 1996. He was an apparently healthy baby but died on the evening of 13 December 1996 while the appellant's husband was out at an office party. The appellant called an ambulance at 9.35 p.m. When the ambulance arrived, she was unable to unlock the door and was hysterical and in shock. It was apparent that the baby had been cyanosed for some time prior to the arrival of the ambulance. He was declared dead at 10.40 p.m. The post mortem was carried out by Dr Williams, who found inter alia bruises and abraded bruises on the body and a small split and slight bruise in the frenulum, which he thought at the time were probably consistent with resuscitation attempts. At the time the cause of death was considered to have been lower respiratory tract infection and it was treated as a case of Sudden Infant Death Syndrome (SIDS or "cot death"). The body was cremated, but photographs had been taken and slides of the lungs were preserved.
3. The couple's second child, Harry, was born on 29 November 1997, three weeks premature but healthy. The appellant received special counselling and advice as part of the Care of Next Infant programme (CONI) for parents who had suffered a cot death. Harry died on 26 January 1998. The appellant's husband was at home but the appellant was alone when she discovered Harry's condition. She called an ambulance at 9.27 p.m., saying that Harry was "gone" and that her husband was trying to resuscitate him. When the ambulance men arrived, her husband was kneeling beside the baby on the bedroom floor. There was no sign of life and, despite resuscitation attempts, Harry was pronounced dead at 10.41 p.m. Dr Williams's findings at post mortem were indicative of non-accidental injury, consistent with shaking on several occasions over several days, and it was considered that shaking was the likely cause of death. In the light of this, further tests were carried out in relation to Christopher and Dr Williams altered his opinion, concluding that Christopher's death had also been unnatural and that the evidence was suggestive of smothering.
4. On 23 February 1998 the appellant and her husband were arrested on suspicion of Harry's murder. In a lengthy interview the following day, she gave a detailed account of relevant events and strenuously denied shaking Harry or harming him in any way.
5. On 9 April 1998 she was further interviewed in relation to Harry and was arrested on suspicion of the murder of Christopher. On the advice of her solicitors she declined to answer questions. She was interviewed again on 2 July 1998 and again on advice she declined to answer questions.
The Trial: Summary
6. It was the prosecution case at trial that the appellant had murdered Christopher by smothering. Until shortly before the trial, the case in relation to Harry was that he had been murdered by shaking. For reasons that we will consider later, however, the case at the trial itself was presented on the basis that Harry had been subjected to a violent trauma to the spine, the mechanism of which was not clear, and had then been the victim of suffocation which caused his death. It was alleged that neither death could be considered SIDS because of the existence of recent and old injuries that had been found in each case, and there was no sufficient evidence as to how they had been caused. The circumstances of both deaths shared similarities which would make it an affront to common sense to conclude that either death was natural, and it was beyond coincidence for history to so repeat itself. In summary, six main similarities were relied upon: (1) the babies were about the same age at the time of death, namely 11 weeks and 8 weeks; (2) they were each found by the appellant unconscious in the same room; (3) both were found at about the same time, shortly after having been fed; (4) the appellant had been alone with each child when he was discovered lifeless; (5) in each case Mr Clark was either away or about to go away; (6) in each case, according to the prosecution, there was evidence of previous abuse and of deliberate injury recently inflicted.
7. The similarities relating to past and recent injuries were contentious. In relation to Christopher the prosecution relied on:
a) bleeding in the lungs: Christopher had had a nosebleed while at the Strand Palace Hotel on 3-4 December 1996, which the prosecution alleged to be consistent with a prior attempted smothering; one of the defence experts. A spontaneous nosebleed in a child of this age would be extremely rare, and for so much blood to have got into the lungs of the child would have required urgent hospital treatment, which was not the case as the child recovered spontaneously. On the other hand, old bleeding in the lungs is a marker (although no more than that) for asphyxia.
b) the torn frenulum: this was said to be diagnostic of deliberately inflicted injury and unlikely to have resulted from resuscitation efforts; the prosecution alleged that it suggested abuse shortly before death, consistent with smothering;
c) the bruises which had been seen by Dr Williams, an experienced pathologist, who was in no doubt about them.
8. In relation to Harry, although some of Dr Williams's findings had not been confirmed, the prosecution relied on the following as showing that Harry must have been the subject of shaking or some violent movement and smothering:
a) hypoxic damage to the brain, which it was alleged must have been caused a matter of hours before death and was consistent with smothering or other trauma;
b) small brain haemorrhages which, although not diagnostic, were consistent with smothering before death and which appear straightaway;
c) petechial haemorrhages on the eyelid, which were an unusual finding in SIDS cases and were acknowledged by the defence expert, Professor Berry, to be a worrying feature;
d) haemorrhages on the back of the eyes which, if present, were consistent with asphyxia;
e) an old fracture of the second rib which Professor Berry agreed would, if confirmed, be a worrying feature which while not causative of death was highly significant if deliberately inflicted;
f) a dislocated first rib, which was unlikely to have been a resuscitation injury and was more likely to have been caused by abuse;
g) spinal bleeding and a swollen cord, seen by Dr Williams on post mortem and which, if confirmed, must have resulted from some trauma.
9. It was alleged that neither the appellant nor her husband had been truthful and that her account in interview of Harry being slumped forward in his bouncy chair was not credible by reason of his age. She had also failed to comment when asked about similarities in the deaths, including that both babies had been in a bouncy chair, although in her evidence she said that Christopher had not been in a bouncy chair. Her husband had not been truthful about the time he got back from the office on the night of Harry's death. The prosecution suggested that the appellant had been tired and anxious about him going away the next day, he had been late home from work and he was trying to minimise the time during which the appellant had been alone with Harry. Features identified by the prosecution expert, Professor Meadow, for an unnatural death as opposed to a SIDS death were applicable: previous unusual episodes, inconsistent accounts between parents, and both events occurring in the evening after a feed. The prosecution also relied on statistics given by Professor Meadow and drawn from a draft report by the Confidential Enquiry into Stillbirths and Deaths in Infancy (CESDI), in particular that the probability of two SIDS deaths in one family matching the profile of the appellant were 1 in 73 million.
10. The defence case was that the appellant did not kill her children or do anything untoward, and that they must have died of natural causes. It was accepted that there were worrying and unusual features, but submitted that the evidence amounted to no more than suspicion. The defence contended that Professor Green and Dr Keeling, two of the Crown's pathologists, gave the cause of death in both cases as unascertained and that the case hinged on the reliability of Dr Williams, the pathologist who carried out the post mortems.
11. In relation to Christopher, Dr Williams had initially told police that the bruising and torn frenulum were due to resuscitation, but he had now completely changed his stance. His interpretation of marks, not seen at the hospital and not examined under a microscope, was alleged to be unreliable. Whilst the injured frenulum was suspicious, it was suggested that it could have been caused during insertion of the laryngoscope. The fresh blood in the lungs was only a marker for smothering and was often found in both suspicious and cot death cases. In respect of the old blood, there was no doubt that the nosebleed did occur; the appellant was unlikely to have attempted to smother Christopher on the day she had brought him to London to show to her friends, and no-one suggested abuse by her husband. The fact that one expert alone, Professor David, raised the possibility of haemosiderosis did not make him wrong.
12. In relation to Harry the most crucial finding related to the swollen spinal cord, leading to the conclusion that he had been shaken to death. However, other findings supporting that conclusion had been shown to be wrong: no tears to the brain, no intra-retinal haemorrhages, no subdural haemorrhage in the spine and no para-spinal injuries. This was a catalogue of errors and none of the classic features of shaking existed. Further, in relation to the hypoxic damage to the brain, the evidence of one of the prosecution experts, Dr Smith, was not consistent with her statement and it was suggested that she lacked objectivity. Another prosecution expert, Dr Keeling, agreed that there was hypoxic damage to the brain, but the defence experts Professor Berry and Dr Rushton did not. In relation to the spine, no expert had been able to postulate how such damage could have occurred without damage to outlying muscles and tissues, and it was submitted that Dr Williams's evidence was unreliable. In relation to the eyes, there were no intra-retinal haemorrhages and the petechial haemorrhages did not provide pathological evidence of smothering. The dislocated rib might have been a post mortem injury and, whilst the fractured second rib was admittedly worrying, the mother's help had not noticed Harry in any discomfort and the injury had not caused death.
13. It was submitted that it was not likely that, out of blind loyalty, a father would cover up for a wife who had killed his children. Mr Clark had made it clear in interview that he was not sure what time he returned home, and had he intentionally fabricated the evidence as to the time of return he would not have mentioned the taxi firm's records which led to the ultimate discovery that his evidence was mistaken.
14. In relation to the statistical evidence the defence relied on CONI figures (as opposed to the CESDI figures relied on by the prosecution) and Professor Berry's evidence that the risks were inherently greater in a family that had already had a SIDS death.
15. Thus the central issue on each count was whether the Crown could exclude death by natural causes. The effect of the medical evidence as a whole was that neither baby was the subject of a SIDS death and there was consensus, as the lowest common denominator, that each death was unexplained and was consistent with an unnatural death. But the medical evidence did not stand alone. In the circumstances the credibility of the parents' evidence was crucial for the jury to consider. The absence of any explanation by the appellant for the medical findings, and the inaccuracy of the husband's evidence on the important matter of the time of his return home on the night of Harry's death, were matters of great potential significance.
16. With that introduction we turn to consider in greater detail the evidence given at trial in respect of the death of each baby.
Evidence at trial in respect of Christopher
Prosecution evidence: General
17. Christopher was born on 22 September 1996. According to Kimberley Fleming, a colleague, the appellant had initially been shocked at the pregnancy, but when she brought Christopher into the surgery she glowed and was over the moon. He was a healthy baby and details were given of his regular routine checks. On 3 and 4 December 1996, the appellant and her husband stayed at the Strand Palace Hotel, London, where Christopher suffered a nosebleed. On the day before his death, the appellant had taken Christopher to a mother and baby group, where she appeared as a normal, happy, caring mother.
18. On the day of Christopher's death, 13 December 1996, the appellant was at home with Christopher while Mr Clark was at an office Christmas party. She called an ambulance at 9.35 p.m. and it arrived two minutes later. Mr Bell, a paramedic, said that they could hear the appellant very distressed inside, but she was unable to open the door because it was locked. Eventually, a neighbour brought a spare key. Later, the appellant said that her husband had taken the key with him. Mr Cooper, the ambulance driver described the appellant as very distressed, crying and screaming. She was in the kitchen with Christopher, who was very pale, cyanosed, cold and quite rigid. Resuscitation was attempted, but there was no respiration and no pulse. The appellant was on the verge of hysteria and kept asking if the baby was dead. She told him that she had found the child in a cot upstairs, but she did not say when. The appellant went in the ambulance with them to hospital. In the ambulance, Mr Bell was prevented from putting Christopher on a ventilator because the appellant was so distressed. At the hospital, the appellant continued to be distressed and Mr Clark was contacted.
19. Dr Tonia Douglas referred to her notes, which included a reference to the fact that the ambulance men had told her that the baby had been put to sleep in a Moses basket. The baby remained lifeless throughout attempts at resuscitation and she described trying to intubate him, but was unable to because the baby's jaw was very stiff. Another doctor eventually inserted the tube. She could not remember if or when a blood sample was taken, although it would have been standard procedure. Dr Pamela Cowan, the consultant paediatrician, arrived at about 10.30 p.m. and Christopher was declared dead at 10.40 p.m. Dr Douglas broke the news to the appellant, whose reaction was very dramatic and hysterical. The doctor described this as atypical and the over-reaction made her feel quite uncomfortable. She was worried that the news had not really sunk in. Staff Nurse Cobbett described how the appellant said that her husband would blame her and would not love her any more.
20. Mr Clark arrived about half-an-hour later, and at 11.50 p.m. Dr Cowan spoke to them both. The appellant gave a patchy account because she was upset. She said that Christopher was snuffly, but had been active, had taken a feed at 7.30 p.m. and had been sitting in a bouncy chair. Dr Cowan noticed the discrepancy between this and Dr Douglas's note that he had been put in a Moses basket, but the appellant was very distraught at the time. The appellant declined the chance to see Christopher and became even more hysterical. Mr Clark did see Christopher.
21. During her examination, Dr Cowan had not detected any external injuries and it was possible that some damage might have been caused as a result of vigorous resuscitation attempts. Dr Cowan had also seen the pathology reports by Professor David. When she saw some of the results from an analysis of Christopher's blood, some of the figures (including sodium and glucose) seemed strikingly abnormal.
22. At 1.37 a.m. the police were notified of the death and Sergeant Marshall attended at 1.42 a.m., by which time the Clarks had left the hospital. He saw the body, which had no visible marks. He completed the formalities and on the form for the Coroner's Office he stated that the baby had been found blue in a bouncy chair. Two officers recovered a bouncy chair from the Clark's home. It was later destroyed, but had been similar to that recovered after Harry's death.
23. Christine Hurst, from the Coroner's Office, discussed what had happened with the appellant, who told her about the nosebleed and said that Christopher had been sniffly. Further tests had to be done before the cause of death could be given and the inquest was adjourned to allow the funeral to take place.
24. The appellant's arrest and police interview in 1998 are considered below in the context of the evidence relating to Harry.
Prosecution evidence: Medical
25. Evidence was given for the Crown by: Dr Williams, a consultant histopathologist and very experienced forensic pathologist who conducted the post mortem on Christopher on 16 December 1996; Professor Sir Roy Meadow, Emeritus Professor of Paediatrics and Child Health at St James' University Hospital in Leeds, with a specific interest in child abuse; Professor Green, a consultant pathologist at the Home Office; and Dr Keeling, a consultant paediatric pathologist.
26. At the time of the post mortem Dr Williams was suspicious of the cause of death because of bruises he saw on the body, and arranged for a senior officer to be present. He took photographs and made a diagram of the external injuries. He noted the bruises and torn frenulum as worrying features, but at the time he could not exclude the possibility that these were caused by resuscitation attempts. In the absence of any other evidence, he concluded this must have been a natural death. He so informed the police. He explained that there was pressure to state a cause of death so that a funeral could take place and he gave the cause as lower respiratory tract infection, which was his best opinion at the time. Following Harry's death, Dr Williams reconsidered his findings and changed his opinion: his current view was that there were no significant features of such an infection. He consulted Professor Green.
27. In relation to the lungs, examination of the slides revealed extensive bleeding, both old and fresh. Dr Williams had not initially noted it as significant because at the time it was a non-specific feature. The effect of research since 1997 was that iron in the lungs and haemorrhaging was highly suggestive that the child had been smothered. He agreed that it was not a specific marker, but rather should prompt a critical evaluation of the cause of death. The findings were consistent with smothering, but alveolar haemorrhage was not in itself a diagnostic or specific indication of smothering. He also found a diffuse amount of macrophage in the lungs. He said that whether in suffocation cases blood found in the lungs was focal or patchy rather than diffuse depended on the mechanism for suffocation and the time it had taken. In his view, the old bleeding in Christopher's lungs was not consistent with a nosebleed nor could a nosebleed explain the haemosiderin found. In any event, it was uncommon for babies to suffer spontaneous nosebleeds. The doctor said that the blood samples taken at hospital were useless to interpret anything present in the biochemistry at time of death. He was recalled twice to deal with the analysis in more detail and maintained that the chemistry of blood after death was so unreliable as to be of no diagnostic value. He did not accept the basis of Professor David's suggested possibility for haemosiderosis.
28. Dr Williams concluded that the findings in the lungs were consistent with repeated hypoxic episodes, such as might be caused by traumatic asphyxia or obstruction of the upper airway and the injury to the frenulum could be interpreted as the mouth having been obstructed or smothered. His conclusion now was that Christopher had died from smothering and he was no longer of the opinion that his death had been natural.
29. Professor Meadow, Professor Green and Dr Keeling all agreed that that there was extensive fresh and old bleeding in Christopher's lungs. A spontaneous nosebleed in such a young baby would be very serious, but there was no sign of any disease. In any event, it was unlikely that the blood in the lungs resulted from the nosebleed or coughing blood from the lungs. Professor Meadow described the finding as an important indication of previous smothering. Professor Green said that the amount of bleeding crossed the threshold to require further investigation. Dr Keeling said that it was an important marker for further investigation. She could find no natural explanation and would not have signed this as a cot death. Professor Meadow dismissed the possibility of haemosiderosis and said that it would have been unwise to rely on blood samples where the timing could not be established.
30. Dr Williams gave details of the bruises, which bore no obvious pattern to link them to smothering. Although the bruises were not seen by hospital staff, he was satisfied they had been caused before death. He had not undertaken a histological examination of the bruises because there was nothing else suspicious and he was in no doubt that they were bruises. Professor Meadow, Professor Green and Dr Keeling were also of the opinion that the bruises could only have been caused during life and were unlikely to have resulted from resuscitation.
31. In relation to the frenulum, at the time Dr Williams could not exclude the possibility that the small split and slight bruising was a result of resuscitation attempts, but following Harry's death it became more significant. He had not realised that Christopher had been cyanosed when the ambulance men arrived and he concluded that there could not have been any blood pressure at the time to cause that bruising. He would not have expected any damage to the frenulum during a competent attempt at intubation of a child. It was his opinion that the injury was evidence of suffocation or smothering. Professor Meadow, Dr Keeling and Professor Green said the injury to the frenulum was unlikely to have been from resuscitation. Professor Meadow's and Dr Keeling's evidence suggested it was a sign of abuse, consistent with smothering.
32. Professor Meadow also gave evidence about research into children being smothered, including covert surveillance of mothers and their children in hospitals. In relation to "shaken baby syndrome", there was no knowledge of the precise mechanism used. He had published a paper identifying recurrent features in sudden infant deaths previously thought to have been natural: (1) previous unusual episodes; (2) inconsistent accounts between parents; (3) timing, most natural sudden deaths occurring between midnight and 11.00 a.m., although they may also happen during the day and evening, which was the most common time for unnatural deaths; (4) in unnatural deaths, the baby is often seen to be completely well and to have taken a feed, but is then found dead between half an hour and three hours later; (5) smothering could often be combined with other abuse; (6) it was possible for no signs of smothering to be found by medical staff or on autopsy.
33. In conclusion, Professor Meadow considered that Christopher's death was not from lower respiratory tract infection, nor could it be classified as SIDS. In his opinion, it was not a natural death. Professor Green considered that there was no evidence of natural disease, although he could see why at the time lower respiratory tract infection had been suggested by Dr Williams. He felt it was extremely likely that the death was other than natural. He would have given cause of death as unascertained. Dr Keeling considered that this was not a SIDS case and she was unable to find a natural explanation for the death. In her opinion the cause of death was unascertained, which meant that it might not have been natural.
Defence evidence: General
