R v Sally Clark 2003 UK Court of Appeal Part One

This version of the judgment has been prepared by: Dr Robert N Moles and Bibi Sangha
Underlining where it occurs is for editorial emphasis]

List of Australian, UK and USA miscarriage of justice cases
Article on UK miscarriage of justice cases
Article on Australian miscarriage of justice cases
Article on USA miscarriage of justice cases

Court of Appeal - 11 April 2003

Before :Lord Justice Kay, Mr Justice Holland and Mrs Justice Hallett

Mr R Spencer QC and Mr M L Chambers (instructed by CPS, Cheshire) for the Crown

Miss C P Montgomery QC and Mr J H Gregory (instructed by Burton Copeland) for the Appellant

Hearing dates: 27th - 29th January 2003

Lord Justice Kay:

On 9 November 1999, Sally Clark was convicted by a majority of 10 to 2 in the Crown Court at Chester of the murder of her baby sons, Christopher and Harry.  She appealed against her convictions but her appeal was dismissed on 2 October 2000.

There were those, including Mrs Clark’s husband, who could not accept that she had killed her children and they continued to strive to demonstrate that the convictions were wrong.  In due course, records of the results of microbiological tests performed on samples of Harry’s blood, body tissue and cerebrospinal fluid gathered at post mortem were discovered.  These had not featured at all in the evidence at trial because all the lawyers involved on both sides were unaware of their existence.  They were submitted to medical experts and this submission gave rise to expert evidence that suggested that Harry may not after all have been murdered but may have died from natural causes.  This in turn cast doubt upon the jury’s finding that Christopher was murdered.

This information was submitted to the Criminal Cases Review Commission (“The CCRC”) with an application that the CCRC should refer the case back to the Court of Appeal.  The CCRC considered the matter and made such enquiries as seemed appropriate.

On 2 July 2002, the CCRC concluded:

"…that there is a real possibility that the Court of Appeal will find that the new evidence renders Mrs Clark’s convictions for the murders of Christopher and Harry unsafe."

Accordingly it referred the case back to this Court pursuant to its powers under Section 9 of the Criminal Appeal Act 1995.

On 28 and 29 January 2003 this court heard the appeal and concluded that the convictions were unsafe and must be set aside.  The Crown did not seek a re-trial and accordingly Mrs Clark was released.  In view of the public attention given to this case, we stated our reasons for our decision very briefly at the time but indicated that we would give detailed reasons at a later date.  This judgment sets out our reasons.

The grounds of appeal settled on behalf of the appellant following the referral by the CCRC, as developed before the court, made two essential points. First and principally, the failure to disclose the information contained in the microbiological reports meant that important aspects of the case which should have been before the jury were never considered at trial.  They contended that the failure to disclose the evidence and/or the existence of the new evidence rendered the resulting convictions unsafe.  Secondly, they contended that statistical information given to the jury about the likelihood of two sudden and unexpected deaths of infants from natural causes misled the jury and painted a picture which is now accepted as overstating very considerably the rarity of two such events happening in the same family.

It is necessary to summarise the case that the jury were invited to consider at trial, which remained unchanged at the time of the original appeal.

The factual background

The appellant is now 36 years old and a solicitor of previous good character.  She lived with her husband, Stephen, at Wilmslow in Cheshire, having married in 1990.  Her husband is also a solicitor. 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 pm.  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 10.40pm.  A post mortem examination was carried out by a Home Office pathologist, Dr Williams.  He gave evidence of having found bruises and abraded bruises on the body and a small split and slight bruise in the frenulum.  At the time he considered that these findings were consistent with minor harm caused during the resuscitation attempts.  He also found evidence of infection in the lungs and as a result he concluded that the cause of death was lower respiratory tract infection.  The case was treated as a case of Sudden Infant Death Syndrome (SIDS or “Cot Death”).  Following this conclusion, the body was cremated.  Photographs had however been taken and slides of samples from the lungs were preserved.

On 29 November 1997, the appellant gave birth to a second child, Harry.  He was three weeks premature but was a healthy baby.  The appellant received counselling and advice as part of the Care of Next Infant programme (CONI) for parents who had suffered a cot death.  From about 8.10 pm on 26 January 1998, both the appellant and her husband were at home together with their child.  There came a time when Mr Clark left the room to prepare a bottle for a night feed for Harry since the appellant was supplementing breast feeding in this way.  Whilst he was out of the room, the baby suddenly became unwell.  Mrs Clark called her husband and then summoned an ambulance at 9.27 pm. When the ambulance arrived, Mr Clark was kneeling beside the baby on the bedroom floor.  There was no sign of life.  He was taken to hospital where despite further resuscitation attempts, he was pronounced dead at 10.41 pm.

Again Dr Williams carried out a post mortem examination.  He found injuries, which he considered to be indicative of non-accidental injury, consistent with episodes of shaking on several occasions over several days.  He concluded, therefore, that shaking was the likely cause of death.

