UK Policy Advisory Board for Forensic Pathology
Dr AR Williams

See also the UK case of Sally Clark April 2003
Tribunal constituted under the Complaints and Disciplinary Procedure
Reference 10th October 2003 - Dr AR Williams Mb Chb Frc Path
Judgment dated Tue Mar 28 2006
Members:
Andrew Pugh QC (Chairman)
Dr Dennis Clive Bouch Bsc Mb Chb Frc Path
Don Dovastan OBE QPM

[This version of the judgment has been edited by Dr Robert N Moles Underlining where it occurs is for editorial emphasis]

Introduction

Dr Williams is a forensic pathologist. In 1998 he was and is now a consultant histopathologist at the Macclesfield District Hospital. Since about the 1st August 1986 he has been included on the Home Office Register of appropriately qualified and experienced forensic pathologists.

The purpose of this Register is to provide HM Coroners and the police with a list of pathologists (the accredited pathologists) who have attained a degree of experience and expertise sufficiently high to provide an appropriate medicolegal service in cases of unexpected or violent death in which a criminal act may have occurred. Accredited pathologists are expected consistently to produce high quality work.

On 10 October 2003 the Quality Assurance and Scientific Standards Committee (“QASSC”) of the Policy Advisory Board for Forensic Pathology (“The Board”) referred a complaint concerning Dr Williams to a disciplinary tribunal of the Board under the Home Office Register of Forensic Pathologists Complaints and Disciplinary Procedures (“the Procedures”).

General Background

In Dec 1996 Christopher Clark, who was Sally Clark’s first child, died aged about 15 months. Dr Williams carried out a post mortem examination and concluded that the cause of Christopher’s death was lower respiratory tract infection. On 26 Jan 1998 Sally Clark’s second child, Harry, who had been born on 29 Nov 1997 also died. On 27 Jan 1998 Dr Williams carried out a post mortem examination, and concluded that Harry had not died of natural causes. He reported that the cause of his death was shaken baby syndrome. This conclusion was derived in particular from an examination of Harry’s spine, eyes and brain.

As part of his investigation into Harry’s death, Dr Williams collected samples at the post mortem examination for microbiological examination (Culture and Sensitivity). Samples were taken of blood, of cerebrospinal fluid (CSF) and from the stomach (tissue and fluid) both bronchi, both lungs, throat, faeces and the trachea.

The sample of CSF was reported by the laboratory at the Macclesfield District Hospital as Staphylococcus aureus isolated. Staphylococcus aureus (Staph. aureus) was also isolated in samples taken at the post mortem examination from the stomach (tissue and fluid), both bronchi, both lungs, the throat and the trachea, but not from the blood or faeces. The result for the throat is not available. The Staph. aureus which was isolated from the CSF, the bronchi, the trachea and the right lung was of pure growth i.e. Staph. aureus was the only organism which was isolated.

Dr Williams also received a report on the biochemistry of the sample of CSF taken from Harry at the autopsy. This report was signed by Dr AJ Robins 3 Feb 1998. This indicated that the sample of CSF had a protein level of 3.24 g/l. If this sample had been taken from a living patient this protein level would have been abnormally high.

The microbiological results were considered by Dr Wills, a consultant microbiologist at the Macclesfield Hospital. Dr Wills commissioned further tests. Specimens of blood were sent to the Public Health Laboratory, Withington for viral studies. Specimens of the Staph. aureus isolates were sent to the Public Health Laboratory, London for further testing. Reports from Withington 30 Jan and 18 Feb 1998 were received by Dr Wills. He also received reports from Colindale 18 and 24 Feb 1998. The Colindale results showed that all the isolates of Staph. aureus were of the same phage type and that none of the toxins in respect of which tests were carried out were detected. 3 March 1998, Dr Wills sent the results of this further testing to Dr Williams and reported to him as follows: “As you know, we isolated Staphylococcus aureus from the throat, lungs, bronchus, trachea and CSF from this child at post mortem. I enclose further reports from Reference Laboratories. The phage typing shows that the strains from the different sites are indistinguishable and the other reports indicate that they were negative for entorotoxin and toxic shock syndrome toxin production and negative for exfoliative toxin genes A and B. Therefore, in the absence of any localised inflammatory response and in the absence of any suggestion of immune deficiency, I think it is unlikely that this organism contributed to the death of the child. It is somewhat unusual to find a contaminating organism so widely spread and it may be that there was a transient or terminal bacteraemia.”

There were informal conversations between Dr Williams and Dr Wills about the microbiological results and in particular about whether they had any significance or were due to contamination.

In his final Post Mortem Report 23 Oct 1998, Dr Williams concluded that “there is no evidence of acute infection or inflammation particularly there is no evidence of pneumonia, tracheo-bronchitis nor meningitis. There is no evidence that this child died as a result of natural disease”. Relying upon the injuries he considered that he had detected Dr Williams concluded that the cause of death was “shaken baby syndrome”.