34. The appellant gave evidence of her background, her marriage in 1990 and the move to Wilmslow in 1994. At the beginning of 1996, the couple talked about having children. She would ideally have liked to have waited a few years because of her career change, but in view of her age they decided to start a family. She was shocked, but delighted, when she became pregnant soon afterwards. Christopher was born healthy. Her husband worked long hours and played sport at weekend, but was very supportive. Nevertheless, she was understandably tired. Christopher received regular visits from the health visitor, Pamela Greaves, who said he was a lovely responsive baby. The appellant was very careful with him and there was a bond between them.
35. Concerning the nosebleed at the Strand Palace Hotel, she said she had been out shopping for an outfit for Christopher's christening with a friend, Mrs Cox. She had fed him before she left and, according to her, took the mobile telephone with her in case she was needed. When she returned, her husband was worried because Christopher had had a nosebleed. Her account of what her husband told her was broadly consistent with his evidence. Her husband left shortly after her return and she and Mrs Cox had lunch in the room. She did not remember having a discussion with her husband about taking Christopher to a doctor. He had never had a nosebleed before, but it seemed unimportant. She mentioned it informally to her doctor the following week. The appellant denied that she had tried to smother Christopher at the Strand Palace Hotel or made any traumatic contact with his nose. Mrs Cox confirmed that Mr Clark told them about the nosebleed and having spoken to a doctor. Louise Priest and Grace Lee, friends of the appellant, each saw Christopher at the hotel in London on different occasions and he appeared bright and well. The appellant told each of them about the nosebleed.
36. The appellant said that on 13 December 1996, her husband was at his firm's Christmas dinner. She had had a bath, with Christopher in the bathroom in his bouncy chair because he had a snuffle and the doctor said the humidity would be beneficial. She breast fed him at about 7.30 p.m., changed him and put him in the Moses basket beside the bed. She had told Dr Cowan that he had been in his bouncy chair earlier, but the doctor had not asked her where she had found him when he died, and in interview she had been advised by her solicitor not to say anything. When Christopher was in the Moses basket, she watched television and went downstairs to make a cup of tea. When she went back upstairs, she noticed that Christopher was a "dusty grey colour" and she knew something was wrong. She picked him up and dialled 999.
37. She ran downstairs with the baby. The front door was bolted as they rarely used it and it required different keys for the locks. The spare keys to the side door were still with a neighbour, who had looked after their cats, and she could not find her own set. Later, she found them in a different part of her handbag. When the ambulance arrived, she was locked in until the neighbour arrived with the spare keys. The appellant could not remember snippets of what had happened after that. When she told Dr Cowan that Christopher had been in the bouncy chair, she had been completely hysterical. The next day, she had the first of many conversations with Mrs Hurst from the Coroner's Office, because they wanted to know why Christopher had died. She denied harming him in any way and had no idea how he came by his injuries.
Defence evidence: Medical
38. Expert evidence for the defence was given by: Professor Berry, a paediatric pathologist specialising in sudden and unexpected infant deaths; Dr Rushton, a consultant paediatric and perinatal pathologist; Professor David, a consultant paediatrician; Dr Whitwell, a senior lecturer and forensic pathologist; and Professor Luthert, a pathologist specialising in eyes.
39. As to the bruises, Professor Berry, Dr Rushton and Professor David said that visual diagnosis of bruises could be mistaken. The photographs were poor quality and no microscopic sections had been taken to confirm the existence or age of any bruising. It was agreed that if these were bruises, they must have been caused shortly before death. Professor David added that there was no significant pattern and the bruises had not been seen at the hospital.
40. As to the frenulum, the tear had not been confirmed histologically. Professor Berry, Dr Rushton and Professor David felt that it was possible but unlikely that such an injury would result from resuscitation. Each agreed that if there was bruising, the injury to the frenulum and bleeding in the lungs, it suggested asphyxia.
41. As to the lungs, Professor Berry and Dr Rushton said that haemorrhage in the lungs was a marker for, but not diagnostic of, the possibility of asphyxiation. They each excluded the possibility of idiopathic pulmonary haemosiderosis. The old blood could have been due to the nosebleed, although that would have been unusual in a baby of this age. It was also consistent with smothering, but by no means conclusive. Professor David found the blood test results to be abnormal and raised the possibility of haemosiderosis. A Canadian expert, Professor Cutts, had produced a paper, which showed similar levels of iron in the lungs of SIDS babies and those who had died from haemosiderosis. Professor David accepted that other classic signs of that rare disease were absent, but the possibility could not be discounted. Suffocation was also a possibility.
42. In conclusion, Professor Berry would have given the cause of death as unascertained, and in his view the post mortem was not sufficiently thorough to document the possible injuries that might indicate a pattern of care of the child. Dr. Rushton, if he had to give a cause of death, would have said unascertained.
Evidence at trial in respect of Harry
Prosecution evidence: General
43. Harry was born on 29 November 1997, three weeks premature but healthy. At the time, Mr Clark was immobile with a leg in plaster and Lesley Kerrigan was employed to help with the household chores. She never saw any sign of abuse and the appellant appeared to be a loving, caring mother. Harry received regular visits from health visitors, in particular Elizabeth McDougall. The Clarks were part of the Care of Next Infant programme (CONI), which supported parents who had suffered a cot death, including providing an apnoea monitor. On 26 January 1998 the appellant telephoned Mrs McDougall to arrange for a replacement monitor because theirs was faulty and her husband was going away the following day. Mrs McDougall brought one at 3.45 p.m. At 4.20 p.m., Harry received his immunisation at the Wilmslow Health Centre. Nurse Weiser, who described Harry as a bonny baby in good health, advised the appellant to give him Calpol if necessary. At 4.45 p.m. the appellant received her post-natal check. Dr Case described her as cheerful. He did not examine Harry.
44. At 9.27 p.m. on 26 January 1998 the appellant made a 999 call because Harry had stopped breathing. A transcript of the 10½-minute call was before the jury. The ambulance arrived at 9.36 p.m. Mr Limming and Mr Bourne, the paramedics, each described the appellant running up and down the street outside the house, barefoot, in pyjamas and very distressed. She directed them upstairs, where Mr Limming found Mr Clark with Harry, who was limp, pale and cyanosed. Mr Clark had begun a form of resuscitation and Mr Limming took over, but there was no sign of life at all. At 9.40 p.m. the ambulance left with Harry and the appellant. Mr Clark followed in a taxi. On the way, the appellant was distressed and hysterical. She mentioned that this was the second time it had happened and said that the baby had gone limp and blue in her arms. Neither of the ambulance men saw any marks or signs of injury on Harry.
45. At the hospital, Harry was taken to the resuscitation room, while the appellant was taken to the relatives' room and was later joined by her husband. Dr Gilbert, a consultant paediatrician, declared Harry dead at 10.41 p.m. and examined the surface of Harry's body. He informed the appellant and Mr Clark of the death. They told him that Harry had taken a breast feed and seemed perfectly healthy. They had recently introduced a bottle at bedtime and Mr Clark went to prepare that feed. Harry was placed in a bouncy chair on the floor while the appellant watched television in the same room. She heard nothing abnormal, but when she looked at Harry a few minutes later, she thought he looked unusual. When she picked him up, he was limp and she immediately called her husband.
46. Christine Hurst, of the Coroner's Office, realised that the Clarks had previously lost Christopher and telephoned the next morning, 27 January, to give her condolences. No contemporaneous note was made, but she said the appellant was calm and lucid. According to Mrs Hurst, the appellant said they would try for another baby and fortunately she got pregnant easily. Mrs Hurst felt it was unusual to express a wish for another child so soon. She denied that the appellant had said that she wanted to know why Harry had died in case there was any genetic problem, which might affect another child, nor did the appellant say she had had Harry as part of a healing process. Mrs Hurst briefly asked her about any family health problems and told her there would be a post mortem. On seeing the files for Christopher, Mrs Hurst was struck by the similarities between the two deaths. She immediately spoke to DI Gardner and arranged for a Home Office as opposed to a Coroner's post mortem. Mrs Hurst attended the post mortem by Dr Williams in her official capacity and noticed brown streaks on the spinal cord.
47. Elizabeth McDougall visited the appellant on 27 January, when both parents appeared completely devastated and shocked. The appellant was in deep distress. Mrs McDougall visited again on 4 February. The appellant broke down in tears. According to Mrs McDougall, she said that she was with Harry upstairs after his feed, watching television while her husband prepared supper. She looked at Harry, who seemed to be sleeping and felt the need to prod him. When she got no response, she screamed for her husband. They only used the monitor at night.
48. The appellant was arrested on 23 February 1998 on suspicion of the murder of Harry and was interviewed twice on that day, without her solicitor present. She said she was tired and voiced concern about her husband going away the next day. According to the prosecution, she described Harry in the bouncy chair with his head right down and she demonstrated the whole body, including the head and arms, as having moved forward from the waist. Dr Milroy, a police surgeon, said that it was impossible for Harry at 8 weeks old to have slumped forward over the T-shaped front support of the bouncy chair.
49. The appellant was later arrested on suspicion of the murder of Christopher and was interviewed on 9 April 1998 with her solicitor present. Her solicitor felt that in the absence of full disclosure, he could not give proper advice. She made a statement that she did not wish to add anything to what she had said about Harry and that she had not harmed Christopher. When asked specifically about Harry's position, she said she had nothing to add to what she had said before, that his head was down. In the absence of full disclosure, she was advised not to comment about any similarities between the two deaths or the three medical opinions that they were unnatural. She was interviewed again on 2 July, following disclosure of medical reports, but on her solicitor's advice she made no comment. Later that day she was charged with the two murders.
Prosecution evidence: Medical
50. Dr Williams gave evidence of his findings at Harry's post mortem on 27 January. Professor Meadow, Professor Green, Dr Keeling and Dr Christine Smith, a consultant neuropathologist, also gave evidence as to the various findings.
51. As to the eyes, Dr Williams found (1) some petechial haemorrhages, which were a feature in a lot of different mechanisms of death including asphyxia, but there was no evidence of any of those. In the absence of an explanation, they might have been related to the spinal injury, which could cause an asphyxial death; (2) haemorrhaging on the backs of the eyes, such as he had only seen in cases of death caused by over-laying or smothering.
52. At trial and following a meeting with Professor Luthert at Moorfields, Professor Green accepted that what he initially thought was intra-retinal haemorrhaging, was due to an error in the slide preparation and he was now satisfied the bleeding had occurred post mortem. Haemorrhages on the outside of the backs of the eyes might have been caused during the post mortem, but he would not have expected that appearance, which he had not seen before. Professor Meadow said that provided the two petechiae in Harry's left eyelid were certainly such petechiae, they were of significance because they provided a link with a traumatic event having occurred. Dr Keeling said they were a significant and worrying feature because they were a sign of asphyxial injury, but she was unable to say positively that the child had been smothered. Dr Keeling did not think that the two areas of blood on the back of the eyes had been caused during post mortem.
53. As to the brain, Dr Williams made the following findings: (1) some tears, which he later accepted were not unequivocal; (2) some old blood (haemosiderin), which he agreed might properly have been attributed to birth.
54. Dr Smith said there was no evidence of natural disease or swelling in the brain, nor did she see any tears of the brain unequivocally caused before death. There was no indisputable evidence of traumatic injury, but she did find some small haemorrhages on the surface of the brain and in the grey matter inside the brain, which could have been caused by direct injury or stoppage of oxygen. She also found signs of hypoxic damage to nerve cells due to lack of oxygen before death. Such damage could be caused if the airways were obstructed and the post mortem showed no evidence of natural cardiac or respiratory disease. Although the beta APP staining process had revealed no recent damage where trauma might have been expected, from the time it would take such damage to occur, she concluded that some hours before Harry's death something had happened, which caused damage to the nerve cells in the brain, either by damage to the spine or by some other injury or obstruction of the airways. Harry had survived that episode, but Dr Smith could not rule out that the hypoxia had been a contributory factor to the subsequent death.
55. Dr Keeling also thought the hypoxic damage indicated some sort of episode causing oxygen not to get to the brain, commonly stopping breathing for any reason. The damage did not give any indication of causality, but one possible cause was trauma. She thought the hypoxic damage would have been caused closer to 2 hours rather than 24 hours previously. She found the negative beta APP staining test a surprising finding that made her more inclined to the lower limit of 2 hours for the hypoxic damage to become apparent. Whatever had caused the lack of oxygen had occurred at least two hours before death. If something else had occurred, it was another insult very close to death, which probably would not have been seen on the beta protein staining process because of insufficient time to develop.
56. As to the spine, Dr Williams found that the spinal cord was swollen and there was an excessive amount of blood, both fresh and old. He concluded that Harry had been shaken on several occasions, over several days. In cross-examination, he explained that meant on at least one occasion at least 48 hours before the final one. He could not gauge the severity or mechanism and agreed that other expected features were absent. He had seen haemorrhages in the spinal canal in shaken baby syndrome, but not so low down. Damage which appeared relatively small could nevertheless have a catastrophic effect. Dr Williams thought it unlikely the old blood was a result of birth. The fresh bleeding was an extensive haemorrhaging around the spine, which he had not seen before in a baby of this age. There must have been some sort of trauma to that part of the spine and he was adamant it had not been caused during the post mortem.
57. Dr Smith had been consulted by Professor Green about the findings relating to Harry's spinal cord. She examined slides sent by Dr Williams, but found no subdural haemorrhage in the spine. She found evidence of fresh bleeding in the epidural space and evidence of old blood, from which she concluded there had been two episodes of bleeding. She felt the fresh bleeding could not be dismissed as having been caused by the post mortem process. Bleeding would only be caused by disease or trauma and she disagreed with Professor Berry that such findings were regular in a baby of this age. She agreed this was not one of the usual findings in a shaken baby and was unable to say what mechanism had caused it. She had never regarded this case as a classic shaking case and she did not think it was a case where there had been a direct thump to the child. The bleeding in the thoracic cord ended in one of the areas where maximum movement occurred if there were excessive flexion or extension of the spine. Of itself, the epidural haemorrhaging would not have caused death and there would have had to be some damage to the cervical cord to cause death. She dismissed the possibility that the spinal bleeding could have been associated with resuscitation. She had not previously seen old bleeding in the spine of babies of this age as described in this case. There could have been a previous traumatic episode, similar to that which had caused the fresh bleeding. It could have been birth related, but she had not said that in her report, which simply said that there had been at least two episodes of bleeding. Swelling of the cord could interfere with its function without there being any obvious sign of damage. Swelling of the cord would have been caused by oedema, which was best assessed with the naked eye. Dr Williams had removed the dura and spinal cord in their entirety, but would have had an impression of swelling around it.
58. Professor Green had seen some such damage in cases of shaking, but not this particular injury. Features commonly associated with shaking, such as contusional tears, damage to the cervical cord and subdural haemorrhage, were not present here. He would not speculate as to the cause, but took the view that this was bleeding shortly before death and he was deeply concerned at the amount of blood, which started in a site associated with trauma and ended at a site associated with trauma. In cross-examination, he said that the trauma had to be regarded as a serious possibility and in re-examination, described it as a very strong probability.
59. Professor Meadow said that an injury causing the bleeding around the spine would suggest an unusual trauma and would be significant. He also said that he would have expected damage to the cervical cord if it had caused death. There was a lack of research on shaking of babies and it was no more than guesswork. He would not necessarily expect there to be signs of bruising.
60. Dr Keeling had never encountered such a degree of bleeding as shown in the photographs. In cross-examination, she said that she could not positively say that Harry's haemorrhages had been caused by trauma. In re-examination, she said that whilst there might be a similar amount of blood in a SIDS case, in the SIDS case the blood was in the tissue and not lying free, whereas Dr Williams's description and photographs showed bleeding lying free on top of the dural sheath. She would have expected an experienced pathologist to see swelling without stripping off the dura and it would have seemed more obvious than it did in the photographs. She could think of no explanation other than trauma. The presence of blood alone in the epidural space did not of itself cause death. There was no damage to the cervical part of the spine and no evidence of traumatic damage to the brain. She could not say what had triggered the bleeding in the epidural space.
61. As to the ribs, Dr Williams found that Harry had suffered a fracture of the second right rib at the side under the armpit. In his statement, he had referred to it as a possible old fracture, but in evidence he was adamant that there was no other explanation. He had told DI Gardner that it could have been a birth injury, but that was only so that he could investigate other possibilities. In cross-examination, he said the fracture was 6-8 weeks old and although such injuries could be caused at birth, it was unlikely because Harry had had a normal, uncomplicated delivery. The first rib had become dislocated from the cartilage near the breastbone. He had not included it in his post mortem findings because it was of unknown significance. He was sure it had not occurred during birth or the post mortem, nor had he seen such a dislocation from resuscitation attempts.
62. Professor Meadow and Dr Keeling each said that the fracture of the second rib would have been an unusual birth injury. Professor Meadow said that it would have been noticeably painful for the baby. Dr Keeling said she had seen from the microscope slide the procees of remodelling (ie bone growth) confirming there had been an injury, such as a fracture. Professor Meadow and Dr Keeling each said that the dislocation of the first rib would have been an unusual resuscitation injury. Dr Keeling was surprised to find no haemorrhage at the site of dislocation and could not exclude the possibility of it being a post mortem injury.
63. In conclusion, Dr Williams's opinion was that Harry did not die a natural death, but there was no pathological evidence that he had been smothered. Having regard in particular to the findings in relation to the spine, it was his conclusion that he had been shaken to death. Professor Meadow concluded that Harry's death could not be classified as SIDS and in his opinion the baby did not die a natural death. His strength of feeling had only increased with the further information received since his statement in June 1998. Dr Smith said that without the intra-cranial haemorrhages, she was unable to specify a mechanism for death and was, therefore, unable to say this was a shaking case. In cross-examination, she said that she could not exclude some unidentified natural disease, but there were features that indicated some insult to the child. In purely pathological terms, it was an unexplained death, but there were features such as fresh and old bleeding around the cord, hypoxic damage in the brain and the small haemorrhages, that pointed to a non-natural death. She could not point to any specific mechanism, nor could she think of any natural cause. In her opinion, Harry did not die a natural death and she could not totally exclude smothering. Professor Green said that Harry's death could well not be natural. Although it was not possible to be certain, there were abnormalities, which needed explanation. As with Christopher, he felt that the most appropriate diagnosis was unascertained. Dr Keeling still held the view expressed in her report that the possibility of a non-natural death should be considered. It was her opinion this was not a SIDS death. She would give the cause of death as unascertainable.
Defence evidence: General
64. The appellant gave evidence that she and her husband decided to have another baby to ease the pain of losing Christopher. For Harry they went on the CONI programme and used a monitor. The appellant watched Harry all the time. She had no idea that he might have fractured a rib and he showed no sign of pain or discomfort. He was a more demanding baby than Christopher and she was getting tired, despite Mrs Kerrigan's help. She did not feel she needed any extra help and there were no problems with his health.