These conclusions in relation to Harry caused him to reconsider the cause of death in respect of Christopher.  He consulted others and re-examined the material that had been retained and concluded that Christopher’s death had also been unnatural and that there was evidence suggestive of smothering. 

On the 23 February 1998 both the appellant and her husband were arrested on suspicion of Harry’s murder. In a lengthy interview the following day, the appellant gave a detailed account of relevant events and strenuously denied shaking Harry or harming him in anyway.

On 9 April 1998 she was interviewed further in relation to Harry and was arrested on suspicion of the murder of Christopher.  Having received advice from her solicitors, she decided not to answer questions.  She was interviewed again on the 2 July 1998 and again on advice did not answer the questions.

The nature of the prosecution case at trial

The prosecution put their case at trial in the following way.  First they pointed to a number of similarities in the detailed history of the death of each child which they suggested went far beyond coincidence.  They submitted that in such circumstances where there was no evidence in each case to suggest that the child had died from natural causes, the inference could safely be drawn that the death resulted from the act of the person in whose care the child was when he suddenly became unwell, namely the appellant.  The similarities were:

1. Christopher and Harry were about the same age at death namely 11 weeks and 8 weeks. 

2. They were both discovered unconscious by Mrs Clark in the bedroom, allegedly both in a bouncy chair.

3. Both were found at about 9.30 in the evening, shortly after having taken a successful feed.

4. Mrs Clark 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 from home in connection with his work.

6. In each case there was evidence consistent with previous abuse.

7. In each case there was evidence consistent with recently inflicted deliberate injury.

As to factors (i), (ii), (iv) and (v), we fail to see how realistically on the facts of this case they can be thought to be any significant indication of murder.  Some are open to real criticism.  Babies are at their most vulnerable in the first few weeks of their life.  Therefore, it is difficult to see how any sort of adverse conclusion could properly be drawn simply from the fact that one died at 8 weeks old and the other at 11 weeks old.  Children frequently spend the majority of the early part of their life in the sole care of their mother and hence it cannot in any way be said to an unusual feature for just two events to occur when the babies are in the mother’s sole care.  The suggestion that the coincidence of the fact that Mr Clark was out on the night when Christopher died and the fact that he was going away the day after Harry died were in some way significant is one we cannot accept.  In the ordinary incidence of family life, it could be anticipated that some imprecise similarity of this kind could always be found.  If there was any evidence, which there was not, that on each occasion the appellant had been distressed by the absence of her husband, we could begin to see that the coincidence of distress might be thought to be significant but otherwise we fail to see the relevance.

The third factor was that each had recently taken a successful feed.  In so far as a successful feed might be considered as relevant evidence of the well-being of the child shortly before death, then there may be possible relevance.  However this evidence needed to be treated with caution.  Certainly in each case the appellant spoke of each child having taken a successful feed, but that was not the only available evidence.  In Harry’s case there was evidence that at some stage before death he had vomited.  The finding at post mortem as contained in the Post-Mortem Examination Report prepared by Dr Williams was: “no evidence of a recent meal”.  The fact that Harry had vomited was before the jury but the potentially important finding at the Post Mortem Examination appears not to have been put before the jury.  Having regard to the reliance placed upon this feature by the prosecution, we are surprised that they did not think it was evidence that should have been led.  The defence may or may not have had reasons why they did not establish the fact but the case proceeded on the basis that Harry had taken a successful feed and that contention was still being advanced in the evidence placed before us for this second appeal and in the way the prosecution put their case on appeal.  If the totality of the available material is considered and not just the belief expressed by the mother, it is difficult to see how any real significance could be attached to the suggested coincidence of a recent successful feed.  Hence we conclude that the only factors in the list that could truly be said to be relevant coincidences indicative of guilt were the evidence, if accepted, of previous abuse and of recently inflicted deliberate injury.

There was no evidence that anyone had noticed any injury to either child during their lives that had given rise to suspicion that either child was being abused.  Such evidence as there was suggested that they were babies who were well cared for, loved by their parents and happy and content.  Hence this was a case where realistically any finding of guilt was bound to be decided upon the medical evidence relating to each death and particularly upon the evidence of the pathologists.  It is necessary therefore to look in a little detail at the nature of the evidence as presented to the jury.

Approach of a pathologist to a case of suspicious death

It is desirable, however, that we should first set out our clear understanding of how a pathologist will approach a case of suspicious death.  In the first place, he will obtain information about the circumstances of the death.  This may, in some cases, involve a visit to the body in situ before it is removed to the mortuary.  It will almost inevitably involve receiving information from the investigating officers.  This will include any version of the circumstances emanating from witnesses and any possible explanation advanced by any suspect.  Although the suggestion has been made that the obtaining of such information may be undesirable, we have no doubt that this is wrong.  The initial post mortem is critical to any conclusion as to the cause of death.  Amongst the questions the pathologist will want to answer are whether any competing explanations for the death are consistent with his findings.  The very act of carrying out the post mortem examination will alter the condition of parts of the body and to learn only after examination of explanations that have been advanced runs the risk that the best evidence to confirm or contradict the explanation may no longer be available.  A competent pathologist will not assume that any one of the explanations for death advanced is necessarily the correct explanation but in considering the range of possibilities, he will have specific regard to evidence consistent with or contradictory of such explanations.  It is, of course, important that the pathologist records such information so that any one else can understand any matter that he may have had in mind in conducting the examination. 