In his PM Report Dr Williams did not make any express reference to the microbiological reports on the samples taken by him at autopsy or to the results themselves, or to the further tests commissioned by Dr Wills or to Dr Wills’ letter 3 March 1998. Indeed he did not state in his PM Report even that he had taken samples at autopsy for microbiological testing. Dr Williams also reconsidered his conclusion that Christopher had died of natural causes and reported “there is evidence suggestive that he died from an asphyxial mechanism such as smothering”.

In October and November 1999 Harry’s mother, Sally Clark was tried for the murder of Harry and of his elder brother Christopher. No reference was made to these microbiological results at her trial and no evidence was given about them by Dr Williams, who gave evidence for the prosecution, or by any of the expert witnesses who gave evidence for the prosecution or the defence although Dr Williams did make a passing reference to his general practice of taking samples for microbiology. Sally Clark was found guilty of murdering both children and was sentenced to a term of imprisonment.

Only one hard copy of each of these microbiological results had been printed and those copies, having been sent to Dr Williams, remained in his own file until they were mis-filed, during the course of the trial among the prosecution papers. The results had, however, been electronically stored on the Macclesfield Hospital pathology laboratory computer.

In November 2001 the microbiological results came to light when they were sent by the Macclesfield Hospital to Stephen Clark (Christopher and Harry’s father) in response to his request for legible copies of other results. On 24 July 2002 the Criminal Cases Review Commission referred Sally Clark’s case back to the Court of Appeal. (There had been an earlier unsuccessful appeal before the microbiological results had become known). On 29 Jan 2003 the Court of Appeal concluded that the convictions were unsafe and should be set aside. Mrs Sally Clark was immediately released from prison. The Judgment of the Court of Appeal was delivered on 11Apr 2003. The main ground for concluding that the convictions were unsafe was that the microbiological results had not been disclosed by Dr Williams to the prosecution or to the defence or to the expert medical witnesses or to the Court. In the written Judgment of the Court of Appeal adverse criticisms of him were made.

The Complaint

The complaint against Dr Williams is that he failed to disclose to the prosecution or to the defence or to their experts or to the Court in the criminal proceedings against Sally Clark
(a) the existence and results of the microbiological tests of the samples of Harry’s CSF which had been taken at the autopsy.
(b) the existence and terms of the reports received in respect of these microbiological results.

The PM Report

A PM Report is written by the forensic pathologist for submission, in the first instance, to H.M. Coroner and to the Police. In the usual way its contents are relied upon by the police in making their enquiries and it becomes the basis for the forensic pathologists’ evidence at the inquest and any trial. If there is a prosecution it is disclosed to the defence and to the experts retained both by the prosecution and the defence. The PM Report is a crucial document for the police (who at least initially) rely upon the Crown Forensic Pathologist for advice on medical matters. It informs the prosecution of the medical and scientific evidence which needs to be assessed in deciding whether to prosecute and, if so, in preparing the prosecution evidence. It is the starting point for the assessments of any medical or scientific expert witnesses instructed by the prosecution and the defence. Dr Williams accepted that in effect the Crown Forensic Pathologist should set out in the PM Report “in a fair balanced and reasonably comprehensive way the medical evidence with a bearing on the cause of death”, and bring together his own observations and the reports of any other expert’s reports he has received because he is “the person who has to make an overall multi-factorial assessment as to cause of death”.

He may also be consulted not only by the police but by any other expert witnesses both for the prosecution and the defence. During the course of the Tribunal Hearings the PM Report was accurately described as the “starting point” for any future assessment and as “setting the agenda”. The forensic pathologist has knowledge which is not directly available to others. He will have carried out an autopsy shortly after the death and will have made direct observations about which only he can give evidence. Those conducting a second and later autopsy will not be in as good a position as the pathologist carrying out the original autopsy to make accurate observations.

The Crown Forensic Pathologist will also have a full knowledge of what samples have been taken for further investigation, and of the results of such investigations. The means by which the police and the defence and the other experts expect to be informed of these matters is, in the first instance, through the PM Report which may need to be supplemented if additional results or other information becomes available. The Crown Forensic Pathologist may (as here) provide the police with earlier statements, which may, in substance, be draft PM Reports. These may be required so that the police are informed of the available medical and scientific evidence as soon as possible.

The PM Report on Harry Clark

The usual practice described above was followed in the case of Harry Clark. The PM Report was supplied to HM Coroner, to the police, to the solicitors for Sally Clark and to all the experts. The post mortem examination into the death of Harry Clark was far from routine. Indeed it presented exceptional difficulties and required to be carried out and reported upon by Dr Williams with particular care. This was for the following main reasons:
(a) This was a case of Sudden Unexpected Death in Infancy (“SUDI”) where there was no obvious cause of death, and where it was necessary to determine whether there was any possible natural or unnatural cause of death;
(b) Harry’s death was a second SUDI in the same family in similar circumstances within two years; (c) Dr Williams had also carried out the post mortem examination for the first child (Christopher) where the cause of death had initially been found to be infection, but where, following the publication of subsequent research (“the Beecroft Paper”) and a further review of the case the cause of death required (in Dr Williams’s opinion) to be changed;
(d) Dr Williams thought it necessary (and for this he is to be commended and not criticised) to discuss the case before completing his PM Report with a consultant microbiologist (Dr Wills) and a senior forensic pathologist (Professor Green) with expertise in paediatric forensic cases and who had a special interest in the examination of the eyes;
(e) This was also a police case from the start with the autopsy being observed by four police officers headed by Detective Inspector Gardner. This was plainly a case where, depending upon the cause of death reported by Dr Williams, criminal proceedings were a real possibility;
(f) A second autopsy by forensic pathologists retained on behalf of Sally Clark had been carried out on 22 Sept 1998, and it was obvious that other medical experts were and would continue to be involved.