65. At about 3.45 p.m. on 26 January 1998, Harry was seen by the health visitor, who brought a replacement monitor. At 4.20 p.m., he received his inoculations and she gave him Calpol because her husband was going away to Glasgow the following day, his first trip since Christopher had died. The appellant had her post-natal check at about 5.15 p.m. In evidence, the appellant said that her husband got home about 5.35-5.40 p.m. She had been mistaken when she told police he had come home after 7.00 p.m. and had been confused with the night Christopher died. (In fact Mr Clark arrived home at about 8.10 p.m. as evidenced by records from the taxi firm: see below.)
66. The appellant said that she breast-fed Harry at about 7.30-8.00 p.m. Her husband was with her and they chatted and played with Harry. Her husband put him in the bouncy chair while he went to make a bottle. She sat on the bed and after her husband had been away 3-5 minutes, she looked over at Harry in the bouncy chair. She saw that his head was down and reacted with complete panic. She said the police officer's account of her description of Harry's position was wrong. She denied telling Mrs McDougall that her husband had gone to make supper and she could not remember saying that she had prodded Harry.
67. The following day, Mrs Hurst telephoned. The appellant remembered the conversation, during which her husband had been in the kitchen with her. The appellant remembered saying how unfair it was because she could have children so easily and then something like this happened. According to her, she mentioned the word "genetics" and Mrs Hurst requested they draw up a family tree. The appellant denied telling Mrs Hurst that she got pregnant easily and would try for another child.
68. The appellant had no idea how Harry had died and denied smothering him or harming him at all. Her reaction at losing two children was one of complete disbelief. She had loved them both and denied harming either of them.
69. Mr Clark said in evidence that he and his wife had decided to have another child as part of the grieving process. Mr Clark had injured his ankle just before Harry's birth and they hired Lesley Kerrigan to help with the chores. Mr Clark did not notice Harry in any discomfort when picking him up. They had had trouble with the CONI monitor giving false alarms, which the health visitor thought was due to a loose contact.
70. On 26 January Mr Clark initially said in evidence that he had returned home at around 5.30-5.45 p.m., shortly after his wife had returned from the Health Centre. He had thought it was a 20-25 minute walk to their home from the Health Centre, but later accepted that he had over-estimated the distance. When recalled for cross-examination after receipt of information from the taxi firm he used, he accepted that he must in fact have got home about 8.10 p.m. He denied that he had been bending the truth to reduce the time that the appellant would have been alone with Harry. He remembered little about the events that evening, but had based his initial estimate of his arrival home on information given to him by his firm's receptionist, Mrs Knowles. She had booked a taxi to take him to the airport the following day and he assumed that she had booked his taxi home at the same time. He told police in interview that he could not remember exactly what time he had got back, but thought it would have been between 5 and 6 p.m. He had been getting home earlier to see his son and the taxi book confirmed that. He denied that the appellant was anxious about him coming home late or going away the next day. He spent every evening with Harry and usually gave him his tea and a bath. It was now admitted that, during his interviews in April and July 1998, Mr Clark knew that the experts believed that Harry had been shaken shortly before his death.
71. Mr Clark said that Harry finished his feed at about 9.00 p.m. and his wife handed the baby to him. Harry was asleep and Mr Clark put him in the bouncy chair by the side of the bed and went downstairs to make up a bottle. He had been gone no more than 5 minutes when he heard his wife scream. He went upstairs as quickly as possible. He could not remember whether the appellant was standing or sitting with the baby. He confirmed what he had told police in interview, that the appellant told him that she heard Harry move a couple of times and when she looked over, he had stopped breathing and gone blue. It was not until after the appellant had been interviewed that she told him Harry's head had been slumped forward. Mr Clark took Harry from her and started resuscitation on the floor. He explained that it had to be done hard to be effective. He may not have been doing it exactly as he had been taught, but agreed that he was not pressing in an area near to the first rib. He was present the following day when the appellant had a conversation with Mrs Hurst. He explained that they wanted to find out why Harry had died in case there was a genetic problem. Mrs Hurst asked them to release their medical records and compile a family tree, but he could not remember if that was the same conversation. Mr Clark had been supportive of his wife throughout this ordeal because he knew she loved the babies and would not have done anything to them. He denied covering for her.
Defence evidence: Medical
72. As to the spine, Professor Berry, Dr Whitwell and Dr Rushton doubted the interpretation of the photographs as showing a swollen cord. Many of the findings had either been shown not to exist or had been misinterpreted. Bleeding in the epidural space was commonly found in post mortems of babies and was not significant. The old bleeding was not in an area where one would have expected to see trauma and was more consistent with a birth injury than a shaking injury. Dr Whitwell thought the findings in relation to the spinal cord were artefactual and Dr Rushton agreed they might have been. If they were not, and the swelling was genuine, a possible cause would have been a flexion, extension or rotational injury, but Dr Whitwell had never encountered such a case with only these features and Dr Rushton could not envisage a feasible mechanism to produce such injury. If there had been fresh bleeding and swollen cord, Dr Rushton would have concluded that the death had been unnatural.
73. As to the brain, Professor Berry said that the old haemorrhages were a common finding consistent with almost any cause of death and Dr Rushton felt they might have been birth related, although the small haemorrhages were consistent with smothering. Both Professor Berry and Dr Rushton considered that the hypoxic damage was not significant: it was a subtle finding and could have occurred naturally after death. To that extent they disagreed with the neuropathologists (Dr Smith and Dr Whitwell). Dr Whitwell agreed that the hypoxic damage was consistent with smothering, but it was a non-specific finding. Similarly, the small haemorrhages inside and outside the brain were non-specific, although they could have occurred after an insult, such as smothering.
74. As to the eyes, Professor Luthert has concluded, having seen all the slides, that there were no intra-retinal haemorrhages and had expressed this opinion to Professor Green, who agreed. They also agreed that the blood could have got into the eyes after death and was not significant. In respect of the blood found on the surface of the backs of both Harry's eyes, he agreed with Professor Green that it was not a classic sign of shaking and was not associated with any particular disease. He speculated that it may have occurred during the post mortem, which he thought was most likely, but in cross-examination he agreed that he could not exclude the possibility that it had resulted from suffocation. From his experience, he concluded that eyes removed post mortem with no suggestion of trauma or natural disease could occasionally show blood in the episclera, but he agreed that he did not know the causes of death in those cases.
75. Professor Berry said that the two petechial haemorrhages on the left eyelid were a worrying feature, but he and Dr Whitwell felt that although consistent with smothering, their presence was not strongly indicative. Dr Rushton felt it was difficult to say if the two petechiae had any significance. He agreed they were consistent with asphyxia and unusual in SIDS cases. Professor David found that there was no evidence that the haemorrhages were due to abuse.
76. As to the ribs, Professor Berry said that the fracture of the second right rib had not been confirmed and the process of new bone formation could also occur if there was a bruise. If the dislocated first rib had occurred in life, he would have expected some haemorrhage or tissue damage, of which there was none. He did not think either was a birth injury. The evidence pointed to the dislocation being a post mortem injury and although unusual, he could not exclude the possibility it had occurred in resuscitation. Professor David said that it was particularly unusual to get an isolated fracture from resuscitation and accepted that the ribs were the commonest part to be fractured by abuse.
77. In conclusion, Professor Berry considered that the most worrying features were the petechiae in the eyelids and the fracture of the right rib, if such it were. If the cord had been swollen and the bleeding in the spine caused by trauma, he would have concluded that it had been a traumatic and non-natural death, but it could have been due to an accident. Dr Whitwell said that, if obliged, she would have given the cause of death as not ascertained. She would not classify this a SIDS death because a true SIDS death should be completely negative and would not normally occur at this time in the evening, after a feed, with the child in a bouncy chair. Dr Rushton considered that the cause of death would be unascertained, but he agreed that there were features in both deaths that gave rise to very great concern and for that reason he would not class them as SIDS deaths. Professor David thought there was insufficient data to know why Harry died.
The grounds of appeal
78. The grounds of appeal as developed before us by Mr Julian Bevan QC, who represented the appellant at the trial, can be summarised as follows:
a) The trial judge was wrong in law in ruling that the evidence on each count was admissible upon the other, and consequently in refusing to sever the indictment and have separate trials.
b) The trial judge wrongly directed the jury that they could take into account the circumstances surrounding both deaths before concluding that either was unnatural. The appellant submits that even if the evidence on one count was admissible upon the other, it could only become admissible once the jury had concluded that the first death was unnatural upon the evidence relating to that count alone.
c) The evidence given by Professor Meadow of the statistical probability of two SIDS death in one family undermined the safety of the convictions, in that the figures cited were erroneous, Professor Meadow's opinion as to the deaths being unnatural was wrongly founded in part on the statistical evidence, and the judge failed to warn the jury against the "prosecutor's fallacy" in relation to the use of statistical evidence.
d) Fresh medical evidence relating to haemorrhages at the back of Harry's eyes undermines the credibility of the Crown's pathologist Dr Williams, both generally in respect of the cause of death of Christopher and Harry and particularly in respect of the cause of death of Harry, in that Dr Williams's findings in relation to the eyes were not comparable with other cases on which he relied in evidence at trial.
e) Further, leave to appeal is sought in respect of a fifth ground, that the trial judge was wrong to leave to the jury the possibility of a finding adverse to the appellant, from her failure to dispute in her police interview that Christopher had been in a bouncy chair at the time of death. The prosecution and the defence having agreed that s.34 Criminal Justice and Public Order Act 1994 did not apply, the trial judge gave the jury no guidance as how they should approach the evidence.
79. Each of those grounds has been resisted on behalf of the Crown by Mr Robin Spencer QC, who also appeared at the trial.
80. We propose to examine each ground in turn, before turning by way of overall conclusion to consider the safety of the convictions.
Ground 1: Severance
81. At a preliminary hearing the judge refused a defence application that the two counts in the indictment should be severed and tried separately. In reaching his decision the judge directed himself by reference to the test laid down in DPP v. P [1991] 2 AC 443 and held:
"My decision is that the similarity between the circumstances surrounding the death of these two children is of sufficiently probative force to make it just to admit the evidence on one count in relation to the other, and vice versa, despite the prejudice that is thereby caused to the defendant. In my view an explanation based on coincidence offends common sense. It is right and proper in the circumstances that the jury should hear about both deaths and that the evidence relating to one should be admissible in relation to the other" (ruling of 9 September 1999).
82. It is submitted on behalf of the appellant that the judge's decision was flawed because he was wrong in law to hold that the evidence on one count was admissible in relation to the other.
83. In DPP v. P the appellant had been convicted in a single trial on counts of rape and indecent assault against two daughters. The certified question asked whether, in a case of alleged sexual abuse of a young daughter of the family, evidence that the defendant also similarly abused other young children in the family was admissible (assuming there to be no collusion) in support of the charge in the absence of "striking similarities" of the kind referred to in R v. Boardman [1975] AC 421. Lord Mackay of Clashfern LC, giving the leading speech, carried out an extensive review of the speeches in Boardman and concluded:
"... I would deduce the essential feature of evidence which is to be admitted is that its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime. Such probative force may be derived from striking similarities in the evidence about the manner in which the crime was committed .... But restricting the circumstances in which there is sufficient probative force to overcome prejudice of evidence relating to another crime to cases in which there is some striking similarity between them is to restrict the operation of the principle in a way which gives too much effect to a particular manner of stating it, and is not justified in principle .... Once the principle is recognised, that what has to be assessed is the probative force of the evidence in question, the infinite variety of circumstances in which the question arises, demonstrates that there is no single manner in which this can be achieved. Whether the evidence has sufficient probative value to outweigh its prejudicial effect must in each case be a question of degree" (460E-461A).
84. After considering the particular circumstances of the case under appeal, Lord Mackay continued:
"When a question of the kind raised in this case arises I consider that the judge must first decide whether there is material upon which the jury would be entitled to conclude that the evidence of one victim, about what occurred to that victim, is so related to the evidence given by another victim, about what happened to that other victim, that the evidence of the first victim provides strong enough support for the evidence of the second victim to make it just to admit it notwithstanding the prejudicial effect of admitting the evidence. This relationship, from which support is derived, may take many forms and while these forms may include 'striking similarity' in the manner in which the crime is committed, consisting of unusual characteristics in its execution, the necessary relationship is by no means confined to such circumstances. Relationships in time and circumstances other than these may well be important relationships in this connection. Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connection, obviously something in the nature of what has been called in the course of argument a signature or other special feature will be necessary. To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application of the principle" (462D-G).
85. The relevant certified question was then answered in these terms:
"... the evidence referred to is admissible if the similarity is sufficiently strong, or there is other sufficient relationship between the events described in the evidence of the other young children of the family, and the abuse charged, that the evidence, if accepted, would so strongly support the truth of that charge that it is fair to admit it notwithstanding its prejudicial effect" (463H-464A).
86. In expressing his conclusions in the present case, the judge held first that he should take into account all the circumstances, including the medical evidence, relating to the death of each child. On the other hand he accepted that it would be quite wrong to adopt the approach that if the defendant had killed one of the children, it made it more likely that she must have killed the other. He set out the correct legal test, drawn from DPP v. P. He bore in mind that the alleged cause of death in each case was different, as was the case at the time of his ruling, but took the view that that fact by itself did not affect the principle of admissibility. Thirteen similarities had been identified by the prosecution but he based his decision primarily on the first six of them. He said that his decision necessarily involved a value judgment of the degree of probative force of those matters. His decision was based on their cumulative force, although he did attach considerable importance to the sixth similarity.
87. The first six similarities referred to by the judge were these:
"(1) Both babies were, according to the defendant, found unconscious by her in the same room and apparently in the same bouncing chair, which the medical evidence suggested was not what one would expect in a SIDS' (or cot death) case. Mr Bevan pointed out in respect of that that babies are generally looked after at home; but Mr Spencer replied that this is not just a matter of being in the same house.
(2) Both babies were found by the defendant at almost exactly the same time of the evening, namely about 9.30 p.m. which, it was said, was inconsistent with a SIDS' case. Mr Bevan asks rhetorically what difference it would have made if it was 4.30 p.m. Mr Spencer pointed out that in both cases the babies had taken a feed shortly before their death.
(3) Both babies died at about the same age: Christopher 11 weeks, Harry 8 weeks. Mr Bevan submitted that the evidence was that cot deaths are most common with young babies of up to three months, but Mr Spencer pointed out that the coincidence was still there nevertheless.
(4) In each case the defendant was alone [with] the baby at the time of discovery. Mr Bevan submitted that that was of no significance at all, whereas Mr Spencer said that it was significant because in the case of Harry on the evidence the defendant had only been [alone] with the baby a short time of four minutes or so.
(5) In each case the defendant's husband was either away or about to go away from home in connection with work. Mr Spencer referred to evidence showing that she was resentful of being left on her own and tended to drink more heavily when her husband was away. In the case of Christopher he was away at an office party. In the case of Harry, he was about to go to Glasgow on business the next day. In the case of Harry the defendant visited the off-licence on two occasions to buy some wine, saying (falsely, it would appear) that they were having a dinner party that evening. Mr Bevan accepted the factual circumstances, but submitted that there was no significance in those circumstances, whereas Mr Spencer submitted that it was significant because it was an unusual feature that he was either away or about to go away on both occasions.
(6) In each case there is evidence of previous abuse prior to the fatal episode: in Christopher's case, asphyxiation; in Harry's case, shaking. Mr Spencer said that if both deaths were natural deaths, what a coincidence it would be if, in each case, nevertheless there was evidence of unexplained previous abuse. In the case of Christopher, there was a great deal of old blood in the lungs, which was unexplained and was consistent with smothering; and in the case of Harry, there was evidence of shaking on at least one previous occasion. In relation to that, Mr Bevan pointed to the evidence of Dr Keeling that, even in SIDS' cases, one can find recent haemorrhage, and, although this related to old haemorrhage, that logic should dictate the same approach. Mr Spencer referred to Dr Keeling's evidence that in relation to both the old and the new haemorrhage, in her view there was no natural explanation for it."
1. 1. By the time of the trial there were developments affecting that list of similarities. In particular, following the experts' agreement as to the absence of intra-retinal haemorrhages in Harry's eyes, the prosecution case in respect of cause of death in Harry's case had shifted away from shaking towards smothering. Emphasis was also placed on evidence of previous abuse in the form of the rib fracture suffered by Harry some weeks before death. Those matters tended if anything to strengthen the case for a single trial based on similarities between the circumstances of the two deaths. They did not prompt any defence application for reconsideration of the judge's decision on severance. If, therefore, the judge's original decision was valid on the material then before him, nothing happened thereafter to undermine its validity.
2. Mr Bevan makes a number of detailed points in relation to the similarities relied on by the judge and submits more generally that they do not provide a basis upon which it can properly be concluded that the circumstances of one death provide probative evidence relating to the other. We deal first with the detailed points which, for the reasons given below, do not in our view undermine in any way the judge's reliance on the six similarities:
1) Mr Bevan submits that if both deaths were from natural causes it cannot be said to have been unlikely that they would occur in the same room or in a bouncy chair. Moreover the appellant told the paramedics that she had found Christopher in a Moses basket and it was only when hysterical at the hospital that she spoke of finding him in a bouncy chair. In our view, however, this was properly treated as a similarity of significance. The fact that the appellant gave inconsistent accounts of where she found Christopher adds to its significance rather than detracting from it. So does the fact that the description she gave of Harry slumping forward in his bouncy chair was physically impossible.
2) It is said that no significance can attach to the fact that both babies were found at about the same time. In our view, however, the similarity in timing was remarkable and the fact that both babies were found at about 9.30 p.m. has to be considered in the light of the evidence of Professor Meadow that the time was unusual for natural sudden deaths.
3) It is said that the age of the babies is of no significance since it is the age at which SIDS deaths occur. We accept that the point on age would be of no real weight standing alone, but in our view it is a similarity properly taken into account as part of the overall picture.