Having thus equipped himself so far as he can with information about the likely issues that he will have to resolve, the pathologist will embark upon the actual examination.  He will note any significant features of the body where his findings reveal something out of the ordinary whether or not they immediately strike him as relevant to the cause of death and he will also note the fact that he has examined parts of the body and found no abnormality because the negative finding may turn out to be equally significant.

Where there are findings of apparent significance which can be demonstrated visually, it would be normal to cause photographs to be taken so that others will be in a position at a later date to see for themselves.  This is particularly necessary where the carrying out of the post mortem will interfere with the finding and prevent anyone else from having the same opportunity to assess the significance of a finding.

In addition the pathologist may think it necessary to take samples either for microscopic examination or for submission for laboratory examination or may decide to retain organs for later more thorough investigation.

Having obtained all the information that he considers may assist him and others in reaching a conclusion as to the cause of death, he will then reach his conclusions, in so far as it is possible, as to the cause of death resolving where he can any issues that he foresees may arise as a part of the investigation into the suspicious death including those that can be anticipated at the trial of any person thought to be responsible for the death.

Since the conduct of Dr Williams is called into question in this case, it is pertinent to record his evidence as to how he would arrive at a cause of death:

"The cause of death given at the end of a post mortem investigation is by a process of elimination.  You eliminate various things and you are left with a short list from which you select, and the short list can be one item, the most probable cause of death.  There is no such thing as an absolute cause of death except perhaps from decapitation but, you know, in the normal course of events you put the cause of death down as your best opinion based on your findings."

Having reached his conclusions, the pathologist will then prepare a report.  That report should detail the information he received in advance of the examination, all the investigations that he has made either personally or by submission to a laboratory for report, his conclusions and an explanation for those conclusions.  Where features out of the ordinary are found and the pathologist concludes that they are not relevant, he should explain why he discounts the finding.  Thus by way of extreme example, a pathologist examining a man with a shot wound to the head might discover that he had a severe heart condition that could have killed him at any moment.  He might nonetheless conclude that the shot wound was such that it would have killed instantaneously any person, however healthy, and that the heart condition can, therefore, have played no part.  In such circumstances the clear duty of the pathologist would be to record the heart condition in his report but to explain that since death would have been instantaneous and since the victim was clearly alive when shot, his conclusion was that the heart condition played no part in the death.

We do not believe that any of the above would come as the slightest surprise to even an inexperienced pathologist. 

Where a second post mortem examination was to be performed by a different doctor or where some other medical expert was to become involved in the case, we would expect the original pathologist to understand the need to share all information that he had obtained with the other doctors whether or not at the end of the day he had concluded that it provided an explanation for the cause of death.  If he did not, he would deprive the other doctor of the opportunity to decide for himself whether that information was relevant or not.  There are good reasons why this duty is such an obvious and important one.  The first is that to which we have already referred, namely the fact that the carrying out of the initial post mortem may have caused changes to the body that obscure findings made during the course of that post mortem, or prevent the observation of other important features.  The second is that there is a clear responsibility to avoid any interference with the body unless it is necessary to reach a proper understanding of the death.  Thus repetition of the interference with the body, necessarily a part of a post mortem examination, should be limited to that which is truly necessary.  It is because of these factors that in our experience, doctors quite rightly come to depend upon one another for the provision of any information available to the person carrying out the initial post mortem examination however unlikely it may seem to the first pathologist that it provides an explanation for the cause of death.  To this end it is the normal practice for the first pathologist to attend a second post mortem examination, which has the added benefit that he can also see for himself anything found at the subsequent post mortem which he may not have noted or recorded for himself.

The Post-Mortem examination of the bodies of Harry and Christopher

Having thus considered the practice and responsibility of the pathologist conducting the initial post mortem, we turn to consider what happened in each of these cases.  In each case the initial post mortem examination was carried out by Dr Alan Williams.  In Christopher’s case, because he concluded that death was due to natural causes, there was no other post mortem examination.  In Harry’s case, there was a second examination carried out jointly by Professor Emery and Dr Rushton.

In Christopher’s case there was evidence, which it was suggested, was consistent with physical harm suffered by Christopher both shortly before his death and at some earlier stage or stages.  In addition there was evidence that Christopher was suffering at least to some extent from some infection at the time of death.  The former led to the diagnosis that Christopher’s death was not from natural causes and resulted in the appellant’s conviction for his murder.  The latter led to the initial diagnosis at the time of his death that he died from an infection of the lower respiratory tract.  It will be convenient to look at each in turn.