Our first task therefore has been to decide whether Dr Williams was in breach of his legal or professional duties in failing to refer in his post mortem report, or subsequently, to the microbiological tests on the samples taken by him at autopsy. We were referred to a number of authorities explaining the duties of an expert in the circumstances of a case such as this. It is necessary to refer to some of these authorities in order to explain our conclusion that in 1998, Dr Williams did not comply with his duties as an expert. We will deal separately with the legal and professional duties of disclosure. We emphasise that we are dealing with the position as it was in 1998, although it was not suggested to us that the duties themselves have changed since then. No doubt partly as a result of this case there is now a wider recognition of them than there was in 1998.

The Legal duty to disclose

(a) In the 1998 edition of Archbold Criminal Pleading, Evidence and Practice the existing law was summarised as following (with emphasis supplied):
“Duty of Disclosure It is the duty of an expert instructed by the prosecution to act in the cause of justice R v Ward 96 Cr App R1 CA. It follows that if an expert has carried out a test which casts doubt on his opinion, or if such a test has been carried out in his laboratory and is known to him, he is under a duty to disclose this to the solicitor instructing him who has a duty to disclose it to the defence. This duty exists irrespective of any request by the defence. It is not confined to documentation on which the opinion or findings of the expert are based. It extends to anything which might arguably assist the defence. It is, therefore, wider in scope than the obligations imposed by the Crown Court (Advance Notice of Expert Evidence) Rules 1987 (SI 1987 No.716). Moreover, it is a positive duty which in the context of scientific evidence, obliges the prosecution to make full and proper inquiries from forensic scientists to ascertain whether there is discoverable material.”

(b) In Maguire & Others (1992) 94 (Cr App Rep 133) at 146 Stuart-Smith LJ emphasised that an expert’s “duty of disclosure is a continuing one” and expressed the opinion of the Court as follows: ‘A forensic scientist who is an advisor to the prosecuting authority is under a duty to disclose material of which he knows and which may have “some bearing on the offence charged and the surrounding circumstances of the case”. The disclosure will be to the authority which retains him and which must in turn (subject to sensitivity) disclose the information to the defence.’ [The quotation is from the Attorney-General’s Guidelines (1982) 74 Cr App R 303]

(c) In Judith Theresa Ward (1993) 96 Cr App Rep 1, Glidewell LJ delivering the judgment of the Court pointed out that the fact that information may ultimately be found to be of no real significance, “should be wholly excluded from the minds of the prosecution when the question of disclosure is being considered”. He also emphasised that “all relevant evidence of help to the accused” is not limited to evidence which will obviously advance the accused’s case. It is of help to the accused to have the opportunity of considering all the material evidence which the prosecution have gathered ... “. He explained that “the duty is continuous: it applies not only in the pre-trial period but also throughout the trial”, and that the duty is to make “timely disclosure”

(d) In the Ikarian Reefer [1993] 2 LI L Report 68 at 81, Cresswell LJ said that in civil cases “an expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion ...”.

(e) Finally we refer to the recent case of R v Harris decided on the 21st July 2005 (after the hearing of the Tribunal had begun), in which Gage LJ declined to give new guidance on expert evidence but helpfully reiterated current guidance stressing that ‘nothing new’ was being said. He noted that “there is no reason for special rules where medical experts are involved” and that developments in scientific thinking should not be kept from the Court simply because they remain at the stage of hypothesis. Obviously it is of the first importance that the true status of the expert’s evidence is frankly indicated to the court. Gage LJ confirmed that the duties identified by Cresswell LJ in the Ikarian Reefer applied both to civil and to criminal proceedings, and explained that ‘an expert witness should state the facts and assumptions on which his opinion is based’.

Professional duty to disclose

It is our understanding that there is also a professional duty upon a doctor who is engaged in professional consultations with other doctors to disclose all matters within his knowledge, whether believed by him to be relevant or not, which the other doctors would wish to take into consideration. This professional duty is based upon the expectation between doctors that they will at all times be full and frank in their professional dealings with each other. Professor Berry put it as follows:
“As doctors we trust each other to follow normal practice and to share things ... we trust people to share basic information”. In addition doctors do, of course, have a professional duty to comply with their legal obligations and there is also a professional obligation to comply with relevant Practice Guidelines such as those issued by the Home Office Policy Advisory Board for Forensic Pathology entitled ‘The Investigation by Home Office Accredited Forensic Pathologists of Deaths occurring under Suspicious Circumstances” issued in May 1996. These provide that an accredited Forensic Pathologist has “a duty to provide an efficient and high quality service” and that the Post Mortem Report “should be of a high standard in presentation and appropriate to the purpose for which it is intended. It must include a detailed description of the post mortem findings and offer conclusions which interpret these findings and any other relevant investigations undertaken. The findings should be laid out in clear, concise language, which will be readily understood by lay individuals.