4) The point is made that, although the appellant was alone when both babies were found, she was not alone in the house at the time of Harry's death and according to Mr Clark had not shown any sign of stress or irrationality. We think it striking, however, that Harry was found as he was in the few minutes when the appellant and her husband were apart. Her state of mind at the time is considered under (5) below.
5) Mr Bevan submits that the prosecution's attempt to link the killing of Harry with Mr Clark's business trip the next day, like its attempt to link the killing of Christopher with Mr Clark being away from home at an office party, made no sense. In our view, however, there was in this respect a significant similarity between the circumstances of the deaths. Further, the suggestion that the appellant was anxious about her husband's impending departure on his first trip away from home since Harry's birth made good sense as part of the prosecution case that she had attempted to smother Harry earlier that evening and had subsequently killed him. In the event that case was strengthened by the discovery that Mr Clark had arrived home that evening much later than he had said in evidence in chief, lending force to the suggestion that he was trying to cover up some incident earlier in the evening. That inconsistency in Mr Clark's evidence also tended to cast doubt on the reliability of his evidence as to the appellant's state of mind at the time. It is true that the prosecution was not able to rely at trial on evidence as to the appellant's consumption of alcohol, to which the judge referred in his ruling on severance but which he then excluded in a separate exercise of discretion. But the overall case at trial in relation to similarity (5) was if anything stronger than that at the time when the judge took the similarity into account in his ruling on severance.
6) Mr Bevan accepts that there was evidence consistent with previous abuse in relation to both babies, but he points to various considerations as tending to weaken the force of that evidence. We do not think it necessary to examine those considerations here. It suffices that there was such evidence which, in the form in which it developed by the time of the trial or during the trial, was properly left to the jury. The existence of such evidence in relation to both babies was a similarity to which the judge was entitled to attach considerable importance. A related and obvious point, to which the judge referred expressly in his summing up although it was not separately articulated as a similarity at the time of his ruling on severance, was the evidence of injury recently inflicted on each baby at the time of death. The overall similarity in terms of evidence of past and recent abuse was in our judgment a most compelling consideration.
88. 88. Turning to Mr Bevan's more general submission, its essence is that the circumstances surrounding the death of each child may strengthen suspicion in relation to the death of the other but are incapable of providing probative evidence in relation to that other death. The central issue in each case was whether the prosecution could exclude the possibility of natural death. That depended on the medical evidence relating to the death in question. The circumstances surrounding the other death could not help in the resolution of the issue. In any event they did not constitute "... such an underlying unity between the offences as to make coincidence an affront to common sense" (per Lord Hailsham in Boardman, as quoted by Lord Mackay in DPP v. P at p.456D), nor did such evidence "point so strongly to ... guilt that only an ultra-cautious jury, if they accepted it as true, would acquit in face of it" (per Lord Cross in Boardman, as quoted in DPP v. P at p.456G).
89. We do not accept that submission. The prosecution's case against the appellant depended on a large number of pieces of circumstantial evidence, including not only the medical evidence concerning each baby but also evidence going to the credibility of the appellant and her husband. In that context the various similarities referred to by the judge could properly be relied on as supporting the prosecution case and as tending to prove the appellant's guilt on each of the counts. They made an explanation based on coincidence very much less plausible, if not an affront to common sense. In any event it would have been an affront to common sense to require the jury to consider only one of these deaths in isolation from the other. The overall circumstances of the two deaths were plainly relevant to the assessment of guilt in respect of each of them.
90. In so far as Mr Bevan's submission is that evidence of the circumstances of one death are admissible in relation to the other death only if that evidence is sufficient in itself to exclude the possibility that the other death was natural - sufficient, in effect, to prove guilt in relation to the other death - that submission overstates the requirement for the admission of evidence on grounds of similarity. DPP v. P does not lay down so high a hurdle for the admissibility of such evidence. Such evidence can have sufficient probative force to make it just to admit it even though, taken by itself, it would not be sufficient to prove guilt. Proof of guilt depends on the combination of the evidence admitted on grounds of similarity and the other evidence in the case.
91. There is a further question whether the evidence concerning one death was of sufficient probative force to make it just to admit it in relation to the other death despite its prejudicial effect. That question involved, as the judge observed, a value judgment. Lord Mackay in DPP v. P described it as "a question of degree" (p.461A). Mr Spencer suggested that the correct approach of this court should therefore be to review the judge's value judgment, in the same way as when reviewing an exercise of discretion, rather than to substitute its own independent judgment on the question. We see force in that submission but do not think it necessary to decide that point since we are each satisfied that we would reach the same conclusion as the judge in any event.
92. For the reasons given, we hold that the judge's ruling on severance was legally impeccable. This ground of appeal therefore fails.
Ground 2: Direction on similar fact evidence
93. A related ground of appeal concerns the judge's directions to the jury on the issue of similar fact evidence. In his summing up the judge said this:
"If you are sure that the defendant killed one of these babies on the evidence relating to that child's case, what you must not do is to say that simply because she killed one of them, she must have killed the other one as well. That would not be a proper or fair way of approaching the matter and it is an approach which the law forbids. But if you are sure that the circumstances of one unnatural death are so similar to the other death as to provide real support for the conclusion that the other death was unnatural too, in the sense that you can safely exclude the possibility of coincidence, then you would be entitled to rely on that in deciding whether that other death was also unnatural".
94. Mr Bevan does not complain about that wording. Nor could he sensibly do so, since the terms of the direction were agreed between counsel and the judge before the start of the summing up. Moreover the direction given was more favourable to the appellant than was strictly necessary. The jury were told that they should be sure of guilt in respect of one death before taking the circumstances of that death into account in relation to the other death. In our judgment, for the reasons we have set out in considering the issue of severance, it would have been open to the judge to direct the jury that they were entitled to take the circumstances of both deaths into account when deciding guilt in respect of either death.
95. Complaint is made, however, of two passages in the summing up where the judge was describing the prosecution case. It is said that the prosecution's approach was erroneous and that the judge effectively endorsed it and thereby invited the jury to consider the matter on an erroneous basis. In the first passage the judge said this:
"Now, members of the jury, the prosecution you will recollect invite you to look at the circumstances of both deaths together and to say that they share similarities which would make it an affront to common sense to conclude that either death were natural. They suggest that it is beyond coincidence that history could repeat itself in such a similar way. Well, I will identify for you in a moment the similarities on which the prosecution rely, but it is for you to assess those similarities and to decide whether the circumstances of each death do in fact provide the support for the inference that both deaths were unnatural by excluding the possibility of coincidence".
96. We see no basis for complaint about that passage. Again it was in a form that had been agreed between counsel and the judge before the summing up. There was nothing wrong with the prosecution case as summarised. Most importantly, the judge made clear that this was a summary of the prosecution case. His own direction to the jury followed soon afterwards and the jury can have been in no doubt that it was in the later passage that the judge was directing them as to the approach that they should follow.
97. Towards the end of his summing up the judge gave the jury a brief reminder of the main elements of the prosecution case and the defence case. He reminded them of the reliance placed by the prosecution on Professor Meadow's evidence that all of the features for an unnatural death rather than a SIDS death were applicable in the case of these two babies, on the statistical evidence as to the probability of two SIDS deaths within the same family, and on the similarities between the two deaths -
"which the prosecution suggest make it beyond coincidence that these two deaths were natural deaths".
98. A little later, in reminding the jury of the defence case he said this:
"You were told, quite correctly, that what you must not do is to conclude that if the defendant killed one baby she must have killed the other. That would be quite wrong. It was suggested that the only safe approach was to look at the death of each child independently and only if you reach the conclusion that the defendant killed one child should you ask yourselves whether that helps you in relation to the other child."
99. Mr Bevan submits that the judge failed to direct the jury that the defence approach was correct and that the jury must have been left with the impression that they were entitled to look at both deaths together for the purpose of determining guilt in relation to each. As we have said, we do not think that it would have been an error to leave the matter on that basis. But in any event we do not accept that that is what happened. The judge's reminder of the prosecution case reflected his earlier summary of that case and did nothing to undermine the clear direction he had previously given the jury on this issue. His reminder of the defence case provided an echo of that direction and was almost the last thing that the jury heard. The jury cannot have been led into thinking that they were being directed to follow the prosecution approach and to reject the defence approach.
100. This ground of appeal therefore also fails.
Ground 3: The use of statistics
101. The appellant's third ground of appeal reads:
"Professor Meadow's evidence of the statistical probability of two SIDS deaths in one family undermined the safety of the convictions for the following reasons:
a) the figures cited were erroneous (application to call fresh evidence);
b) Professor Meadow's opinion as to the deaths being unnatural was founded in part on the statistical evidence cited in breach of the guidelines in R -v- Doheny & Adams [1997] 1 CAR 369;
c) the learned judge failed to warn the jury against the "prosecutor's fallacy" as referred to in R -v- Deen Times, 10th January 1994 CA. To the contrary, the learned judge appeared to endorse the prosecution's erroneous approach."
102. An introduction is necessary. In 1992 the National Advisory Body set up CESDI (the Confidential Enquiry into Stillbirths and Deaths in Infancy - here the first year of life). In 1992 there had been a fall in the incidence of SIDS following the Back to Sleep campaign where parents were advised and encouraged to put their babies to sleep on their backs or sides, rather than prone. But SUDI remained the largest single group of deaths in the neo-natal range. Between 1993 and 1996 the CESDI SUDI Study was set up to identify possible risk factors and associations for such sudden unexpected infant deaths. The SUDI Study extended beyond SIDS. The classic definition for SIDS (from the American pathologist Beckwith) is:
"... the sudden death of a baby that is unexpected by history and in whom a thorough necropsy examination fails to demonstrate an adequate cause of death."
103. Clearly the accuracy of that definition depends on the pathologists' thoroughness in autopsy, and on his or her interpretation of the findings. The definition of SUDI is wider, and includes:
"* deaths that were unexpected, and unexplained at autopsy (ie those meeting the criteria for SIDS);
* deaths occurring in the course of an acute illness that was not recognised by carers and/or by health professionals as potentially life threatening;
* deaths occurring in the course of a sudden acute illness of less than 24 hours duration in a previously healthy infant, or a death that occurred after this if intensive care had been instituted within 24 hours of the onset of illness;
* deaths arising from a pre-existing condition that had not been previously recognised by health professionals;
* deaths resulting from any form of accident, trauma or poisoning."
It will be seen that all SUDI are potential SIDS, but further investigation may show it is not a true SIDS, which are unexplained and unsuspicious natural deaths.106. The CESDI Study report (on which we have relied for information in this paragraph, believing it to be uncontroversial) gives as a reason for the Study using the other category of SUDI rather than SIDS:
"The broader category of SUDI rather than SIDS was chosen because it is often not possible to distinguish between SIDS and other unexpected deaths until the first autopsy results become available, which may not be for some weeks after the death, and even then the distinction may not be clear-cut. In addition, it was expected that health professionals would more often have been involved in the care of babies whose deaths were explained, so that enquiry into those would be more likely to yield lessons in professional audit and consequent improvements in service."
107. The Study was a major work, covering 470,000 live births, of which 456 SUDIs were identified. Of these 93 were later fully explained leaving 363 finally classified as true SIDS.
108. The Crown took the view that neither Christopher's nor Harry's death was a SIDS death because both were attended by unusual/suspicious circumstances suggesting death caused by a parent because of (inter alia) the existence in the case of each boy of unexplained recent and old injuries found after death. But until cross-examination of the defence medical witnesses, the Crown believed that the defence experts at trial would be mounting a case that the deaths were SIDS deaths, ie unexplained natural deaths.
109. The trial started on Monday 12th October 1999, there were 13 days of evidence in all, and it was not until the defence expert medical evidence was called (ninth to twelfth days of evidence - 26th to 28th October) that it became clear that the medical experts called by the defence accepted that neither death was a true SIDS death. But though the precise measure of rarity was not a significant issue by the end of the trial, the principle of rarity was. The appellant and her husband had not abandoned her defence that both the deaths were natural and true SIDS.
110. The Crown had sought to meet the issue - true SIDS or not - by evidence of the rarity of true SIDS deaths - death by unexplained natural causes. On 5th June 1998 a witness statement by Professor Sir Roy Meadow was served. In paragraph 7 he stated:
"Two infants' deaths in one family
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."
111. From what we know now, it is clear that Professor Meadow was stating the approximate ratio of SIDS deaths to births (1:1,000) and squaring that to reflect the chance of a second SIDS death in a family that has already suffered one. That statistical practice makes the assumption that the chance of a second SIDS death in a family that has already suffered one is the same as the chance of the first SIDS death in a family that has not already experienced a SIDS death, an assumption that the defence challenge.
112. In arriving at those figures, Professor Meadow (who does not claim to be a statistician) was using the calculation above described on the global figures (see his evidence in chief, p 36 - 37). He was not (he did not have the material) relying on the effect on those figures of taking account of the "... three prenatal factors with the highest predictive value ... of an increased risk of SIDS" (see the second quoted sub-paragraph of paragraph 122 hereof) - factors which the CESDI Study showed affected the risk. It was this Study on which the ratio of 1:73 million was based, as will be seen.
113. The issue as to the theoretical probabilities of two true SIDS deaths in one family was explored in an old style committal at which Professor Meadow was cross-examined on propositions taken from the CESDI Study, and also the paper Professor Emery had prepared. For our present purposes we can go to the preliminary hearing one month before the trial as to severance and similar fact evidence. In that hearing, the Crown put forward a request for the mutual admissibility of the evidence between the two counts of murder, the issue on each count therefore whether the death was natural or unnatural. It was conceded that there was a prima facie case of unnatural death in Harry's case, but only suspicion short of a prima facie case in Christopher's case. To establish the mutual admissibility, the Crown relied on 13 similarities between the two deaths (and in particular the first six). The seventh similarity and its fate at that hearing is set out in the judge's ruling of 9th September 1999 at page 7:
"(7) The possibility of two babies dying from SIDS is, according to the evidence of Professor Meadow, extremely remote and estimated at 1 in a million. Mr Bevan [leading counsel for the defence] submitted that that evidence cannot assist the jury in deciding which death may have been natural and which may have been unnatural. He said if one was unnatural, the chances of there being one SIDS in the family remained at 1000:1. Mr Spencer [leading counsel for the Crown] did not press that aspect of the matter any further."
114. The judge, in making his order of mutual admissibility relied on the first six similarities. But it is clear that the Crown had not abandoned the seventh.
115. When the defence expert evidence was delivered a week before trial, it contained two statements relevant to the rarity of two unexplained sudden deaths in infancy (SIDS) in one family. First, Dr Rushton said:
"Therefore 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."
The reason why the second such death in one family raises such concerns is because of the extreme rarity of true SIDS.
116. Professor Emery, in his statement said this:
"The occurrence of repeat unexpected deaths is a topic on which I have been doing research over the last few years and have been able to do a confidential study involving approximately 100 such deaths. These have all been families who have presented as having two `cot deaths'. My findings have been that approximately a third of the deaths have been due to a whole series of rare natural causes which had been missed by those doing the necropsy [ie, not true SIDS - see paragraphs 104 - 105]. A third of the deaths were associated with different forms of child abuse and having a whole number of features which indicated that they were unnatural deaths [ie, not true SIDS]. In the final third no suspicion of unnatural death was found and no natural cause was found and these children constitute what may be termed at the moment as `true idiopathic unexpected child deaths' [ie, true SIDS]. The occurrence of two unexpected deaths in a family thus raises a definite suspicion of unnatural death which in my experience is confirmed only in a third of such cases".
ie that over the "... last few years ..." he has examined approximately 33 cases which he concluded were two genuine SIDS in one family. He was not called to give evidence at trial, but his report had been put to Professor Meadow in cross-examination at the old style commital proceedings and, as we shall see, Professor Meadow dealt with Professor Emery's report in his evidence at trial.
117. The Crown tell us and we accept that it was on the basis of that material that they concluded that the rarity of multiple true SIDS deaths in the same family was to be an issue which both prosecution and defence would explore at trial.
118. At this time counsel for the Crown learnt that Professor Meadow was writing the preface to the CESDI Study, and that Study included a table entitled "SIDS rates for different factors based on the data from the CESDI SUDI Study". This was the source of the 1:73 million figure and Professor Meadow delivered a Notice of Additional Evidence "further to his original statement" (ie that of 5th June 1998) on Thursday 7th October 1999 with the trial to start on Monday 11th October. This Notice reads:
"Further to my original statement, I have read the reports of the other medical experts.
Apart from non-accidental injury, no likely specific medical cause of death has been proposed. Thus it is suggested that the deaths of both children should be considered as examples of SIDS [that was how he understood the defence case].
The likelihood of SIDS varies with social circumstances. The most recent estimation of the incidence in England is that for a family in which the parents do not smoke, in which at least one has a waged income and in which the mother is over the age of 26 years, the risk is 1:8,543 live births. [the three prenatal factors referred to in paragraph 112 above]
Thus the chances of two infant deaths within such a family being SIDS is 1:73,000,000."
That calculation comes from the CESDI Study.
119. Professor Meadow is a distinguished paediatric consultant. He is an acknowledged expert in the field of child abuse, and the discoverer of Munchausen Syndrome by Proxy, which led him to the difficult area of young children who died in unusual circumstances early in life. He is not a statistician (though as he made clear, he has to use statistics in his work). His original calculation of two true SIDS occurring in the same family was as set out in his original witness statement at paragraph 110 above. It is not surprising that, having seen the CESDI SUDI Study in draft, he referred to those figures in his Notice of Additional Evidence.
120. At that time, as the appellant's solicitor has deposed, there were a number of important and unavoidable last-minute matters to deal with. The trial therefore started without the defence having the assistance of a medical statistician, and in the event, no such witness was called. But the Crown had no statistical expert either.
121. The jump from 1:1,000,000 (Professor Meadows original figure) to 1:73,000,000 was not explained at the time of delivery of the Notice, but became clear later when the source of the figures was disclosed; a table prepared for the CESDI Study (together with supporting text, delivered soon after), which was then available in draft. The Table, as then delivered, was as follows:

Table 3.6.1: SIDS rates for different factors based on the data from the CESDI SUDI Study

SIDS Rate per 1000 livebirths*

SIDS incidence in this

Overall rate in the study population

in 1303

Rate for groups with different factors

Anybody smoke in the household
Nobody smokes in the household

in 737
in 5041

No waged income in the household
At least one waged income in the household

in 486
in 2088

Mother <27 years and parity
Mother > 26 years and parity

in 567
in 1882

None of these factors
One of these factors
Two of these factors
All three of these factors

in 8543
in 1616
in 596
in 214

* Based on the number of livebirths in each study region from 1993 to 1993 inclusive (OPCS)

106. 106. That table appears as Table 3.58 in the final published report. A number of points arise from it. First, as appears from the text of the Notice of Additional Evidence, the Crown assumed that the defence experts would be contending that these deaths were SIDS deaths. But after the cross-examination of Professor Berry (10th day of evidence, 26th October), the defence doctors were to agree that neither of these deaths was a SIDS death because of the suspicious circumstances surrounding them. Second, the table gives rise for the first time to the 1:73 million statistic - see the explanatory paragraphs in the published version. For convenience, we put all the paragraphs relating to the Table (now numbered 3.58) together:
"Infants and families at risk
Overall, in the population included in this Study the SIDS rate was 0.768 per 1,000 live births, ie approximately one baby in 1,300 died as SIDS. From our data, it is possible to identify within the population a number of factors which are associated with an increased risk of SIDS. The identification of families at higher risk of SIDS is of importance in allowing the appropriate deployment of scarce health care resources, and in attempting to achieve changes in life style or patterns of child care that might reduce this risk. For families already at low risk, knowledge of the factors influencing risk may help to provide reassurance and encouragement in continuing appropriate patterns of care.
Table 3.58 shows the three prenatal factors with the highest predictive value (based on the Wald Score) of an increased risk of SIDS, and the likely effect of the presence or absence of each factor on the incidence of SIDS, along with the effect of combing those factors. [NB: we reproduce this paragraph in the final form in the Report, which the appellant's statisticians had, and not as originally delivered (in draft) to the defence, for which see Prosecution Appeal Bundle, p130.]
Thus, an infant living in a household in which nobody smoked had a risk of SIDS of around one in 5,000, whilst if anyone in the household smoked this risk rose to around one in 700. Similarly for an infant in a household in which there was no waged income, the risk was around one in 500, compared with one in 2,000 if there was a waged income.
The correlation between the factors was taken into account when more than one factor was used to calculate the rate, but because all three factors are independently significant in the multivariate analyses, the presence of more than one will have an increased effect.
Thus, it can be seen that for infants in families in which all three factors [ie, someone smokes in the household, there is waged income in the household, and the mother is 26 or under] are present the risk of SIDS was one in 214, compared with a risk of one in 8,543 for infants in families with none of the factors, ie a 40-fold difference in risk.
Since the factors will generally remain the same (with the possible exception of maternal age below 27 years) the risk of SIDS to a subsequent child in a family in which one infant has already died will range from one in 214 to one on 8,543. this does not take account of possible familial incidence of factors other than those included in Table 3.58.
For a family with none of these three factors, the risk of two infants dying as SIDS by chance alone will thus be one in (8,543 x 8,543), ie approximately one in 73 million. For a family with all three factors, the risk will be one in (214 x 214), ie approximately one in 46,000. Thus, for families with several known risk factors for SIDS, a second SIDS death, whilst uncommon, is 1,600 times more likely than for families with no such factors. Where additional adverse factors are present, the recurrence risk would correspondingly be greater still."
107. As we believe to be plain from the text, that figure went to show how unlikely it was that a family with two children complying with the profile criteria would suffer one or two cot SIDS.
The trial
108. Mr Spencer, for the Crown, in opening the case, said:
"One must always approach statistics with caution, but Professor Meadow has worked out the probability of there being two genuine unexplained natural deaths (SIDS) in a family such as this where material standards are high, the mother is over 26 years old and neither parent smokes. The chances of one genuine unexplained natural death in such a family are about 1 in 8,500. The chances of two genuine unexplained natural deaths in such a family are about 1 in 73 million."
109. There he dealt with the question of the rarity of genuine SIDS, which was a live issue. He returned to the question of whether, in all the circumstances, these could possibly be SIDS. "You don't find these sorts of recent unexplained injuries in a true case of SIDS".
110. The draft opening had been supplied to the defence. No complaint was made as to the inclusion of any of the relevant passages. The case proceeded on the basis that there would be an issue as to whether these were genuine unexplained natural deaths. In fact, as the expert witnesses called for the defence did not support the proposition that the deaths were SIDS, the actual issue was whether the Crown could satisfy the jury that neither death was natural, so that the jury could safely infer that each death was unnatural. No objection was taken to the Crown's case being opened in that way.
111. We then come to Professor Meadow's evidence. The importance of his evidence was: first, his identification of recurrent features commonly associated with unnatural infant death (eg episodes of unusual illness, inconsistent accounts by the parent of circumstances leading to death, the time of death (when mothers are under great stress), cases where the infant had just had a normal feed, cases where there are signs of overt physical abuse not directly causative of death); second, the seven similarities identified between the two deaths; and third, his identification of the physical findings on the bodies of these infants on which the Crown based their case. He dealt first with the case of Christopher (pp 12 to 25) and then with Harry (pp 25 to 32). Each summary concluded with his evidence that he could not think of any natural explanation for either death. That was the important part of his evidence.
112. Then he turned to the statistics (pp 32 - 39 of his evidence in chief). He prefaced his remarks with the need to approach statistics with caution, and then went on to describe the CESDI Study: a multi-disciplinary research study, government-supported, well -conducted: ... "it's the most reliable Study and easily the largest and in that sense the latest and the best." The Crown make the point that an expert medical witness, asked to give his opinion on the rarity of a medical condition can speak not only of his own experience, but also of what there is in the literature, including statistics. We agree with that submission. Objection may conceivably be taken that the statistics have to be proved, starting with the basic data, but absent any such objection (and none was taken here) the expert can rely on an up-to-date reputable study such as the CESDI SUDI Study.
113. That Study calculated the likelihood "... of a baby dying, and being labelled as sudden infant death syndrome" (a reference to the fact that that has been a registrable cause of death since 1971). The table reproduced above at paragraph 121 was put before the jury and explained to them. Professor Meadow was asked, in examination in chief:
"Q Just before we look at the figures, does this leave out of the equation deaths which showed suspicious features in any event?
A Yes, ... they did not include babies whose deaths were being investigated by the police or were the subject of a coroner's `not ascertained', or it was thought to be ... murder or harm to the child. So these are babies that died suddenly and unexpectedly. The starting position was that these deaths were thought to be natural deaths."
114. Then having gone through the table, there was the following exchange:
"Q Later on in the paper does it go on to work out the risk of two infants dying of SIDS in that family by chance alone?
A Yes, you have to multiply one in 8,543 times 1 in 8,543 and I think it gives that in the penultimate paragraph, its points out that it's approximately a chance of 1 in 73 million .... It gives a chance of 1 in 73 million live births and in England, Wales and Scotland there are about, say, 700,000 live births a year, so it is saying by chance that happening will occur once every hundred years."
115. We have seen that the genesis of the 1:73 million figure was the CESDI Study, and not any individual calculation made by Professor Meadow. The grace note was that this would occur "... once in a hundred years". This evidence was given by Professor Meadow in examination in chief on the sixth day of the Crown evidence. While the "100 years" answer was new to the case, it was a straight mathematical calculation to anyone who knew that the birthrate over England, Scotland and Wales was approximately 700,000 a year. Mr Bevan submits that this answer must have greatly affected the jury. He suggested that its impact would have been "overwhelming". But he did not suggest the effect was such that the judge should have discharged the jury, and he did not so apply. Nor did the defence invite the judge to direct the jury to ignore the evidence relating to Table 3.58 of the Study, nor to give any special direction in relation to it.
116. Professor Meadow was then asked whether Christopher's death and Harry's death would have been included in the Study. Professor Meadow replied:
"They'd only be included if the pathologist had described them under the label Sudden Infant Death Syndrome, and I think with their findings at autopsy, fractures, bruises and things, they would not have described them as Sudden Infant Death Syndrome so they wouldn't have been .... I think these two cases would probably have been likely to have been excluded from the Study."
117. Counsel then went on:
"Q Until this study was done and these figures were calculated was there a much lesser figure which didn't take account of these particular household features, smoking, age, wage earning and so on?
A Well in general if someone asks me what the risks of two babies within a family dying and being labelled as SIDS I would just say one in a thousand or 1,300 times 1 in 1,300. I'd just give the global rate but you then ... have to take into account as this paper has done and you have to in all individual cases of the circumstances. In other words, in a family where there's no wage earner, where they smoke, where it's a young mother, the chance of a sudden natural death is very, very much greater than the chance in a professional family, non-smokers and of a mature age."
118. He was then questioned about the study Professor Emery had played a part in, published in a paper called Recurrence of Unexpected Infant Death. This witness agreed that this was, in this country, the only other study of any scale on the recurrence of infant death within a family. The starting point for this study was families in which two or more infants had died suddenly and unexpectedly. The report starts:
"In England and Wales an estimated 50 families a year experience a second unexpected infant death."
119. What that report showed was summarised by Professor Meadow:
"It was addressing a different issue. The research workers investigating families in which two or more children had died suddenly and unexpectedly, and they went back over all the records and had multi-disciplinary meetings and researched them very carefully to see if they could elucidate better the reasons for those deaths. They had in all 57 deaths to investigate in 24 families, most of families with two deaths. They couldn't get material on all of them but they were mainly two death families. Of those 57 deaths they, on more detailed and modern investigation were able to find a natural cause, that's a disease cause or a genuine accident for 30% of the cases, so their point there was saying nearly a third of those cases should never have been labelled as SIDS, they should have been identified as either a natural accident or a natural disease. Fifty-five percent of the cases they ended up by saying this child had been killed by the parents, and that was not observed first time around. In five percent of the cases they came to no conclusion, and in nine percent, that was in five children they ended up saying: `I don't know what the matter is, we too would use the label SIDS'. So they ended up with five children where they couldn't decide upon a likely cause. They point out in their article that of all the families involved, 24 families, it was only in one family where there were two children who had died and in their opinion were completely unexplained ... in other words SIDS."
120. The points he made on this topic in his evidence in chief were to tell the jury of the nature of the CESDI Study, and to explain the calculations leading to the figure of 1:73 million, to confirm that the cases of Christopher and Harry would not be included because of the physical findings at autopsy; and that the CESDI Study was not undermined by the Recurrence of Unexpected Infant Death Study, as they dealt with different issues.
121. Professor Meadow's examination in chief concluded in this way:
"Q Finally, coming back to these two babies, in your opinion, Professor, could either of these two deaths be classified as SIDS, Christopher and Harry.
A No.
Q Can you think of a natural explanation for either death?
A No.
Q In your opinion did Christopher die a natural death?
A No.
Q In your opinion did Harry die a natural death?
A No."
122. Mr Bevan QC for the defence then cross-examined. He cross-examined the witness from the Care of Next Infant (CONI) Report, published in 1998. The point of the cross-examination (20th October pp 63 - 65) was to suggest that there were more families with two SIDS deaths than the CESDI Study figures suggested. Professor Meadow's response was that CONI's figures were not scientifically valid. Counsel put:
"Q It's a bit like a coin isn't it? If you flip a coin heads or tails, yes?
A Yes.
Q It's the same odds each time isn't it, one to one?
A Yes ... This is why you take what's happened to all the children into account, and that is why you end up saying the chance of two children dying naturally in these circumstances is very, very long odds indeed, one in 73 million. You know I mean ...
Q That's a double death every hundred years?
A I know, but I mean ... you have to say two unlikely events have happened and together it's very, very, very unlikely."
The defence called Professor Berry on Day 10 of the evidence. He was one of the four editors of the CESDI Study (though we were told this was more honorific than executive). He is a professor of Paediatric Pathology at Bristol University and a consultant paediatric pathologist to the Bristol Hospital for Sick Children since 1983. He gave evidence under cross-examination that he would not classify either of the deaths as SIDS, as the unexplained factors in both caused him concern (eg the injuries to the children were not sufficiently explained). He agreed that two SIDS deaths in one family would be "... unusual, but not very unusual ...", but "... we are talking about statistics here which generally speaking are not of great value in the individual case." This last point the judge came back to in his cautionary direction to the jury (see paragraph 145). He made the point that that he did not believe that statistics enables you to determine whether the death was natural. He agreed that SIDS did not usually repeat in families. While he accepted the 1 in 8,543 statistic in relation to the first SIDS death in low risk families, because this was an observed figure, he considered the squaring of that figure to calculate the risks of a second SIDS death to be an illegitimate oversimplification which a sentence of the Study warned against:
"This does not take account of possible familial incidence of factors other than those included in the Table." (see paragraph 122 above, the last sentence of the last paragraph quoted).
123. He continued:
"There may be familial diseases which we are not clever enough to recognise but there may be other familial factors that predispose that family, for reasons we don't understand, to a second death. So this Study, this is a theoretical calculation. It is not the result of observation ... [but of] multiplying those figures together ... when you go out and look for families who have had ... second SIDS .... they are commoner than you would expect from this type of calculation."
124. The judge was specifically to remind the jury of this evidence that the risks were inherently greater in a family which had already had a SIDS death. The judge squarely left the issue to them, for them to decide. The defence put no specific figure on the probability of a second SIDS death in one family.
125. That then was the issue on the statistical evidence given in the trial. It was accepted by Professor Berry that to have two genuine SIDS deaths in the family was "unusual", and it seems to have been accepted that the higher risk families were those where someone smoked, where no-one was wage earning and the mother was 26 or under, and the lowest risk was for families such as the Clarks where the reverse of the above three factors applied. That should not have surprised anyone as the CESDI Study refers to international research and refers to (Chapter 1, page 4) "... a similar epidemiological profile ..." of high risk families in many foreign countries.
126. While to deal properly with this ground of appeal in its context in the trial it has necessary to consider the evidence and issues in detail, it was very much a side-show at trial. The experts were debating the incidence of genuine SIDS (unexplained deaths with no suspicious circumstances) in a case where both sides agreed that neither Christopher's death nor Harry's death qualified as such.
127. Just as the statistics had formed only a small part of the trial, they were only a small part of the summing-up. The main passage where the judge dealt with it introduced it on Day 2 of the summing-up, 37C to 39E. We quote it in its entirety for completeness:
"Well that, members of the jury, leads me to the conclusions of the various medical experts. I start with Sir Roy Meadow and I start with him on purpose because there was an aspect of his evidence which is not strictly speaking a conclusion but which is most conveniently dealt with at this stage. What I refer to is his statistical evidence because you may remember he dealt with statistics relating to two SIDS death occurring in one family.
His figures were derived from a recent and very thorough research study, Government funded report, call CESDI. You have, members of the jury, a table containing those statistics in section 8 of the folder. In short, in a case were nobody smokes in the household and there is at least one waged income in the household and the mother is more than 26 years old, the probability of one SIDS death in the family is 1 in 8,543 and the probability of two SIDS in the same family is 1 in 73 million live births. That means there is a chance of two SIDS in the same family happening one every hundred years. In addition to that, in these two cases, there are features which are suspicious in any event. So that was the evidence that he gave in evidence in chief about those statistics.
In cross-examination figures from a report by CONI - Care of the Next Infant programme - which was published in October 1998 were put to Sir Roy Meadow. In that report, 8 [deaths] out of [5,000] babies in their programme were treated as true cot deaths after confidential enquiries. ... It was suggested that using the three high risk factors in the table from the CESDI Study, the risk of a SIDS death would be 1 in 214 which would be a risk of a double death of 1 in 46,000, and applying that correlating it to the figure of 5,000 babies, the risk it was put at that time would be 72 in every 46,000. I think Mr Bevan in his final submissions referred to a figure of 54 rather than 72 but the point still remains the same.
Sir Roy Meadow's response to this was that that was not a valid way of assessing the evidence. The CONI report was nothing like the same standard of the CESDI report, he said, and the research was not scientifically valid. He said that it does not have any value statistically and cannot be compared to the CESDI Study."
128. The judge then gave the jury a cautionary direction as to their use of statistics:
"I should I think members of the jury just sound a note of caution about the statistics. However compelling you may find those statistics to be, we do not convict people in these courts on statistics. It would be a terrible day if that were so. If there is one SIDS death in a family it does not mean that there cannot be another one in the same family. That part of the evidence relating to statistics is nothing more than that. It is a part of the evidence for you to consider. Although it may be part of the evidence to which you attach some significance, it is of course necessary for you to have regard to the individual circumstances relating to each of these two deaths before you reach your conclusion on the two counts on this indictment.
Having said that, members of the jury, I turn then to what truly were the conclusions of the relevant experts relating to Harry. The first one is Sir Roy Meadow and his conclusion was that Harry's death could not be classified as a SIDS death and in his opinion Harry did not die a natural death. He also said that the further information that he had received since he made his witness statement in June 1998 sadly increased the strength with which he felt that these two deaths were not natural."
129. The judge said of Professor Berry's evidence (Day 2, p 73):
"He said that he would not classify either of these deaths at SIDS deaths because they have features which are not typical of SIDS deaths. Both deaths, he said, gave him considerable concern. He thought the timing of the deaths was unusual but not very unusual for a SIDS death.
So far as the statistics are concerned relating to the likelihood of there being two SIDS deaths in one family, that figure of 1 in 73 million, he thought it was wrong to multiply the two figures of 1 in 8,543 together because if there was one SIDS in the family, then there maybe other factors present in the family which might make it more likely that another death would occur."
130. The judge then, on the last day of his summing-up, summarised how both sides put their cases. Dealing first with how the Crown put their case, he reminded the jury that the main issue was whether the defendant had done it. Neither death could be considered a SIDS death because of the existence of the recent and old injuries that were found in each case. The defendant and her husband had not been truthful, she had lied as to Harry's position in the bouncy chair, he had lied as to the time he got back from the office on the night of Harry's death, lying out of blind loyalty to her. She was getting tired, he was late, and going to Glasgow the next day. He then set out (as we have heard) the important findings of Dr Williams which had been confirmed, the seven findings, showing that Harry must have been the subject of shaking or some violent movement. As to Christopher, his nosebleed was consistent with prior attempted smothering (haemosiderosis was a non-starter) and his torn frenulum diagnostic of deliberately inflicted injuries indicating abuse shortly before death, consistent with smothering. Then there were the bruises, and the fresh bleeding in the lungs, the significance of which Dr Keeling had dealt with.
131. He then concluded his summary of the Crown case with this passage:
"It was therefore submitted by the prosecution all of those finding on their own were ... too powerful to amount to anything else but a deliberate killing of Christopher. All Professor Meadow's features for an unnatural death rather than a SIDS death were applicable in the case of these two babies, it was submitted by the prosecution, namely previous unusual episodes, inconsistent accounts between parents, both events had happened in the evening, both babies had just taken a feed, and there was, say the prosecution, smothering combined with some other form of abuse. Professor Meadow's opinion you were reminded was that neither death was natural.
Reliance was also placed by the prosecution on the statistics mentioned by Professor Meadow for the probability of two SIDS deaths within the family, namely one in 73 million and even longer odds, it was said, if you take into account the existence of the old and fresh injuries, and reliance was also placed on the seven similarities between the two deaths which I mentioned to you early in my summing up, and which the prosecution suggest make it beyond coincidence that these two deaths were natural deaths."
132. He then summarised the defence case over five pages, culminating with a matching passage in relation to the statistics:
"So far as the statistics are concerned relating to the possibility of 2 SIDS deaths in one family, reliance was placed on the CONI figures, those were the figures which Professor Meadow had dismissed in his evidence, and reliance was also placed on Professor Berry's point that the risks were inherently greater in any event in a family which had already had a SIDS death.
You were told, quite correctly, that what you must not do is to conclude that if the defendant killed one baby she must have killed the other. That would be quite wrong. It was suggested that the only safe approach was to look at the death of each child independently and only if you reach the conclusion that the defendant killed one child should you ask yourselves whether that helps you in relation to the other child.
It was submitted that you cannot say with any degree of certainty that the defendant deliberately killed either of these children. She had done nothing untoward to either child and whilst there may be suspicious features, the prosecution have not proved this case so that you can be sure that she had killed either of them. Well, members of the jury, that is I hope a reasonably fair summary of the way in which both sides put their cases to you."
133. The appeal
It was against that evidential background that the Full Court gave leave to the defence to adduce expert statistical evidence. It made clear that it did so having "... no preconceived view of the likelihood of the evidence being accepted ..." and granted leave: "without prejudice to any matter which the subsequent Court may decide."
134. It was clearly both sensible and expedient for the Full Court to deal with those questions as they did.
135. The evidence adduced by the appellant consists of reports by Dr Evett, a chartered statistician and member of the Forensic Science Service who specialises in the application of probability theory and statistics to the interpretation of scientific evidence; and by Professor Dawid, Professor of Statistics at the Department of Statistical Science, University College, London. No additional evidence has been put in by the Crown.
136. Because of pressure of time and the limited utility of what would have been necessarily argumentative cross-examination of the statisticians, we took the defence new evidence (from Doctor Evett and Professor Dawid) as read, and with the agreement of the parties tested that evidence by the submissions made on each side, and did not require the statisticians to give evidence.
137. Mr Bevan submits that there were serious errors of approach towards the statistical material at trial, both in evidence and in the Crown submissions and in the judge's summing-up. He contends that the errors were highly significant since the statistics - in particular, the figures of 1:73 million or once in 100 years - had a "devastating" impact on the jury. Mr Bevan accepts that he did not complain at the time. He did not object to the opening of the evidence or to the admission of the evidence or to the passages in counsel's speeches or the judge's summing-up of which complaint is now made. His eyes were opened by the evidence received after trial from the experts now called on behalf of the appellant. But on such an issue, he submits, the appellant should not be prejudiced by counsel's failings at trial.
138. As to Ground 3(a), Professor Dawid's first criticism relates to the calculation of the figure of 1 in 73 million. He concedes that the CESDI Study appeared to have been carefully planned and executed. But he says the report did not contain sufficient detail or transparency and he concludes:
"Whereas such methods may be appropriate for suggesting broad general hypotheses about the relationship between the outcome studied (here SIDS) and possible explanatory factors, it can be very misleading to use them to construct precise numerical formulae for predictive or explanatory purposes."
He also raises the question of the appropriateness of the calculation to the specific case of Sally Clark, and whether it should not have had built in all her individual characteristics. None of those matters, however, provides great assistance to the appellant's case, since the Crown was using the CESDI Study not for its precise figures but for a very broad point, namely the rarity of a double SIDS.
139. Professor Dawid goes on to question the appropriateness of squaring 1 in 8,543 in order to produce the figure of 1 in 73 million. He notes the fact that the relevant table:
"... does not take account of possible familial incidence of factors" [see paragraph 122 and the penultimate quoted sub-paragraph]
and emphasises the possibility that there might be factors predisposing a family with one cot death to another. He suggests, not unreasonably, that the 1:73 million must be regarded as a "ball park" estimate. We do not imagine that the Crown would demur from that suggestion. In any event it is common ground, we believe, that the statistical justification for squaring exists only where the risk of a single SIDS death in a family that has already had a SIDS death is the same as the chance of a single SIDS death in a family that has not previously suffered one. The existence of arguments against squaring was known to the jury at the trial. Professor Berry made the points to which we have already referred, and the judge reminded the jury about these in his summing-up. But again the precise figures are not important, since the Crown was making the broad point that repeat SIDS deaths were very unusual, in which exercise the number of noughts separating the lower risk households from higher risk households did not matter once the overall point was made, as here it was.
140. Similar points apply to the brief observations made by Dr Evett on the method of calculation of 1 in 73 million. Dr Evett makes two points on this. He accepts the statistical validity of the assumption justifying the squaring, but states that the Study does not show the supporting evidence for that assumption, and "In the absence of such evidence the calculation is invalid". He also complains that the appellant's alcoholism and depression were not taken into account. That point was presumably taken in ignorance of the fact that the defence had successfully applied for the evidence of Mrs Clark's alcoholism not to be taken into account, as there was no evidence that she was under the influence at the time of the children's deaths. No specific submissions were made to us on the question of depression.
141. He also makes the obvious point that the evidential material in Table 3.58 tells us nothing whatsoever as to the guilt or innocence of the appellant.
142. Thus we do not think that the matters raised under Ground 3(a) are capable of affecting the safety of the convictions. They do not undermine what was put before the jury or cast a fundamentally different light on it. Even if they had been raised at trial, the most that could be expected to have resulted would be a direction to the jury that the issue was the broad one of rarity, to which the precise degree of probability was unnecessary.
143. As to Ground 3(b), objection is taken to the alleged reliance by Professor Meadow on the statistical evidence in expressing his view that the deaths were unnatural (see the transcript of his evidence at paragraph 137 hereof). No objection is taken to his reaching that conclusion on the medical and circumstantial evidence. But in R v. Doheny and Adams [1997] Cr App R 369 a number of observations were made about the role of the expert in cases involving DNA evidence, stressing the limits of the evidence that the forensic scientist can properly give (which will include evidence about the number of people with matching characteristics who are likely to be found in the United Kingdom or in a more limited relevant sub-group). The court stated (at 374G):
"The scientist should not be asked his opinion on the likelihood that it was the defendant who left the crime stain, nor when giving evidence should he use terminology which may lead the jury to believe that he is expressing such an opinion."
144. It is unnecessary to examine in greater detail the history of the common law rule that expert witnesses should not give opinion evidence on the "ultimate issue" which the court has to decide. Suffice it to say that in our judgment Professor Meadow did not overstep the line between the expert's role and the task of the jury when he gave it as his opinion that Christopher and Harry did not die natural deaths. Mr Bevan's submission proceeds on the basis that Professor Meadow's opinion was founded both on the medical and circumstantial evidence and on the statistical evidence, and that it was in founding himself on the statistical evidence that Professor Meadow fell into error. In our judgment, however, Professor Meadow's opinion was based on his expert assessment of the medical and circumstantial evidence, not on the statistical material. Most of his examination in chief was concerned with the medical issues. He nowhere suggests that Table 3.58 (which did not deal with deaths such as these) provides any evidence that these deaths were unnatural, only that true SIDS were rare. No-one would know better than Professor Meadow that the important evidence as to whether these deaths were unnatural lay in the physical finding port-mortem, in the account of the last hours of the infants, and in the evidence and credibility of the parents - it certainly did not lie in the statistics. And it is clear from reading his evidence that his conclusion was firmly based on that medical and circumstantial evidence, as one would expect. He then dealt briefly with the statistical material towards the end of the examination in chief, before being brought back in conclusion to "these two babies" for the purpose of expressing an opinion on whether the deaths were natural or not. As we read the transcript, that involved a move away from the subject of statistics and back to the medical and circumstantial evidence relating specifically to Christopher and Harry.