In Harry’s case, there was evidence led at trial, of a number of findings said by the Crown to be only consistent with physical harm to Harry shortly before death and at an earlier stage or stages.  There was at trial no evidence of any infection that might have caused or contributed to death.  Hence in his case either the prosecution case was right or the cause of death was not capable of being ascertained.  The evidence which has emerged since trial and since the original appeal however suggests the possibility that his death may have been due to infection.  Stated in that way, we can readily see why those acting for the appellant submitted that, at the very least, such evidence may have had a critical effect upon the jury’s consideration of the case.  Again we will look at each of these distinct areas.

Evidence suggesting physical harm to Christopher

There were three distinct features of the post-mortem findings in respect of Christopher that doctors called by the prosecution suggested were the result of physical harm caused to him before death, a number of bruises, a tear in the frenulum, and the presence of blood in the lungs.

The bruises which Dr Williams said at trial that he had found were marked by him on a diagram and photographs were available for the jury.  They were:

1. A bruise on the rear of the left leg, ½ cm x ½ cm.

2. Abraded (i.e. roughened) bruises on the back of the right thigh, each ½ cm x ½ cm.

3. A bruise on the right arm close to the elbow, ½ cm across.

4. A reddened area, ½ cm across, over the wrist at the base of the right thumb.

5. A reddened area, ½ cm x ½ cm, on the joint of the right thumb.

6. 2 abraded bruises on the front of the left thigh, one 1 cm x ½ cm and the other 2 cm x 1 cm.

7. 2 bruises on the left leg above the right knee, each ¼ cm across.

All these “bruises” were acknowledged to be very small and were described as “finger tip bruises”.  It was further accepted that the “bruises” did not form any pattern of the type frequently found when a child has been gripped tightly and subjected to some form of physical harm.  If they were bruises, then they must have been caused pre-death and having regard to the evidence of Christopher’s condition from the time of the arrival of the ambulance it was, therefore, unlikely that they had resulted from any of the resuscitation procedures adopted by the ambulance personnel or the medical staff at hospital.

The dispute at trial as to these marks centred essentially on whether they were bruises at all or whether they may have been post-mortem effects.  Such a possibility was certainly consistent with the fact that the medical staff at the hospital had not noticed any evidence of any such marks.  The Crown suggested that this was because the “bruises” must have been of very recent origin and they had not yet become visible.

Doctors called by the defence were sceptical as to whether they were bruises.  They pointed to the fact that the conclusion of Dr Williams was purely from his observations and had not been confirmed by incision of any of the bruises.  The Crown’s answer to this criticism was that Dr Williams was an experienced pathologist.  Since he was in no doubt that they were bruises, incision was unnecessary and would do nothing more than to cause mutilation of the body over and above that which was required.

There was thus a significant issue in respect of this aspect of the case that was entirely dependent upon the accuracy and reliability of the evidence of Dr Williams.  Any other failing that could be demonstrated on his part was, therefore, of potential importance to the reliance that the jury could place on this aspect of the evidence.

The second finding made by Dr Williams upon which the Crown relied was that there was a small split and slight bruising into the frenulum between the upper lip and jaw.  The existence of such an injury should have been put beyond question by photographs but unfortunately the photographs that were taken were on any view of very poor quality and offered no opportunity for others to assess the finding Dr Williams claimed to have made.  Thus before the jury could have relied upon this alleged injury they would have had to be sure that Dr Williams was accurate and reliable in this respect as well and as with the “bruises” any issue relevant to his reliability may have impacted on this part of the case.

If the jury were sure that there was a tear in the frenulum, the next issue raised was whether this might have been caused in resuscitation attempts.  At the time of Christopher’s death, Dr Williams concluded that this was the likely explanation.  By the date of trial he had changed his view.  He said that he had not appreciated that Christopher had been cyanosed when the ambulance arrived and if that was the situation, the accompanying bruising could not have been caused by any subsequent resuscitation attempts as there would not have been the blood pressure necessary to cause such bruising.  He suggested that in the absence of any such innocent explanation, the most likely cause was smothering.

Apart from Dr Williams, the prosecution relied on the evidence of three other expert witnesses: 

1. Professor Sir Roy Meadow, Emeritus Professor of Paediatrics and Child Health at St James’s University Hospital in Leeds.

2. Dr Keeling, a consultant paediatric pathologist and

3. Professor Michael Green, Emeritus Professor of Forensic Pathology at the University of Sheffield.

Professor Meadow, Dr Keeling and Professor Green, each said that the injury to the frenulum was unlikely to have been from resuscitation.  Professor Meadow in his evidence and Dr Keeling in her evidence each suggested it was a sign of abuse consistent with smothering.