The conclusions should be as clear as practicable, and based upon the material and information available at the time the report is prepared. In due course the conclusions may be supplemented by further reports based upon material or information which subsequently becomes available. Conclusions should have a proper scientific basis and should not be unduly speculative. The report should not omit properly considered conclusions which appear relevant but which may not appear to agree with the investigating team’s view of the case”. The Practice Guidelines give express guidance about the disclosure of information to the defence as follows:

“There is a duty on the pathologist acting for the police to notify them, and through them the Crown Prosecution Service of the existence of ‘unused’ material the presence of which may in certain circumstances be disclosed to lawyers acting for the defendant in a criminal trial. As well as samples taken at autopsy, such material may include notes made during the course of the examination, reports and the first drafts of statements. More detailed advice on what constitutes unused material and the steps which have to be taken will be issued at a later date”. No such further advice had been issued by November 1999.

Was Dr Williams in breach of his legal and / or professional duties in respect of the PM Report? Dr Williams knew that in this difficult case the medical experts instructed by both the prosecution and the defence would expect that the PM Report would contain at least some reference to all investigations which they should themselves take into consideration. The presence of Staph. aureus might or might not be due to contamination. It might or might not demonstrate a cause of infection. It might or might not be regarded by some medical opinion as a possible cause of death. It might or might not have relevance to the findings in the PM Report or the cause of death diagnosed by Dr Williams. But what seems to us to be quite clear is that at the very least there should have been some reference to the fact that samples had been taken at autopsy for microbiological testing and to the existence of the results of such testing. We have reached this conclusion for the following main reasons:
(a) For an adequate understanding of the PM Report and in particular the conclusion that there was no evidence of acute infection or a natural cause of death it was necessary for Dr Williams to explain that there were abnormal microbiological results from which infection could be inferred, but that he had disregarded them because he considered that the abnormalities were a result of contamination;

(b) In the absence of any reference in the PM Report to any samples having been taken by Dr Williams at autopsy for microbiological testing, it was unclear whether such samples had never been taken at all, as the CESD1 study suggests was not uncommon and as Professor Berry thought, or whether samples had been taken from which no organisms had been grown or were otherwise insignificant (as other experts thought);

(c) The fact that a consultant microbiologist (Dr Wills) had been consulted about the microbiological results, had caused additional testing to be done and had himself supplied a written report were all matters which indicated that the microbiological results (and in particular the CSF result) should have been disclosed. The defence, the prosecution and their medical experts would, in these circumstances, have expected to have had an opportunity to consider them. Indeed Dr Williams accepted this;

(d) The microbiological results (including that for the CSF) which grew Staph. aureus were in this respect positive and abnormal. We need again to stress that these abnormalities might well not have had any relevance to or caused or contributed to Harry’s death. Nevertheless they were results which at the very least the other medical experts should have considered and would expect to have had an opportunity to consider. They required consideration, possibly investigation and explanation – particularly in the light of Dr Williams’s conclusion that there was no evidence of acute infection or of natural disease;

(e) Before completing the PM Report, Dr Williams had received a report in the form of a letter from his microbiologist colleague Dr Wills, which stated that it was ”unlikely that this organism (Staph. aureus) contributed to the death of Harry and drawing attention to the “somewhat unusual” fact that the Staph. aureus was “so widely spread”. Dr Wills suggested a possible reason for this (from which he subsequently resiled) namely a transient or terminal bacteraemia. Nevertheless, this was the explanation he had put forward at the time the PM Report was written. Regardless of what informal discussions there may have been between Dr Wills and Dr Williams, the existence of this report meant that the microbiological results (and Dr Wills’ letter) should have been referred to in the PM Report. One of the advantages in writing this letter according to Dr Wills was so that Dr Williams could “quote me” if he wished. Dr Williams did not disagree with this;

(f) There is a theory of which Professor Morris, in particular, is a proponent, that Staph. aureus is or might be a cause of death in some SUDI cases where no other cause of death has been identified and where the cause of death has been recorded either as unascertained or as due to Sudden Infant Death Syndrome. This theory was known to Dr Wills and to Dr Williams in 1998 and it was for this reason that the Staph. aureus isolates were submitted to Colindale to be tested for the presence of toxins. This theory was in 1998 and continues to be controversial and it is rejected by some reputable forensic pathologists and microbiologists. Its application in any particular case is likely to be controversial. We heard considerable conflicting evidence about the significance of these and other factors. However, both counsel agreed that for the purpose of deciding the issues before us it is not necessary for us to reach a concluded view about the validity of the theory or whether it explains Harry’s death. What is clear is that the existence of the microbiological results required a consideration by the prosecution and the defence (and their experts) of the possibility that Harry’s death could have been explained by the presence of Staph. aureus. Accordingly, the microbiological results (or at least their existence) should have been referred to in the PM Report, so that this possibility could have been considered. It was entirely the wrong approach for Dr Williams (albeit supported by Dr Wills), to reach his own conclusion without disclosing the information which would enable his conclusion to be considered by others;