145. For that reason we reject Ground 3(b). But there remains the separate question whether Professor Meadow's statistical evidence and the way in which it was dealt with at the trial involved an "... error of approach" as counsel for the appellant describes it.
146. For convenience we repeat Ground 3(c) of the Grounds of Appeal:
"The learned judge failed to warn the jury against the `prosecutor's fallacy' as referred to in R -v- Deen, The Times, 10th January 1994. To the contrary, the learned trial judge appeared to endorse the prosecutor's erroneous approach."
147. We say by way of introduction that we find the forensic history of this point curious and untidy, because the introduction and use of statistics was never canvassed with the judge at any stage. It seems to us obvious, as we have already stated, that the evidential value of the contents of Table 3.58 tells us nothing whatsoever as to the guilt or innocence of the appellant. It would simply have told all within the relevant category of the population that their risk of having unexplained infant deaths with no suspicious circumstances is very small.
148. So far as we are aware, the judge was never referred to the prosecutor's fallacy, nor was any objection taken to the admission of any evidence at trial. (For the "prosecutor's fallacy" reference can be made to R -v- Doheny & Adams [1997] 1 Cr App R 369, at 372-373.)
149. The complaint is now made as to the admission as evidence of Table 3.58 and its contents in relation to the chances of any family (sharing the broad characteristics of the Clarks) having a first and then a second unexplained infant death with no suspicious circumstances being very rare: 1 in 8,543 for the first, and 1 in 73 million for the second. The rarity of such events was not seriously disputed at trial, though there was evidence, fairly summed-up to the jury, that the table overstated the rarity of a second SIDS death in one family.
150. That evidence was clearly relevant and admissible for the reasons set out above.
151. The complaint is now made that the prosecution reversed the evidence in Table 3.58 eventually using it to suggest that
"... the odds of the defendant being innocent are greater than 73 million to 1 against."
That would be quite impermissible, because Table 3.58 simply deals with the odds against any family with the same broad socio-economic characteristics suffering one or two SIDS deaths, and tells us nothing at all about any matter going to the guilt or innocence of any of the parents within that category should they be the unlucky family to suffer that death.
152. The defence complain (the source of the quotations is the defence skeleton argument):
a) that the judge did not direct the jury "... to reject the Crown's erroneous reasoning" - but they did not draw the judge's attention to that reasoning and its errors;
b) that the new evidence of the statisticians "... demonstrates that the prosecution invited the jury to adopt the figure of 73 million as having a significance in itself, without reference to the competing possibility ["...the incidence of double infant murder by a mother"] ... the figure has no significance or relevance. Consequently the jury were led to believe that this evidence demonstrated that the chances of the appellant being innocent was at least 73 million to 1 against."
153. So far as the first point goes, the Crown unsurprisingly deny that they ever put the case on statistics that way. It would surprise us if they had, because the point is thoroughly bad. It would also surprise us if the defence had not noticed so dramatic a change of position. If they had noticed, they would certainly have complained. If they had complained, the judge would have ruled in their favour.
154. In other words, 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 saying "If in a family there have been two infant deaths, then the chance that they were both unexplained deaths with no suspicious circumstances is 1 in 73 million". You do not need the label "the prosecutor's fallacy" for that to be clear. It is clear that the second statement does not follow from the first, nor does it tell you anything about the children or their parents other than there were no smokers in the household, there was one waged income, and the mother was 27 or over - all being factors which put the Clarks in the lowest of all risk categories.
155. It is suggested by Dr Evett that the fact that the second statement does not follow from the first needs to be carefully explained to the jury. As a generalisation, we agree, but it all depends on just what was said. He also suggests that Professor Meadow contributed to the danger of misinterpretation. We do not agree that he did. Dr Evett quotes Professor Meadow's evidence under cross examination at 65A and 65D (see the passage quoted in paragraph 139 above):
"... you take what's happened to all the children into account, and that is why you end up saying the chance of two children dying naturally in the circumstances is very, very long odds indeed, one in 73 million" (emphasis added)
and again at 65D of the Professor's evidence in cross-examination:
"You have to say two unlikely things have happened, and together it is very, very, very unlikely."
At 65A Dr Evett suggests that "... in these circumstances ..." refers to the odds against Christopher and Harry having died naturally. It is clear from the context that that is not what Professor Meadows was saying. He was dealing with the CESDI Study, and "... in these circumstances" clearly referred to the category of family the Clarks fell into. Equally, in the second passage relied on, Professor Meadow is clearly referring to the CESDI Study, which shows that for a family liked the Clarks a double SIDS death would be "... very, very, very unlikely". If Mr Bevan QC, for the defence, had understood him to be saying that the odds against both of these deaths being a SIDS death were 73 million to 1 that is a point which would certainly have been brought out in cross-examination and not left where it was, with the remark "Lies, damned lies and statistics". We will come back to this point.
156. Dr Evett rightly identifies the Crown's point that so long as the probability of two children dying of SIDS is very small, its exact size is of little relevance. But he inferred that:
"The `logic' implicitly applied at the trial was as follows: a certain event (the deaths of two babies in one family) has occurred. We are unsure of the cause. One possible cause is that both babies died of SIDS. However, the probability of two babies in the same family both dying of SIDS is extremely tiny. Therefore we can exclude that possibility and, in consequence, accept that the babies were murdered - if that is the only alternative."
We do not find support for such "implicit" application of that logic in the evidence. That was not how the case was put in the evidence. The transcript supports the explanation given by the Crown: to establish rarity when there was an issue as to whether the deaths were natural and true SIDS in one family.
157. Dr Evett's alternative source for his theory is an item in The Times, published after the conviction, (which we have not seen) stating:
"... the prosecution said that it was beyond coincidence that both children could have died naturally. The probability was one in 73 million".
If the reporter who heard that did, as Dr Evett thinks, understand that to mean that there was only one chance in 73 million that the children died naturally, we agree with Dr Evett that that would be a profoundly incorrect inference. But we do not know what the reporter heard, nor what he understood. The Crown say they did not put their case that way. Certainly if the Crown did say that in the course of the trial, we would have expected an immediate challenge from the defence, and a ruling from the judge favourable to the defence. But that did not happen. We conclude that at no time in the evidence was the case put that the odds against innocence were 73 million to 1.
158. There is clearly firmer ground in the passage in the judge's summing-up and this is what the appellant relies on (see the skeleton argument, page 27). There the judge summarises his understanding of the Crown case:
"Reliance was also placed by the prosecution on the statistics mentioned by Professor Meadow for the probability of two SIDS deaths within the family, namely one in 73 million and even longer odds, it was said, if you take into account the existence of the old and fresh injuries, and reliance was also placed on the seven similarities between the two deaths which I mentioned to you early in my summing up, and which the prosecution suggest make it beyond coincidence that these two deaths were natural deaths." [for the avoidance of doubt, these "similarities" do not include the seventh similarity referred to at paragraphs 113-114 above]
159. As is generally the case in the Crown Court, no record has been made of counsels' closing speeches, and it would seem that the judge was here referring to Crown counsel's speech. Mr Bevan complains that in that passage the Crown suggests that "... the odds of the defendant being innocent are greater than 73 million to 1" and then goes on to analyse the impact of the judge's warning as to the statistics on that passage. We will take those points in turn.
160. The appellant's case is developed as per their skeleton:
"The fresh evidence of Dr Evett and Professor Dawid demonstrates that the prosecution invited the jury to adopt the figure of 73 million as having a significance in itself when in truth, without reference to the likelihood of a competing possibility, the figure has no relevance or significance at all".
The competing possibility identified is a double infant murder by a mother. That may be capable of being expressed in terms of a statistical probability, but legally speaking the exercise is not realistic - see R -v- Denis Adams (No 2) [1998] 1 Cr App R 377, which shows that it is not an exercise the courts would perform.
161. The history of the matter, set out at length at the beginning of this section, shows why the rarity of SIDS deaths, in particular double deaths in the same family, was - or was properly thought to be - relevant and that Table 3.58 was legitimately introduced in that connection. We have made it clear that these two deaths were not SIDS because of the unexplained, or insufficiently explained, previous injuries to the children. We have made the point that the evidential value of Table 3.58 to that Study only gives a general indication of the rarity of a double SIDS. That general indication cannot be increased by the facts of a particular case, because Table 3.58 addresses the chance of any family being so afflicted and does not help us as to the likelihood that a specific parent or parents abused their child, because it tells you nothing relevant to the question of guilt or innocence. That is a different question the answer to which cannot affect the general Table 3.58 question: namely what is the risk of a two child family suffering a double SIDS?
162. Therefore we accept that when one is looking ex post at whether two deaths were natural or unnatural, the 1:73 million figure is no help. It is merely a distraction. All that matters for the jury is that when your child is born, you are at a very low risk of a true SIDS death, and at even lower risk with the second child.
163. Professor Meadow did not misuse the figure in his evidence, though he did not help to explain their limited significance.
164. We return to the sentence of the summing-up referred to in paragraph 175. In our judgment, counsel for the Crown should not have said that the existing injuries led to "... even longer odds ..." than the 73 million to one. The existing injuries to the infants went to guilt, the odds went to rarity, and it was a mistake to add them together. Mr Spencer QC explained this on the basis of an "advocate's flourish", which does not impress us, but we are not persuaded that counsel for the appellant or the judge then understood the Crown to have submitted to the jury that the odds against the appellant being innocent were (because of the statistics in Table 3.58) 73 million to one against. That 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 1 in 73 million figure would have gone as an unnecessary distraction. That there was no such application suggests the lack of impact of "... 1 in 73 million and even longer odds ..." on the third day of the summing-up of this long trial. But we must and do assume that counsel said what the judge reported him as having said. Might the jury have focused on that to the exclusion of the real and compelling evidence in this case?
165. We come then to the adequacy of the warning as to the use of statistics which the judge gave when first introducing them before his summary of Professor Meadow's evidence. For convenience we repeat that warning:
"I should I think members of the jury just sound a note of caution about the statistics. However compelling you may find those statistics to be, we do not convict people in these courts on statistics. It would be a terrible day if that were so. If there is one SIDS death in a family it does not mean that there cannot be another one in the same family. That part of the evidence relating to statistics is nothing more than that. It is a part of the evidence for you to consider. Although it may be part of the evidence to which you attach some significance, it is of course necessary for you to have regard to the individual circumstances relating to each of these two deaths before you reach your conclusion on the two counts on this indictment.
Having said that, members of the jury, I turn then to what truly were the conclusions of the relevant experts relating to Harry. The first one is Sir Roy Meadow and his conclusion was that Harry's death could not be classified as a SIDS death and in his opinion Harry did not die a natural death. He also said that the further information that he had received since he made his witness statement in June 1998 sadly increased the strength with which he felt that these two deaths were not natural."
166. We have made clear what the judge should have told the jury: that it was the prosecution's case that to have one unexplained infant's death with no suspicious circumstances in the family was rare, and for there to be two such in the same family would be rarer still. That was the only relevance of Table 3.58, and the statistics were capable of showing that, but nothing more. They could not help as to whether the defendant was guilty or not guilty. Against this, we examine the caution that the judge gave the jury, found in the summing-up at Day 2, page 39. He was sounding "... a note of caution ...". However compelling the jury found the statistics "... we do not convict people on the statistics". That was a clear warning. He was not saying he found the statistics "compelling". He gave a limited purpose to them: "If there is one SIDS death in a family, it does not mean there cannot be another one". His passage was introduced as sounding a note of "caution" about the statistics. He conceded that they could attach "some significance" to them, but did not say what. But he led them back to the necessity of "... having regard to the individual circumstances of these deaths". He followed the cautionary passage with what "truly" were the conclusions of the experts relating to the deaths, with no mention of statistics. And that reflected the reality and focus of the trial. And it was that evidence that the trial had concentrated on. The difficulty we feel here is that by the time of the speeches, rarity was largely accepted, so the measure of rarity, the CESDI Study, was not important. The 73 million figure should have been cleared away as a distraction. Instead the judge considered that the statistics could be considered. Might the jury have been misled into attributing to those statistics a significance they did not have, i.e. as lengthening the odds against the deaths being natural?
167. The argument that the jury might have been so misled relies entirely on the wording of the passage. That has to be read in context. The context is a substantial trial properly concentrating on the medical issues and the circumstantial evidence, including the parents' evidence and their credibility. The contrary argument seeks to put the passage into context. The trial was not about statistics. The summing-up was detailed (170 pages approximately), careful and fair. Only two or three pages, in scattered passages, dealt with statistics. And there is the difficulty that the point identified in the grounds of appeal seems not to have been noticed in the trial. Had it been, it is difficult to see how it escaped judicial attention.
168. Despite those objections, we conclude that there is some substance to the criticism that the judge appeared to endorse the prosecution's erroneous approach in this particular. The ultimate question for us is whether the error of approach rendered the conviction unsafe. That is something best considered after examining the remaining grounds of appeal, when we can look at the case in the round.
Ground 4: fresh medical evidence
169. The fourth ground of appeal is based on the fresh medical evidence adduced pursuant to leave granted by the Full Court. For that purpose we received a number of expert reports and heard examination and cross-examination over a period of some days. The issues relate to the medical evidence given at trial as to the existence of haemorrhages at the back of Harry's eyes.
The position at trial
170. Before the trial began the Crown were relying on eight medical findings by Dr Williams at post-mortem examination of Harry: 1) hypoxic damage to the brain at least two hours before death; 2) small haemorrhages on the brain; 3) two petechial haemorrhages on the eyelid; 4) haemorrhages to the back of the eyes; 5) old fracture to the second right rib; 6) dislocation of the first rib; 7) spinal bleeding with a swollen cord; 8) intra retinal haemorrhages.
171. Shortly before the trial began, Professor Green and Professor Luthert met to discuss their findings, as a result of which they agreed that the intra retinal bleeding was of post mortem origin and must be completely discounted. The significance of that agreement was that it excluded death by shaking, in that intra retinal haemorrhages are a very strong feature of shaken babies. The prosecution thereafter presented their case on the basis that Harry had been subjected to a violent trauma to the spine, the mechanism of which was not clear, and had then been the victim of suffocation which caused his death. The prosecution also relied on earlier abuse as evidenced by the injuries to the ribs.
172. At trial Dr Williams, the paediatric pathologist who performed the post mortem, gave evidence that when he opened up the orbits, on the upper surface of the right eye there was an area of haemorrhage about 7mm across and on the outer aspect of the left eye there was a small area of haemorrhaging about 2mm across. He described the position of the haemorrhages as behind the eyelids, on the covering of the eye within the scalp and not visible by someone looking at the face. When asked by counsel for the Crown whether he had seen that before he replied:
"I've seen it since. Its not described in any of the books as yet. I mean, the only time I've seen it is in acute cases of overlaying and smothering where there has been an asphyxial mechanism but I can't say that its invariably present".
173. He was asked about the cause of death and whether asphyxia/ smothering was something which he could or could not exclude, to which his answer was:
"apart from the petechiae in the eyes, there is no other evidence of smothering".
174. Dr Williams acknowledged that he did not know the significance of the haemorrhages and how they occurred, but a blood vessel in the eye had leaked for certain although he did not know the cause. Dr Williams did not agree with the proposition that the haemorrhages were artefactual resulting from the post mortem. He was not asked any questions by the defence in cross examination in respect of other similar cases to which he had referred, but in re-examination counsel for the Crown asked Dr Williams:
"Q You expressed an opinion when I asked you questions yesterday based upon recent experiences you said.
A I've seen these haemorrhages again more recently in some cases where there's undoubtedly been smothering or overlaying, but I mean they are not always present and they are not invariable, they are just an observation one has made on a couple of occasions.
Q This is in children of what age?
A Similar sorts of ages to these, but whether they are just there by chance, because it's well recognised that in asphyxia mechanisms of death, whatever the cause, that you get quite large haemorrhages at the front of the eyes, but in addition you not only get the petechial, small pin point haemorrhages but in the whites of the eye you see quite large haemorrhages on occasions. Now in discussing it, or thinking about it with colleagues one wonders whether its just a reflection, what one sees in the front of the eye occurring in the back of the eye, but its not been reported.
Q But in the cases you are describing have you seen it on the back of the eyes or the front of the eyes?
A In these cases it's again been on the back of the eye, but can I just say that it's not a normal practice in strangulations in older people, even older children, one does not routinely examine the backs of the eyes, one does not take the roof of the orbit off, and as a result it may be that we have not been looking rather than it's not there."
175. Dr Williams was not asked by either side to produce records of any other case histories and his final position on this topic was that he could not exclude smothering, or asphyxia. He agreed that he could not exclude the possibility that some leakage from one of the small veins in the fatty tissue surrounding the eye might have caused one or both of the haemorrhages.
176. Professor Green gave evidence that he had discussed the haemorrhages with Professor Luthert and neither of them had seen such haemorrhages in eyes removed post mortem. Professor Luthert had suggested to him that the leakage from a small vein was a possibility during removal of the eyes and when asked to explain how this might arise he replied:
"... because as you are removing the eyes from the orbit, you have to cut through the various muscles that make them move from side to side and up and down. You also have to cut through the optic nerve and you will cut through the optic nerve and you will cut through the blood vessels which are supplying the eye, and the tissues around them. And veins, even though after death there is no pressure in them, can ooze a little blood."
177. Professor Green then stated that the 7mm haemorrhage was on the surface of the eye itself and the photographs did not show bleeding in the adjacent fat. When asked what this signified he replied:
"I can only speculate, and as I say I have never seen anything like this in my personal experience: had a vein of any size been cut I would have thought that there would have been more diffuse bleeding in the fat covering the eye as well as on the surface of the eye itself."
178. He then deferred to the greater experience of Professor Luthert in removing eyes.
179. Professor Green was asked whether upon removal of the eyes, blood dripping down from a cut vein on to the globe of the eye could have accounted for haemorrhage. His reply was:
"The blood was between the membrane covering the hard white globe of the eye". If this had been blood just dribbling from a cut vein onto the globe of the eye, I would have expected it to be not so clearly defined and localised on the police photograph and I would have expected it to have washed away it was merely on the surface before the section of the eye was cut, because as I said in one section which I examined with Professor Luthert you can actually see this little blister full of red blood cells underneath the membrane covering the eyeball. So in short, I can't exclude the leakage from the vein theory, but these are the reasons why I am unhappy about it."
180. The witness went on to state that he had occasionally seen bleeding of that sort and in that area in living patients but had never seen it in post mortem specimens and although he had not made a detailed search, he had not found it in the standard text books on ophthalmic pathology.
181. Professor Luthert, a consultant ophthamologist and neuropathologist, in evidence stated that he had never before seen haemorrhages on the posterior aspect of eyes at post mortem, and it was speculation as to how they were caused. He disagreed with Professor Green that if the blood had dripped onto the eyes from a cut vein, it would have washed away because in his experience material within the episclera did not necessarily wash out when it was applied from outside post mortem since the material above the eyes was absorbent. He was of the opinion that the haemorrhage was an artefact but could only speculate how it was caused. He was asked by counsel for the Crown as follows:
"Q So can we take it Professor that you are not excluding the possibility that suffocation could cause haemorrhage of the eyes similar to that scan at the back of Harry's eyes?
A No I cannot totally exclude that no.
Q Well why do you say totally?
A Because in my opinion it is unlikely but I can not exclude it".
182. Professor Luthert was further questioned:
"Q I suggest Professor that the haemorrhages to the back of Harry's eyes are consistent with his having suffered death by asphyxia?
A I think they are consistent with that because I believe they might be there anyway".
183. In re-examination he was asked:
Q Professor is there any medical knowledge or learning associating these sort of haemorrhages that we have found on the surface of the back of the eye with suffocation or strangulation?
A Not that I have any knowledge of no".
184. Dr Keeling, who is a consultant paediatric pathologist, deferred to the expertise of the ophthalmic consultants. She gave evidence that she had not encountered haemorrhages on the back of an eye, could not think of any explanation to account for their presence but did not consider that blood could have dripped onto the surface of the eye, because the blood was not on the surface but was lying between two layers of the structure of the eyeball.
185. At the conclusion of all the evidence at the trial, the evidential position in respect of the haemorrhages at the back of Harry's eyes was as follows:
a) Only Dr Williams, who is not an expert on eyes supported the proposition that the haemorrhages were real as opposed to artefactual. The opthalmic experts considered that the haemorrhages had been caused at post mortem either by blood dripping onto the surface of the eyes, or by nicking the vortex vein.
b) Although Dr Williams stated in evidence that he had seen such haemorrhages as Harry displayed "in acute cases of overlaying and smothering where there has been an asphyxial mechanism" he did not rely on that as a finding which proved smothering in Harry's case. His position was that apart from the petechiae in the eyes there was no other evidence of smothering.
c) Professor Luthert accepted that he could not totally exclude the possibility that the haemorrhages were consistent with death by asphyxia, and he stated that "they are consistent with that because I believe they might be there anyway".
d) Neither Professor Luthert nor Professor Green had ever seen or heard of, or read in literature of such haemorrhages at a post mortem, although they had observed them in living patients.
e) The evidence in respect of these haemorrhages was peripheral to the main issues in the case, and had occupied little time of the court when compared with principal medical issues.
186. In his summing up, which was spread over three days, the judge reminded the jury of the evidence given in relation to the haemorrhages. In respect of Dr Williams he said this:
"Secondly, so far as the eyes are concerned, on internal examination, Doctor Williams found an area of haemorrhage about 7 millimetres across on the upper surface of the right eye and also a small area of haemorrhage on the upper surface of the right eye. Indeed, he said he saw it immediately the eyes were exposed. Doctor Williams said that he had only seen such features in cases of death caused by over-laying or smothering."
187. It is to be noted that the judge dealt with Dr Williams's experience of haemorrhages at the back of eyes in the single sentence at the end of that passage, and without further comment.
188. He later reminded the jury of the evidence given by the defence experts:
"Next Professor Luthert dealt with the blood that had been found on the surface of the backs of both Harry's eyes. He and Professor Green agreed that it was not a classic sign of shaking and that it was not a finding associated with any particular disease. Professor Luthert speculated that the blood might have dropped down on to the eyes during dissection. He said that the blood appeared to be beneath the access points for dissection to both of the eyes.
That was challenged in cross-examination but he said that the de-roofing of the orbit was quite extensive so there did not have to be a precise alignment. He described it in cross-examination as total speculation that the blood had dropped down in that way but he said it was a workable hypothesis in the absence of any other explanation. He also agreed that he could not exclude the possibility that it resulted from suffocation. He considered, however, that it was most likely that the blood had accumulated post mortem and was not indicative of any pathology before death. He said that he saw no significant pathology in Harry's eyes.
It was suggested to Professor Luthert that if the blood at the back of the eyes had dropped down during dissection it would be a common occurrence but Professor Luthert said that pathologists do not necessarily focus in on every aspect of what they are looking for and that routinely they factor out the presence of blood. By that he meant that they would tend to assume that haemorrhaging is due to blood loss at the time of post mortem, unless it is something out of the ordinary. He agreed, however, that pathologists would be on the look out for this kind of blood during a general examination of the eyes."
189. At the end of his summing up he gave the jury a brief reminder of the way both sides put their cases in counsel's final speeches. In relation to Harry the prosecution pointed out that, although some of Dr Williams's findings were not confirmed, there were a large number of important findings of his which were confirmed. The first three items listed were: (1) the hypoxic damage to the brain due to lack of oxygen; (2) the small brain haemorrhages; and (3) the petechial haemorrhages on the eyelid, which had been confirmed by other experts' medical evidence. The fourth was the haemorrhages to the back of the eyes:
"Fourthly, the haemorrhages to the backs of the eyes which Professor Luthert thought were artefactual but which he said could possibly be consistent with asphyxia. You were reminded that Dr Spillman who had been at the post mortem had immediately noticed the 7mm area of haemorrhage."
190. The remaining items were: (5) the fracture of the second rib; (6) the dislocation of the first rib; and (7) the spinal bleeding and swollen cord. The injuries to the ribs were confirmed by other medical experts, and the injury to the cord depended upon Dr Williams's own observation, but if accurately observed was agreed by all experts to be highly significant and must have resulted from trauma.
191. Turning to the defence case, the judge reminded the jury of the various matters relied on as casting doubt on Dr Williams's reliability. In relation to the haemorrhages at the back of the eyes, the defence case was as follows:
"[Professor Green] was also wrong, it was submitted, in saying that if the blood on the backs of the eyes had been artefactual, it would have been washed away because Professor Luthert had shown that the material above the eyes was absorbent."
192. It is apparent therefore that in a summing up which covered over 170 pages of transcript, the references to the haemorrhages at the back of the eyes played a minor role.
The issues now raised
193. After the appellant had been convicted, the solicitors acting for her entered into correspondence, initially with Dr Williams and then with the CPS, requesting disclosure of the case records which Dr Williams had referred to in evidence. The release of post mortem reports and supporting documents and materials required the consent of the coroners concerned.
194. On March 30th 2000 the CPS wrote to the solicitors for the appellant in the following terms:
"With reference to your letter of 14th March 2000 detailing specific requests of Dr Alan Williams he has responded as follows:
Dr Williams confirms that he has identified one baby death which has recorded haemorrhages in the orbit and on the surface of the back of the eye, and also an adult case with the same findings seen recently. He has not extended his search further. If required he can produce these reports with the permission of the appropriate coroner."
195. Subsequently Dr Williams found a third case.
196. These three post mortems formed the basis of the application to the Full Court for leave to adduce further evidence in the current appeal on the ground that the fresh material "... has a serious impact upon one aspect of Dr Williams' evidence and moreover will inevitably have affected the jury's assessment of Dr Williams' reliability".
197. The three post mortems have been identified as Baby Callum, Baby M and Female X. The post mortem reports and supporting material have been examined, and have been subject to evidence by, Professor Levin and Doctor Parsons, who did not give evidence at the trial, and Professor Luthert and Dr Keeling, who did give evidence at the trial. The area of medical expertise of these four witnesses is:

* Dr Levin is Associate Professor of Ophthalmology at the University of Toronto, Canada, and Fellow of the American Board of Paediatrics. He is one of 10 in the world with a dual expertise in ophthalmology and paediatrics.
* Dr Parsons is Honorary Consultant in Ophthalmic Pathology at the Royal Hallamshire Hospital Sheffield, Senior Lecturer in Ophthalmic Pathology at Sheffield University and he has a special interest in child abuse. He is one of six opthalmic pathologists in the UK.
* Professor Luthert is Professor of Pathology at London University and Honorary Consultant Neuropathologist to Moorfields Eye Hospital.
* Dr Keeling is Consultant Paediatric Pathologist at the Royal Hospital for Sick Children, Edinburgh.

198. Baby Callum was discovered dead in a dustbin liner. He has never been identified and is the subject of continuing police investigation. He died at birth in March 1998. Dr Williams identified in the post mortem report: 1) blood-stained fluid in the left eye; 2) large blotchy haemorrhage in the lateral part of the white of the globe of the left eye; 3) blotchy haemorrhages in the white of the globe of the right eye; 4) no petechial haemorrhages in the eyelids. The infant showed acute asphyxia due to impaction of foreign material in the larynx and mouth, bruising of the neck consistent with attempts at strangulation and numerous bruises not consistent with normal labour. Cause of death was given as asphyxia but the mechanism was not identified.
199. Baby M died at 7 weeks of age in March 1998 but was not the subject of any police investigation; in consequence no photographs were taken. There were no petechial haemorrhages in the anterior parts of the eyes or eyelids. Dr Williams found: 1) petechial haemorrhages on the periosteal surface of the scalp, 2) removal of the eyes showed petechial haemorrhages on the globe of the left eye. Cause of death was given as asphyxia without physical evidence of a cause, and there were macroscopic and microscopic changes associated with asphyxia. The conclusion was reached by Dr Williams that the infant died from an asphyxial mechanism which may have been due to having been in bed with his parents.
200. Female X did not die until after the trial and therefore did not feature as one of the comparable cases referred to in Dr Williams's evidence. The deceased died of strangulation on February 5th 2000. Dr Williams found: 1) large blotchy haemorrhages into the corners and lids of both eyes with petechial haemorrhages into the eyelids and white sclera; 2) dissection of the eyes showed large intra orbital haematoma with haemorrhage into the scleral surface of both eyes. The cause of death was given as strangulation by ligature.
201. The further evidence called before this court is relevant to three issues which this court has to consider:

a) whether the haemorrhages observed at the back of Harry's eyes were peri-mortem, or were artefacts arising out of the autopsy and therefore of no evidential value;
b) whether the cases of Baby Callum and Baby M, upon which Dr Williams placed reliance in evidence, could lend support to the proposition that such haemorrhages, if real and not artefactual, may be associated with death by asphyxiation;
c) whether such evidence, had it been before the jury, might have affected their verdict so as to render that verdict unsafe.

202. We propose to examine each issue in turn.
Artefact or real haemorrhage in Harry's eyes
203. Dr Levin opined that the haemorrhages may be artefactual, because he had never come across them before either in practice or in literature, and if an autopsy is carelessly performed it can involve a prick of the blood vessel which would produce a haemorrhage in the form of leakage of blood into the episclera or tenon's layer. In giving this opinion Dr Levin assumed inaccurately that a knife had been used instead of forceps and that the eyes had been shredded for dissection instead of teased out in layers. He rejected the suggestion that the haemorrhages found by Dr Williams could have been caused by blood dripping, because the blood was below the membrane and could not have soaked through to settle between the layers.
204. Professor Luthert repeated his evidence at trial, that he considered the haemorrhages were artefactual, but he changed his position in respect of causation in that he gave his opinion before this court that the vortex vein might have been nicked with consequential oozing of blood which tracked under the semi-opaque membrane known as tenon's capsule, thereby tracking between the layers. Before this court Professor Luthert considered that causation more likely than blood dripping onto the eye.
205. Dr Parsons was 99% sure that the haemorrhages were real and not artefacts. He identified from an enlarged photograph of Harry's eyes that a forceps and not a knife had been used, and he demonstrated from that photograph the reason for his opinion that the bleeding was within the tissue plane in respect of the larger haemorrhage of 7mm. He found it harder to identify the origin of the smaller haemorrhage, but he was still of the opinion that it was a true haemorrhage. Dr Parsons gave reasons for his opinion:

a) Dr Spillman was present at the autopsy and gave evidence that he "had seen the area of haemorrhage on the upper surface of the right eye. He saw it immediately the eye was exposed". This evidence was before the jury. The significance according to Dr Parsons was that it takes time for a dead body to ooze blood if a vessel is nicked.
b) Dr Williams would have known if he had cut a vein, but he photographed what he considered to be a true haemorrhage.
c) The enlarged photograph, which was not available at trial and which was produced for Dr Parsons' own examination, enabled him to demonstrate a clear difference between the colour, edge, and wetness of the small collections of wet blood and the haematoma in the eyes. The eye haemorrhages were covered by a thin semi translucent white tissue membrane such as tenon's capsule.
d) On the macroscopic photographs of the eyes no puncture marks or cuts appear in the membranes over the eye haemorrhages.
e) The position of the eye haemorrhages in the macroscopic photographs is on the uppermost surface of the eye. If blood had dripped onto this point it would run off, by reason of gradient, and accumulate in the lowest part of the cranial cavities.
f) If blood had been on the eye surface and dried, it would have a darker appearance, such as is the case in respect of dried blood collections seen in photographs 18 and 19.
g) The irregular outline of the eye haemorrhages would be extremely difficult to create by dripping blood onto the eyes.
h) The site of the haemorrhages, particularly in the right eye, is in the area of the vortex vein and the ciliary veins which supply blood.
i) Professor Luthert's interpretation of the microscopic findings of the right and left eyes, which had undisputed episcleral haemorrhages, did not take account of the technique used by Dr Williams which involved removal of the membranes, whereas an ophthalmic pathologist would not have removed tenon's capsule. By reason of that procedure by Dr Williams, the episcleral haemorrhages appeared inaccurately to be the same outer eye surface as on the macroscopic photographs.
j) The India ink test referred to by Professor Luthert was flawed, because the tenon's capsule, which is thicker in a child than an adult, would form a barrier, and the ink has a different carbon size to blood.
k) The reference by Professor Luthert to his experience of patches of blood, as opposed to haemorrhages, on the surfaces of eyes removed after death for donation was not comparable to Harry's condition because donor eyes are removed from the front, cutting through membranes which release blood.
l) Post mortem hypostasis cannot be a factor in the production of petechial haemorrhages on the eyelid as the face was pointing upwards after death and hypostasis was posterior.