Expert evidence on behalf of the defence was given by:

1. Professor Berry, a paediatric pathologist specialising in sudden and unexpected infant death;

2. Dr Rushton, a consultant paediatric and peri-natal pathologist;

3. Professor David, a consultant paediatrician;

4. Dr Whitwell, a senior lecturer and forensic pathologist; and

6. Professor Luthert, a pathologist specialising in eyes.

Of these witnesses, it is perhaps important to make clear the precise standing of Professor David in respect of these matters.  He was not a doctor approached by the defence to advise them.  He was appointed by the Family Court.  The appellant had given birth to a third child and decisions had to be made as to the welfare of this child quite independently of the criminal process.  The Family Court charged with the responsibility of making these decisions had thought it right to approach an independent expert of its own to review the case.  That expert was Professor David.  He came, therefore, to the case with a completely independent stance.  It was only when his conclusions were favourable to the defence that they sought to rely upon his evidence.  Recording these matters is not in any way to suggest that other experts did not do their best to give evidence which was independent of the side that instructed them but the value of an expert free from any influence, however innocently manifesting itself, cannot be discounted.

Professor Berry, Dr Rushton and Professor David thought that it was possible but unlikely that such an injury would result from resuscitation.  Each agreed, however, that if there was bruising, injury to the frenulum and bleeding in the lungs, it did suggest asphyxia.

The third aspect of the evidence said to suggest that the death was other than from natural causes and probably the most significant since it was this that led to the rejection of Dr Williams’ original conclusion at the time of death was evidence of bleeding in Christopher’s lungs.  Dr Williams had made no record of any such finding at the time but he had taken samples from the lungs which were available for microscopic examination.  These were examined by Dr Williams after the death of Harry and it was this further examination coupled with awareness of findings published between the date of the two deaths and discussions with Professor Green that caused Dr Williams to change his conclusion as to the cause of death.  Dr Williams said that he had made no reference to this finding because he considered it was “part of the dying process” and “a non specific finding”.  He was not then aware that haemosiderin (a breakdown product formed by the destruction of haemoglobin - the principal constituent of red blood cells) in the lungs was associated with asphyxia.  Even allowing for his lack of appreciation of this possible diagnostic relevance, it suggests that Dr Williams was being selective as to his recording of his findings only recording those facts that seemed to him to be supportive of his conclusion.  It is perhaps of significance that this failure to record facts cannot have been the result of any deliberate attempt to conceal the truth since at the time when he did it, it could have done no harm to the position of the appellant or anyone else.

The evidence of Dr Williams confirmed by the other doctors called by the prosecution was that microscopic examination showed the presence of extensive recent bleeding in the lungs together with haemosiderin which provided evidence of bleeding on a much earlier occasion.

The defence sought to deal with this evidence in a number of distinct ways.  As to the presence of haemosiderin, they led evidence of an episode of nose bleeding that Christopher had suffered on 3 or 4 December 1996 whilst staying with his parents at a hotel in London. Initially it would seem that the prosecution were reluctant to accept that this had occurred because if it did, it was at a time when Christopher was in the sole charge of his father, his mother being out at the time.  However by the conclusion of the trial, the evidence that Christopher had suffered this nosebleed was accepted to be right.

The Crown’s evidence was that a spontaneous nosebleed in such a young child would be extremely rare and the happening of the nosebleed was in itself evidence of an earlier attempted smothering which had only manifested itself once the mother had left the hotel leaving the child with its father.

Professor Meadow, Professor Green and Dr Keeling all agreed that there was extensive fresh and old bleeding in Christopher’s lungs.  A spontaneous nosebleed in such a young baby would be very serious and it was unlikely that the haemosiderin in the lungs resulted from the nosebleed.  Professor Meadow described the finding as an important indication of previous smothering.  Professor Green said that it crossed the threshold to require further investigation. Dr Keeling said that it was an important marker for further investigation.

For the defence, Professor Berry and Dr Rushton thought that haemorrhage in the lungs was a marker for, but not diagnostic of, the possibility of asphyxiation.  The old blood could have been due to the nosebleed, although that would have been unusual in a baby of Christopher’s age.  It was also consistent with smothering, but by no means conclusive.

Professor David raised another possibility.  He noted that blood test results taken from Christopher soon after death were abnormal.  Dr Cowan who had been called to Christopher when he was admitted to hospital gave evidence that the figures (including those for sodium and glucose) were strikingly abnormal.  Professor David also thought that they were abnormal and this raised in his mind the possibility of acute idiopathic pulmonary haemosiderosis.  He told the court that a Canadian expert, Dr Cutts, had produced a paper which showed similar levels of iron in the lungs of SIDS babies and those who had died from haemosiderosis.  He accepted that the other classic signs of that rare disease were absent, but the possibility could not be discounted.  He also acknowledged that suffocation was a possibility.

None of the other doctors called on either side accepted that haemosiderosis was a possible explanation for the findings in the lungs or that it could be the cause of death.

Dr Williams gave evidence that the abnormal blood tests results were not significant.  They were consistent with changes after death and he spoke of research that he had done and of his conclusion that blood was so unstable that save when examining for poison and other similar matters not relevant to this case, it would not permit any reliable conclusion.