(g) The foundation for Dr Williams’ decision not to refer to the microbiological results taken at autopsy in his PM Report or subsequently was his opinion (shared by Dr Wills) that the Staph. aureus isolates were a result of contamination. It is clear to us on the facts of this case that the question whether the growth of Staph. aureus in the CSF was caused by contamination is a difficult one on which experts have conflicting opinions and is probably not now susceptible of a definite answer. Dr Williams may or may not have been right in concluding that there had been contamination. But what is clear is that by making no reference in his PM Report or subsequently to these results or even to their existence, he in effect withheld information which the other medical experts needed if they were to consider whether or not there was a possibility that some of the isolates of Staph. aureus were genuine and not due to contamination.

Our conclusion that Dr Williams should at least have referred to the existence of microbiological results is supported by the opinions of all the forensic pathologists and other medical experts, who gave evidence about this before us. For convenience, we refer in an appendix to this Judgment to some of the relevant evidence. Taken together, this evidence which we accept amounts to a formidable expression of professional opinion that, Dr Williams should have disclosed or referred to the microbiological results in his PM Report. For his part, Dr Williams accepted that it would have been better if his PM Report had made some reference to these results and that, with hindsight, he acknowledged an error of judgment in failing to make such a reference.

The Terms In Which Disclosure Should Have Been Made

Before leaving this part of our Judgment, we ought to deal with some of the evidence about what should have been said in the PM Report about the microbiological results. We heard conflicting evidence about this. However, all the experts agreed that some reference to these results should have been made. Professor David would have expected all the results to have been set out or attached to the PM Report. Dr Armour, on the other hand, would merely have used a phrase such as ‘analysis of microbiology samples revealed no significant growth’. She said that she would like to think that in 1998 she would have said rather more than this having regard to Dr Wills’ letter of the 3 Mar 1998. As Dr Armour acknowledged the drawbacks to her words if used alone were that the reader of the report would not realise that it was her view that the samples were contaminated and would not be informed of the unusual additional tests commissioned by and reported upon by Dr Wills. Moreover it would not identify the isolate. To get the full picture the reader would have had to follow up the clue left by the reference to ‘no significant growth’.

Dr Clark considered that “at the very least” the report should have included such words as “swabs were taken from CSF, trachea bronchi and lungs for bacterial culture. All grew Staphylococcus aureus but the infection was not considered to be significant”. This formulation identifies the organism but does not state the reason for regarding the growth as insignificant.

In our view and bearing in mind the exceptional difficulties involved in investigating Harry’s death Dr Armour’s phrase would not have amounted to sufficient compliance by a Home Office acredited pathologist with the legal and professional duties of disclosure. We consider that at the very least there should in addition have been an express reference to the type of organism, to contamination and to the additional tests reported on by Dr Wills. Of course, if Dr Armour’s formula had been used, it is highly probable that the medical experts and possibly also the police would have enquired about the microbiological results which were reported as revealing growth not believed to be significant. However, with due respect to Dr Armour’s views it is our opinion that it would not have been sufficient even in 1998 to discharge the duty of disclosure by making a reference which only if followed up would have revealed the reason for disregarding the results. As Glidewell LJ pointed out in the Judith Ward case, there must be ‘timely disclosure’. Dr Armour’s formula could not fail at least to delay the necessary disclosure. Dr Williams, of course, decided not to make any reference to the microbiology he had commissioned and it is for this that he is criticised. No professional colleague has been called to defend this decision. For the purposes of this Judgment, it is not necessary for us to decide what would have been adequate disclosure. However, in the exceptional circumstance of Harry Clark’s death, we recognise that a strong case could be made for the disclosure of all the microbiological results.

Dr Williams Responses

We have carefully considered Dr Williams’s explanations for not referring to these results in his PM Report. Dr Williams was asked why he did not make any specific mention of the microbiological reports in his post mortem report, or in his witness statement and what was his normal practice in referring to such results in post mortem reports. His answer was as follows:

“It is not my practice to refer to additional results in my post mortem report unless they are relevant to the cause of death as the specimens were referred to another consultant, I regard them to be his results. In the same way I have not referred to the reports of Professor Green nor Dr Smith”.

Dr Williams said: “I did not think these results were significant or relevant so I did not bring

them to their (the police’s) attention”. H said: “But at the end of the day if I considered it (a piece of evidence) as (of) any relevance I had a responsibility to disclose it. But I did not and I still do not think it is relevant.” He said that the microbiological results (which he himself had commissioned) were not part of his evidence because the tests on which these results were based had been carried out by others; that he assumed that the results were readily available from hospital or other records; that he did not regard these results as ‘potentially relevant’ to the cause of death or that any other expert could take a different view.