206. Dr Keeling deferred to the ophthalmic experts on this topic, but she did give her opinion that she thought it unlikely that dripping blood could account for the appearance of the eyes because she would have expected blood to run around the surface of the eye which is convex and that it would have washed off.
207. Dr Levin, Professor Luthert and Dr Parsons all agreed that, although they had never seen such haemorrhages, nor read about them, and therefore Harry was unique, nevertheless the haemorrhages, if real, were in conjunction with the other haemorrhages consistent with smothering. Dr Levin and Professor Luthert expressed their view in the words that they could not exclude a connection with asphyxia, whereas Dr Parsons concluded that Harry suffered an unnatural inflicted asphyxial mode of death by reason of the different areas of haemorrhage and the input of Professor Green and Dr Keeling.
208. Dr Levin is not a pathologist, and he was subject to criticism by the other experts for suggesting that a pathologist should move the eyes in the socket before removal and dissection.
209. If this evidence had been before the jury at the trial, they would have had to consider its significance in the light of the following matters: 1) Dr Levin does not have experience as a pathologist; 2) Professor Luthert had shifted ground in supporting his reason for the opinion that the haemorrhages were artefactual; 3) credible evidence from Dr Parsons, accompanied by careful investigation and reasoning to support the proposition that the haemorrhages were real.
210. In contrast, at trial the jury had evidence only from Dr Williams that the haemorrhages were real, and he is not an expert on eyes.
211. In the opinion of this court, the additional fresh evidence would have been likely to strengthen the contention that the haemorrhages were real.
Comparability of the three cases
212. A general point arises in respect of terminology. Dr Williams is not an ophthalmic pathologist and it is clear from the evidence that he uses the term "back of the eyes" to denote such area as cannot be seen when looking at eyes from the front. He regards anything which can be seen as anterior, and anything which cannot be seen as posterior.
213. Harry's haemorrhages were undoubtedly in the posterior region as defined by the ophthalmic experts, i.e. behind the anatomical equator or posterior pole as measured from the optic nerve.
214. The first question which arises in respect of the three cases is whether the haemorrhages relied on for comparison were in the same region of the eye.
215. Baby Callum. Dr Levin and Professor Luthert described the haemorrhages in baby Callum as anterior. However, each agreed in evidence that they were in the same plane as Harry's haemorrhages and that was an important factor. Dr Parsons identified the most posterior haemorrhage in Callum at 9 o'clock in the left eye over an episcleral vessel with intense congestion of the choroidal blood vessels. Professor Luthert identified one haemorrhage in the left eye 7mm from the limbus, but did not note the more posterior haemorrhage 8mm from the limbus, identified by Dr Parsons. Both findings indicate raised intravenous pressure and venous congestion and Professor Luthert, Dr Keeling and Dr Parsons agreed that the findings were consistent with death by asphyxiation, or following child birth by reason of compression of the chest. Dr Levin did not agree because the information in the autopsy report was imprecise, the majority of the haemorrhages were in the sub conjunctival space which were absent in Harry's case, and he considered the episcleral haemorrhages could be artefact. Further he considered the mechanism of asphyxiation to be different from Harry's case although an asphyxial manner of death was not challenged.
216. Baby M. Dr Levin was not able to draw any conclusion by reason of the imprecise information as to the existence and location of haemorrhages and the absence of photographs. What is clear from the evidence is that M was observed to have petechial haemorrhages at the back of the left eye, which were only visible when the globes were removed. However they did not show up on the slides of the sections taken. There was unchallenged evidence of an asphyxial death.
217. Baby M had petechial haemorrhages whereas Harry did not. Professor Luthert described M's haemorrhages as discrete rather than a confluence of petechiae. There was in essence no disagreement between the experts in respect of M. The evidence is imprecise. Dr Parsons stated in evidence that the case merely demonstrated that you can have haemorrhages on the back of the eye as defined by Dr Williams in association with an asphyxial mechanism. Dr Keeling agreed.
218. Female X was not a comparable used by Dr Williams because she died at a later date. It was agreed by all the experts that infants respond differently to insults than do adults, and a baby is not a small adult in that e.g. the tenon's capsule over the sclera is thicker in infancy. Some of the haemorrhages in Female X were subconjunctival, which was not a feature of Harry's case.
219. Dr Levin did not consider this a suitable case in principle as a comparison. There was disagreement in evidence between Dr Parsons and Professor Luthert in the interpretation of certain photographs. Professor Luthert could not identify in photograph 30 whether there was shadow or possibly orbital haemorrhage and he was not assisted by photographs 31, 32 and 33. However Dr Parsons in evidence identified a small round red point on photograph 32 which was resolved in photograph 33 as an isolated round haemorrhage. He concluded that there were bilateral orbital haemorrhages and that the photographs demonstrated an episcleral haemorrhage in the posterior half of the left globe in a posterior position similar to that of the haemorrhage in Harry's left eye. Both Dr Parsons and Dr Keeling considered that there was a general comparability with Harry's case, it being common ground that Female X had been strangled.
220. If the evidence of comparability of Baby Callum and Baby M with Harry had been before the jury at trial then the jury would have had to consider the significance in the light of evidence of : 1) the agreement between the medical experts that when strangulation or suffocation occurs there is an increase in the venous pressure in and around the eye, and an increase in the pressure can cause rupture of vessels; 2) each case having an asphyxial mode of death with evidence of episcleral haemorrhages in the part of the sclera which cannot be seen on examination from the front; 3) the position of the haemorrhages by evidence in Baby Callum's case and description in Baby M's case accords with Dr Williams own definition of "back of the eyes"; 4) the evidence of Dr Keeling and Dr Parsons that the cases support Dr Williams's statement in court that he has seen haemorrhages in the back of the eyes in cases involving an asphyxial death.
221. In contrast, the jury had no evidence at trial to support Dr Williams' contention.
222. Further, the case of Female X, although not strictly relevant, upon the evidence of Dr Parsons could demonstrate that Dr Williams had noted an association of posterior haemorrhages of the eye with an asphyxial death.
The effect of the fresh evidence
223. We have concluded that the fresh evidence on this issue does not have any possible effect on the safety of the convictions. The evidence relates to a discrete and marginal aspect of the case, and was in effect a very small and relatively insignificant part of a complex case which involved many major medical issues. Had the jury heard the new evidence, they might have found that the haemorrhages of Harry's eyes were real and not artefactual, and that the case histories did lend support to Dr Williams' observations of an association between asphyxia and haemorrhages behind the eyes, as defined by Dr Williams. The new evidence contains credible testimony to support both propositions and might have undermined the defence position in respect of those haemorrhages. The fresh evidence is capable of affirming rather than undermining the credibility of Dr Williams.
Ground 5: Direction on "no comment" interview
224. Mr Bevan seeks leave to raise a further ground of appeal, though one that he fairly describes as a "make-weight" point. It relates to a passage in the judge's summing up in which he referred to the appellant's interview by the police following her arrest for the murder of Christopher. The judge dealt with the relevant part of the interview in these terms:
"The officer, you may remember, put to [the appellant] the similarities between the deaths of the two babies, their age, the time of death, both in the bedroom when she was on her own and both in a bouncy chair and the fact that three medical experts were saying that both deaths were unnatural. Her solicitor advised her not to comment on that in the absence of disclosure of the reports and she accepted her solicitor's advice.
Some criticism is made by the prosecution of the defendant's failure at that time to dispute that both children were in the bouncy chair in view of her subsequent evidence that Christopher was not in a bouncy chair at the relevant time. You will obviously want to consider the whole of pages 29 to 31 of that summary that you have when you are considering that point and in particular the last question and answer on page 31 but you may think that, looking at the matter overall, she was in effect following her solicitor's advice to make no comment, which I should tell you was something she was quite entitled to do."
225. The last question and answer on page 31, to which the judge referred in particular, came after a passage in which the officer had got into confusion about the evidence of the doctors. That prompted an intervention by the appellant's solicitor, followed by the last question and answer, in these terms:
"Solicitor: Can I just say to you this highlights the difficulty of seeking to advise you in the absence of disclosure of reports, I suggest that you make no comment whatsoever about the observations that the Officer just put to you, none whatsoever.
Question: Okay, right do you have any comment to make on any of those similarities?
Answer: 'No comment'."
226. Mr Bevan submits that the judge, having correctly ruled that it was not an appropriate case for a direction as to the possibility of drawing of adverse inferences under s.34 of the Criminal Justice and Public Order Act 1994, should have gone on to direct the jury not to draw any adverse inference from the appellant's "no comment" answers. He relies on R v. McGarry [1999] 1 Cr App R 377, where it was held that when a judge had concluded that the requirements of s.4 of the 1994 Act had not been satisfied, and that therefore it was not open to him to leave the possibility of drawing adverse inferences to the jury, it was incumbent on him positively to direct them that they must not in any way hold against the accused his failure to answer questions; and that unless the jury received such a direction they would be left without any guidance as to how to regard the accused's refusal to answer, which might be seriously prejudicial.
227. We agree that, for the reasons given in McGarry, it is generally desirable, where a judge decides not to give a direction under s.34, that he should go on to give a clear direction to the jury not to draw any adverse inference from the defendant's silence. But in this case, to the extent that the judge fell short of giving such a direction, we do not consider that his approach caused any prejudice to the appellant, let alone that it was capable of undermining the safety of the conviction. The judge gave the jury a very clear indication that if they thought that the appellant was following her solicitor's advice to make no comment, no adverse inference should be drawn: that "... was something she was quite entitled to do". The passage in the interview to which he drew particular attention highlighted her solicitor's advice to make no comment. In those circumstances there was no danger of the jury, through lack of guidance, making an adverse inference which they should not have made.
228. We are reinforced in that view by the fact that the approach taken by the judge was agreed in advance with counsel. Prior to the summing up, it had been agreed that a s.34 direction was not appropriate but that it would be open to prosecution counsel to comment in his closing speech, in the same way as the point had been raised in cross-examination, on the fact that the appellant had not said anything after hearing the officer catalogue the similarities between the deaths. As a result of an observation in the defence closing speech the issue was raised again with the judge before the summing up. The judge indicated how he proposed to deal with the matter, very much along the lines of his eventual direction. Mr Bevan raised no complaint about the proposed course. Of course, the fact that an approach has been agreed in advance by experienced defence counsel does not prevent the point being raised on appeal if the approach was wrong in law; but it does tend to cast doubt on the suggestion that the approach was prejudicial to the interests of the appellant.
229. Mr Spencer drew our attention to the judgment of the European Court of Human Rights in Condron v. United Kingdom (2 May 2000). For the reasons already given, we do not consider that the approach adopted in the circumstances of the present case, with the agreement of the defence, gave rise to any unfairness or constituted a breach of the appellant's right to a fair trial under Article 6 ECHR.
230. Having dealt with the point in some detail, we give leave for it to be raised but reject it as a substantive ground of appeal.
106. Conclusions on the safety of the convictions
231. We have concluded that there is substance in only one of the grounds of appeal, namely that relating to the statistical evidence as to the rarity of SIDS deaths (ground 3, in particular 3(c)). In the light of the fresh evidence and related submissions, we have accepted that there was an error in the way in which the statistical evidence was treated at the trial. It remains for us to consider whether that error of approach rendered the convictions unsafe.
232. Section 2(1) of the Criminal Appeal Act 1968, as amended by the Criminal Appeal Act 1995, provides:
"(1) Subject to the provisions of this Act, the Court of Appeal -
shall allow an appeal against conviction if they think that the conviction is unsafe; and
shall dismiss such an appeal in any other case."
233. The approach to be adopted by the Court of Appeal in a case involving fresh evidence was considered in Stafford and Luvaglio v. DPP [1974] AC 878. Its effect was summarised by Lord Lane CJ giving the judgment of the court in R v. Callaghan (1989) 88 Cr App R 40, 47:
"Although the court may choose to test its views by asking itself what the original jury might have concluded, the question which in the end we have to decide is whether in our judgment, in all the circumstances of the case including both the verdict of the jury at trial upon the evidence they heard and the fresh evidence before this court that we have heard, the convictions were safe and satisfactory. If so the convictions must stand. If not the convictions must be quashed."
234. That approach was further endorsed in R v. Jones [1997] 1 Cr App R 86, a case decided under s.2(1) of the Criminal Appeal Act 1968 in its present form. Lord Bingham CJ, giving the judgment of the court, set out the passage we have quoted from Callaghan and went on (94C-D):
"It seems plain on the language of the statute and on authority that the court is obliged to exercise its own judgment in deciding whether, in the light of the new evidence, the conviction is unsafe."
235. In two recent decisions of this court to which our attention has been drawn, R v. McCloughlin (30 November 1999, unreported) and R v. Cairns [2000] Crim LR 473, the court expressed itself in terms of the effect that the fresh evidence might have had on the jury. But we do not understand the court to have been purporting in those cases to lay down any different test from that in Callaghan and Jones. As pointed out in Callaghan, in the passage we have quoted, the court may choose to test its views by asking itself what the original jury might have concluded.
236. In the present case, however, we are concerned not simply with the assessment of fresh evidence but with the implications of an error of approach at trial as shown by that evidence. We should therefore have regard not only to the fresh evidence cases, but also to the authorities concerning unfairness or legal error in the trial process itself. For that purpose it is sufficient to cite the statement of principle in the recent judgment of the Court in R -v- Davies & Others (17 July 2000), a case in which the Court examined the relationship between the concept of safety and unfairness or misdirection at the trial:
"The Court is concerned with the safety of the conviction. A conviction can never be safe if there is doubt about guilt. However, the converse is not true. A conviction may be unsafe even where there is no doubt about guilt but the trial process has been `vitiated by serious unfairness or significant legal misdirection'. ... Usually it will be sufficient for the court to apply the test in Stirland which, as adapted by [counsel] might read:
`Assuming the wrong decision on law or the irregularity had not occurred and the trial had been free from legal error, would the only reasonable and proper verdict have been one of guilty?'
That being so there is no tension between s.2(1)(a) of the Criminal Appeal Act, 1968 as amended, and s.3(1) of the Human Rights Act, 1998".
237. With those authorities in mind, we turn to examine the overall strength of the case against the appellant, and to consider, in the light of it, whether the error in relation to the statistical evidence at trial had any effect on the safety of the convictions.
The strength of the case at trial
238. We have considered with care the extensive evidence placed before the jury at trial, and we have concluded that there was overwhelming evidence of the guilt of the appellant on each count.
239. No expert evidence, whether called by the prosecution or by the defence, supported the contention that either death was a SIDS. Only the appellant relied on that contention, because she had no explanation nor credible account in respect of the previous injuries sustained by each baby. Young, immobile infants do not sustain injury without the carer having a credible history as to how the injury was caused. There was no such history from the appellant.
240. Medical evidence in respect of Christopher demonstrated that provided the jury accepted Dr Williams's evidence of the bruising and torn frenulum, there was an overwhelming inference that Christopher had been subjected to physical abuse shortly before death, and consistent with smothering. The findings of fresh blood and old blood in the lungs were independently consistent with smothering causing death and previous attempted smothering. The extent of the old blood in the lungs was inconsistent with a natural nosebleed because such an event would have required hospital admission for a seriously ill baby, whereas Christopher spontaneously and rapidly recovered from a nosebleed which was insufficient to stain clothing.
241. The recurrent features of infant killing originally thought to be natural death, and identified by Professor Meadow, were present: the previous unusual nosebleed unsatisfactorily explained; the time of evening when Christopher died; the fact that prior to death he had been well and had taken a feed; the inconsistent history recounted by the appellant as to whether Christopher was in a Moses basket or a bouncy chair.
242. The behaviour of the appellant at hospital when told her baby was dead impressed Dr Douglas as "... very dramatic and almost hysterical ..." and was described by her as "... such an over-reaction."
243. Medical evidence in respect of Harry identified:
a) extensive fresh bleeding around the spine; and, if Dr Williams's observations were accurate, swollen spinal cord;
b) hypoxic damage to the brain which occurred at least three hours before death;
c) haemorrhaging to the surface of the brain consistent with smothering;
d) petechial haemorrhages to the eyelid consistent with smothering;
e) unexplained haemorrhaging to the outer surface of the backs of both eyes;
f) fracture of the second rib which was some four weeks old for which there was no natural explanation;
g) dislocation of the first rib.
244. Professor Berry and Dr Rushton who gave evidence for the defence agreed that if Dr Williams's observation of a swollen spinal cord was accurate and the bleeding in the spine was from trauma, they would conclude a traumatic non-natural death and the fracture of the second rib and the petechiae in the eyelids would cause even more concern of a history of abuse.
245. All the experts agreed that in order to assess whether the spinal cord was swollen, the naked eye was best placed to identify it and the pathologist can feel the spinal cord at post-mortem. Although none of the experts could identify a precise mechanism of injury to give rise to a swollen cord, it was agreed that some form of flexion, extension or rotation injury was the most likely.
246. The consultant neuropathologists called - for the Crown Dr Smith, and for the defence Dr Whitwell - agreed that there was hypoxic damage some hours before death and if Harry died shortly before 9.37 p.m. when the 999 call was made, the hypoxic damage could have been caused from 5.30 p.m. onwards, because a least two hours had to elapse before death to account for the presentation of the nerve cells. At all relevant times the appellant was alone with Harry.
247. All the experts agreed that the haemorrhages on the surface of the brain were a non-specific indicator of smothering, but were entirely consistent with smothering and could have occurred immediately after smothering. The petechial haemorrhages in the eyelid were agreed to be consistent with smothering by Professor Berry, Dr Whitwell, Dr Rushton, Dr Williams, Professor Meadow and Dr Keeling. No other condition was found in Harry to account for the presence of the petechiae, and the experts regarded them as worrying features which, as Dr Rushton stated, raised the spectre of asphyxia.
248. In respect of the dislocation of the first rib, although there was an issue as to whether it was the result of injury before death, or whether it might have been a resuscitation injury, all the experts agreed that it would be very unusual to see a fracture dislocation of ribs from resuscitation, and particularly an isolated fracture not matched on the other side.
249. The strength of this medical evidence in respect of Harry was that, if the jury accepted Dr Williams's evidence about the spinal cord, there was an overwhelming inference that Harry had been subject to trauma shortly before death, and had hypoxic damage consistent with suffocation earlier in the evening.
250. The appellant never at any time gave a history to account for the fracture of the second rib, for which no natural explanation was available, and which occurred to a four week old, immobile baby. Such injury called for a credible account to account for it, but none was given.
251. The appellant's description of Harry slumped forward in his bouncy chair was demonstrably untrue.
252. Professor Meadow identified recurrent features in killings [initially] thought to be natural: the time of day, the fact that Harry had been well and had taken a feed; the inconsistency between the appellant's account and her husband's as to what he was doing downstairs; smothering is often combined with other abuse.
253. The untrue evidence given by Mr Clark about the time of his homecoming, which necessitated his recall at trial, was of the greatest significance in our judgment because had he arrived home at 5.30 p.m., it would have undermined the prosecution case. Mr Clark and the appellant gave evidence which initially vouched for the contention that the appellant was not alone with Harry, and did nothing to him during the evening. The fact that he had to be recalled to admit that he arrived home some 2½ hours later signified that the appellant had been alone with Harry, and that her husband could in not way vouch for her. It is further highly significant in our judgment that upon recall, he denied knowing that there was a prosecution allegation that Harry had sustained hypoxic damage earlier that evening when the appellant was alone with Harry, although he had been questioned by the police on that basis in April and July 1998, and the defence formally admitted service of the medical reports which contained this allegation. The credibility of Mr Clark had relevance not only to the circumstances of Harry's death, but also to his account of Christopher's nosebleed.
254. The reaction by the appellant to Harry's death in a conversation with the coroner's officer, Mrs Hurst, when she told the officer that she and her husband would try for another baby, struck Mrs Hurst as most unusual.
255. Taken separately there was a very strong case on each count. Take together we conclude that the evidence was overwhelming having regard to the identified similarities:
a) the babies died at the same age;
b) they were both found by the appellant and both, according to one version of the appellant, in a bouncy chair;
c) they were found dead at almost exactly the same time of evening, having been well, having taken a feed successfully, and at a time when the appellant admitted tiredness in coping;
d) on each occasion the appellant was alone with the baby when it was found lifeless;
e) on each occasion the appellant's husband was away from home, or about to go away from home;
f) in each case there was evidence of previous abuse: for Christopher an attempted smothering; for Harry an old rib fracture;
g) in each case there was evidence of deliberate injury recently inflicted: for Christopher bruising and a torn frenulum; for Harry hypoxic damage, petechial haemorrhages in the eyelid and fresh bleedings of the spine and swelling of the spinal cord;
h) the rarity of two natural deaths in one family with the first five features above present, and the extraordinary coincidence, if both deaths were natural, of finding evidence of old and recent abuse.
256. For all those reasons, we consider that there was an overwhelming case against the appellant at trial. If there had been no error in relation to statistics at the trial, we are satisfied that the jury would still have convicted on each count. 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. Had the trial been free from legal error, the only reasonable and proper verdict would have been one of guilty.
257. It follows that in our judgment the error of approach towards the statistical evidence at trial identified at paragraph 181 (Ground 3(c)) did not render the convictions unsafe.
258. The appeal against conviction on each count is therefore dismissed.


LORD JUSTICE HENRY: We are grateful to counsel for the reference to the typographical errors of the judgment which has now been corrected and adopted. But for the reasons set out in our judgment, which are available in this Court, this appeal against conviction is dismissed. Are there any applications?
MR BEVAN: My Lord, I have one application to make in relation to the legal aid certificate. Might it be backdated to 8th March 2000? There are reasons for that. On 8th March a legal aid certificate was granted. It was then discovered, in early June, that no statement of means had been forwarded and it was considered that the legal aid certificate had been granted in error. The statement of means was thereafter provided and on 16th June the certificate was provided. I simply ask your Lordships to backdate it to 8th March which was the day that leave was given to appeal in this case.
LORD JUSTICE HENRY: That sounds right. We backdate it to that. We are grateful to counsel for their considerable assistance in this case.

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