Clearly this aspect of the case had some impact on the jury because they asked a question about whether Harry’s blood was tested which has relevance to the considerations to which we will turn later.

Evidence suggesting that Christopher may have died from an infection

As already made clear Dr Williams immediately after Christopher’s death considered that he had died from a lower respiratory tract infection.  By the date of trial not only had Dr Williams changed this diagnosis as to the likely cause of death but somewhat more surprisingly he went so far as to rule out such an infection as a possible cause of death.

Findings in his initial report that supported, or may have supported his original diagnosis included:

1. On external examination “there was a frothy muco pus coming from the nose;

2. On internal examination of the respiratory system, “the trachea and bronchi contain small amounts of muco pus.  The lower lobes of the right lung show acute serosal inflammation, slight grey linear deposits on the surface of both the right and lower lobes.  On sectioning no macroscopic evidence of pus, no macroscopic evidence of consolidation.  The lungs are slightly oedematous on compression”.

3. From the post mortem histology, “Lung – acute inflammation; spleen – focal haemorrhages and inflammation; tonsils/pharynxes - minor inflammation”

Dr Williams expressed his conclusions in his report as:

“In summary, this is a well nourished male infant 12 weeks of age showing evidence of respiratory tract infection with inflammation of the right lower lobe of the lung predominantly

Cultures and Histology have been taken

By the date of trial, Dr Williams had concluded that there were “no significant features of respiratory infection.”  He was cross-examined about how he could have expressed two such conflicting views at different times and having read the cross-examination, we conclude that he advanced no convincing explanation for the alteration of his position.  He explained why he had changed his view as to the cause of death following re-examination of the slides after Harry’s death but he was unable to explain why he had previously asserted that there was evidence of the respiratory infection but now concluded that there were no significant features of such an infection.  Put at its very lowest, this aspect of the matter called into question the competence of Dr Williams.

None of the other doctors found any evidence of a respiratory tract infection although the only material upon which they could assess the position was the evidence available from the slides taken by Dr Williams.

Conclusions of doctors at trial in respect of the cause of death of Christopher

Dr Williams in cross-examination explained his opinion as to the cause of Christopher’s death in the following way: there was a “possibility that the child was smothered … a possibility in a broad range”.

Professor Meadow concluded 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.  He felt that it was extremely likely that death was other than natural but he would have given the 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 Christopher’s death.  In her opinion, the cause of death was “unascertained”, which meant that it might have not been natural.

Professor Berry said that he would have given the cause of death as unascertained.  He explained this by saying:

"It means that the child’s death may have been natural but without explanation, perhaps what the jury knows as cot death.  It might be that the child died unnaturally but I can’t find out why or it might be the child died of a natural disease that I am not clever enough to diagnose and recognise and that is why the examination of children found suddenly and unexpectedly dead has to be done more thoroughly and more carefully perhaps than any other type of post mortem examination."

Professor Berry expressed the view that the post mortem examination whilst it may have been “done in the way that many forensic post mortems are undertaken”, was not sufficiently thorough “to document possible injuries that might indicate a pattern of care of the child”.

Dr Rushton gave evidence that if he had given a cause of death, he would have said that it was unascertained.

Professor David, as set out above, considered that one possible cause of death was idiopathic pulmonary haemosiderosis.  He also acknowledged that suffocation was a possibility.

On that evidence, we doubt very much whether any jury would have concluded that they could be sure that Christopher had died an unnatural death if the only evidence that they had heard related to Christopher.  The preponderance of the evidence was that the cause of death could not be ascertained.  It was the evidence relating to Harry’s death, if anything, that may have enabled the jury to resolve the doubts apparent from the medical evidence.  If, therefore, the conviction in relation to Harry was unsafe, we have no difficulty at all in concluding that it would necessarily follow that the conviction in respect of Christopher’s death was equally unsafe.  We turn, therefore, to consider next the medical evidence in respect of Harry’s death available to the jury.

Evidence suggesting injuries to Harry

Dr Williams at the post mortem examination carried out on Harry’s body recorded the following findings that suggested the possibility that Harry had been subjected to violence:

1. Haemorrhages to the eyes and eye-lids.

2. Contusional tears in the brain with haemosiderin in the arachnoid space.

3. Haemorrhage of the spinal cord with haemosiderin discolouration.

4. A small area of callus formation on the second right rib; and

5. The dislocation of the costal cartilage of the right first rib from the end of the bony section of the rib.

Dr Williams concluded that “the spinal injuries and lesions in the brain and the eyes are those that would be expected from non-accidental injury … The pattern of injury is that which is seen in shaking … The post mortem findings are those of a child shaken on several occasions over several days.”

Dr Williams indicated that he had found no evidence of any illness or infection that might have had any bearing on the death.  No other evidence was led before the jury by either side to suggest that there was any possibility that Harry was suffering from the effects of any illness or disease at the time of his death.