These explanations which are, of course, not consistent with each other demonstrate that Dr Williams was applying entirely the wrong test when deciding whether or not to refer to or disclose the microbiological results. His own subjective opinion as to relevance or significance (whether or not he thought it would be shared by others) could not be a sufficient reason for not disclosing results which others (including the defence experts) would reasonably wish to consider. If the results are not referred to at all, then the PM Report will not contain information which others need to consider. If a forensic pathologist were to be entitled not to disclose such information just because he or she had concluded that it was not relevant or potentially relevant, then the underlying reasons for requiring disclosure would be liable to be defeated. This is not just commonsense and good medical practice, it is also good law – see Glidewell LJ’s judgment in the Judith Ward case and R v Sally Clark [2003] EWCA Crim 1020.

Referring to Dr Williams’s explanation in response to Mr Spencer’s question (see above) Lord Justice Kay said at paragraph 167: “It is likely to mislead others who may work on the same case and who will be denied the opportunity of considering the material in the way that Dr Williams explained that he found necessary, in reaching his own properly informed conclusions. It runs a significant risk of a miscarriage of justice. It is tantamount to saying “If I can discount it, nobody else need consider it”. As an approach it only has to be voiced for the inherent danger to be obvious”.

Dr Williams’s explanation that he did not disclose or refer to the microbiological results because the reports on such results were produced ‘by other experts’ is entirely without merit. As Dr Armour accepted, the pathologist, who is in a privileged position gathers in the evidence from for example biochemists and microbiologists, and considers all the test results and all the circumstances which may have a bearing upon the cause of death. No other expert supported Dr Williams’s contention that a report or result could be withheld on the grounds that it came from ‘another expert’ and we reject this as a valid explanation for not referring to them in the PM Report. Indeed it was generally accepted by the witnesses who considered the question that the existence of results or reports from other experts was a reason for disclosing them not for withholding them. We accept Dr Clark’s view that the conclusion of a forensic pathologist will often be based upon investigations carried out by others and that it is important to identify the source material of such conclusions, even just the fact that such material was looked at.

Dr Williams also claimed that he was under the misapprehension that the microbiological results were “known to all and sundry”. By this he meant that they were known to among others the defence experts. He told us that he thought that his view that the samples had been contaminated was shared by them, and that this was the reason why the results had not been mentioned by any of the experts in their own reports. Of course, this is not an excuse for failing to refer to them in his PM Report. Moreover, if he really did think this, it is incredible that, the alternative explanation namely that the other experts did not know of these results and for this reason had not mentioned them, did not occur to him.

Having applied an inappropriate test, it is not surprising that Dr Williams when he prepared his PM Report should have failed to make the required disclosure. We are sure that, on the facts of Harry Clark’s case, if the correct test had been applied the PM Report should have included, for the reasons set out above, at least some reference to the microbiological results.

Furthermore, we should point out that the microbiological results were (even if contaminated by Staph. aureus) relevant to Dr Williams’ findings. The absence of other bacteria which would have been potential pathogens was evidence supporting his conclusion that there was ‘no evidence of acute infections or inflammation’, and that there was ‘no evidence that the child died of natural disease’. Dr Williams eventually accepted this. It will be remembered that an expert is required, in addition to disclosing facts which detract from his findings also to “state the facts and assumption on which his opinion is based” – see R v Harris. Dr Williams acknowledged in his evidence that (for this reason at least) the microbiological results were in any event relevant. Of course, if the growth of Staph. aureus was not due to contamination then the results should plainly have been disclosed on the grounds that they undermined Dr Williams’ conclusion that there was no evidence of acute infection or of natural disease.

In fairness to Dr Williams, it should also be recorded that he did accept that he was open to valid criticism for not including a reference to the microbiological results in his PM Report. He said: “I should have put microbiology in some form or another, using perhaps an alternative form of words to what I used, to make it plainer to the reader of my report that there were microbiology samples in existence which I did not think were relevant. I accept that”. He did not, however, accept that he fell short of the standards required of a Crown Forensic Pathologist.

Subsequent Disclosure

We are satisfied that between October 1998 and November 2001 Dr Williams did not disclose his microbiological results or the reports referring to them to the prosecution or the defence or their experts. In his evidence to us he said he could not remember having done so. It was suggested on his behalf that having dismissed these results as irrelevant to the cause of death in his own mind, he may have understandably forgotten about them, particularly as the focus of interest at the meetings he attended with the other experts, and with the police was on the physical injuries to Harry, the evidence relating to them and the likely cause of them. We are satisfied that if these microbiological results and/or Dr Wills’ letter of the 3rd March 1998 had been disclosed, the defence experts would have considered them, reported on them and commissioned further expert evidence in respect of them. Dr Williams accepted that it would be reasonable to infer that if Professor David (who had originally been instructed by the guardian ad litem for Harry’s younger brother) or Professor Berry had been told of the microbiological results in 1998/1999 their reaction would have been similar to their reactions when they eventually learned of them. Professor Berry did not consider that Staph. aureus was implicated in Harry’s death and did not share Professor Morris’s views. Nevertheless, he knew of these views. It is reasonable to infer that if at any time before the end of the trial the microbiological results had been disclosed to the defence, then active consideration would have been given to them in order to see whether they could be the basis of a defence that Harry’s death was due to natural causes. Professor Morris might well have been asked to advise and could well have been called as a defence witness at the trial. The fact that none of this happened strongly suggest that at no time were the results made known to the defence or to the defence experts. We should add that if (as should have happened) Dr Wills letter of the 3rd March 1998 had been shown by Dr Williams to the police, it would have been disclosed by the prosecution to the defence. In this respect we accept the evidence of Mr Hughes. This would of course have led to the disclosure of all the microbiological results and reports.