The findings in respect of Harry’s eyes

As set out above, one of the factors relied upon by Dr Williams to conclude that death was due to shaking were the finding of haemorrhages in the eyes and eye-lids.  The findings in greater detail were:

1. One or two petechial or pinpoint haemorrhages on the left eyelid.  Dr Williams accepted that these were a feature in mechanisms of death other than asphyxia, but said there was no evidence of any such alternative.

2. A 7 mm area of haemorrhage on the upper surface of the right eye and a 2 mm area of haemorrhage on the outer aspect of the left eye.  He had only ever seen this type of haemorrhage in cases of death caused by over-laying or smothering.

3. Intra-retinal haemorrhaging in both eyes.

In respect of the intra-retinal haemorrhaging of the eyes, Professor Green had also attached significance to this finding but shortly before trial he had a meeting with Professor Luthert, the defence expert and as a result of that meeting he accepted that the bleeding which he saw was almost certainly of post mortem origin, the result of an error in the slide preparation and that it must be completely discounted.  This evidence, therefore, again called into question the competence of Dr Williams.

In respect of the haemorrhages on the surface of the eye, again substantial issues arose as to whether they were caused post-mortem.  Professor Luthert thought that it was quite possible that the blood might have dropped down onto the eyes during dissection.  He pointed out that the blood appeared to be beneath the access points for dissection to both of the eyes.  In any event he said that such a finding was not a classic sign of shaking nor was it a finding associated with any particular disease.  In this latter respect Professor Green agreed with him.

As to the 1 or 2 petechial haemorrhages in the left eyelid, Professor Meadow said that if they were established with certainty, such petechiae were of significance because they provided a link with a traumatic event having occurred.  Dr Keeling said that 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.

For the defence Professor Berry said that the two petechial haemorrhages were a worrying feature, but he and Dr Whitwell felt that although consistent with smothering, their presence was not strongly indicative that it had occurred.  Dr Rushton thought it was difficult to say if they had any significance.  He agreed that they were consistent with asphyxia and that they were unusual in SIDS cases.  Professor David concluded that there was no evidence that the haemorrhages were due to abuse.

The findings in respect of Harry’s brain

In respect of Harry’s brain, Dr Williams found some tears and some old blood.  He accepted in evidence that the tears were not unequivocal and he accepted that the old blood might properly have been attributed to birth.

The Crown called a further expert to deal with this aspect of the case Dr Smith, a consultant neuropathologist.  Dr Smith said that she did not see any tears of the brain unequivocally caused before death.  She said that there was no indisputable evidence of traumatic injury but she had found signs of hypoxic damage to nerve cells due to lack of oxygen before death.  She concluded that something had happened some hours before death to cause this damage and although Harry survived this event, she could not rule out that the hypoxia had been a contributory factor to the subsequent death.

Dr Keeling also thought that the hypoxic damage indicated some sort of episode causing oxygen not to get to the brain.  The damage did not give any indication of causality but one possible cause was trauma.

For the defence Professor Berry said that the old haemorrhages were a common finding consistent with almost any cause of death and Dr Rushton felt that they might have been birth related.  Both considered that the hypoxic damage was not significant: it was a subtle finding that could have occurred naturally after death.  Dr Whitwell agreed that the hypoxic damage was consistent with smothering, but it was a non-specific finding.

The findings in respect of Harry’s spine

The most significant of the findings relied upon by the prosecution in terms of the cause of death were the findings relating to Harry’s spinal cord.  Dr Williams gave evidence that he had found the spinal cord was swollen and that there was an excessive amount of blood, both fresh and old.  His conclusion was that this was a result of more than one episode of shaking at least 48 hours apart.  He said that he could not gauge the severity or mechanism and he agreed that other features that could be expected in a case of shaking were absent.  He said that he had seen haemorrhages in the spinal cord where a baby had been shaken but that he had not seen them so low down the spine.  He explained that damage of this kind which appeared relatively small could nonetheless have a catastrophic effect.  He was sure that there must have been some sort of trauma to that part of the spine and he denied a suggestion that it had been caused during the post-mortem examination.

Dr Smith supported the findings of Dr Williams.  She felt that the fresh bleeding could not be dismissed as having been caused in the post mortem process.  She agreed that this was not one of the usual findings in a shaken baby and she was unable to explain the mechanism by which it was caused.  She said that she had never regarded it as a classic case of shaking.

Professor Green gave evidence that he had seen some such damage in cases of shaking, but not this particular injury.  He too agreed that there were features frequently found when a baby had been shaken which were not found here.  He considered that shaking was a very strong possibility.

Dr Keeling had never encountered such a degree of bleeding as shown in the photographs.  She said in cross-examination that she could not positively say that Harry’s haemorrhages had been caused by trauma.

Professor Meadow said that an injury causing the bleeding around the spine would suggest an unusual trauma.  He also said that he would have expected damage to the cervical cord if it had caused death.  He said that there was a lack of research on the shaking of babies.  Asked if he would expect to find bruising on a baby shaken in that way, he replied that it would not necessarily be found.