We heard evidence about a number of meetings attended by Dr Williams with other medical experts. We are satisfied that Dr Williams was not asked about microbiology and did not volunteer information about the actual results. Of course, these meetings provided opportunities for Dr Williams to make good his failure to refer to these results in his PM Report. But this is not the real point. The disclosure obligation upon Dr Williams was a continuing one (as was emphasised by Stuart-Smith LJ in Maguire case). Having not disclosed these results in his PM Report, Dr Williams should subsequently have taken the initiative to disclose them either to the police (or the CPS) or to prosecuting counsel or to the defence or prosecution experts, and ultimately to the court. He was under a continuing duty to do so. Presumably he had either forgotten about them or continued to think that they were and would be regarded by others as irrelevant to the cause of death and therefore, he was not obliged to disclose them. Although he could not say whether or not he mentioned the results at his meeting with other experts, he did accept that if he did not mention them he would have been failing in his duty.

Conclusion And Direction

We have concluded that Dr Williams fell short of the standards required of a Home Office accredited forensic pathologist in failing to refer in his PM Report to the microbiological tests which he had commissioned on Harry’s CSF. He also fell short of these standards in failing subsequently to disclose the reported results to the prosecution, the defence, other experts and the court.

Having so concluded we then considered what direction (if any) we should make. In order to explain the decision we have reached, it is necessary to refer to the following Rules.

“Rule 2.19 Following the hearing of any complaint the tribunal may direct: (a) that the ATC (the Accreditation and Training Committee) either terminates the pathologist’s accreditation or suspends it for a specified period. (b) that the ATC registers a caution against the relevant pathologist. (c) that the QASSC issues guidance to the relevant pathologist. (d) that no further action be taken.

Rule 4.2 If it has been so decided, the ATC will revoke the pathologist’s accreditation, either permanently or for a specified period as determined by the tribunal ...” Both counsel agreed that the tribunal is required to assess the seriousness of the falling short from proper standards. It was submitted to us on Dr Williams’s behalf that (if there were a falling short at all) this was a one-off lapse of the type referred to in Silver v General Medical Council [2003] UKPV 33 namely ‘an isolated incident’ to be judged against the background of a long and unblemished career (as evidenced by the bundle of testimonials placed before us). We are unable to accept this submission. In view of the conversations with Dr Wills and Professor Green, the abnormal nature of some of the microbiological results, the further analysis arranged by Dr Wills and Dr Wills letter of the 3rd March 1998, the decision in this difficult case not to refer to the microbiological results must have been deliberate and not the result of an oversight. Indeed Dr Williams does not suggest otherwise. He must have known or could easily have discovered that other forensic pathologists would have referred to such results. Subsequently when several other experts were retained for the defence and the prosecution and when he attended meetings with some of these experts he should have reviewed his PM Report, realised that he had omitted to refer to some evidence which other experts would wish to consider and disclosed them. Finally, at the trial he should – even at the eleventh hour – have disclosed these results rather than (see above) giving an incomplete answer to a question which if answered fully would have ensured that disclosure was made. It was suggested on his behalf that he may have simply forgotten about these results. He himself said about his own evidence at the trial that he gave an incomplete answer because of the stress of giving evidence, but had not forgotten the results. These are not satisfactory explanations. It remained his opinion at the trial that the abnormal results were due to contamination, were not significant and, therefore, did not need to be disclosed. For the reasons given above this was a wholly erroneous approach. Plainly he should have reviewed all his findings and the evidence on which they were based before attending meetings with other experts and (even more so) before giving evidence at the trial.

His failure to refer to these results was a continuing one. The initial failure could and should have been put right. This is not a case of an ‘isolated lapse’.

Bad faith is not alleged against Dr Williams, and we are satisfied that he did not set out to conceal results which he knew might assist the defence. His general references to microbiology during the committal proceedings and in his evidence in chief at the trial demonstrate this. We are satisfied that the reason why he did not refer to these results was because he wrongly but genuinely thought that he was justified by his own belief that the abnormal results were irrelevant (because they arose from contamination) and that this entitled him to disregard them in reaching his findings, and to make no reference to them when writing his PM Report or subsequently. As an experienced forensic pathologist practising in 1998 (5 years after the Judith Ward case and with actual knowledge of the PABFOP guidance), he should have realised that his PM Report should have referred to the microbiological results or at least that he had commissioned microbiological tests. We are satisfied that other forensic pathologists would have done so (see the Appendix to the Judgment). Dr Williams would, we infer, have been so advised if he had consulted PABFOP or if he had discussed the question of disclosure with another forensic pathologist. There is no evidence that he did so. He accepted that Dr Trevor Rothwell (of PABFOP) was available to give advice. “If we had a problem we could ring him up and talk to him and he would come back with advice“. Indeed Dr Williams accepted that he was “somewhat ill prepared in terms of understanding (his) own duties as an expert”

We are also concerned that in his evidence to us he appeared still not fully even now to appreciate that his own judgment as to relevance is not an appropriate test for disclosure by an expert. Nor does he seem to have appreciated the reasons why an expert has personal responsibility to make full disclosure. At times he gave the impression that it was his case that these matters were no more than ‘legal niceties’ or were merely a way of protecting an expert from adverse criticism. At times his approach was somewhat dismissive for example when he said “And as I have explained to you, a histopathologist reporting routine histopathology on a daily basis, that is the style I adopt, because I have not got enough hours in the day to write two and a half pages that I have done this, that and the other test, if they want to come back and ask me I can show them. And it may not be acceptable for the criminal court, but I do not think at that time I was as clear on the disclosure rules as I should have been”.

In re-examination, the following exchange took place. “Q. (Mr Turner) You said that you should have included details of the microbiological results in your report. You say now that you should have done.
A: Dr Williams Yes
Q: Why should you have done?
A: ‘Well it is easy with the retrospectoscope to say ‘well, yes, it would have been better’ and we would not have been here.
Q : Why would it have been better? What difference would it have made?
A: Well, it may have ... I do not know if it would have led to the microbiology being aired at the first trial, but it may have stopped me being in all these disciplinary tribunals”.

We have concluded that Dr Williams’s failure to make proper disclosure of the microbiological results was serious. This was not a border-line case. There was a real risk that if he did not refer to them, they would not become known to the prosecution or the defence or to the court. Of course, they could have become known in other ways – for example if the other experts had asked specifically about microbiology or if the police had searched the hospital’s computer records or Dr Williams’s own pathology file or if the significance of Dr Williams’s references at the committal proceedings and in his evidence in chief at the trial to microbiology had been appreciated. But this is no excuse for Dr Williams’s failure to disclose them. As Professor Berry said, acquiring knowledge of matters which need to be considered should not be a guessing game or be achieved only if the right clues are followed and the right enquiries made.

We have taken into account Mr Turner’s submission that a doctor should not be blamed (or exonerated) solely on outcome. Nevertheless the potentially serious consequences of not disclosing even the existence at the microbiological results if Dr Williams’s opinion as to relevance was not shared by other experts was or should have been clear to him. He must have known even when his PM Report was written that a prosecution for murder was a real possibility and he ought to have realised that unless scrupulous care was taken to disclose these results the trial might proceed without any proper consideration being given to them.

Taking all these matters into account, we have concluded that it would not be sufficient for us to take no action or direct merely that guidance should be issued or that a caution be registered.

Suspension for a specified period would not provide sufficient protection for those who rely upon accreditation and would not be a sufficient response to such a serious departure from proper standards. We, therefore, direct that Dr Williams’ accreditation on the Home Office Register of Forensic Pathologists should be terminated. It is, however, not our intention that by reason only of our findings he should necessarily be permanently precluded from making a future application for accreditation. If he were to make such an application then it should be considered by the appropriate authority on its merits giving such weight as is considered appropriate to the findings of this tribunal and to Dr Williams’s response to them. Three other issues need to be mentioned.

Other proceedings

We were told by Mr Turner of the decision reached by the Fitness to Practice Panel of the General Medical Council and that Dr Williams is appealing against it. The reasoned judgment of the Panel has not been placed before us although some of the transcripts of the evidence have been. We were also invited by Mr Turner to read and depart from the judgment of the Court of Appeal which set aside Mrs Sally Clark’s convictions. We note that so far as Dr Williams was concerned, the views expressed by the Court of Appeal were provisional. We are conscious that we have had the advantage of hearing evidence (and in particular evidence from Dr Williams and his witnesses) and submissions which were not heard by the Court of Appeal. We have therefore thought it right to reach our conclusions solely upon the evidence and submissions which we have heard. We have not allowed ourselves to be influenced by the decision of the General Medical Council or the provisional views about Dr Williams expressed by the Court of Appeal – although we have been assisted by the analysis of the nature of an expert’s duties contained in the judgment of the Court of Appeal.

Standard of Proof

Mr Turner submitted that the standard of proof we should apply is the standard applied by the GMC namely that facts should be found proved only if the tribunal is satisfied so that it is sure of those facts. As we are satisfied to this standard in respect of the findings referred to above, it has not been necessary for us to decide what our findings would be if we had applied a different standard.

The responsibilities of others

During the course of the hearing Mr Turner has levelled criticisms at others and suggested that if Dr Williams was at fault others were also. No other person was represented before us or had a full opportunity to defend themselves. We are satisfied that if any others were at fault, this does not provide any mitigation for Dr Williams. Accordingly, we have thought it right not to express any criticisms of any of the other parties involved.

Top of Page