For the defence, Professor Berry, Dr Whitwell and Dr Rushton doubted the interpretation of the photograph 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 find trauma and was more consistent with a birth injury than a shaking injury.  Dr Rushton could not envisage a feasible mechanism to produce such an injury.  However if there had been fresh bleeding and a swollen cord, he would have concluded that the death had been unnatural.

Evidence of rib injuries to Harry

It was not suggested that the rib injuries had played any part in causing Harry’s death but rather that they were evidence of physical abuse.  Dr Williams said that Harry had suffered a fracture of the second right rib at the side under the armpit.  X-rays of the whole of Harry’s skeleton had been taken and they on examination had revealed no evidence of any fractures.  He had however found the callus where the fracture had healed.

He accepted that in his statement he had only said that there was a “possible” old fracture but he was firm that there was no other possible explanation for his finding.  He further agreed that he had told a police officer that it could have been caused at birth but he said that this was unlikely because he had since learnt that Harry’s birth had been a normal, uncomplicated delivery.

The other finding of which he gave evidence was of the first rib being dislocated from the cartilage near the breastbone.  He had made no reference to this in his report because he said it was of unknown significance.  He said that he was sure that it had not been caused at birth or during the post-mortem and he had not seen such a dislocation from resuscitation attempts.

Professor Meadow and Dr Keeling said that the fracture of the rib would have been an unusual birth injury.  Dr Keeling said that she was able to confirm from examination of the microscopic slide that there had been bone growth indicating the presence of 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 that there was no haemorrhage at the site of the dislocation and thus she could not exclude the possibility that it happened post mortem.

Professor Berry for the defence said that the fracture of the second rib had not been confirmed and the process of new bone formation was not necessarily confirmation of a fracture.  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 that either was a birth injury but the evidence suggested that the dislocation occurred after death.

The doctors’ conclusions as to Harry’s death

Dr Williams was of the opinion that death was caused by shaking.

Professor Meadow said that Harry’s death could not be classified as SIDS and in his opinion the baby had not died a natural death.  Dr Smith said that she was unable to specify a mechanism of death and was, therefore, unable to say that this was a shaking death.  She accepted in cross-examination that she could not exclude some unidentified natural disease, but that there were features suggestive of some assault to the child.  In purely pathological terms it was an unexplained death, although in her opinion Harry did not die a natural death.  Professor Green said that Harry’s death could well not be natural.  He thought though that the most appropriate diagnosis was unascertained.  Dr Keeling felt that the possibility of a non-natural death should be considered but she too would give the cause of death as unascertained.

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 spinal 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 and Dr Rushton would each have given the cause of death as unascertained.  They each spoke of features that would militate against a classification of the death as a SIDS death.  Dr Rushton said that there were features that gave rise to very great concern.  Professor David thought that there was insufficient data to know why Harry died.

Conclusions on the medical evidence at trial

The medical evidence at trial which we have set out in detail made clear that in any view this was a difficult case.  There was a wide difference of views in respect of each death as to the conclusions that could properly be drawn from the available evidence.  However a number of factors seem to us to emerge which are of relevance to this appeal:

1. In each case, before a conclusion adverse to the appellant could be drawn the jury would have had to be sure that they could rely upon the evidence of Dr Williams.  There were important features said to have been found at each post mortem examination which depended both upon the competence of Dr Williams in carrying out the post mortems and upon the extent to which he could be considered as a reliable and objective witness as to his findings.  There were features at that time that must have caused the jury to hesitate.  His change from a conclusion that Christopher died of a lower respiratory tract infection to an opinion that there was no evidence that he had such an infection that could have led to death, and the acceptance by the Crown that Professor Luthert was right about the intra-retinal haemorrhaging of the eyes being the result of an error in slide preparation were the most obvious examples of the need for caution.  Anything further that cast doubt upon the approach of Dr Williams must, therefore, have been of potential significance to the jury’s conclusions.

2. It was of potentially crucial importance that there was no evidence of any illness or infection suffered by Harry that might have explained his death.  If this was not a true SIDS case, as the doctors were largely agreed, and since there was no apparent natural explanation for the death, the evidence pointed towards an unnatural death.  The only disagreement between the doctors was whether it did so to a sufficient degree to permit a firm conclusion that the cause of death was unnatural or whether the case had still to be classified as an unascertained cause of death.  Thus any evidence which positively suggested that Harry died from natural causes was of potentially crucial relevance to the jury’s considerations and might very well have resulted in different verdicts.

3. As already indicated, the evidence in respect of Christopher’s death, if it stood in isolation would not have justified a finding of murder and if, therefore, there had been evidence that suggested that Harry died from natural causes so that the jury accepted this was a possibility, it seems inevitably to follow that they could not have been sure that Christopher was murdered.

Go to Sally Clark case - part 2

Top of Page